PROGRESS

As mentioned above, arguably the Suspect Interrogation Record has been in the center of evidentiary rules partially because the matter is inevitably inter­twined with hearsay evidence in the CPC.²⁵ Also, the Record had continued to give an edge to the prosecutions, because the function of it was a record of confession made while there was at least no effective presence of attorney.²⁶ However, over the years, the existence of the Record faced many challenges and finally these challenges result in changes in laws.²⁷ The change in the CPC regarding the Suspect Interrogation Record started from the Korean Supreme Court’s taking a different position on the issue.²⁸

In this chapter, firstly I want address the past in terms of law and court deci­sions on the Record.²⁹ Secondly, I look at how the transformation in court decisions affected the change in law.

1. Who are the Writers of the Record?

A. Law treats it differently

As briefly noted in the introduction, the admissibility of the Record was quite different depending upon who performed the interrogation.³¹ Section 1 of Article 312 of CPC³² provides that â€?a protocol which contains a statement of

²⁵ Id.

²⁶ Id.

²⁷ Id.

²⁸ Id.

²⁹ Id.

³⁰ _Id.

³¹ See generally Kuk Cho, The Admissibility and Verification of Genuineness of an Interrogation of a Suspect Made by Prosecutors - Confirmation of Prosecutorial Justice by Courts, Criminal Case Study Vol. 9, The Korean Criminal Law Society, Parkyoungsa (2001) (Cho 1).

³² Article 312 (Protocol Prepared by Public Prosecutor or Judicial Police Officer) of the CPC provides:

(1) A protocol which contains a statement of a suspect or of any other person, prepared by a public prosecutor, or a protocol containing the result of inspec­tion of evidence, prepared by a public prosecutor or judicial police officer, may be introduced into evidence, if the genuineness thereof is established by the person making the original statement at a preparatory hearing or during the public trial: Provided that a protocol containing the statement of the defendant who has been a suspect may be introduced into evidence only where the state- a suspect..., prepared by a public prosecutor’ may be admissible in court, if the suspect (then the accused) acknowledged the genuineness of the Record â€?at a preparatory hearing or during the public trial.’ The Section continues to provide that where the protocol is written by a public prosecutor, even if the defendant does not acknowledge or verify the genuineness of the statement â€?at a preparatory hearing or during the public trial’ as long as there are â€?circum­stances where the statement was made under such circumstances that is undoubtfully believed to be true’ the statement would be admissible.³³ The perception among scholars is that â€?such circumstances that is undoubtfully believed to be true’ is equivalent to â€?special indicia of reliability’ in the United States.³⁴ In other words, the CPC cut a prosecutor some slack by providing leeway to admit the Record prepared by him when the accused does not want the Record to be used in trial.³⁵ Still, a lot of lingering questions remain.³⁶ What does it mean by â€?verification of genuineness of the statement’?³⁷ What kind of accused would be willing to do such verification or acknowledge- ment?³⁸ How can a public prosecutor prove that there is â€?special indicia of reliability’ in the Record when the accused denies the genuineness of it?³⁹ Definitions and partial answers to these questions are to be found in some recent Korean Supreme Court decisions which I address later in this chapter.

Until now, we have observed how the Record made by prosecutors was treated in the court; but what about the Suspect Interrogation Record written by the police?⁴⁰ Section 2 of Article 312 of the CPC⁴¹ provides that unless the accused does â€?verify the content of the protocol’ such a statement would never be admissible.⁴² That is, there is no â€?special indicia of reliability’ leeway where such statement could be found to be admissible in cases where the

ment was made under such circumstances that it is undoubtfully believed to be true, regardless of the statement made at a preparatory hearing or during public trial by the defendant.

(2) A protocol containing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in cases where the defendant who has been a suspect, or the defense counsel at a preparatory hearing or during public trial verifies the contents of the protocol. [This Article wholly amended by Act No. 705, 1 September 1961].

³³ Park 1, supra note 1 at 184.

³⁴ _Id.

³⁵ Id.

³⁶ Id.

³⁷ _Id.

³⁸ Id.

³⁹ Id at 184-5.

⁴⁰ Id at 185.

⁴¹ Article 312 of the CPC, supra note at 32.

⁴² Park 1, supra note 1 at 185.

accused refuses to verify the content.⁴³ In addition, the verification by the accused should amount to admitting the fact that the content of the Record was consistent with his intention to make such a statement.⁴⁴ â€?Verifying the content’ is a much stronger expression than just acknowledging the genuine­ness of the statement provided in Section 2 of Article 312 of the CPC which was applied to the Record written by the prosecution.⁴⁵ Then what would be a plausible justifying explanation for such discrepancy between the Record prepared by the prosecution and by the police?⁴⁶ The reason for differentiat­ing the level of admitting the Record seems to stem from the prosecutors’ superior status to the police.⁴⁷ Also, one very convincing argument for the difference was that prosecutors are obliged to be objective pursuant to the law;⁴⁸ therefore they are more trustworthy than the police in terms of not committing to any illegal means to elicit confession.⁴⁹

B.

Two ways of interpreting the acknowledgment of the genuineness of the

⁴³ Id.

⁴⁴ Id.

⁴⁵ Id.

⁴⁶ _Id.

⁴⁷ Article 196(1) of the CPC provides:

(1) Investigators, police administrative officials, police superintendents, police captains or police lieutenants shall investigate crimes as judicial police offi­cers under instructions of a public prosecutor.

Also, Section 1 of Article 4 of Public Prosecutor’s Office Act provides:

(1) The public prosecutors shall have the following duties and authority as repre­sentatives of the public interest:

(2) The direction and supervision of judicial police officials with respect to the investigation of crimes.

In addition, Professor Kuk Cho explains:

The investigative authorities are composed of two bodies. First, police are a subsidiary organ of the prosecution, lacking independent powers of investigation. (Kuk, Cho, The Unfinished �Criminal Procedure Revolution’ of Post­Democratization South Korea, 30 Denv. J. Int’l. Law and Pol’y 377, 381 (Summer, 2002) (Cho 2).

⁴⁸ Section 2 of Article 4 of Public Prosecutor’s Office Act provides:

In performing his duties, the public prosecutor shall observe political neutrality as a servant of the people and shall not abuse the powers bestowed upon him [newly inserted by Act No. 5263, Jan 13, 1997].

⁴⁹ Cho, supra note 47.

Record had been provided in Section 1 of Article 312 of the CPC, which was reserved only for the Record prepared by a prosecutor.⁵⁰ The first can be termed as â€?formal acknowledgment’ where the defendant admits the fact that he signed the Record at the end of interrogation.⁵¹ The second is referred to as â€?substantial acknowledgment’ where the defendant verifies the content of the Record.⁵² The Korean Supreme Court had been very firm in upholding a presumptive position in this acknowledgment issue.⁵³ That is to say, once formal acknowledgment was made by the defendant then substantial acknowl­edgment is presumed to have been made as well.⁵⁴ Such theory of presump­tion was certainly another way of providing leeway to the prosecutions, because formal acknowledgment was easy to obtain as long as the signature of the accused was on the Record.⁵⁵

On the other hand, pursuant to Section 2 of Article 312 of the CPC, to be able to admit the Suspect Interrogation Record prepared by the police, the accused needs to do substantial acknowledgment.⁵⁶ That is, the weight of admissibility was different depending upon who was the writer of the Record.⁵⁷ It is common sense that no accused would be willing to give substantial acknowledgment for the Suspect Interrogation Record prepared by the police.⁵⁸ For that reason, in order to avoid any expected danger of the Suspect Interrogation Record being excluded because it lacks admissibility due to the refusal from the defendant in terms of verifying the content of the Record it became a custom that the same interrogation had to be redone by prosecutors.⁵⁹ Such tradition caused unnecessary workload for the prosecutors to redo all the interrogation process just to make another Suspect Interrogation Record by him.⁶⁰

⁵⁰ Park 1, supra note 1 at 186.

⁵¹ Id.

⁵² Id.

⁵³ Id.

⁵⁴ Decision of 26 June 1984, 84 Do 748 (Korean Supreme Court); Decision of 23 June 1992, 92 Do 769 (Korean Supreme Court); Decision of 12 May 1995, 95 Do 484 (Korean Supreme Court); Decision of 28 July 2000, 2000 Do 2617 (Korean Supreme Court).

⁵⁵ Park 1, supra note 1 at 186.

⁵⁶ Id.

⁵⁷ _Id.

⁵⁸ Id.

⁵⁹ Id.

⁶⁰ _Id.

2. New Chapter for the Suspect Interrogation Record

A. The change in holdings

As mentioned above, in terms of having a two-tier system - formal and substantial acknowledgment - with respect to verifying â€?the genuineness of the statement,’ as the close tie between the prosecutors and the court has been estranged or Korean society has become more interested in approaching an adversarial court system (depending upon how scholars see it), the court’s firm stance on presumptive theory on the Suspect Interrogation Record, which had been heavily criticized, began to soften up.⁶¹

Finally, the Korean Supreme Court ruled⁶² that even in a case of a Suspect Interrogation Record prepared by a prosecutor, substantial acknowledgment by the accused is necessary to be able to admit the Record.⁶³ Along with such a ruling, the court practically found that the Record prepared by a prosecutor would hold the same status as the Record by the police.⁶⁴ The change in the Supreme Court’s ruling startled the prosecutor’s office as well as subordinate courts because it practically meant that it became much easier for the defen­dant to wipe out the admissibility of the Record by simply refusing to verify its content in court.⁶⁵ The inevitable discrepancy between the court decision and the law demanded changes to the CPC.⁶⁶

B. The New Criminal Procedure Act

In October 2003, the Committee on Judicial Reform was established in the Supreme Court to revolutionize the legal system in Korea.⁶⁷ The baton for judicial reform was passed on to the Presidential Committee on Judicial Reform, which was formed in January 2004.⁶⁸ The Committee made an effort to change the law on the Suspect Interrogation Record along with a lot of progressive reform in the CPC.⁶⁹ Initially, the Committee made a new startling recommendation excluding the admissibility of the Suspect Interrogation Record.⁷⁰ However, this attempt faced fierce opposition from the Prosecutor’s office and finally was rejected.⁷¹

⁶¹ Id at 186-7.

⁶² Decision of 16 December 2004, 2002 Do 537 (Korean Supreme Court).

⁶³ Park 1, supra note 1 at 187.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ _Id.

⁶⁷ Id.

⁶⁸ Id.

⁶⁹ _Id.

⁷⁰ Id.

⁷¹ Id.

Finally, with some changes regarding the Suspect Interrogation Record having been reflected in the review process, the Criminal Procedure Code became effective on 1 January 2008. The new Section 1 of Article 312 of the CPC confirms that there should be substantial acknowledgment to be able to admit the Suspect Interrogation Record written by a prosecutor.^[304] Also, the new Section 2 of Article 312 of the CPC continues to provide that one way to prove substantial acknowledgement in case the accused refuses to acknowl­edge the genuineness of content is by using videotapes filming the interroga­tion process.^[305]

One more aspect worth noting on the matter of the Suspect Interrogation Record is the introduction of the exclusionary rule for evidence gathered by illegal means. Article 308-2 of the CPC provides that any evidence gathered without legal process is not admissible. This Article will have impact on how the interrogation is carried out. That is, if any force is used during suspect interrogation, the Record as a fruit of such illegal tactics would not be admis­sible.

By the way, the stance on the Suspect Interrogation Record prepared by the police did not change in any meaningful way. Therefore, the stricter rule for the Record written by the police is expected to continue to be applied without any change.

C. The trial of jury trial

From 1 January 2008,^[306]4 Korea started a new experiment to implement a lay jury system.^[307] So far 114 cases have been filed for the jury trial and 23 out of that total number have been resolved.^[308] According to the Act on jury trial, only certain serious offences can be tried as jury trials when the accused wants his case tried by jury and the court has no objection to it.^[309] The Act also provides that any decision made by the jury is only advisory.^[310]

So what would be the impact of jury trial on the Suspect Interrogation Record? As noted, the Suspect Interrogation Record was one piece of crucial evidence that judges and prosecutors worked on together; rather than judges acting fairly like umpires with a balanced view on the issues. Such practice was based upon the system where judges ruled upon the dossier rather than live testimony. However, it is expected that the Suspect Interrogation Record will get less attention because for lay jurors live testimony would be a more appreciated form of evidence in the course of forming the opinion on decision­making.

3. Unfinished Business

A. The definition of �special indicia of reliability'

Although the new CPC reaffirms that substantial acknowledgement is neces­sary for the Suspect Interrogation Record prepared by the prosecution and by the police, proving special indicia of reliability, which is the next step in gain­ing a decision as to admissibility, is still open to interpretation.^[311] The Constitutional Court of Korea found that the special indicia of reliability requirement in regard to the Suspect Interrogation Record is constitutional, although minority opinion added that there should be clarity in terms of how to prove special indicia of reliability.^[312] The new CPC leaves much to be desired in that regard, because it merely suggests that videotaping of the inter­rogation would work as one of the means to prove that there was genuine acknowledgement by the accused during the interrogation.^[313] In the end, special indicia of reliability decisions are still being left to judges to make - a remnant of an inquisitorial court system.^[314]

B. Need for defense lawyer presence

As mentioned already, lawyers’ presence can be meaningful only when they have the opportunity to defend their client by blocking any question that might incriminate their clients and by talking to the interrogating authority directly. Right now, the role of defense lawyers is just minimal.^[315] Although the newly made Section 1 of Article 243-2 of the CPC provides that a lawyer can be present when law enforcement interrogates suspects, Section 3 of the same Article states that the lawyer participating in the interrogation process is able to object only when the interrogation method is unjust and he can give his opinion only after the law enforcement personnel such as a police officer or prosecutor approves it.⁸⁴

The fact that a defense lawyer cannot function as a direct channel for inter­rogation leaves much room for improvement.⁸⁵ To be able to achieve the true meaning of assistance of counsel and presumption of innocence, the interro­gation and questions should be addressed to counsel not to the suspect.⁸⁶ The law should be moved in that direction in the near future.⁸⁷

C. Is the Suspect Interrogation Record really necessary?

As noted, originally the members of Presidential Committee on Judicial Reform intended to wipe out the Suspect Interrogation Record altogether, because they saw the Record obviously outweighing the demand for the right of fair trial bestowed on the accused.⁸⁸ Even although they failed to eradicate it due to strong resistance from prosecutors, the attempt in itself has led to a suggestion that the Record is now useless because videotaped interrogation can be used to verify the content of the Record pursuant to the new Section 2 of Article 312 of the CPC.⁸⁹

On the other hand, there might be no objection in admitting the Record as long as the right to counsel is being guaranteed during suspect interrogation.⁹⁰ If this were a reality, the Record would not be such an appealing tool for the prosecution to prove their cases because confession would not be easily elicited.⁹¹ In addition, confession should not be a vital form of gaining a conviction to begin with.⁹² That is, testimonial evidence such as the Record should not have too much weight in proving cases.⁹³ Rather, real evidence such as DNA evidence, fingerprints or weapons used for the charged offense should be given more weight.⁹⁴ Arguably that will give a better chance for the defense to have a fair trial.⁹⁵ Also, as noted earlier, as a jury system is in place for certain crimes where the defendants choose to have a jury trial, the Suspect

⁸⁴ Id at 188-9.

⁸⁵ Id at 189.

⁸⁶ Id.

⁸⁷ Id.

⁸⁸ For information regarding discussion on admissibility of the Suspect Interrogation Record written by a prosecutor, available at http://news.naver.com/news/ read.php?mode=LSD&office_id=Q86&article_id=QQ0QQ21131&section_id=1Q2&men u_id=102 (last visited August 2QQ9).

⁸⁹ Park 1, supra note 1 at 189.

^9Q Id.

91 Id.

92 Id.

93 _Id.

94 Id.

95 _Id.

Interrogation Record might not be an effective tool for prosecutions because it could be expected that jury members would not give too much weight to that anyway. That provides one more reason to remove the Record in the near future.⁹⁶

D. Lack of hearsay provisions

Although it should be acknowledged that the new version of the CPC and the law on jury trial was a great attempt to transform the criminal court in Korea, still it lacks many provisions on evidentiary rules.⁹⁷ Specifically, the new CPC adds no additional exceptions to hearsay.⁹⁸ Although it would be nearly impossible to devise elaborate exceptions (as the Federal Rules of Evidence in the United States do) given the fact that there has not been any historical back­ground on hearsay and hearsay exceptions in Korea, a meaningful attempt to equip the evidentiary rules with hearsay exceptions is necessary. The matter needs to be revisited in the near future.⁹⁹

III.