Relevance and Issues of Digital Evidence of Obscene Materials in Digital Forensics Procedures : Focusing on Supreme Court Decision 2023Do11395

The subject judgment is substantively linked to the criminal law's system for punishing sex crimes, and the main issue under criminal procedure law is interpreting the relevance requirement for search and seizure warrants. The first and second instance courts held that the violation of the Act on the Punishment of Sexual Violence (possession of camera-recorded material, etc.) (Case 1) and the violation of the Act on the Protection of Juveniles Against Sexual Abuse (possession of sexually exploitative material, etc.) (Case 2) had different legislative purposes and elements, and that the downloads occurred approximately one year and four months apart, thus lacking relevance. Therefore, since ‘Case 1’ and ‘Case 2’ were separate incidents, the court acknowledged the criminal charges in ‘Case 1’ but acquitted the defendant in ‘Case 2’. The reason given was that the incriminating evidence in ‘Case 2’ was seized without a separate search and seizure warrant, as it was discovered incidentally, and the secondary evidence collected through it also constituted illegally obtained evidence. However, the Supreme Court ruled that: ① At the time the warrant was requested, ‘Case 2’ had the potential to be an additional offense related to ‘Case 1’; ② the defendant's sexual preference or tendency to indulge in sexual videos manifested and led to a single criminal act, and ③ the files from ‘Case 2’ could be used as indirect or circumstantial evidence to assess the credibility of the defendant's statements and the motive for the crime, or as corroborating evidence for a confession, thus establishing relevance. Thus, differing relevance determinations between the first instance, second instance, and Supreme Court courts are possible because, while basic norms for assessing relevance exist, there remains ambiguity allowing for differing views in specific cases, and because relevance involves a comprehensive judgment. In examining the facts of this case, this study finds that while the rulings of the first and second instance courts appear correct in their outcomes due to issues like the unconstitutionality of the relevant penal provision, the Supreme Court's reasoning is deemed more reasonable regarding the current sexual crime punishment system and the strict application of the provision.