미국의 전문법칙과 대면권에 비추어본 참고인진술조서의 증거능력

The most important reason to establish hearsay rule is the lack of crucible of cross-examination. Crawford rule requires guarantee of confrontation, in addition to existence of hearsay exceptions to hearsay rule, for a hearsay evidence to be admitted. This article has looked into studies whether the defendants' right to cross-examination is adequately guaranteed under the perspective of hearsay rule and confrontation, when admitting witness transcript into evidence. Crawford rule prohibits the use of hearsay evidence if the defendant has never exercised the cross-examination, even though the evidence bears indicia of reliability. The following Davis court ruled that “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”Our witness transcripts in Korea tend to be testimonial in light of Crawford and Davis Rule, because they are usually prepared and made to prove past events. Therefore, the guarantee of confrontation is necessary for the witness transcripts to be admitted. Confrontation has to be satisfied before the use of witness transcripts pursuant to Korean Criminal Procedure Act § 312④. Witness transcripts under Korean Criminal Procedure Act § 312④, as requiring confrontation prior to admission, corresponds to 'A Declarant-Witness’s Prior Statement'. The use of witness transcript under the above § 312④ seems to be reasonable and advantageous, without any dangers of hearsay. Whereas the use of witness transcript under Korean Criminal Procedure Act § 312 requiring merely the showing of 'declarant's unavailability' and 'the special guarantee of trustworthiness(totally different from the meaning of that in FRE)', may violate defendant's right to confrontation under certain conditions, so review in detail is needed. Act on special cases concerning sexual assault offense § 26 provides that the victim's statement can be admitted with the authentication by the interrogation-accompanied reliable person on the condition that the declaration by the victim and interrogation situation shall be filmed and preserved by video-recording devices, when the victim is under the age of 16 or insane. In this case, because the presence of the victim and the inevitable necessity to use the evidence owing to unavailability is not required, the defendant's right to confront witness is violated. The child sexual abuse crime is not treated as the exemption of confrontation, although some states provide an exception to hearsay rule mainly on such crimes in U.S.