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Strict form of proof and the admissibility of the new proving means

  • DONG-A LAW REVIEW
  • 2015, (66), pp.417-448
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

CHO GI YEONG 1

1전북대학교

Accredited

ABSTRACT

Strict form of proof (Strengbeweis) required by Korean criminal procedure law do not only aim to search for the truth. These rules of evidence, including rules of admissibility and the legitimacy of trial procedure, bring constitutional principles such as the principles of rule of law, and the principles of democracy into evidence act. In this sense, strict form of proof is the fundamental rules of evidence court must be followed to ensure full compliance with law legislated to guarantee the procedural rights of the defendant. The central issues of the criminal litigation are questions of justification which has two aspects: the epistemic and the ethical. The court has to consider, on the evidence, what to believe about the facts in dispute and also be concerned about the morality of the process by which the court reach a verdict. I firmly believe that two aspects of justification are the main causes of exclusion of particular categories of confessions, exclusion pursuant to the prohibition against hearsay, and exclusionary rules. The videotape recorded evidence of interrogation of a suspect should be excluded on the basis of above mentioned reasons in Korean criminal procedure law. Namely, it cannot meet the ethical demand of presentation of evidence before the deciding judges (Unmittelbarkeitsprinzip) and it is indeed very hard to fulfill the truth-seeking function as a evidence sufficiently due to selective or arbitrary videotaping of targeted statements of a suspect. However, unlike videotape recorded evidence, testimony of police officers who previously interrogated a suspect during investigation stage, meeting the epistemic and ethical requirements, do not affect its admissibility. But trial courts should carefully scrutinize the credibility of police officer’s testimony in court and principally give little weight to their testimony in consideration of his or her preconceived opinion toward the incredibility of the defendant.

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