미국법상 중요증인(Material Witness)제도와 우리나라에의 도입가능성에 대한 검토

다국어 초록 (Multilingual Abstract)

A material witness can be someone having crucial evidence on cases but he might withhold the information from the police or the judiciary. Supposedly, he is neither a suspect of certain cases nor a person of interest in certain cases for the investigative authorities. Rather, by definition he should be the person who is unlikely testify in court despite of all the information he has. Initially, material witness is a system in which the judiciary is able to guarantee important testimonies from witnesses who would testify for the defendant as well as against him. However, in reality material witness statute is often used or abused to elicit confession from someone who is likely to be a suspect when the investigative authority does not have enough evidence to link to a certain crime. After 9/11, the investigative authorities intensified their effort to make use of this material witness statutes and cases. They locked up many people indefinitely without bringing any charges against them and courts are eager to issue arrest warrants for the material witness because there is no measure of banning such practice although it is quite doubtful whether this system should be considered constitutional in view of the 4th Amendment of the US Constitution.
In Korea, there have been several attempts to introduce or adopt material witness in order to make investigation a lot easier. However such trials should be dissuaded given manly flaws and concern existing in material witness.

참고문헌 (Reference)

1 Human Rights Watch, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11"

2 Stacey M. Studnicki, "Witness Detention and Intimidation: The History and Future of Material Witness Law" 76 : 483-, 2002

3 Ricardo J. Bascuas, "The Unconstitutionality of “Hold until Cleared”: Reexamining Material Witness Detention in the Wake of the September 11th Dragnet" 58 : 677-, 2005

4 Joseph G. Cook, "The Detention of Material Witnesses and the Fourth Amendmeent" 76 : 586-, 2007

5 Catherine Cone, "Text and Pretext : the Future of Material Witness Detention after Ashcroft v. Al-Kidd" 62 : 333-, 2012

6 Roberto Iraola, Terrorism, "Grand Juries, and the Federal Material Witness Statute" 34 : 401-, 2003

7 Ronald L. Carlson, "Distorting Due Process for Noble Purposes: the Emasculation of America's Material Witness Laws" 42 : 941-, 2008

8 Bradley A. Parker, "Abuse of the Material Witness: Suspects Detained as Witnesses in Violation of the Fourth Amendment" 36 : 22-, 2009