불일치진술의 증거능력에 관한 비교법적 검토

• 영문명: Comparative Review on the Admissibility of the Witness' Prior Inconsistent Statement
• 발행기관: 한국형사법학회
• 저자명: 김희균(Kim, Hee-Kyoon)
• 간행물 정보: 『형사법연구』형사법연구 제21권 제1호, 419~440쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.01.28

영문 초록

If we decide not to consider all the statements gathered by the law enforcement personnel while investigating victims or eye-witnesses, our criminal justice system will be approaching to the adversarial one. In the 15th century, England opened a new paradigm of criminal justice, which was sharply compared to the Continental one. In the Continent, then, dossiers have been prepared by magistrates in the investigating stage, and those are widely accepted as substantive evidence by the trial courts. Therefore the defendants in those systems do not have the tools for attacking the contents of the dossiers once they are prepared and proffered to the courts. That is the reason why England has created an adversarial system which basically blocks the two stages, say, investigating stage and trial stage. Likewise, Federal Rules of Evidence do not admit the prior inconsistent statement (PIS) by a witness who testifies now at court, because the statement was procured in the pre-trial stage. However, the FRE's attitude towards the PIS is not universal. Sometimes reality requires that PIS should be admitted as evidence. It is the reality that the so-called turn-coat witnesses undermine the integrity of our criminal justice by denying the previous statements that they have offered to the police. This article will introduce various viewpoints taken by such jurisdictions as England, the States, Korea, and the European Commission regarding the admissibility of PIS.

목차

Ⅰ. 서 론

Ⅱ. 불일치진술의 증거능력 문제

Ⅲ. 불일치진술에 대한 입법례 분석

Ⅳ. 결론: 비교법적 검토

Abstract

키워드

전문법칙 불일치진술 형사정책법 미연방증거규칙 진술조서 the rule against hearsay prior inconsistent statement Criminal Justice Act Federal Rules of Evidence dossier