1. Necessity of the Reorganization of the Criminal Procedure Act - Independence of Investigation under the Act

(1) Under the accusatorial criminal procedure system, the obligation to find substantive facts in an objective and fair manner falls not only on judges and jurors, but also on prosecutors as early as during investigation. The obligation directly derives from the state’s burden of proof, the principle of presumption of innocence, and the prosecutors’ obligation to objectivity. In other words, the prosecution should decide whether to indict a person from a position, just as a judge decides whether a person is guilty or not.
(2) The current Criminal Procedure Act places the chapter on “Investigation” under Part II “Court of First Instance.” This structure may be congruent to the pretrial judge system before the birth of the prosecution system in Korea or the investigating (pretrial) judge system currently in place in civil law countries, but cannot be harmonized with Korea’s current criminal procedure system.
(3) Under the current Criminal Procedures Act, the section on “Evidence” under Chapter III “Trial” of Part II “Court of First Instance” stipulates which evidence is subject to the judge’s free uation under the “No Evidence No Trial” principle. However, as mentioned in ⑴, (unlike in a criminal procedure system where judges preside over investigations), the issue of the admissibility of evidence is an issue related to investigative methods (“evidence should not be collected using illegal means”). Thus, it should be stipulated as a part of code of conduct for prosecutors. If so, we will be able to understand the meaning of “inadmissibility” of illegally collected evidence or forced confessions in “trials” in connection with investigation. In addition, the revision will create a basis for holding a prosecutor accountable for hindering judges and jurors from forming their opinions by illegally collecting evidence in violation of their code of conduct.
(4) On a related note, the harm caused by publication of facts of suspected crime (Article 126, Criminal Act) cannot be reduced to disclosure of confidential information or violation of suspects’ human rights. Such publication undermines objective factfinding by affecting the judgment of judges and jurors.

2. Improvement of Rules of Evidence for Objective and Fair Factfinding

Judges’ and jurors’ opinions should be freely formed based on evidence (No Evidence No Trial). Therefore, the determination of evidence that can be produced in a trial holds great significance for the objectiveness of judges’ and jurors’ opinions (presentation of evidence itself might instill preconceptions and prejudices in judges and jurors).

(1) The producibility of evidence in a trial and the method of the production are determined based on which of the basic criminal justice principles prevail: inquisitorialism or adversarialism, the principle of immediacy, the principle of oral proceedings, and the principle of presumption of innocence.
(2) For example, under Korea’s current criminal procedure system, the prosecution may not object to the court’s decision to disclose evidence. It represents a fairly court-centered system, but does not necessarily derives from inquisitorialism. Likewise, in Korea, an objection to the court’s evidentiary decision is allowed only on the ground that the decision is against the law (proviso, Article 135-2, Regulation on Criminal Procedure). An evidentiary decision is a pre-judgment decision regarding the proceedings, and the Criminal Procedure Act does not have a provision on immediate complaint against such decision. For this reason, a complaint against an evidentiary decision is not allowed (Article 403 (1), Criminal Procedure Act). These elements also indicate a court-centered criminal justice system.
(3) In addition, Article 312 (Protocol, etc. Prepared by Prosecutor or Senior Judicial Police Officer), Article 313 (Statement, etc.) and Article 316 (Statement of Hearsay) grant admissibility to hearsay evidence as long as it satisfies certain requirements, and allow the prosecution to produce the evidence during a trial. Not to mention the controversy over whether these provisions provide for an exception to the principle of immediacy or an exception to the hearsay rule, such evidence is highly likely to instill preconceptions and prejudices in judges and jurors once it is produced, even if it is held inadmissible later in the trial. For this reason, caution is required when determining whether such evidence can be produced in a trial.
(4) Suspects and defendants have the right to cross examination and the right to counsel, and counsels have the right to be present during investigation. Under the accusatorial criminal procedure system, these rights are crucial for (other than protecting suspects’ and defendants’ right to defense) preventing distortion of substantive facts during investigation, and allowing for regulatory control of free examination by judges and jurors through cross examination during trials. For this reason, many commentators have questioned whether it is justifiable to grant admissibility to protocols containing suspects’ or defendants’ statements made in absence of their counsels as long as they meet certain requirements, and allow the prosecution to produce such evidence during trials.
(5) The provisions on the hearsay rule in the Criminal Procedure Act are organized based on who made the statements, and begin with the provisions on statements made by suspects or defendants. The provisions grant admissibility to s in place of statements in exceptional cases. They have been criticized many times for containing elements based on principles other than the hearsay rule. Various commentators have pointed out that the provisions are governed by a principle that is not the hearsay rule. While both hearsay statements and hearsay s constitute hearsay evidence, in order to clarify the principle-exception relationship between the provisions and ensure the consistency of the structure, we can consider placing the provisions on hearsay evidence before the provisions on typical exceptions to the hearsay rule, followed by the provisions on the protocol concerning interrogation of a suspect.
(6) The admissibility of the protocol concerning interrogation of a criminal suspect has been the most divisive issue among the co-authors, and one of the most prominent point of interest in the current discussions on the adjustment of investigative powers. The law applies different requirements for the admissibility to a protocol prepared by a prosecutor and a protocol prepared by a judicial police officer. Some argue that the difference cannot be justified because it grants more investigative power to prosecutors. However, the issue of the protocol concerning interrogation of a criminal suspect cannot be reduced to such a simple issue. In the current court practices where it is customary for courts to render judgments based on protocols, the protocol concerning interrogation of a criminal suspect works as a written “confession.” In this sense, such practice cannot be harmonized with the exclusion of confessions and the confession rule and the corroborated confession rule. Furthermore, under the current law, a protocol concerning interrogation of a criminal suspect is granted admissibility in certain cases. Once it is produced in a trial (even if the defendant denies the statement during the trial), it instills preconceptions in judges and jurors and undermines the objectiveness and fairness of factfinding. While proposing to secure more non-statement evidence by improving the efficiency of investigation, investigative institutions stress the importance of the protocol concerning interrogation of a criminal suspect, arguing that it may be the only evidence available for maintaining an indictment (although, one could ask whether indicting a person only based on such a protocol constitutes an abuse of the prosecutorial power) In addition, some judges prefer ary evidence to personal evidence despite the principle of oral proceedings under the Criminal Procedure Act (Article 37), thereby putting more value on the economy of litigation. In the short term, it may be acceptable to listen to the voices from the field and introduce stricter requirements for the admissibility of a protocol concerning interrogation of a criminal suspect prepared by a prosecutor on par with those applicable to a protocol prepared by a judicial police officer. However, in the long term, we may consider denying the admissibility of the protocol concerning interrogation of a criminal suspect altogether, given that it is effectively used as a written confession in actual trials. However, the co-authors are divided over the issue, and decided not to draw the conclusion in this paper. For further discussion, see the co-authors’ remarks regarding the protocol concerning interrogation of a criminal suspect (“B.” in “3. Proposed Revision,” Section 10, Chapter 2; and “5. Proposed Revision” in Section 12, Chapter 2).
(7) The voluntariness of a statement, along with its consistency, determines the probative value and credibility of a statement. In this sense, it has great influence on the free examination of evidence by judges and jurors. Voluntariness takes on even more significance in cases where witnesses and defendants provide contrasting statements, statements are the only evidence produced to the court, or they determine the outcomes of the trial. Article 317 of the Criminal Procedure Act stipulate that statements are not admissible as evidence unless they are made voluntarily. In cases where a person is required to make a statement regarding a protocol prepared by a prosecutor (Article 312 (1) and (2)), a protocol concerning interrogation of a person other than the defendant (Article 312 (4)), or any other statement (Article 313 (1)), and the person cannot appear before the court at a preparatory hearing or a trial, the relevant protocols and s are admissible as evidence as long as they were prepared “in a particularly reliable state” (Article 314). The same requirement applies to hearsay statements (Article 316). The Supreme Court held that a “particularly reliable state” means the cases where there exists little room for falseness in making the statement, and there exists concrete and external circumstances that guarantee the reliability and voluntariness of the statement.” Then, one could question the relationship between the voluntariness of a statement under Article 317 and the voluntariness of a statement “in a particularly reliable state.”
In addition, the voluntariness of a statement constitutes a principle to which Article 309 (Probative Value of Confession Caused by Duress, etc.) and the provisions requiring “a particularly reliable state” serve as exceptions. Then, one could ask whether it is appropriate to place Article 317, which provides for the voluntariness of a statement, behind the said provisions.

3. Issue of Appropriateness of Other Evidentiary Rules

Provisions on criminal procedures are scattered across special statutes, which has been a source of great confusion in applying the laws. Furthermore, as evidence takes on more significance for factfinding in the field of forensics, we are lead to question whether such statutory structure is consistent with the basic principles of the Criminal Procedure Act.

(1) Statements of suspects and witnesses are video-recorded only for the purpose of ensuring due process and protecting human rights. Then, the use of the video recordings must be restricted to the cases where such materials are needed to ensure due process and prove the voluntariness of a statement. Therefore, video recordings should be used only for substantial authentication of statements or proof of voluntariness, which can be considered as one of the “particularly reliable states,” as is the case with the current provisions of the Criminal Procedure Act.
(2) The laws do not contain any provision capable of eliminating possible errors in expert opinions regarding DNA evidence. Therefore, a careful review is required to determine whether rebuttable presumption of infallibility is sufficient.
(3) In addition, if digital evidence must be formally authenticated by identifying the author under the current laws, the laws need to contain separate provisions stipulating the requirements for formal authenticity designed for digital formats.
(4) Two other sources of evidence are currently being discussed: wiretapping and entrapment. 1) As for wiretapping, the court does not have any means of ex post control of emergency communication restricting measures, which may undermine the significance of the fruit of the poisonous tree rule. 2) As for entrapment, even though an increasing number of countries adopt entrapment, we cannot ignore the ongoing concern about possible violation of human rights.

4. Objective Factfinding by Judges and Jurors

Under the inquisitorial criminal procedure system, judges and jurors inquire whether indicted facts are consistent with substantive truths. However, humans do not possess the cognitive capability to ascertain truths with absolute certainty. Therefore, conviction of guilt is bound to be relative.
Then, the best we can hope for is to set forth a number of procedural preconditions to ensure that judges and jurors can form their opinions without preconceptions.
Such preconditions should include the following. 1) The law should stipulate which evidence is allowed to be produced before the court, so that unpermitted evidence would not create preconceptions or prejudices (see Chapters 2 and 3). 2) The lowest level of proof for conviction should be defined (proof beyond a reasonable doubt) based on the principle of presumption of innocence. 3) Finally, conviction of guilt should not be formed based on statistical probability of whether a defendant is guilty. It should be formed by eliminating, one by one, the possibilities that a defendant may be innocent. We can conclude that the guilt of a defendant has been proven beyond a reasonable doubt only when all such possibilities have been eliminated.
In addition, the principle of presumption of innocence presupposes a principle regarding allocation of burden of proof; a person with a reasonable doubt regarding a defendant’s guilt is not required to give any reason for his/her opinion to a person without such a reasonable doubt, while the latter should provide the former with the reason why he/she does not reasonably doubt the defendant’s guilt.
Despite its historical origin, the principle of free examination of evidence has gone through substantial changes in contemporary societies. The principle has become the target of many criticisms, and the current emphasis is placed on the “restriction” of judge’s “freedom.”
Then, we need regulatory means to prevent the “freedom” of judges and jurors from turning into arbitrariness disguised as discretion. Above all, we need to ensure that judges and jurors form their opinions in transparent processes rather than out of “black boxes.” Such means include: disclosure of lower-instance court judgments, judges’ obligation to provide detailed reasons for judgments, and verification of evidence at appellate levels.