When the person making the original statement is present at the court and the cross-examination is not conducted by the defendant, evidence of the protocol in which the investigative agency made the statement.

In principle, in a case where an investigative agency’s protocol containing a statement made by the person making the original statement has a very low probative value compared to the statement made by the person making the original statement. In particular, in a case where the legal appearance of the person making the original statement and cross-examination are not conducted, the protocol containing such statement cannot be acknowledged as having the real value of evidence enough to serve as the basis for judge’s right deliberation. Therefore, even though the defendant denied facts charged and the protocol containing the statement made by the investigative agency, if the defendant was unable to attend the court and cross-examine by the defendant, the defendant cannot be acknowledged as having the real value of evidence. Thus, in a case where the fact that the statement made in the protocol was directly experienced is accurate and detailed without cross-examination, the exact purport of the statement can be clearly recognized even if it is sufficiently and clearly stated in the specific circumstances and the detailed contents of the circumstances, and there is no doubt in light of the form and contents of the protocol, or there is no other sufficient evidence to support the credibility and probative value of the statement made in the protocol, it cannot be acknowledged as evidence or evidence.

Articles 275(1), 308, and 310-2 of the Criminal Procedure Act

Supreme Court Decision 2006Do4994 Decided November 24, 2006 (2007Sang, 96)

Defendant 1 and two others

Defendants

Daejeon District Court Decision 2004No1916 Decided December 2, 2005

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. In principle, the trial-oriented principle adopted by the Korean Criminal Procedure Act is based on the principle that the formation of a conviction or innocence against the substance of a criminal case should be based on a trial in a court. The principle of substantial direct examination is based on the principle that only the evidence directly examined in the presence of a judge can be based on a trial, and the original evidence near the facts subject to proof should be based on a trial, and the use of substitute material for the original evidence should not be permitted in principle.

A protocol in which an investigative agency recorded a statement of the person making the original statement as a means of substituting the statement of the person making the original statement as an original evidence, is not recorded from the beginning to the end, but rather a summary of the purport of the main part related to the facts charged. As such, it is difficult to exclude the possibility that it may be prepared differently from the intent of the person making the original statement due to prior entry or misunderstanding of the person making the original statement, depending on circumstances. Furthermore, the content of the statement recorded in the protocol is limited to the evaluation of its credibility in that it is difficult for a judge to directly observe the form or attitude of the person making the original statement as at the time when the statement becomes an essential element to determine the credibility of the statement recorded in the protocol. Ultimately, the protocol in which the investigative agency recorded the statement of the person making the original statement has a limit that it has no fundamental probative value compared to the statement of the person making the original statement, and in particular, where the person making the original statement fails to appear in cross-examination and cross-examination, it cannot be deemed as having a genuine value that can be a judge’s duly formed evidence.

Therefore, even though the defendant denied the facts charged and the statement made by the person making the original statement, if the defendant was unable to attend the court and cross-examine the defendant, it is clear and detailed that the facts of his direct experience on the part of the person making the original statement have been recorded in the court and the detailed part of the circumstances. Thus, even if the defendant did not cross-examine the court, the defendant can clearly recognize the exact purport of the statement even if he did not go through cross-examination, and there is no doubt as to the credibility of the statement in light of the form and contents of the protocol, or there is no special circumstance to recognize strong probative value in light of the form and content of the protocol, or there is no other flexible evidence to support the credibility and probative value of the statement made in the protocol. Thus, it cannot be recognized as having the genuine value of evidence, and thus, it is not permissible to recognize the facts charged as the principal evidence. This is the same as well as the case where the defendant consented to the investigation agency's protocol as evidence.

According to the records of this case, the following facts are revealed.

The summary of the facts charged in the instant case is that the Defendants, a entertainment drinking proprietor, directly assisted Nonindicted 1 or Nonindicted 2, who visited the entertainment drinking house operated by him on July 2002 through August 8, 200, to engage in prostitution in the entertainment drinking house at the (trade name omitted) entertainment entertainment room, and the Defendants consistently urged the Defendants to engage in entertainment at the nearby entertainment facility, but there is no good fact that the Defendants had consistently interfered with the investigation at the early stage of the instant case, but there is no good reason to arrange to engage in entertainment. In particular, it is argued that Nonindicted 1 and 2, at the time of the facts charged, are not clear whether the Defendants’ operation of the entertainment drinking house as their visitors.

Of the evidence submitted by the prosecutor, the evidence supporting the fact that Nonindicted 1 and 2 were not a guest at the entertainment drinking house operated by the Defendants at the time of the charge is the only evidence that Nonindicted 1 and 2 made at the investigative agency. Each of the above statements is the general reference of Nonindicted 1 and 2’s personal behavior in the form of voluntary movement without a warrant of search and seizure against Nonindicted 1 and 2 (trade name omitted) by the police who had held the warrant of search and seizure. Some of the contents of the records include not only the difference between the time of visiting the police station and the time of visiting the entertainment drinking house, but also a little abstract statement about the person arranging the act of prostitution or the location of the visiting place of business. In addition, there is no evidence that can reinforce the credibility or probative value of Nonindicted 1 and 2’s statement in the lodging business by confirming the entertainment drinking house, the broker of the act of prostitution and the leapment.

The Defendants pointed out the ambiguity of the statements made by Nonindicted Party 1 and 2 in the trial process, and strongly demanded the attendance of the two persons and the opportunity for cross-examination by the Defendants. However, due to the unknown whereabouts, the two persons’ appearance in the court and cross-examination could not be sexually dead, and the Defendants consented to the admissibility of the protocol prepared by the investigative agency on the nine or ten-time trial date according to the prolongedization of the trial.

In light of the above facts acknowledged in light of the legal principles as seen earlier, a protocol in which the investigative agency stated Nonindicted 1 and 2’s statements shall not be recognized as having the real value of evidence that can serve as the basis for the formation of a judge’s correct conviction, and thus, it is not permissible to recognize the facts charged in this case as the only evidence.

Unlike this, the court of first instance that rejected the probative value by using the protocol in which the investigative agency stated the statements of Nonindicted Party 1 and 2 as the only evidence, and the court of original instance that recognized the facts charged cannot maintain the judgment on the probative value of the protocol prepared by the investigative agency as it is against the rules of evidence.

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)