배심제의 성공을 위한 제언 - 전문 진술의 증거능력

A Suggestion for the Successful Jury Trial - The Admissibility of Hearsay Statement -

&nbsp;&nbsp;The terms like “orality,” or “directness” have become the key-words for the Korean criminal trial. We have recently introduced a type of mixed court which is based on the idea of lay participation in a criminal process. After some ardent debate among law practitioners on which forms of trials will sufficiently guarantee the fairness of criminal procedure, the Korean Congress finally accepted the proposed amendment of the Korean Criminal Procedure Law and invited 5 to 9 jurors in the court as factfinders. Even if their decisions cannot compel the judges, who are supposed to cooperate with jurors, we are now looking forward to witnessing enormous change of our criminal court.<BR>&nbsp;&nbsp;What we really have to do for the successful introduction of our new system is to redesign the method of examining the witness. Since the Japanese occupation of our country in the last century, we are a lot accustomed to a trial by proces-verbal which is transcribed or made by law enforcement personnel. It is, however, time to consider the validity of that sort of fact-finding procedure. First of all, we cannot repeat the trial by documents in the presence of jurors. The jury should be given a right to confront witness and to decide the case according to his oral testimony. Nonetheless some provisions of newly amended law still admits various hearsay evidence, in the form of written or oral out-of-court statement, if it shows “particular guarantee of trustworthiness” at the time of recording it. Accordingly, some sorts of hearsay statements and written documents can be used against the defendant in our jury trial.<BR>&nbsp;&nbsp;This paper is to think about the meaning of the so-called trustworthiness requirement and the possible way of presenting the reliable evidence to prospective jurors. What I would really like to say in this paper is that, on the one hand, we have to apply a more scrutinous test for certain hearsay evidence, which is unreliable in nature, and that, on the other hand, we still need to open the door for the prior inconsistent statement by the in-court witness as substantive evidence. That is the basic idea approved by the legislative body who finally introduced the Federal Rules of Evidence in 1975 despite of the fear for the Nixon government&quot;s misconduct.<BR>&nbsp;&nbsp;I hope that the witness who changed his version in open-court will be cross-examined by our skilled lawyers, and that, in the near future, our court will be the place where reliable evidence is presented and the truth of the fact in litigation is revealed.