Admissibility of Evidence | Supreme Court Holds That a Mediation in Which an Investigator Was Involved Is Not Admitted as Evidence

This is a case in which whether evidence should be admitted was at issue.

The non-indicted persons appointed as criminal mediators conducted the criminal mediation procedure in this case in a manner in which only the defendant attended in person while they spoke with the victim by telephone.

When no settlement was reached in the criminal mediation procedure in this case, the non-indicted persons prepared the criminal mediation protocol in this case, which recorded the date, the place, the names of the suspect and the victim and whether each had attended, the respective assertions of the suspect and the victim, the mediation committee's recommendation, and the result of the mediation, and they sent it to the prosecutor.

In the criminal mediation protocol in this case, the ‘suspect's assertion’ section recorded that he ‘caused the victim to suffer sexual molestation and attempted sexual intercourse,’ and at the end, the respective names and signatures of the presiding mediator, the mediators who participated in the criminal mediation procedure, and the defendant who attended were recorded.

Another non-indicted person, a prosecution investigator serving as secretary, also recorded his name and signed at the end of the criminal mediation protocol in this case.

The issue in this case was whether, even though a document recording the defendant's statement was prepared by a person who is not an investigative agency, it falls under ‘a document, other than those provided for in the preceding two Articles, recording the statement of a person who is not the defendant’ under Article 313(1) of the Criminal Procedure Act where the document was prepared under the involvement or influence of an investigative agency after an investigation had commenced and, when examined in substance, it is difficult to regard the document as having been prepared outside the investigative process.

Unlike the lower court, which recognized the admissibility and treated it as evidence of guilt, the Supreme Court determined that its admissibility could not be recognized.

The Supreme Court stated that it was necessary to consider the affiliation and status of the criminal mediators, the circumstances and purpose of preparing the criminal mediation protocol in this case, the content and nature of the materials that the criminal mediators had obtained from the investigative agency in connection with the conduct of the criminal mediation procedure, the method, content, and venue of the criminal mediation, and the situation in which a prosecution investigator was involved as secretary.

As to the admissibility of the evidence in this case, considering together that the criminal mediators heard the parties' statements by telephone and prepared the criminal mediation protocol in this case, and the situation in which a prosecution investigator was involved as secretary, the portion of the ‘suspect's assertion’ section of the criminal mediation protocol in this case that recorded the defendant's statement was prepared under the involvement or influence of an investigative agency after an investigation had commenced.

The Supreme Court determined that, when the foregoing circumstances are examined, the document cannot be regarded as having been prepared outside the investigative process, and therefore its admissibility could not be recognized under the Criminal Procedure Act.

That is, the Supreme Court determined that, because an investigative agency had been involved in the process of preparing the protocol, its admissibility could not be recognized; and that, because it is neither a ‘suspect interrogation protocol’ nor a ‘protocol recording the statement of a person who is not the defendant’ prepared by an investigative agency, and is also difficult to regard as a ‘statement written by the defendant or by a person who is not the defendant,’ its admissibility could not be recognized either.

However, while setting forth the foregoing legal principles, the Supreme Court found that, although there was an error of misapprehension of the legal principles regarding this criminal mediation protocol, the remaining lawful evidence was sufficient to recognize guilt, and so it found that the lower court's error had no effect on the result of the judgment and dismissed the final appeal.

The Criminal Procedure Act adopts the principle of court-oriented trial, the principle of oral argument, and the principle of direct examination as its basic principles.

Accordingly, where the Criminal Procedure Act recognizes the admissibility of documentary evidence such as protocols prepared by investigative agencies when certain requirements are met, this is permitted only exceptionally, in consideration of the ideal of discovering the substantive truth and the demand for procedural economy; the provisions on the requirements for recognizing admissibility should therefore be construed and applied strictly.

The Criminal Group of Daeryun Law Firm LLP provides advice on the interpretation and application of legal principles, drawing on the extensive practical experience of 🔗attorneys experienced in criminal matters. Through coordination with the Evidence Examination, Digital Forensics, and Security Groups, it also assists in collecting evidence and proving its authenticity by objective means.