The Korean Hearsay Rule and the Protocol

Abstract

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.