형사소송법상 집중심리제 도입에 따른 변호인의 방어준비에 관한 연구

Criminal Procedure Act amended on April 30, 2007 contains some provisions about concentrated hearing advocacy. Lay-participation in court proceeding, as well as ordinary trial,demands concentrated trial logically. But, if not through preparation of defense, concentrated trial results in a rough-and-ready justice. An ultimate goal of the concentrated hearing advocacy is ensure a fair trial. A fair trial could be realized through substantial guarantees of defense rights. An importance of witness-interrogation procedure is getting bigger by adopting of the concentrated hearing advocacy. Thus preparations of the cross-examination by the defense counsel to the prospective prosecution witnesses are very important. Pre-trial discovery is very important for the guarantee of the right of defense, ascertainment of truth, speedy trial, and so on. The most formidable threat to rationality and fairness in the adversarial system comes not from restrictions on the exclusionary rule, or the erosion of due process constraints on prosecutorial excesses, but from the prosecutor’s institutional role in controlling access to information relevant to a defendant’s guilt, and the prosecutor’s ability to withhold evidence that might prove a defendant’s innocence. It is this power that most dramatically distorts the ability of the adversary system to function fairly and properly. In this sense, the prosecutor should disclose his or her evidences broadly. Opponents of expanded discovery argued that it would facilitate perjured testimony, would lead to bribery and the intimidation of witnesses. That there exists a close nexus between limited discovery in criminal cases and enhanced opportunities for prosecutorial suppression of evidence is self-evident. The power to control evidence is the power to conceal it. This can result in the conviction of innocent persons. Prosecutors play a distinctive role in the criminal justice process. Their responsibility is not to an individual client but to the cause of justice. Accordingly, prosecutors are guided by higher ethical considerations than those governing attorneys generally. The prosecutor exercises a “quasi-judicial” function. Because the prosecutor exercises such awesome power, society requires “assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice”. The right of defendants to interview witness without prosecutorial interference is grounded in the constitutional guarantee of due process and right to a fair trial. In this sense, the prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information which such person has a right to give. A pre-trial defense contact with witnesses should be free from prosecutor’s obstruction. As Justice Brennan said, the interest of nations in a criminal prosecution is not that it shall win a case, but that justice shall be done.