통역된 진술의 증거능력과 통역확인권 도입론 - 통역된 진술은 누구의 진술인가? -

When a foreigner’s statement is interpreted, can the interpreted statement always be regarded as identical to the original statement? Given that the interpreter’s involvement necessarily intervenes between the original statement and its delivery, should the interpreted statement not be treated as an independent hearsay statement? Korean criminal procedure law and case law, however, do not recognize the interpreter as a separate declarant; interpretation errors are taken into account only when assessing the probative value or the indicia of reliability of the original statement. In contrast, in the United States, the admissibility of interpreted statements has been consistently contested, with the language conduit theory, the agent theory, and the testimonial hearsay evidence theory in conflict. The Korean approach of treating interpreted statements as identical to the originals reveals several problems. First, the defendant has no objective means to verify interpretation errors, which remain concealed and are often never raised. Second, in light of the hearsay rule and the nature of interpretation, interpreted statements carry an independent risk to reliability. Third, just as the Criminal Procedure Act distinguishes between a “written statement” and a “documentary statement” based on whether the original declarant has affirmed the content, an interpreted statement should also require such affirmation by the foreign declarant to be treated as equivalent to the original; yet a foreigner cannot fully perform such an act of affirmation. Fourth, evaluating interpretation errors only indirectly makes it difficult to adequately reflect the risks inherent in interpreted statements when determining admissibility. This article therefore proposes granting defendants a “right to verification of interpretation”, namely, the right to retrospectively examine the equivalence between the foreigner’s original statement and the interpreted version. A concrete measure would be to video-record interrogation and trial proceedings involving foreigners and to provide the recordings to the defendant. By revising judicial, prosecutorial, and police guidelines to this effect, the operation of the hearsay rule in Korean law can be aligned more closely with its justificatory rationale while at the same time strengthening the protection of defendants’ constitutional rights.