조사자증언에 있어서 특신상태 요건의 구체화 - 2020년 형사소송법 개정을 계기로 -

This article tried to articulate the meaning of the “particularly reliable state” requirement of the admissibility of the interrogator’s testimony, which is expected to be more frequently utilized after the amended article 312 of the Criminal Procedure Act takes effect. Considering the theoretical foundation of hearsay exception, the legislative history of the Act, and comparative legal analysis, the ground for requiring the “particularly reliable state” can be explained from two dimensions. First, the interrogator’s testimony is imperfect to present the defendant’s statement to the courtroom because of the fragility of the interrogator’s memory and the confirmation bias. Second, the legislator of the Criminal Procedure Act intended to limit the possibility of obtaining a false confession, which often comes from the inherently oppressive character of interrogation and the zeal of the interrogator. In order to meet the “particularly reliable state” requirement, the defendant’s statement during the interrogation shall be correctly presented to the courtroom through the interrogator’s testimony. Some other evidence, like video recordings of interrogation, must support the interrogator’s testimony to ensure correctness. In addition, there shall be circumstances of ensuring the reliability and voluntariness of the defendant’s statement by eliminating the possibility of contaminating the statement by conciliation, oppression, leading, or suggesting answers expected by the investigative authority.