범죄자 프로파일링의 증거법상 의미- 미국과 국내 형사판례를 중심으로 -

Offender profiling is a scientific investigative technique that is useful in cases where there is a lack of evidence or where it is difficult to estimate the motive for a crime. Profiling reports prepared by investigative agencies are increasingly used as evidence to prove criminal facts in criminal trials where direct evidence is lacking, but Korean courts do not have specific requirements for the admissibility and probative value of profiling evidence. Therefore, this study focuses on reviewing the admissibility of profiling evidence in the United States and clarifying the nature of profiling evidence in Korea by focusing on the Korean Criminal Procedure Act and case law. U.S. courts apply the Federal Rules of Evidence (FRE) and scientific standards of evidence, such as the Frye test and Daubert precedent, to determine the admissibility of profiling evidence. The United States has an established process for applying the relevance, reliability, and expertise requirements of Federal Rule of Evidence (FRE) 702 and the relevance to the facts of the offense. Based on this, the courts have tended to recognize the profiler's reliability as an expert in profiling evidence such as motivational analysis, M.O., profile traits, and linkage analysis. In contrast, our courts have no requirements for profiling evidence to be presented at trial or for profiler witnesses to be qualified. Therefore, profiling evidence in Korean criminal trials has been viewed as a matter of probative value of evidence based on the importance and relevance of the evidence, just like other evidence, without setting separate standards for admissibility of evidence. An analysis of the five cases in which profiling evidence was cited shows that profiling results tend to be used as evidence to rebut the defendant's case or as a basis for sentencing decisions when the evidence has a high circumstantial relevance to the facts of the crime, without any scientific or expert validation. Compared to the U.S. cases, the profiling reports cited in the Korean cases are characterized by, first, a combination of evidence using various methods, but the scientific validity and expertise of the individual evidence is not considered, and second, even similar profiling results are used for different purposes depending on the judge's perception of the importance of the evidence. This tendency of domestic courts to judge profiling evidence suggests that they overlook the high reliability of profiling evidence as social science evidence. Therefore, it is necessary to establish standards for reviewing the expertise of profilers, including their qualifications and experience, according to the multifaceted nature of profiling evidence.