[1] The degree of credibility of a witness's statement in a case where the suspect alone is replaced with a witness or only one photograph of the suspect presented to the witness during the criminal identification procedure based on the suspect's appearance, etc.

[2] The procedural requirements to enhance the credibility of witness statements in the criminal identification procedure

[3] The case recognizing the defendant as a criminal on the ground that the witness's statement made by the prosecutor in relation to the identification of the criminal committed by the presentation of a photograph is highly reliable despite the procedural defect

[1] In the criminal identification procedure based on the appearance, etc. of the suspect, it shall be deemed that the witness’s statement in the criminal identification procedure is low unless there are additional circumstances, such as the victim’s statement whether the suspect is a person who has been aware of the victim or a person who has been aware of the suspect, or whether the suspect is a criminal suspect by presenting only one photograph of the suspect to the witness in the criminal identification procedure, due to the limitation and inaccuracy of human memory and the possibility that the suspect or a person on the photograph of the suspect is suspected of being a criminal suspect under the specific circumstances, such a witness’s statement in the criminal identification procedure should be deemed to have been made under the degree of credibility unless there are any additional circumstances such as whether there are other circumstances to suspect the suspect as a criminal.

[2] In order to enhance the credibility of a witness's statement in a criminal identification procedure, a witness's statement or description as to the suspect's appearance should be recorded in detail in advance, and a suspect, including the suspect, should be identified at the same time by facing the witness, and measures should be taken such as making the suspect, witness, and comparable person not to have any contact with each other in advance, making the process and result of the cross-examination in writing so that the value of evidence can be assessed later, and the criminal identification procedure by presentation of a photograph must comply with the above principles.

[3] The case recognizing the defendant as a criminal on the ground that the witness's statement made by the prosecutor about the identification of the criminal committed by a photographic presentation can be recognized as a high level of credibility despite the procedural defect

[1] Articles 199 and 308 of the Criminal Procedure Act / [2] Articles 199 and 308 of the Criminal Procedure Act / [3] Articles 199 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2000Do4946 decided Feb. 9, 2001 (Gong2001Sang, 688)

Defendant

Defendant

Busan District Court Decision 2003No2176 delivered on October 28, 2003

The appeal shall be dismissed. One hundred days out of the detention days after the appeal shall be included in the original sentence.

1. As to the Voluntaryness of Non-Indicted 1’s prosecutor’s statements

Examining Nonindicted 1’s age, academic background, career, and occupation in light of the records, it is reasonable for the court below to use Nonindicted 1’s statement as evidence, since it is acknowledged that there is voluntariness, and there is no error in the misapprehension of legal principles as to the voluntariness of the protocol of interrogation of suspect prepared by the public prosecutor.

2. As to the credibility of Nonindicted 1’s criminal identification statement

A. According to the records, Nonindicted Party 1: (a) was in possession of Nonindicted Party 1 10g of his cell phone name (hereinafter referred to as “the instant domain name”) and intended to sell it to Nonindicted Party 2; (b) was arrested by the prosecution investigator around December 23, 200; and (c) was asked for about the source of the instant domain name to which Nonindicted Party 2 was sent to Busan District Public Prosecutor’s Office; and (d) was sent to Nonindicted Party 3, who was aware of the fact that Nonindicted Party 1’s cell phone name and sent it to him/her a copy of his/her cell phone name and sent it to Nonindicted Party 1’s cell phone name and sent it to him/her a copy of his/her cell phone name and a copy of his/her cell phone number to him/her at the time of this case’s interrogation; and (c) Nonindicted Party 3 was informed of his/her phone name and a copy of his/her cell phone name and sent it to him/her on December 25, 2000.

B. In the criminal identification procedure based on the appearance, etc. of the suspect, it shall be deemed that the witness’s statement in the criminal identification procedure is below the credibility unless there are any additional circumstances such as whether the suspect was aware of the victim, or not having been aware of the victim’s statement, in addition to the victim’s statement, if there is any other circumstance to suspect the suspect as the criminal, it shall be deemed that the credibility is low (see Supreme Court Decision 2000Do4946, Feb. 9, 2001).

In this respect, in order to enhance the credibility of a witness's statement in the criminal identification procedure, the witness's statement or description on the suspect's appearance should be recorded in detail in advance, and the suspect, including the suspect, should be identified at the same time by facing the witness, and the suspect, witness, and the compared person should not have any contact with each other in advance, and the process and result of the cross-examination should be written in writing so that the value of evidence can be assessed later, and the criminal identification procedure by presentation of photographs should comply with these principles.

Examining the credibility of Non-Indicted 1’s statement consistent with the facts charged from this point of view, the prosecutor secured only a brief statement on the age, height, and body weight, etc. of the seller of the witness when purchasing the instant Mestopians from Non-Indicted 1, and confirmed that Non-Indicted 1 sent a call to determine the place of purchase, etc. immediately before purchasing the instant Mestopians, the defendant’s name located in the Dong having jurisdiction over his domicile was ",000,000 after inquiring of the defendant’s resident registration copy attached to his photograph, and presented the photograph to Non-Indicted 1, who sold the instant Mestopians. In addition, it is difficult for Non-Indicted 1 to properly observe the procedure to enhance its credibility in the criminal identification process, as well as to make it difficult for the defendant, who is a witness of the above Mestopians, to be aware of the credibility of Non-Indicted 1 in view of the previous process of identification.

However, according to the records, it is recognized that Nonindicted Party 1 used the handphone in the name of the Defendant on several occasions immediately before purchasing the instant Mesacam, and that Nonindicted Party 1 used the handphone in his name at his request, and the Defendant was not admitted to the handphone in his name because he was not a person with bad credit standing, and thus, he was returned the handphone before he died. The Kim Won seems to have died on November 11, 200, and even according to the Defendant’s change, it appears that the Defendant used the handphone on several occasions, and that the Defendant was aware of the fact that the Defendant used the above handphone on two occasions, and that Nonindicted Party 1 was aware of the fact that Nonindicted Party 3, Nonindicted Party 4, etc., and Nonindicted Party 1’s phone and the Defendant’s sales of the Defendant’s handphone at his request, but that the Defendant was aware of the fact that the Defendant’s phone and the Defendant’s sales of the instant Mesacam were made at the time of the Defendant’s change.

C. Ultimately, the decision of the court below that recognized the defendant as the offender of this case is just, and there is no error of law by misunderstanding legal principles or misunderstanding of facts as to the credibility of the criminal identification statement which affected the judgment.

3. Conclusion

Therefore, the appeal is dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)