‘특신상태’의 의미에 관한 비교법적 고찰 - 제정형사소송법 규정을 중심으로 -

Everybody knows the rule against hearsay and its exceptions. Since hearsay statements are deemed to be unreliable and there is no chance of cross-examining the declarants for enhancing the statements’ reliability, we do not normally accept them as evidence in a criminal trial. However, we need also much more information for correctly judging the culpability of the defendant in court during a relatively short period of time and excluding all the less reliable evidence from the table of jurors’ consideration is not so desirable. It is the reason why we are frequently admitting some hearsay or multi-hearsay statements as substantive evidence over hearsay objection from the other party, only if they meet some important foundational requirements regulated by the laws and cases. This article is talking about one of those requirements, which is that the statement must show circumstantial guaranties of trustworthiness regarding its content and the situation where it is made for the first place. The Korean criminal procedure law having six hearsay exception provisions from the initiative legislation in 1954 states that, in three different locations, hearsay statement must bear particularized guaranties of trustworthiness in terms of the situation where it has been declared. Since the Korean law at that time represents the principles of direct examination by the judge and exclusion of hearsay evidence, the meaning of trustworthiness requirement should be further analyzed because, sometimes, that is more related to the Civil law fair trial ideal than the rule against hearsay.