독수과실의 원리 보론(補論)

The“FruitofPoisonousTree”DoctrineRevisited

On November 15, 2007 the Korean Supreme Court made a landmark decision to exclude illegally obtained physical evidence. In 2007 the National Assembly revised the Criminal Procedure Code to stipulate Article 308-2 for the exclusion of illegally obtained evidence, which is effective as of January 1, 2008. Since then, the Supreme Court has made a series of decisions whether to exclude the derivative evidence by applying the “fruit of poisonous tree” doctrine. This Article critically reviews four Supreme Court decisions regarding the “fruit of poisonous tree” doctrine. The issue of the first case is whether to exclude the succeeding blood test obtained upon the defendant’s request besides the breath analyzer test after illegal “voluntary accompaniment.” The issue of the second case is whether to exclude the following urine test obtained upon a judicial warrant in addition to the urine test obtained by illegal arrest. The issue of the third is whether to include physical evidence obtained by the following search of defendant’s home and his confession in police station even if police officer obtained the defendant’s personal information by the violation of the Act for Real Name Financial Transaction and Confidentiality. The issue of the fourth case is whether to exclude physical evidence obtained in the defendant’s home besides his incriminatory statements obtained without giving the Miranda warnings.