국제형사재판에서 이전기록증언의 증거 사용과 그 비교법적 시사점

Korean criminal procedure law and judicial precedents have been evolving toward restricting the admissibility of out-of-court statements recorded prior to trial. While the strict application of the hearsay rule may be justified in order to safeguard the defendant’s right to cross-examination, such a trend, if continued, may lead to an excessive limitation on the use of testimonial evidence, resulting in delays in proceedings and impairing the discovery of substantive truth. The International Criminal Court (ICC), by contrast, initially allowed the admission of prior recorded testimony only where an opportunity for cross-examination had been secured. However, through the comprehensive revision of Rule 68 of the Rules of Procedure and Evidence in 2013, the ICC expanded the admissibility of prior recorded testimony even in cases where the declarant does not appear in court. Subsequent case law has interpreted these provisions in a relatively flexible manner, seeking to balance the protection of the defendant’s rights with the need for efficiency in proceedings. In comparison, Korean criminal procedure law maintains a rigid evidentiary framework centered on the hearsay rule, permitting the use of prior recorded statements only in limited circumstances where the declarant is unavailable, and recent case law has further narrowed these exceptions. As a result, even statements by vulnerable witnesses or highly reliable initial statements are often excluded from evidence. and the overall coherence of the admissibility framework remains questionable. Moreover, audio-visual recordings produced by investigative authorities are often excluded from evidence, revealing a lack of coherence in the admissibility framework. In light of this comparative analysis, this article argues that Korean criminal procedure law should be reformed in the following respects: first, prior recorded statements should be admissible even in the absence of the declarant where the witness is unable to testify due to psychological factors such as fear, where testimony is refused or altered due to improper influence, or where a meaningful opportunity for cross-examination was provided before trial; second, audio-visual recordings of statements should be treated on par with written documents in determining admissibility; and third, where the declarant appears in court, the admissibility of prior recorded statements should be uniformly conditioned on the effective guarantee of the defendant’s right to cross-examination.