Utilization of Accomplice’s Testimony as Evidence

As the Criminal Procedural Act was amended on February 4, 2020, a written record of interrogation of a criminal suspect prepared by the prosecution is allowed only when it’s truthfulness of the contents’ in the document is admitted by the defendant. After the amendment, The Supreme Court of Korea decided that the admissibility of the protocol concerning interrogation of an accomplice produced by the prosecution could be allowed only when the defendant admitted the contents, which positioned the prosecution’s written evidence to the same level as that of the judicial police. In other words, the court includes accomplice in 'the criminal defendant, who was the suspect at the time' of Article 312 (1) of the Criminal Procedural Act. As a result, there is no way for the protocol concerning interrogation of an accomplice prepared by an investigative agency to be used as evidence if the very defendant denies the contents. On the contrary, The Supreme Court of Korea does not extend the meaning of the ‘defendant’ of the written statement and the document containing the statements of Article 313 (1), and the hearsay statement of Article 316 of the same Act to accomplice. As a result, except the case of the written statement of Article 313 (1), without the authenticity proved by the original stater, the aforementioned hearsay evidence could not be used as evidence. Even in the case of accomplice's court statement or testimony, if an accomplice exercises the right to refuse to state or testify, those could not be used as evidence. This study criticized the court’s interpretation, which accomplice is included in the meaning of the defendant of Article 312 of the Criminal Procedural Act while the defendant of Articles 313 and 316 does not include accomplice, despite the commonness of the legislative intent, relationship between accomplices, and practical issues among the hearsay evidence. Particularly, it must be considered that the development of science technology and the advancement of serious crimes are in progress, and that not all crimes have material evidence. Furthermore, it is difficult to obtain direct evidence other than accomplices’ statements in most cases. With two suggestions, this paper first argued that ‘the criminal defendant, who was the suspect at the time’ in Article 312 (1) and (3) of the Criminal Procedure Act should be regarded as solely for the suspect. Even if being an accomplice, it is in the position of a third party to the other accused. The inclusion of an accomplice in the defendant is the result of an expanded interpretation without reasons. However, even after the amendment of Article 312 (1) of the Criminal Procedure Act, the court still judged with inclusion of an accomplice in the defendant. Therefore, the possibility of changing the meaning of the defendant as mentioned seems to be far off at this time. Eventually, this paper presented a new interpretation that includes accomplice in the 'defendant' of Articles 313 and 316 of the Criminal Procedure Act in accordance with the meaning of the defendant of the Article 312 (1) and (3). Arguments for the court’s interpretation of Article 312 (1) and (3) of the same Act such as accomplices’ psychological responsibility avoiding, the inseparability between the statements of one accomplice and the other's crime, could be applied to Articles 313 and 316 of the same Act. However, the court treats Article 312 of the Criminal Procedure Act and Articles 313 and 316 of the same Act differently without proper reasons. It is necessary to expand the application of accomplice in a unified manner so as to secure evidence of guilt. Even if interpreted as above, the requirements for a particularly reliable state must still be met, so that unexpected side effects could be strictly managed.