공소제기 후 작성된 진술조서에 대한 증거능력 판단 기준으로서의 특신상태 -대법원 2019.11.28. 선고 2013도6825 판결-

The gist of the target judgment is that “After the Defendant was acquitted in the first trial, statements decree prepared by the prosecutor by summoning a person who can be interrogated as a witness in the appeal trial without any special circumstances, doesn't have the admissibility of evidence unless the Defendant agrees to the evidence.”. The target judgment lay out general theory of hearsay rule as a basis, but it is reasonable to specify that the circumstantial guarantees of trustworthiness stipulated in Article 312 (4) of the Criminal Procedure Act is not recognized. In determining the admissibility of evidence in the above statements decree, the criterion is not simply before or after the prosecution, but whether or not circumstantial guarantees of trustworthiness is recognized. And the circumstantial guarantees of trustworthiness should be judged by specific and individual circumstances. There is no concrete legal validity to expand and generalize the conclusion of the target judgment to the legal principle that "statements decree prepared by the investigative agency after the prosecution has no admissibility of evidence." It is reasonable to understand the meaning of target judgment as the circumstantial guarantees of trustworthiness should be carefully judged in consideration of specific circumstances such as motivation, details, situations of the investigation etc.