1. In 2007, in order to achieve due process by preventing the violation of
criminal suspects’ human rights and ensuring transparent and lawful investigation,
the video recording system was legislated through an amendment to the Criminal
Procedure Act as a part of the efforts to reform Korea’s judicial system. More
than ten years have passed, but the video recording of suspects’ testimonies under
the Criminal Procedure Act have been constantly subject to theoretical and
practical controversies, without being properly aligned to the guiding principles
and general direction of the Criminal Procedure Act.

Despite the significance and importance of video recording in criminal
procedures, the system has failed to find its bearing within the Korean criminal
justice system. A multi-faceted analysis of the cause of the issue will provide
us with a foundation to discuss how video recording should be posited in criminal
procedures in the future. In light of the above, this study carries out
evidence-based analysis and assessment of the extent to which the purpose and
intention envisioned at the time of the system’s adoption have been achieved.
In addition, this study reviews the issues associated with the actual
implementation of the video recording system from a legislative policy
perspective, so as to examine the effectiveness of video recording as a control
mechanism for protecting human rights, and proposes legislative improvements
aligned with the guiding principles and general direction of the Criminal
Procedure Act.

2. The video recording system has received substantial attention as a system
required for addressing issues associated with human rights-violating investigation
practices in the past, ensuring lawful investigation, and restoring public trust
toward investigation agencies under the current criminal procedures. However,
the system has been also criticized for reinforcing testimony-based investigation
practices, and potentially distorting judges’ and jurors’ judgments.

In addition, despite its purport to protect criminal suspects, the current law
confers considerable discretion to investigation agencies in the operation of the
video recording system, which restricts the practical effectiveness of the system.
In fact, statistics show a continuous decline in the use of video recording during
suspect interrogation at investigation agencies. The average use of the system
is markedly low as well. On top of the poor performance of the video recording
system for suspect testimonies, the 2020 amendment to the Criminal Procedure
Act reduced the system into a due process procedure purely aimed at protecting
human rights. For investigation agencies, video recording under the changed laws
only represents perfunctory procedures that only serve to increase their workload.
If left to the discretion of investigation agencies, the status of the video recording
system may worsen in the future.

3. This study assesses how the video recording system is perceived and utilized
by the parties involved in the operation of the system under the current criminal
procedures, and whether the system has achieved its intended purpose and, if
so, to what extent. To that end, this study conducted a questionnaire survey with
100 prosecutors, 130 police officers, 116 convicted inmates, and 58 attorneys
with experience in video-recorded investigation. The findings of the survey are
summarized below.

The professionals (prosecutors, police officers, and attorneys) who responded
to the survey reported an implementation rate that is lower than the official
statistics. In addition, their responses indicate that investigation agencies perceive
video recording as a source of heavier workload. However, the respondents
believed that the video recording system is conducive to achieving the goal of
human rights protection, and the system is indispensable under the current
criminal procedures. However, the investigation agencies and attorneys were
found to focus on different aspects of the system. The former emphasized its
necessity as a means to achieving investigative purposes and facilitating
investigations, whereas the latter stressed the need for the system as a means
to prevent human rights violations. As for ways to promote the use of the video
recording system, investigation agencies positively responded to maintaining the
current practice while mandating the use of the system for specific crimes under
the investigation guidelines. In addition, the highest percentage of respondents
answered that a proper implementation of the video recording system requires
the ability to use video-recorded testimonies of suspects as evidence. The
responses from the professionals indicated a sizable gap in perception between
investigation agencies, who actually carry out video-recorded investigations, and
attorneys, whose duty is to protect the suspects. Investigation agencies
understandably regard video-recorded investigations as a part of their
investigation procedures. On the other hand, attorneys see the system as a
procedure designed to protect suspects. Thus, whether video- recorded
investigation consolidates its place within the criminal procedures may depend
on how we incorporate the gap in perception into the actual system.

The convicted inmates who experienced video-recorded investigations during
interrogation reported higher levels of nervousness and pressure during
video-recorded sessions, which led to perceptions that video-recorded
investigation is not a favorable option for them. The finding is attributable to
the environment of the video recording room itself, which imposes psychological
pressure on suspects and thereby restricts their ability to give testimonies free
from pressure. The survey also found that 90% of the surveyed inmates were
interrogated without attorneys during video-recorded sessions. The finding
suggests the need for a way to ensure the presence of attorneys during
video-recorded investigations. Despite the purpose of the system to protect
suspects’ human rights and ensure free testimonies, the survey findings show that
the suspects did not feel the benefits of video recording. The finding warrants
a critical review of the video recording system to verify whether the system is
being implemented in alignment with its original purpose.

4. This study also compares the video recording of suspect testimonies in Korea
with similar systems in other countries. In the United States, the majority of states
have statutes regulating the electronic recording of investigations, including video
recording, with a small number of states regulating the recording with state court
decisions, state supreme court rules, or state police guidelines or policies. The
findings indicate that the video recording and other electronic recording in the
United States primarily serve the purpose of preventing false confession by
suspects, whose detention places them in an inferior position. The prevention
of false confession encourages the prosecution to prove the guilt of a criminal
by relying on testimonies that correspond to the criminal facts. It also helps
investigation agencies and law enforcement agencies, because they can use the
video and other electronic recordings to prove that their investigation did not
involve unreasonable or forceful measures.

In the United Kingdom, the history of the adoption of mandatory video
recording during suspect interrogation shows that the system was adopted
primarily as a means to control the investigation practices of the police, rather
than a source of testimonial evidence to be used at court. In the early years,
the police perceived the system as a surveillance mechanism against them.
However, they have come to see video recording as a means to protect themselves
from suspicions from others. The United Kingdom has endeavored to change
the relevant practices and policies by developing and disseminating new
interrogation techniques, along with legislative efforts to ensure the successful
operation of the system. In addition, video/audio-recorded suspect interrogations
can be admitted as hearsay evidence under Sections 114 and 118 of the Criminal
Justice Act, and are controlled under the provisions on the admissibility of
confession evidence in the Police and Criminal Evidence Act (PACE). The
admissibility of a suspect interrogation record is determined by judges at their
discretion, barring special circumstances, such as forced confession, that clearly
excludes the arbitrariness of the confession. The suspect interrogation system
of the United Kingdom is regarded as a success in and outside the country. The
2018 revision to the PACE Codes of Practice E and F expanded the scope of
crimes subject to mandatory recording to all crimes regardless of their seriousness.

The revision shows the country’s confidence in the success of the system.
Germany adopted the video recording of suspect interrogations in 2013, after
Korea’s adoption of the same system. Germany inserted a legal basis for the
video recording system in its Code of Criminal Procedure by applying the
provisions on the video recording of witness testimonies mutatis mutandis to
suspect interrogations. However, after a recommendation from the European
Union (EU), the country revised its law on video recording in 2017 to create
a new provision providing for the video recording of suspect interrogation, which
went into effect in January 2020. Germany requires the video recording of suspect
interrogations only in cases involving serious crimes such as homicide, and cases
in which the suspects require special protection. Under the German law, a
violation of the video recording requirement results in serious repercussions.
However, the country granted the court with a wide scope of discretion regarding
the issue. Germany plans to assess the outcomes of the system over five years
starting in 2020, and use the findings to determine whether to expand on the
system. Germany is content with using the video recording system as a means
to discover truths, expediate criminal procedures, and protect criminal victims.

As such, Germany sees the system as an aid to its criminal procedures, rather
than a means for reforming the existing criminal procedures. For example, even
though the country revised the relevant provisions to promote the use of video
recordings of suspect interrogations, it did not insert provisions that confer
admissibility to video recordings.

In Japan, the video/audio recording of suspect interrogations was adopted
under Article 301-2 of the Code of Criminal Procedure revised in 2016. However,
the system was not implemented until June 2019. The Japanese police began the
full audio/video recording of its procedures as early as in 2016. The country
makes active use of the recording system; by 2019, the implementation rate of
the system reached 94.2%. As for the admissibility of video/audio recording media,
prosecutors welcome the use of the media as evidence, whereas attorneys and
scholars are against the idea on the ground that the right to attorney presence
is not fully granted to suspects. However, the benefits of the system (transparency
of investigation process, and protection of suspects’ human rights) outweighs its
drawbacks. The possible human rights issues are addressed by preventing
prolonged screening of video recordings during trials through the active use of
attorneys’ opinions regarding evidence and questions to defendants during
evidence examination. As such, Japan continues to improve on the audio/video
recording system to address its issues while maximizing on its benefits. As for
the use of audio/video recordings as evidence, the country allows for the use
of recordings depending on whether the “necessity of evidence examination”
requirement is satisfied.

5. The adoption of the video recording of suspect testimonies was adopted
in 2007 as part of the criminal justice reform at the time, with the prosecution
leading the efforts. The use of video recordings created various controversies
in regards to the rules of evidence. However, after 13 years of implementation,
the video recording system has contributed to fostering interrogation practices
that ensure the arbitrariness of suspects’ testimonies to some extent, by improving
on the inappropriate interrogation practices at investigation agencies and
creating room for proving and disputing the authenticity of suspect interrogation
records. In addition, the survey in this study identified a highly positive outcome
of the system’s adoption, which is the perception shared by investigation agencies
that the video recording system is necessary under the current criminal
procedures, despite its low usage in actual criminal proceedings.

On the other hand, the video recording system has not consolidated its status
as a means to protect suspects from human rights violations. To the contrary,
suspects tend to feel pressured by video recording and try to avoid it if possible.
In addition, under the current law, the video recording of suspect testimonies
is left to arbitrary decisions by investigation agencies, and the law does not even
list crimes eligible for video-recorded investigations. Under the current legal
treatment of video recording, the operation of the system is bound to be guided
by the needs of investigation agencies, rather than the need to protect suspects’
human rights.

Therefore, to ensure the effectiveness of the video recording of suspect
testimonies under the criminal procedures, the law should require the video
recording of suspect testimonies, and list the crimes and suspects subject to the
requirement. In addition, for suspects subject to such requirement, all
investigation proceedings need to be video-recorded. Other ways to ensure the
effectiveness of the system include requiring agencies to inform suspects of video
recording in advance, and allowing suspects to request video recording of their
interrogations. In addition, sanctions need to be introduced against violations
of the video recording requirement. Other policy considerations include:
development of interrogation techniques for video-recorded investigations;
training and education of investigators on the developed techniques; lowering
of workload on investigation agencies; and improving the openness of video
recording rooms to lower the pressure felt by suspects interrogated in a closed
room.