Evidence Collection | Court Holds That Evidence Obtained in Violation of Due Process Is Wholly Invalid; Bribery and Drunk Driving Could Not Be Punished

Noh Woong-rae, a former member of the National Assembly affiliated with the Democratic Party of Korea, was indicted on charges of receiving a total of 60 million won from a person surnamed Park during 2020 under the pretexts of brokering permits and licenses for a logistics center, providing favors for a power plant supply project, and providing favors related to a solar power project.

The prosecution determined that some of this had been provided as election funds immediately before the general election and as intra-party election expenses, and accordingly applied charges of receipt of bribes, acceptance of a bribe through mediation, and violation of the Political Funds Act. After indicting him without detention in March 2023, the prosecution sought four years' imprisonment, a fine of 200 million won, and collection of an equivalent value of 50 million won at the final hearing.

To prove the defendant's charges, the investigative agency collected evidence by seizing various electronic devices and analyzing mobile phone data.

However, the court noted that information secured during the digital forensics process had been used in the investigation of a different crime from the one for which the warrant had originally been issued.

In other words, the court determined that the electronic information on the mobile phone had been collected arbitrarily in a manner exceeding the scope of the warrant, and that the prosecution had constructed the charged facts by securing additional statements and supplementary evidence on that basis.

Accordingly, the Seoul Central District Court determined that the material in question constituted illegally collected evidence and excluded its admissibility in full.

The court also excluded all of the secondary evidence, on the ground that statements derived from the unlawful search and seizure likewise could not function as independent evidence.

In the end, no lawful evidence remained to support the charged facts, and the court acquitted former Assembly Member Noh.

A was indicted on charges of having driven a stretch of about 300 meters on the night of April 1, 2024, with a blood alcohol concentration of 0.076%.

The police, responding to a report, confirmed that A had already arrived at the residence and parked the vehicle, after which they entered A's residence without a separate warrant and conducted a breathalyzer test.

In the course of this, the police did not explain basic matters required to be advised, such as the right to refuse entry or the right to request the officers to leave.

Although A confessed to drunk driving, it was also confirmed that, on the same occasion, A had protested to the effect of "Is it right to question me at my home?", "Isn't this trespassing on a residence?", and "I drank again after coming home."

The structure became such that the credibility of A's confession could only be assessed together with the lawfulness of the investigative procedure, and in the end the Changwon District Court determined that the police's entry into the residence and the breathalyzer process had exceeded the scope of voluntary investigation, and that there were no circumstances justifying it on grounds of urgency or the prevention of danger.

Accordingly, the breathalyzer result constituted illegally collected evidence, and because no other lawful evidence existed to corroborate A's confession, A was acquitted.

Compliance with due process in collecting evidence is, beyond a formal requirement, a necessary element that constitutes the substantive legitimacy of criminal justice.

The moment evidence secured in violation of procedure is permitted, the authority of investigative agencies loses its checks, and the risk of infringing citizens' fundamental rights increases.

These judgments are cases that reaffirm in practice the constitutional principle that prioritizes the protection of fundamental rights, and it appears that compliance with the scope of warrant execution and with procedure will be required even more strictly in future investigations.

If you become involved in a case where a procedural violation by an investigative agency is suspected, it is necessary to review, from the early stage of the investigation, the scope of the search and seizure, the lawfulness of the forensic procedure, and the voluntariness of the statement-formation process.

In particular, where a defect is found in the procedural requirements of the process of analyzing electronic information, such as on mobile phones and computers, it can shake the evidentiary structure of the entire case.

At Daeryun Law Firm, attorneys handling criminal matters collaborate with the Evidence Examination Center and the Digital Forensics Center to systematically develop a defense strategy centered on whether evidence was illegally collected.

If you are in a situation where a procedural violation is suspected in the evidence collection process, please seek the assistance of a professional as early as possible to establish a response strategy.