디지털증거와 영상녹화물에 대한 전문법칙 적용상의 문제점 = Issues of the application of heresay rule for digital evidence and video recording

다국어 초록 (Multilingual Abstract)

Under the background that heresay rule of criminal procedure act is the core part of ‘due process principle’ for the discovery of ‘negative’ truth in criminal case, this article covers latest two issues about the application of heresay rule for digital evidence on the current korean criminal procedure law. First issue is about admissibility of evidence for digital document written by private individual. Typically digital document written by private individual must be printed on paper after the process of acquisition and preservation, and it may be submitted to the court in the form of writing. In this regard, the problem is that what is necessary requirements for the exception of heresay rule, if the digitaldocument contains statement of others about charged fact and must be treated as the subject to application of heresay rule. According to the judicial precedent, authentication in court for genuineness of the establishment of document by the statement of writer is required by article 313 of the criminal procedure act. In contrast, someone argues that, genuineness of the establishment of document can be authenticated by the proof with objective methods. Second of issues is the controversy to appropriation of video recording that contains scenes of statement of the accused or witness in the process of investigation, that is recorded by investigator. A precedent says that, video recording by investigator that contains scenes of statement of the accused or witness in the process of investigation cannot be treated as the evidence covered by heresay rule. But in the academic society, there is the confrontation of two views. One is that video recording recorded by investigator can be used as a evidence with the requirements for exception of heresay rule. The other view argues like that, the norms of the exception of heresay rule basically cannot be applied to video recording. In conclusion, this article criticizes the view that the meaning of ‘statement for genuineness of the establishment’ by criminal procedure act may covers all related declarations about genuineness of the establishment, also the other view that in the scope of ‘written document of statement’ as target of the exception of heresay rule by criminal procedure act video recording may be included. These views may curtail the defence right of the accused unreasonably. So these standpoints should not be admitted in the discussion about heresay rule without special reasonable background.