JUDICIARY REFORM AND THE PROSECUTORIAL OFFICE
1. Is the Prosecutor Half-Judge?
A suspect says that he killed a victim, and a public prosecutor writes it down in a document and lets the suspect sign it. It mainly occurred in the investigaÂtion office operated by a public prosecutor.
When the suspect is accused and summoned in the public court, the judge asks him whether he consented to the introduction of the protocol into evidence. If he says â€?yes,’ there is no probÂlem. If he says â€?no,’ the foundation process begins. There Article 312(1) comes into play and the judge, in most cases, asks the defendant (who was a suspect when the protocol was made), whether the signature is his or not. If he says, â€?yes, that is mine,’ it is proved that the statement was formally made.[280] Then it can be, according to the Supreme Court of Korea (SCK), legally inferred as fact that the statement was actually made and properly recorded by the proseÂcutor because the defendant’s signature is genuine.[281] Traditionally, the SCK ruled likewise for several decades when article 312 was at issue.[282]How about the second requirement that â€?the statement recorded in the protocol was made in a particularly reliable state’? The SCK was fairly relaxed, minding only if formal and actual genuineness could be established.
The SCK’s ruling on December 16, 2004,[283] has changed nearly everything. It no longer infers the actual genuineness of a transcript from the fact that the accused has signed it.[284] Furthermore, it requires that the transcript should have been prepared and made �in a particularly reliable state’ as the article says. What does this change mean? It means that the Korean judiciary has decided to introduce more developed adversarial settings into the criminal procedure by imposing a stricter hearsay rule and by emphasizing the adversarial nature partly embodied in the CPC.
From the beginning of 2005, a paradigm shift can clearly be seen in Korean legal circles. Even the Chief Justice has publicly demanded, â€?cast away protoÂcols!’[285] The quarrel between the judiciary and the Department of Justice has been noisy and widely publicised in newspapers and on TV. To support the reform project, â€?[t]he presidential Committee on Judicial Reform was formed on 18 January 2005. This committee [was] focusing on accomplishing an even more democratic, fair, and efficient judiciary with more openness and trans- parency.’[286]
2. Downfall of the Prosecutor
To have an open and transparent criminal procedure, all the facts should be assessed and questioned in an open court. Regardless of what one said to the police officer at the scene, one has to have the right to deny it in court, and that is important. That issue was handled in the legislation and one legislator concluded that:
In fact, torture in the criminal process in Korea is well-known. The point is how to stop it. I believe that, first of all, we have to exclude the transcripts and protocols made by the police and the prosecutors as evidence. I acknowledge that a police officer or a public prosecutor can possibly interrogate persons to find out what really happened but to qualify their findings as evidence in the court is a totally different thing. I insist that the transcripts and protocols cannot be used as evidence without the consents of the defendants and their lawyers.[287]
Accordingly, the current CPC article 312(3) states that â€?[a] protocol containÂing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in cases where the defenÂdant who has been a suspect, or the defense counsel at a preparatory hearing or during public trial verifies the contents of the protocol.’[288] However, the legislator himself showed a more lenient attitude towards the prosecutor’s protocol by saying that:
Nonetheless, the human resources in the prosecutorial offices are better than those working in the police stations, so at least to accelerate the trial process, we need to approve the evidentiary power of the protocols that the prosecutors made.[289]
And more than 50 years have passed after the first promulgation of the CPC. In the meantime, the prosecutors’ protocols were widely accepted by the trial courts and the courts seemed to be ready to approve the results of the investigation without any scrutinized assessment.
Otherwise, the percentage of those found guilty at trial could not be so high, as some commentators have pointed out.[290]The situation being so, the paradigm shift in 2004 is quite revolutionary to the point of view of the prosecutorial office. The recently amended CPC has made two big changes.[291] One is to put off the interrogation of the defendant after all the taking of evidence.[292] By doing that, the importance of the proseÂcutors’ protocols of the suspects’ statements as evidence has been substantially lowered. The other is to attack the admissibility of the other protocols which are made in the course of interrogating the witnesses, victims, and all the third parties. In consequence, the newly amended article declares that:
A protocol which contains a statement of the person other than the defendant, prepared by a public prosecutor, may be introduced into evidence, on the condition that the statement is subject to cross-examination by the defendant or his lawyer, if it is made under the due process and method, and that the genuineness thereof is proved by the person making the original statement at a preparatory hearing or during public trial, or by objective proof such as videotapes: provided, that it is proved that the statement was made in a particularly reliable state.[293]
All this means that the validity and the legality of the prosecutor’s pre-trial examination will be fully inspected by the trial court using the exclusionary rule of evidence. The article emphasizes not only â€?particularly reliable state’ but also â€?due process and method.’ Even though they are guaranteed, what is recorded in the prosecutor’s protocol should be â€?subject to cross-examination.’ Looking at the wording of the article, we cannot help concluding that the Korean prosecutor is no longer as powerful as the examining magistrate. In a certain sense, the position of the prosecutor can be compared to that of the English JP whose role was closer to the police than to the prosecutors.[294] It might be possible that the trial court considers the protocol made by the prosÂecutor as records that â€?only have the value of simple information.’[295]
3. Conclusion
The fact that the Korean prosecutor comes to be compared to the English JP means that a transition occurs from the �prosecutorial justice’[296] to another paradigm. It is visibly clear that the prosecutor is coming down from the place of magistrate to that of a subordinate to the examining magistrate, i.e. district judge.
V.