수집절차에 위법이 있는 압수물의 증거능력에 관한 비교법적 고찰

A Comparative Study on Admissibility of illegally seized Evidence - focusing on the recent cases decided in the U.S. Supreme Court -

In the United States, the exclusionary rule precludes the use of evidence obtained in violation of the Fourth Amendment. The exclusionary rule has evoked considerable controversy from the start and the scope of the rule has been seriously limited through the eras of Chief Justices Burger, Rehnquist and Roberts. Some commentators argue that especial1y the Rehnquist court’s recent cases such as Herring, Hudson put serious restriction on the exclusionary rule and some predict that the rule is on the verge of abolition. In Korea, the revised Criminal Procedure Act which came into effect from January first 2008 explicitly introduced the exclusionary rule and around that time, the Korea’s Supreme Court overruled the precedent by deciding that all forms of illegally seized evidence are, in principle, inadmissible. However, the court may have discretion to allow the evidence that was obtained without breach of substantive element of due process, considering all relevant circumstances. Judging from the trend of the recent cases, the Korea’ Supreme Court tends to broaden the horizon of the exclusionary rule. In this article, firstly I explored how the exclusionary rule worked in the highly civilized countries such as Germany, England, Japan and then I precisely probed into the origin and the development of the exclusionary rule in the United States. My special point of interest is on the recent cases on which the Rehnquist court adjudicated, which are interpreted to remarkably narrowed the scope of the exclusionary rule. In Herring, the U.S. Supreme Court ruled that to trigger the exclusionary rule, police must be sufficient1y deliberate that the exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. Lastly, I reviewed necessary factors which should be taken into consideration when the court decides whether the exclusionary rule precludes the use of evidence illegally seized. In light of the present dimension of the exclusionary rule in global stage, I think the Korean courts should be more prudent in expanding the scope of the exclusionary rule.