CONTENTS
- 1. Recorded Call Evidence, a Case in Which the Admissibility of a Copy of a Recording File Was at Issue
- - The Lower Court Holds That a Copy of a Recording File Cannot Be Admissible
- 2. Recorded Call Evidence, the Supreme Court's Determination on the Admissibility of a Copy of a Recording File
- - Recording Evidence, to Be Determined by Whether the Copy's Identity With the Original Is Proved
- - Recording Evidence, the Court Finds That Identity Is Recognized
- 3. Recorded Call Evidence, Daeryun's Strategy
1. Recorded Call Evidence, a Case in Which the Admissibility of a Copy of a Recording File Was at Issue
This is a case in which, with respect to recorded call evidence, the admissibility of a copy of a recording file with no original was at issue.
The defendants were indicted on charges of conspiring to deceive the victim and thereby defrauding the victim of approximately KRW 270 million in cash.
To prove the above charges, the victim submitted to the investigative agency a CD storing numerous recording files as evidence of the defendants' acts of deception and their receipt of the cash.
In response, the defendants asserted that they had not deceived the victim or received cash from the victim as set out in the charges, and that the above recording files were copies with no original and were therefore inadmissible.
The Lower Court Holds That a Copy of a Recording File Cannot Be Admissible
Focusing on the point that no original of the files recorded on the CD submitted by the prosecutor as evidence existed, the lower court found that the crime could not be proved, reversed the judgment of the first-instance court that had found the defendants guilty, and held them not guilty.
The lower court stated that “it cannot be confirmed that the original file was copied as it was, without artificial alteration such as editing during the copying process,” and held that the admissibility of the recording files in this case cannot be recognized.
2. Recorded Call Evidence, the Supreme Court's Determination on the Admissibility of a Copy of a Recording File
With respect to recorded call evidence, the Supreme Court's determination on a copy of a recording file with no original differed from that of the lower court.
Setting out the legal principles below, the Supreme Court held that even a copy of a recording file may be admissible, and reversed and remanded the lower judgment.
Recording Evidence, to Be Determined by Whether the Copy's Identity With the Original Is Proved
It must be considered that a file recording the content of a conversation, by its nature, not only lacks the signature or seal of its author or the speaker but also carries the risk that its content may be edited or manipulated by the recorder's intent or by particular techniques.
Accordingly, where the file is an original directly recording the content of a conversation, or a copy made from the original, it must be proved that the copy reproduces the content of the original as it is, without artificial alteration such as editing during the copying process.
Where there is no such proof, the courts have held that admissibility cannot readily be recognized.
However, where submission of the original is impossible or difficult and the original and the copy therefore cannot be directly compared, the court may, by comprehensively considering the testimony or statements of persons involved in the procedures for creating, transmitting, and storing the recording file, the results of the examination and appraisal of the recording file, the course of the investigation and trial proceedings, and other circumstances, determine whether the copy's identity with the original is proved. (Supreme Court, Decision of September 13, 2012, 2012 Do 7461)
Recording Evidence, the Court Finds That Identity Is Recognized
The victim recorded conversations with the defendants on the victim's mobile phone, copied those recording files (whose extensions are ‘3gp’ or ‘m4a’) and stored them on a computer or an external hard disk, and then deleted most of the recording files that had been stored on the mobile phone.
The victim then copied some of the recording files stored on the computer or external hard disk onto a CD and submitted it to the investigative agency.
Pursuant to the lower court's commission of appraisal, the Digital Forensics Team of the Seoul Northern District Prosecutors' Office conducted a forensic analysis of the mobile phone the victim had used for recording, and the result showed that the hash value of each recording file was identical.
In addition, the voice analyst who performed the above appraisal stated that it is not easy for an ordinary person to convert a given recording file for the purpose of manipulation, apply manipulation, and then compress it back into the file format at issue.
Comprehensively considering the above facts, the Supreme Court determined that there were no traces giving rise to suspicion that the content of the recording files in this case had been edited or manipulated.
That is, since there is considerable room to find that the copies of the recording files in this case are admissible, the Supreme Court reversed and remanded the lower judgment, which had declined to recognize their admissibility and found the charges not guilty.
3. Recorded Call Evidence, Daeryun's Strategy
This was a case in which, with respect to recorded call evidence, the admissibility of a copy of a recording file with no original was at issue.
Where a private individual submits a copy of a recording file made by that individual as evidence, the principle is that the point that the copy reproduces the content of the original as it is, without artificial alteration such as editing during the copying process, is to be proved through direct comparison of the original and the copy, such as a comparison of hash values; however, where submission of the original is impossible, one must argue whether the identity of the copy with the original is proved by comprehensively considering the results of the examination and appraisal of the recording file and the like.
In such situations, accurate evidentiary analysis through digital forensic techniques, submission of evidence in accordance with legal procedures, and the preparation of expert opinions and support for appraisal are of particular importance.
Because digital evidence is a field that requires both technical analysis and legal review, it may be advisable to select a law firm in which attorneys and forensic specialists collaborate.
Daeryun Law Firm LLP operates an in-house 🔗Evidence Investigation, Digital Forensics, and Security Group, providing the entire process, from gathering the evidence required for legal procedures to legal services, in one place.
