사인이 촬영(녹음)한 영상녹화물(녹음물)의 증거능력에 관한 판례의 동향과 문제점

This article discusses the issues with regard to the admissibility of the personally obtained videotapes or recording tapes as criminal evidences, and examines the validity of trends in the Korean Supreme Court’s decisions concerning “exclusionary rule,” the “hearsay rule,” and the “best evidence rule.”The “exclusionary rule” was stipulated in the Korean “Statute of Criminal Procedure” §308-2 in 2007, and the Korean Supreme Court has reasonably ruled that the exclusionary rule should be strictly applied with limited exceptions. The balancing test of objective weighing judicial justice and the goal of fact finding has been used for judging the suppression of illegally obtained evidences. The Court has also addressed that the evidences obtained in violation of the Korean “statute for the protection of telecommunication” could be admissible in some specific situations based on justification defense in the Korean Criminal Code §20. In the author’s view, necessity defense or self defense could be employed for deciding the admissibility of such evidences. When it comes to the “hearsay rule,” the Court has discerned the character of the content of personally taken video tapes or recording tapes, and has ruled differently on the requirements for the admission of these kinds of evidences depending on whether or not the stater in the content is the defendant on trial. However, the attitude of the Court going directly to the provisory clause of the Korean “Statute of Criminal Procedure” §313 ① should be modified. Furthermore, the Court’s routine reliance on the court’s verification report on the authentication of the deposition of video tapes or recording tapes is against the “best evidence rule.”