디지털 기술의 발전에 따라 여러 방식의 무인 감시카메라가 상용화되었지만 기술상의 한계로 식별에 하자가 있는 디지털 증거들이 많은 것이 현실이다. 이러한 증거에 저해상도 사진의 식별력을 높여주는 초해상도 기술을 적용하면 증거의 가용범위를 확장할 수 있다. 초해상도 기술의 정확도가 일정 수준 이상으로 보장되기 시작한 지 얼마 되지 않은 관계로 해당 기술의 결과물에 증거능력을 인정할 수 있을지 여부에 대한 논의가 전무하다. 이 기술의 결과물은 현장의 정보를 그대로 담고 있는 것은 아닌바, 일반적인 증거능력 요건의 만족만으로 증거능력이 긍정되기는 어려울 것이다. 그러나 초해상도 기계학습 전문가가 작성한 검사기록 보고서라는 진술증거로서 증거능력이 인정될 여지가 있다. 이러한 방식으로 증거능력을 인정받기 위해서는 증거능력의 기본 요건인 적법성과 임의성이 갖추어져야 한다. 그리고 여타 전 문증거와 마찬가지로 진술에 대해 전문법칙의 예외의 요건인 필요성과 신뢰성까지 인정되는 경우 에 한하여 증거능력이 긍정될 수 있다. 전문법칙의 예외의 요건 중 신뢰성까지 전문가와 기술 양자에 대하여 요구될 것이다. 본지에서는 기술에 대한 신뢰성을 갖추기 위한 구체적인 기준을 기술적인 관점에서 제시한다.

대상판례에는 두 가지 문제가 있다. 첫째, 대상판례는 숫자 세기를 잘못하고 있다. 전문진술 상황은 매체가 하나인 경우고 재전문진술은 매체가 두 개인 경우다. 조서는 그것 자체로 매체 2개, 즉, 수사기관과 조서를 포함하고 있기 때문에 숫자를 셀 때 둘로 세야 한다. 이건 우리가 선택할 수 있는 문제가 아니라 전문법칙을 채용한 모든 나라에서 지켜야 하는 정의에 관한 문제다. 둘째, 제316조 제1항은 ‘공판준비 또는 공판기일에서의 진술’이라고 규정함으로써 공판정에서의 진술에 적용되는 조항임을 명확히 하고 있다. 수사기관에서 진술한 자에 대해서 적용되는 규정이 아니다. 수사기관 앞에서 진술하면서 진술자가 자신이 경험한 바가 아니라 피고인이 진술한 것을 그대로 되뇌어, 결과적으로 피고인의 방어권 보장에 문제가 생길 수는 있다. 그 문제의 해결 방법은 원진술자를 불러서 같은 진술을 반복 하게 하거나, 최소한 성립의 진정을 인정하게 하면 되는 것이다. 그럼으로써 제316조의 취지를 충분히 구현할 수 있다. 그렇지 않고, ‘조서 상 진술도 전문진술이니까 바로 제316조 제1항이 적용된다,’라고 결론을 내리는 것은 특별한 실익도 없이 문제를 복잡하게 만든다. 조서 안의 진술을 진술, 전문진술, 재전문진술로 나누는 것이기 때문이다. 지금 생각해 보면, 두고두고 아쉬운 것은 제310조의2를 도입할 때 지금 위치에 둘 게 아니라 제314조와 제315조 사이에 두지 못한 점이다. 그랬다면 제311조와 제314조까지는 조서규정으로 남고, 제315조와 제 316조는 전문법칙의 예외로 분리되었을 것이다. 즉, 우리 법은 직접주의의 원칙에 따라 조서의 증거능력도 제한하고, 영미에서 수입한 전문법칙도 갖춘, 피고인의 방어권 보장에 충실한 법이 되었을 것이다. 그런데 조서규정 앞에 전문법칙 규정을 둠으로써 모든 게 헝클어져 버렸다. 조서가 전문법칙의 예외로 읽히는 이상한 상황을 맞게 된 것이다.

일본은 외무성 홈페이지에서 삼국사기 기록에 의하면 우산국이었던 울릉도가 512년 신라에 귀속되게 되었음을 알려주는 기술은 있으나 우산도에 관한 언급은 없다고 주장한다. 이에 대해 한일양국의 많은 자료는 “울릉도와 우산도(독도)가 지리적으로 인접한 섬이며, 우산도는 울릉도의 부속도서이다”라는 것을 기록을 통해 쉽게 추정해 볼 수 있다. 따라서 우산도는 울릉도의 부속도서임이 분명하다. 그리고 종물은 주물의 처분에 따른다는 부종성의 원칙에 따라 우산도는 울릉도와 운명을 같이 한다. 삼국사기 기록에 신라 지증왕 13년(512년)에 울릉도가 이사부에 의하여 신라에 복속되었다면 우산도 또한 신라에 복속된 것이다. 따라서 일본의 두 섬이 별개라는 주장은 타당한 근거에 의한 주장이 아니다. 울릉도와 우산도가 신라에 복속되는 과정에서 신라의 영토 취득 형태는 정복에 해당한다. 이는 당시의 영토취득 방법 중 하나로 정당하다. 그러나 오늘의 국제법 상은 인정되는 방법은 아니다. 그리고 현대 국제법 이전의 역사적 권원은 현대 국제법에 의하여 대체되지 않으면 현대 국제법상 효력이 없다. 이사부의 우산국 정벌로 인한 신라의 영토취득은 역사적 권원에 해당한다. 따라서 신라의 영토취득이 현대 국제법에 의하여 효과를 나타내기 위해서는 권원의 대체가 필요하다. 여기에 관해서는 신라의 우산국의 복속 및 그 이후의 고려, 조선, 대한제국에 의해 순차적으로 승계되어 오던 중 1900년 10월 대한제국 칙령 제41호 공포로 권원의 대체가 이루졌다고 본다. 이는 현대 국제법에 의해서도 독도를 우리 땅이라 주장할 정당한 근거이다. 따라서 독도는 우리 땅이다.

In the korean supreme court case in question, the fact needs to be reconsidered, that the prosecutor’s record containing the statement of witness that becomes the decisive evidence to prove the guilt was left out. Especially, even though the court judged that the chance of cross-examination was provided to the declarant of the record and there was no substantial violation of procedural rules, it could have assess the circumstantial guarantees of truthworthiness. Every issue will be absorbed into the principle of free evaluation of evidence, if the admissibility of the prosecutor’s record is not considered. It is so hard to completely agree with the argument of the dissenting opinion in which in case of inconsistent statements more weight of reliability must be placed on a court testimony. It is because it is clearly in violation of the principle of free evaluation of evidence to simply more rely on a court testimony in case of inconsistent statement. In light of the facts appearing in the case in question, it was possible to assess reliability of circumstances of statement separately from total consideration of reliability of evidences. Most of all, the witness’ statement before prosecutor should not have easily admitted when considering its’doubtful circumstances. Therefore, the courts, expecially the appellate court, should have closely examined the circumstances by having the persons related to the prosecutor’s interrogation take the stance. Because this process was left out, the requirement of the circumstantial guarantees of truthworthiness was not satisfied.

This research paper is a commentary on the Constitutional Court’s 2013.10.24. sentence 2011 Hunba 79 decision. The point issues of the Constitutional Court’s decisions are as follows. Whether it has violated the principle of definiteness, the principle of excess prohibition, and whether including the accomplice’s protocol of trial in the same article is a violation of the constitution. This writer is a testifier who has suggested a constitutional opinion in the Constitutional Court’s public defense. Therefore, there will be an annotation on the Court’s decision based on the written opinion which may agree with the Court’s basis of decision or have a different perspective towards it. The legislative intent of the provision 3 of Article 315 of the Criminal Procedure is to accept creditable papers with exceptions to the hearsay rule, allowing the trial procedure to get along smoothly and contributing to the finding of the truth of substance. Japan, on the other hand does not allow a protocol of trial from a different case to have admissibility of evidence. However, there is not a big difference in the procedure of deciding the actual admissibility. Similarly, the United States enumerates the exceptions to the hearsay rule, presuming it limitedly, but with multiple instances laid in the legislation, there is not much difference, compared to Korea’s criminal procedure, in how the evidence law is operated. In addition, the provision 3 of Article 315 of the Criminal Procedure is a regulation on the procedure for the preservation of evidence, not applied to the principle of definiteness. Also, the interpretation itself can concretely determine the range of application, therefore not a vague regulation. As seen above, the provision 3 of Article 315 of the Criminal Procedure does not transgress the principle of legal step or the principle of excess prohibition. In short, the provision 3 of Article 315 of the Criminal Procedure is constitutional, considering the legislative intent, comparison with foreign legislation cases, and juridical examination. Though the protocol of trial with an accomplice’s testimony is guaranteed to have a high level of ‘voluntariness’ and ‘due process’ because it is realized in the court before judges, considering the content, there may be a possibility of false testimony to shift responsibility on the defendant. In conclusion, this writer approves of the improvement of the legislation, for it is more desirable to have a definite legislation to guarantee people’s basic human rights and develop the code of criminal procedure based on the principle of constitutional state.

The Criminal Procedure Act of Korea prescribes that a written statement prepared by the investigative authority is admissible as evidence, only if it was prepared in compliance with the due process and proper method. The requirement of ‘due process and proper method’ means the legality of the process and method of preparing a written statement by the investigative authority. On the other hand, the Article 7 of the Korean act on protection of specific crime informants(hereinafter referred to as “the informants protection act”) provides that when any retaliation is likely to be taken against an informant of a crime or his/her relatives, prosecutors or police officers are not required to note all or part of information which verifies the identity of the informant of the crime, such as a name, age, address or occupation. In regard to the requirement of ‘due process and proper method’, it is questionable whether a written statement of witness under a pseudonym is admissible as evidence where it is prepared on the crimes other than the specific crime prescribed in the informants protection act. In this case, the lower court and the appellate court decided that a written statement of witness under a pseudonym was not admissible because the questioned crime of blackmail was not the specific crime and the statement under a pseudonym did not comply with the due process and proper method. On the contrary, the Supreme Court of Korea decided that the investigative authority could prepare the protocol of a written statement under a pseudonym, if there had been a probable cause considering a combination of circumstances such as the relation between witness and the defendant, the type of crime, the necessity of protecting the witness because the Criminal Procedure Act did not require a real name in the written statement to verify the identity of witness. And the Court ruled that the meaning of ‘due process and proper method’ prescribed in the Article 312 of the Criminal Procedure Act was that the investigative authority must comply with all process and methods provided in the Criminal Procedure Act, like informing of the right to remain silent where a written statement was prepared. However, the balancing test of a probable cause in the ruling has a problem with not presenting a bright-line rule in the investigative procedure and arousing new controversies.

The defendant consulted an attorney-at-law regarding legal issues which might constitute crimes before commencement of an investigation. The defendant received legal opinion from the counsel by e-mail, which was later seized and presented as evidence of guilt by investigative authority.The court of original instance rejected to accept written legal opinion from the counsel as evidence on the ground of Attorney-Client Privilege. The Supreme Court, however, deemed Attorney-Client Privilege is not rooted in our legal system.I concur with the opinion of the Supreme Court in that we have yet to find traditional or provisional basis for Attorney-Client Privilege. It is premature to acknowledge the concept of Attorney-Client Privilege without in-depth probe. Instead, the majority opinion of the Supreme Court looked to Articles 314 and 149 of the Criminal Procedure Act. Article 314 provides one of the exceptions to hearsay rule, which allows the written statement to be admitted as evidence of guilt without cross-examination against the person who wrote the statement, in case that the person is not available due to illness, unknown whereabouts, etc. as well as that the statement is proved to have been written under especially reliable circumstances. Article 149 confers the right to refuse to testify on the legal counsel regarding professional secrets he obtained in the course of business. The majority opinion of the Supreme Court ruled that Article 314 shall not apply in case that the legal counsel exercises his right to refuse to testify under Article 149. The majority opinion based its rationale on the fact that Article 314 had been revised with a tendency to reinforce oral hearing and direct examination by narrowing the scope of the exceptions to hearsay rule, as well as on the purpose Article 149 seeks to achieve. On the contrary, the dissenting opinion of the Supreme Court deemed that Article 314 shall apply in case of exercise of right for refusal of witness under Article 149. The dissenting opinion pointed out that Article 314 serves to discover the truth by allowing hearsay evidence under exceptional circumstances. According to the dissenting opinion, there is no difference between situation where the witness is unable to appear because of illness, etc. and situation where the witness exercises his right to refuse to testify when it comes to applying Article 314.I concur with the majority opinion of the Supreme Court. The witness who refuses to testify may or may not have lawful grounds to refuse. If he has sufficient lawful grounds, we should pay attention to the purpose of the Article which confers the right to refuse to testify. In this context, it stands to reason to declare that Article 314 shall not apply in case that the legal counsel exercises his right to refuse to testify under Article 149. By denying the admissibility of legal opinion as evidence of guilt, written by the legal counsel who lawfully exercises the right to refuse to testify, we can further the right to refuse to testify as well as the principle of oral hearing and direct examination.

Although vivid testimony of the witness and/or the defendant in the courtroom is very important in fact-finding, hearsay evidences are widely accepted in relation to the criminal cases. Recently diverse medias such as documents, audio-tapes, video-tapes, computer discs or electronic files which recorded statements spoken by a private person under the private circumstance are available as evidences to prove the fact asserted in such statements.According to the Criminal Procedure Act in Korea the document which contains the statements of the defendant or the witness written by a private person is admissible when autograph, sign or seal of the writer or the speaker is certified and correctness of recording is confirmed by the writer or the speaker in the courtroom during the trial. But the document which contains the statement of the defendant is admissible when correctness of recording is confirmed by the writer in the courtroom during the trial and especially reliable circumstance is affirmed, even if the speaker deny the statement in the document.With regard to the admissibility of recorded statement, the authentication of record might be established by the speaker or the recorder. And the correctness of recording in principle should be confirmed by the speaker. But the defendant is inclined to deny his/her own past statement which may be construed as evidence leading to conviction. So the recorder might confirm the correctness of recording if the speaker made the statement under the especially reliable circumstance.

Article 215 of the Criminal Procedure Act does not limit explicitly the time limit that public prosecutor should request a warrant to seize, search or inspect evidence. But after the public prosecutor filed the charges, he cannot request a warrant by article 215 of the Criminal Procedure Act. After the indictment, the court may seize any articles which, it believes, may be used as evidence, or liable to confiscation, by article 106 of the Criminal Procedure Act. And the court may, if necessary, search the defendant, effects, or dwelling or any other place of the defendant, by article 109(1) of the Criminal Procedure Act. The court may search the person, effects, dwelling or any other place of a person other than the defendant, only when there are circumstances which warrant the belief that there are articles liable to seize therein. If the public prosecutor collected the evidence by a search warrant issued from a district court judge other than the court in charge of the case, those evidence are not admissible in principle, because those collection of evidence does not follow legal procedures, which are prepared for human rights. Supreme Court decided it April 28, 2011, on 2009Do10412 case.

Si la demande de la part d'un agent de police de le suivre au commissariat comme un moyen d'enquête ne parvient pas à satisfaire la force de maintien requise sensiblement, c'est l'arrestation illégale. Donc détention illégale que les preuves recueillies dans le cadre de la loi de la preuve comme preuve de la recevabilité devrait être négatif. Toutefois, la demande de la part d'un agent de police de le suivre au commissariat rassemblement arrestation illégale, des preuves illégale recueillies dans de telles circonstances à titre de preuve, même la preuve que le défendeur seront recueillies auprès de tiers plutôt que de les lorsque le défendeur directement sur l e s affirmations qui peuvent être utilisés comme preuve de culpabilité. Perçues illégalement principe d'exclusion de la preuve est la proposition du bien absolu, mais en fonction de cas individuels d'intérêt public et intérêts privés en harmonie avec la phrase spécifique afin de s'assurer de la validité des restrictions à certains principes mesure inévitable, et d'autres grands pays qui ont une telle raison, le principe d'exclusion illégalement recueilli des preuves a reconnu une exception pour une variété de théories qui peuvent être vus.

It is defined that digital evidence is all valuable information as evidence that is preserved and delivered in digital form, the salient traits of its character is independent from a storage, invisible, unreadable etc., it must be solved authenticity, reliability, best evidence for the purpose of its admissibility.In our criminal procedure law, the evidence is classified into two types, statements and objects, objects as evidence are composed of documents and things, it could be included statements by a person or not in documents as evidence. In essence digital evidence is regarded as documents evidence so hearsay-rule is applicable to it.To acquire admissibility of digital evidence made by a person it is important that the person acknowledges his digitals documents produced by him-self according to the criminal procedure law art. 313① in a court but the opinion that only the acknowledgement by a writer can give admissibility of digital evidence is very dangerous in criminal procedure because it may make valuable evidences useless things.In the revised criminal procedure law new solution is imposed in it. Even though a person deny its contents in a report said by him-self for example “I didn’t talk like that in a report”, prosecutor could prove that a report made by a investigator is credible and exact in the objective way including recording video-tape etc., the admissibility of a report evidence can be achieved recognition.This revised purpose must be regraded as a new basis in evidence law totally, even if a person deny his digital document made by him-self for example “I didn't make digital document like that”, prosecutor could prove that a digital document is made by him-self in the objective way including analysis meta-data etc., “it is you who made this digital document”, the admissibility of a digital document evidence could be achieved recognition. if to prove who made a digital document evidence end in failure, its admissibility have to be reviewed again according to criminal procedure law art. 315, valuable digital evidence must not go into the dumper easily.Anyone talking about evidence in criminal procedure cannot help but mention digital information that is essential in it by progress of scientific technology.Much to our regret, there is not at all rule for the purpose of admissibility of digital evidence in present criminal procedure law, as a result many opinions and judicial decisions consider requisites of admissibility of digital document as one of admissibility of non-digital document but an intrinsic attribute of digital evidence is profoundly different from one of traditional evidence.Ultimately I think that criminal procedure law must be revised referring to foreign country’ law to acquire admissibility of digital evidence although a person deny a digital document that is made by him-self, if prosecutor could be successful in pr○○f, “it is written by him-self”, in other words witness or suspect, the digital evidence shall be useful.I wish to be collected g○○d thoughts to prevent that valuable digital evidence may be discharged by only one statement of a wicked-person.

In this case, the Supreme Court of Korea gives very important opinion for the evidence law in general, ① Lowering of the probative power of the statesment in the protocol of investigative agent in the light of the weakness of the written record ② Unrecognizing the proof value of the statements where the cross-examination lacks. First, With indicating the inaccuracy of the record in the light of statements in fact, lowering of the probative power of the statesments in the protocol of investigative agent in general is inappropriate. In order to complement such a weakness, the law provide the strict provisions for the protocol drawing up. Furthermore, this kind of view falls into difficulty in answer to the question, “Can be the lowering problems all solved, if we, for the complement of such weakness, record the total statements or record them in tapes or video tapes?” This problem is not for statement in the protocol, but for the probative power of the out of court statement. Probative power is the thing which should be judged in each case individually with considering total situation with relation to the situation in which the statements were made, contents of the statements and comparison with other evidences. By the way, the problem of confrontation has important meaning from the new tendency which views the problem in other way than hearsay approach. But the method of the Court leads to the confusion with the meaning or the standard because of the termonology which the Court has used, that is , substantial proof value and inadmissible. Recently, the problem of confrontation is understood as a procedural right of the defendant in the criminal procedure and there is an American approach and a European Union approach. In my opinion, Considering our constitutional provision and criminal procedure, the European Union solution is proper. The admissiblity of the statements made in the situation in which the defendant cannot confront the speaker should be judged be the standard of the fairness of the process, that is, the question, “Would it harm the fairness of the process in the whole to admit the statements?” By the judgement, it would give an important ground to see the resposibility of the investigative agent for the nonconfrontation situation. But the responsibility of the investigative agent should not be an absolute ground for the inadmissibility of the statements, but would be the ground for prudent judgement of the probative power considering whether the substantial parts of the statements could be confirmed by other materials, when the statements are the only one important evidence to support the charge. Furthermore, Because the time of the confrontation is not limited to the trial, it would be useful to evaluate the provision in our criminal procedure for the interrogation with confrontation by the public attorney and investigative officer and to use it as a meaningful tool for guaranteeing the chance of confrontation of the defendant.

The criminal procedure commonly provide for the joinder of defendants, whereby two or more persons may together be prosecuted in a single trial. Assume a case in which defendants A and B have been lawfully joined for trial, but at that trial the prosecution intends to offer against A a confession by him stating, in effect, that he and B committed the crime. That right of an accused in a criminal case to confront the witnesses against him would be violated if A, by his confession, was a witness against B but could not be cross-examined. So to speak, where the powerfully incriminating judicial statements of a codefendant, who stands accused sideby- side with the defendant, are deliberately spread before the judge in a joint trial. In fact, it seems to me that “interlocking” bears a positively inverse relationship to devastation. A codefendant' confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant' alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant' confession does no more than support the defendant' very own case as corroborating evidence. But it might be otherwise if the defendant denies about his confession, in which case it could be said that the codefendant' confession is required as corroborating evidence that supports the defendant' very own case.

형사재판에서 피고인이 제출한 증거에 대한 증거능력과 증거조사에 관한 연구이다. 국민 참여재판의 출범 및 개정 형사소송법의 시행에 따라 피고인이 제출하는 증거의 중요성이 증대되고 있다. 형사재판에서 공소 제기된 범죄사실에 대한 입증책임은 어디까지나 검사에게 있다. 따라서 피고인이 제출하는 증거는 알리바이 등 공소 범죄사실에 반대되는 사실을 입증하기 위한 증거이든, 공소 범죄사실에 대한 진술증거의 신빙성을 탄핵하기 위한 탄핵증거이든, 모두 그 성질은 탄핵증거라고 보는 것이 합당하다. 그러므로 원칙적으로 증거능력을 필요로 하지 아니하고 탄핵증거로서 증거조사를 하면 족하다. 연구 대상 판례는 이러한 판단을 전제로 하고 있다.

Recently, many people live or travel abroad by various reasons. In this global era, we cannot only require the witness to come to homeland for testifying in court. It is necessary to provide a new method to take a reliable evidence which can solve the case with the witness staying abroad. In this case, the Prosecutor's Office try to give a new method by requesting the Consul in Japan to hear the witness and record the statements. According to the Vienna Convention on Consular Relations, Consul can hear the people of the Consul's nation. German Consular Relations Law provides that the admissibility of out of court statements recorded by Consul is regulated according to the institution which makes the request. Therefore, if the request comes from court, the statements recorded by the Consul according to the request are treated as statements recorded by Judge. From this point of view, the Prosecutor's Office insisted that the out of court statements recorded by Consul in Japanese be treated as the out of court statements recorded by Judge in deciding the guarantee of trustworthiness. But the Court construed that the statements recorded by Consul as the statements recorded by private person. Worse than this, the Court denies the guarantee of trustworthiness as the condition for the admissibility for the evidence. But this guarantee of trustworthiness as a condition for admissibility is relatively lower level of reliability than the reliability for the selection from the admissible evidences for trusting the facts asserted. The selection from the admissible evidences is for the fact finder, for example, trial jury. not for the leader of the procedure. But in this case, the Court seems to be unable to distinguish this guarantee of trustworthiness as a condition for admissibility from the issue of selection from the admissible evidences for trusting the facts asserted. So the Court's decision is inappropriate and the statements recorded by Consul should have been admitted.

According to the development of computer, many people recently record their statements with computer. Therefore new issue about the admissibility of the statements recorded in computer file floats on the legal horizon. From the viewpoint of the anglo-american hearsay rule, this issue could be easily cleared by the rule and exception. In principle, hearsay rule say that out of court statements be inadmissible for the evidence of the truthfulness of the contents of the statements and call this out of court statements hearsay. Hearsay rule focuses on the statements, not the method by which this statements are recorded or transferred. As the result, the out of court statements recorded in computer file are hearsay when they are given as evidence for the truthfulness of the contents of the statements But hearsay rule know many exceptions which make the out of court statements admissible. At first, hearsay statements by the defendant are admissible as a exception of hearsay rule. Secondly, hearsay statements by the third party are admissible when there is necessity and guarantee of trustworthiness. There are many categories and general exceptions which represent this necessity and guarantee of trustworthiness. On the other hand, there is another point for the admissibility of the evidence. It is the authentication. Authentication can be given by many methods, as example, by testimony of the declarant, by the testimony of the third party who knows the evidence or other objective materials. From this point of view, we can consider § 313① and § 315 possible clauses for the admissibility of private statements in computer file. At first, § 313① require the authentication be made by the declarant's oral testimony. The Court says that this testimony is the one in which the declarant admit the statements to be made by himself. According to the explanation, the admissibility is decided only by the declarant's subjective admission. This result is unreasonable because the issue of admissibility should be decided by the objective facts. Therefore the testimony of the declarant in § 313① should be construed as all the statements in court and the authentication be decided by all the statements of the declarant in court objectively considered with other facts and materials. And § 315. 3. provides general clause of guarantee of trustworthiness as exception of hearsay rule. This guarantee of trustworthiness as a condition for admissibility is relatively lower level of reliability than the reliability for the selection from the admissible evidences for trusting the facts asserted. The selection from the admissible evidences is for the fact finder, for example, trial jury. not for the leader of the procedure. But in the Court' decision, the Court seems to be unable to distinguish this guarantee of trustworthiness as a condition for admissibility from the issue of selection from the admissible evidences for trusting the facts asserted. So the Court's decision is inappropriate and the statements recorded in computer file should have been admitted.