S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law (JKL) Journal of Korean Law Volume 10 Number 1/2 (2010)
The Korean Hearsay Rule and the Protocol
- Kim, Heekyoon
- Issue Date
- BK 21 law
- Journal of Korean Law, Vol.10 No.1, pp. 143-169
- Later in the course of the democratic reformation of the justice system, the Judiciary,
supported by the civil rights groups and a majority of the legislators, tried to limit
prosecutorial and police power. More precisely, they opposed the dossier-building practice in
the pre-trial stage that the prosecutor dominates. Thus they decided to control it. The best way
would be to deny protocols admissibility and to encourage the parties to offer more live
testimonies. The rule against hearsay basically guarantees this paradigm shift. The
amendment also opened the way for calling those who heard the suspects statements. But
trial judges prefer to read protocols in office in preparation for trials. The videotape is not even
in the list of substantial evidence.
Certainly, the protocols containing PIS have lost their authoritative voice. They must have
been prepared properly, be reliable, genuine, correct, and made in a particularly reliable
situation. Furthermore, the testifier must be available for cross-examination from a defense
counsel. All these requirements make the prosecution increasingly more dependent on
protocols made with suspect parties admissions.
The most popular evidence still seems to be a protocol with party admission. Videotapes
are prepared for supporting its admissibility not for substantial evidence. In the Korean
criminal process, this sort of protocol itself flows as if it is something that reveals the truth.
Roughly speaking, the Korean criminal process is similar to that of the French one of which
Professor Langbein has given an interesting description.