INTRODUCTION
Since Japan transplanted its German-influenced legal structure in Korea during the Japanese occupation period of the early 20th Century, Korea has taken the form of authoritative bureaucracy where public officials hold great power.
Public officials including judges and prosecutors have shared and exerÂcised a vast amount of discretion in terms of enforcing laws.[298] [299] Previously as enforcers of criminal justice, prosecutors had long enjoyed corroborative kinship with judges; now there is productive tension.[300] Oftentimes judges helped prosecutors to prove their cases.[301] Since judges were geared to work as supporting partners to help and prove prosecutions, there were not exactly impartial umpires.[302] There have been two similar but different sets of evidence showing judges’ mighty power and their kinship with prosecutors in criminal trials. The first one is the fact that the many aspects of rules of criminal evidence posit rather in common law status without a lot of necessary details.[303] Heavily relying upon judges’ discretionary power, it was implicitly noted that a lot of detailed aspects of the Rules were considered better if they were unwritten.6 The second had been the very existence and usage of so called â€?Suspect Interrogation Record.’ The Suspect Interrogation Record can be defined as â€?a protocol containing a statement of a suspect or of any other person, prepared by a public prosecutor or a judicial police officer.’7 Although by definition ajudicial police officer or a public prosecutor has an equal opportunity to prepare the Record as investigating authority, the Record prepared by a prosecutor had had greater authority because it could be used as admissible evidence in court even if the accused denied the contents.Before anyone is formally charged with any crime he holds the status of suspect under any kind of investigation.8 Suspects, once they are in the custody of an interrogating authority such as the police or the prosecutors, will be under â€?direct’ interrogation by either investigating authority.9 The Suspect Interrogation Record is the fruit of the interrogation.10 After the investigation is finished, the suspect must sign a paper written by the interroÂgating authority.11 Here, the meaning of â€?direct’ interrogation is that the suspect would be left alone with virtually no assistance of counsel.12 People might be curious how such kind of practice could be possible in Korea where the right to counsel is constitutionally provided.13 The key to understand this awkward reality is that regardless of attorney presence during the investigaÂtion, counsel is not allowed to interfere.14 In Korea it is specified that since the object of interrogation is the suspect, counsel should not interrupt during the interrogation. So, the Suspect Interrogation Record, by nature, has worked as a record of confession elicited without ample assistance of coun- sel.15 That is, the Record became a crucial tool to enable the prosecution to obtain a guilty verdict.16
6 Id.
7 Id.
8 Yong Chul Park, Devising a Korean Adversarial System Using Thoroughly Detailed Evidentiary Rules, JSD Dissertation 139 (January 2006) (Park 2).
9 Park 1, supra note 1 at 182.
10 Id.
11 Id.
12 Id.
13 The Constitution of the Republic of Korea (heonbeop) Article 12(4) provides: �(4) Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act’.
14 Jin-Yeon Chung, Constitutional Contents and Limits to the Right of Counsel - With Special Reference to Interrogation of Suspect and Presence of Counsel, Sungkyunkwan Law Review, Volume 18-3, at 644-5 (2006).
15 Park 1, supra note 1 at 182.
16 Id.
Consequently, it is not a surprise to find out that one of the most crucial features of Korean evidentiary rules is that those rules revolve around that protocol called the Suspect Interrogation Record.17 For prosecutions, the Record was a very effective and appealing tool to draw a guilty verdict alongÂside a friendly relationship with the judges. On the other hand, the Record could not be a strong piece of evidence, because basically the Record is hearsay. The Record fits virtually every aspect of the definition of hearsay (although the definition only accords with the commonly acceptable one of hearsay in the United States).18 Looking at the definition of hearsay in the United States, the Federal Rules of Evidence (the FRE) provide that hearsay is â€?a statement,19 other than one made by the declarant20 while testifying at trial or hearing, to prove the truth of the matter asserted.’ Although the CPC does not state what the definition of hearsay is, considering the location of the rule regarding the Suspect Interrogation Record, there should be no doubt that the Record is hearsay.21
As mentioned above, because of the strong presence of the Suspect Interrogation Record in Korean criminal trials, it is very likely that many wrongful convictions were made based upon the defendants’ own confession to a crime he did not commit.22 Such a possibility of wrongful conviction should not be overlooked.23
Besides, since January 2008, the law on jury trial has come into effect in Korea. Accordingly, import of the Suspect Interrogation Record is predicted to lessen, since jury members would not weigh on the Record as much as judges.
This chapter examines the changing dynamics surrounding the Suspect Interrogation Record.2417 Id.
18 A prominent prosecutor argues that any out-of-court statement against interÂest by the accused can be admissible as an exception to hearsay in the United States (Wan-Kyu Lee, The History and the Future of Evidentiary Rules in the Korean Criminal Procedure Act, The 50th Anniversary Conference for Korean Criminal Law Association (2007), at 134). Obviously, such argument is flawed because only some of out-of-court statements against interest by the accused can be found admissible as long as it fits specific exceptions to hearsay.
19 Fed. R. Evid 801(a) provides that a �statement’ is (1) oral or written assertion or (2) non-verbal conduct of a person, if it is intended by the person as an assertion.
20 Fed. R. Evid 801(b) provides that a â€?declarant’ is a person who makes a stateÂment.
21 Id.
22 Id.
23 Id.
24 Id.
II.