변호인의견서에 기록된 피고인 진술의 증거능력 - 대법원 2024. 5. 30. 선고 2020도16796 판결을 중심으로 -

In Supreme Court Decision 2020Do16796, the Court held that when a defense counsel’s opinion letter containing the suspect’s statements related to the alleged offense is submitted to the police, its admissibility as evidence requires satisfaction of the same conditions applicable to a record of interrogation prepared by an investigative authority under Article 312(3) of the Criminal Procedure Act or a written statement prepared by the suspect during investigation under Article 312(5)—namely, acknowledgment of the contents by the defendant. This ruling reflects the Court’s notably stringent approach toward the admissibility of hearsay evidence. However, this stance is inconsistent with earlier cases that regarded a defense counsel’s opinion letter provided to a client as a document containing the defendant’s statement prepared by a private person under Article 313, and denied its admissibility on the ground that the counsel’s exercise of the right to refuse testimony does not constitute an “impossibility of testimony” under Article 314. Moreover, the Court failed to articulate clear and consistent criteria for distinguishing between the application of Article 312 and Article 313. Furthermore, the Court neglected to examine the potential conflict between the defense counsel’s independent authority of representation and the defendant’s constitutionally guaranteed rights, and it denied the existence or effectiveness of evidentiary consent on the basis of the defendant’s denial of the offense, which contradicted the statements contained in the seizure record and the counsel’s opinion letter. From the standpoint of achieving a proper balance between the pursuit of substantive truth and the guarantee of due process, a defense counsel’s opinion letter should be classified as a document containing the defendant’s statement prepared by a private person within the meaning of Article 313. Accordingly, provided that the authorship, signature, or seal of the defense counsel who prepared the letter is verified, the document should be deemed admissible either when the defendant acknowledges its authenticity in court (Article 313(1), main clause), or when both the authenticity of the author and the circumstantial guarantees of trustworthiness are established (Article 313(1), proviso). In addition, the defendant may withdraw or revoke the defense counsel’s evidentiary consent under Article 318(1) prior to the completion of evidentiary examination, or may challenge a conviction based on such evidentiary admission by appealing on the ground that the right to effective assistance of counsel was violated.