공범에 대한 조사자증언의 허용여부 및 공범조서와의 관계

According to Criminal Procedure Act Article 312(1), 312(2), a protocol in which the public prosecutor recorded a statement of a defendant when the defendant was at the stage of suspect is admissible as evidence, only if the defendant admits the authenticity in the formation of the protocol or it is proved the statement recorded in the protocol was made in a particularly reliable state when the defendant denies the authenticity in the formation of the protocol. Also, according to Criminal Procedure Act Article 312(6), if a statement was made by a person who interrogated the defendant as a suspect, such statement is admissible as evidence only if it is proved the statement was made in a particularly reliable state. Especially, according to Article 312(3) a protocol prepared by any investigative institution other than a public prosecutor for examination of a suspect is admissible as evidence, only if the defendant, the suspect at the time, or his defense counsel admits its contents in a preparatory hearing or a trial. By the way, the criminal procedure commonly provides for the joinder of defendants, whereby two or more persons may be prosecuted in a single trial together. Assume a case in which defendant A and defendant B have been lawfully joined for trial, but at that trial the prosecutor intends to offer against A a confession by him stating, in effect, that he and B committed the crime. The right of an accused in a criminal case to confront the accomplice against him would be violated if defendant A, by his confession, was an accomplice against B who could not be cross-examined. So to speak, where the powerfully incriminating judicial statements of a co-accused, who stands accused side-by-side with the defendant, are being spread deliberately before the judge in a joint trial. In connection with the hearsay rule in Korea, Article 312(1), 312(2) of the revised Criminal Procedure(CCA) provides for the admissibility of the protocol containing interrogation of a suspect by a public prosecutor. But It is uncertain Article 312(1), 312(2) of the revised Criminal Procedure(CCA) provides for the admissibility of the co-defendant’s out of court statement. Because the defendants may be charged together or separately, even if they are alleged to have participated in the same act or transaction. So in America, whether the co-defendant admits or denies having made the statement and whether the opportunity for cross-examination sufficiently deals with the incriminated co-defendant’s dilemma, these two have been questioned for long time. Indeed, the cross-examination of one defendant by another may sometimes involve such conflict and antagonism between them that a severance will thereby be necessary. In light of this, trial courts should more explicitly and vigorously inquire on a case-by-case basis whether there are unacceptable risks. But in my opinion, I think that the admissibility of the co-defendant’s out of court statement should be allowed as Article 316(1) of the revised Criminal Procedure(CCA), not Article 312(4) of the revised Criminal Procedure(CCA). Because it seems to me “interlocking” bears a positively inverse relationship to devastation. A co-accused confession will be relatively harmless if the incriminating story it tells is different from the statement which the accused himself is alleged to have told, but if it confirms with the statement in all essential respects, the accused’s alleged confession may be enormously damaging for the defendant. In present, a priority of the taking of evidence is accepted more for the protocol than for a statement made by a person who interrogated the defendant as a suspect in Korea. But a statement made by a person who interrogated the defendant as a suspect is accepted more than the protocol in America. So, I think the witness of the investigation should be admitted on the priority of the taking of evidence, if it is proved the statement was made in a particularly reliable state.