미국법상 성격증거배제법칙과 그 예외로서의 강간피해자보호법 도입 가능성에 대한 소고

A Study on the Introduction of Character Evidence Rules & Rape Shield Laws in Korea

The definition and concept of character evidence is almost non-existent in Korea. While it might be true that character evidence itself is hard to be defined considering what has happened in the U.S. when it comes to the discussion of character evidence, it can be grossly unfair for the both parties involved in criminal trials if such evidence is freely used unchecked by any rules. Bad character evidence might be relevant to prove a person is guilty if such a person charged with a crime had a history of committing similar crimes or bad acts. That is, there is danger that bad character evidence can be used as propensity evidence. However, if such notion and practice are freely accepted without any careful consideration on that there might be a fraction of possibility that an innocent would be found guilty because he has prior history of committing similar crime in the past, the right to fair trial would get lost. For that reason, so called character evidence rule should be introduced to get rid of any probability that the innocent will be wrongly convicted. And the exception to character evidence rules should be narrowly tailored not to let anyone use the loophole. In the same vain, the same logic should be applied when the accused being charged with sex crimes attempts to use the prior sexual history of the victims. That is why the necessity of rape shield law needs to be realized. Rape shield law should function to protect the victims from vigorous trial by the accused to use any evidence to impeach the credibility of the victim. Both character evidence rules and rape shield laws need to be introduced in Korea, and those rules need to function as a great tool to protect the right to fair trial for both parties.