With the development of technologies, we have witnessed that plans to take advantages of advanced technologies in criminal procedures have been designed. Since the 1990s, western countries have actively grafted them onto criminal procedures. In specific, they use in criminal procedures the tele-videoconferencing system which allows two or more locations to communicate in real time by interactive video and audio transmission. Tele-videoconferencing system has significantly contributed to advancement in criminal justice system as it helps find the substantive truth by facilitating evidence collection, protect the testifiers or witnesses, and promote further efficiency of the criminal justice proceedings by reducing the time and costs required for conducting the procedures. Using tele-videoconferencing in criminal proceeding, however, is against the principle of immediacy of evidence of the Criminal Procedure Act. It has risks of infringing the right of defense entitled to the accused and raising doubts about the effectiveness of itself.
Considering the issues over teleconferencing, it is needed to deal with legal issues on how the concept of "presence of the accused" should be interpreted under criminal law and how the relationship between the principle of immediacy of evidence and the accused’s right of defense should be clarified before finding ways to take benefits of tele-videoconferencing in criminal proceedings. In general, the term, “presence of the accused” is defined as “physical presence” rather than "within sight or call” under the current Criminal Procedure Act. Also utilization of tele-videoconferencing system in criminal procedures is not against the principle of immediacy of evidence and the defense right of the accused because all parties involved at different sites face each other and necessary procedures are preceded in real time with help of telecommunication devices, rather than transmit pre-recorded video. Tele-videoconferencing is fully utilized for criminal justice system only after benefits of using tele-videoconferencing system is weight against those of ensuring the principle of immediacy of evidence or the accused' defense right and proved that the former has more benefits than the latter, in addition, the fundamental values of the latter would not be undermined by the former.
In the United States, the federal law allows children to testify outside the courtroom using video conferencing technologies for the purpose of protecting children victims and witnesses. Supporters of video conferencing in criminal proceedings advocate that not only children but also adult sexual assault victims, the elderly, and the disabled shall be permitted to testify remotely in courtrooms. In principle, the defendant is required to appear at all stages of criminal proceedings, but the court permits those who commit misdemeanor offenses to be present at the arraignment, the plea, trial, and sentencing via video teleconferencing under conditions of their written consent. In Germany, if an examination of a person as a witness in the presence of the defendant poses an imminent risk of serious detriment to the interest of that person, and if there are grounds to feat that the exclusion of the defendant from the trial or limitation of the public is not sufficient to protect the interest of that person, the court may order witnesses or victims to be examined at a different location out of court. A simultaneous audio-visual transmission of the testimony shall be provided in the courtroom. In France, tele-videoconferencing system has used during the preliminary hearings, examination of witnesses or experts, while the defendant must physically appear in trial court. However, recently those who are arrested and detained for misdemeanor offenses are permitted to appear in court via video conference instead of in a formal courtroom under the agreement of both parties and the Attorney General of the District Court. As for the Japan, the examination of witnesses using the tele-videoconferencing technologies was introduced to the Criminal Procedure Act as a part of the victim protection legislations. With the legislation, examination of children victims or victims of sexual offences may be conducted via audio-visual technologies if it is to be feared that an examination of them in the defendant’s presence may cause serious emotional disturbance and prevent them from making testimony.
Video conferencing is also utilized to deal with the criminal case across the world. The Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda stipulate that the court may order not to disclose personal information of victims or a witnesses to the public as well as the media, and permit them to testify via image- or voice- altering devices or closed-circuit television (CCTV). Also, the Rules of Procedure and Evidence of the International Criminal Court provide that the court may conduct examination of witnesses and victims by audio-visual transmission technologies and not disclose their personal information. Usually their images and voices are altered concerning protection of their safety. In the European Union, the Council selected the use of videoconferencing in cross-border criminal cases among Member States as one of priorities. As most of the Member States use tele-videoconferencing in the judicial field, the European Union makes public detailed guidelines on video conferencing in criminal proceedings covering application on video conferencing, installation and the use of video conferencing equipment, expenses of operation, etc.
In Korea, the National Police Agency introduced the remote investigation system via video conferencing, subject to domestic residents, and drew up its own guidelines, but the remote investigation system was not fully used due to technical issues and security concerns. As the entrustment of investigation system has taken a root, the remote video conferencing investigation system of the police is virtually not used any more. As the Public Offices Election Law was amended on February 29, investigation of digital video conferencing system subject to election offenders staying out of the country was introduced. However, as of October, 2012, guidelines on the video conferencing investigation as well as the fundamental system had not yet established. On the other hand, examination of witness via video conferencing may be ordered at trials if a there is a fear that facing the defendant could disturb the witness and make him/her felt uneasy. The examination system has received favorable uations; it could help lessen mental stress and burden that witnesses or victims may have caused by confronting those involved in cases face to face; contribute to find the substantial truth by reducing the possibility of making false testimony; and acquire statements of witnesses who avoid the court appearance for fear of revenge. However, video conferencing in criminal proceedings reveals drawbacks. It is harder to confirm suspicion in the process of examination of evidence via audio visual transmission than normal examination which takes place in courtroom with all involved parties present. Video conferencing also disturb parties and people’s concentration on trial because of technical problems, for example, low resolution or poor clarity of monitor. Absence of technical support in the video conferencing room causes inconvenience in confirming authentication of or presenting evidence at times.
To fully use a video conferencing in the criminal procedure, related laws and institutions should be modified and improvement measures should be implemented. Some experts state that it is needed to enact special laws and regulations that clearly provide exceptional provisions and requisites for using tele-videoconferencing system during investigation by law enforcement authorities as well as at pre-trial proceedings. However it is reasonable to amend Criminal Procedure Act in order to effectively reflect the purpose of introduction of tele-videoconferencing system in the criminal procedure and to build the uniform legal system.
These are suggestions to amend the Criminal Procedure Act to take advantages of video conferencing: First, applicable provisions should be inserted to investigate suspect at long distance or to gain statements from witness who are reluctant to do for fear of retaliation via video conferencing under their consent. In particular, it is required to establish provisions of digital video conferencing for questioning testifiers or suspects who are charged with the overseas election illegalities under the Public Offices Election Law. Second, the court may order to investigate suspects without physical detention via tele-videoconferencing with the consent of them after hearing prosecutor’s and counsel's opinion in special circumstances where delay in questioning them is expected. The current Criminal Procedure Act provides that the examination of witness shall be conducted via videoconferencing devices when witness may be deprived of mental tranquility significantly by confronting with the defendant, witnesses should be able to testify via tele-videoconferencing system. In addition to that, in cases where witnesses are not able to appear in court due to their health problems, they should be allowed to give testimony via video conferencing. Furthermore, the act should provide more legal grounds to use video conferencing in various ways.
Related institutions should be improved to use tele-videoconferencing in criminal proceedings. Recommendations are as follows. First, internet-based communication network should be built to exchange information in real time among relevant authorities. Second, it is not too much to say that success of video conferencing highly depends on technologies; it is required to replace existing obsolete equipment with new one adopting advanced technologies. In addition, voice-altering function should be added to the audio system to promote efficiency of video conferencing. Also, considering the fact that quality and function of audio-visual transmission devices have greatly impact on the result of trial, it is needed to establish standards on installation and quality of video conferencing equipment such as camera and microphone. Third, although legislation on tele-videoconferencing is established under the need of questioning offenders abroad, in criminal cases, mutual judicial assistance in criminal justice is an essential prerequisite so that using video conferencing does not infringe judicial sovereignty of any other countries. Therefore, measures to promote judicial assistance in criminal justice should be come up with to facilitate investigation and examination of witness via tele-videoconferencing. Last, guidelines on the operation of tele-videoconferencing in the criminal procedure should be set up and put in place. Law enforcement authorities and the court in charge of conducting video conferencing in criminal proceedings shall provide written instructions than describes processes and cautions in detail to participants in advance. Also, prior to conducting video conferencing in the investigative and judicial procedures, orientation programs on the operation of the equipment should be provided. Furthermore, the guidelines on spatial location of those involved in criminal cases should be formulated to indicate them where they should be during video conferencing.
Before putting tele-videoconferencing in the criminal procedure into practice, it should not be overlooked that video conferencing in criminal justice serves as not a principle but an exceptional mean to facilitate criminal procedures. What should be kept in mind is that the criminal court is not a physical place of discussion but it has enormous symbolic significance where judges examine evidence, decide guilty or innocent based on the law. The principle of immediacy of evidence or the accused' right of defense cannot be sacrificed on the altar of convenience.