In accordance with the provision of Article 308–2 of Criminal Procedure Act, any evidence obtained in violation of the due process shall not be admissible. This Article newly inserted by Act No. 8496, Jun. 1. in 2007. Since then, there has been a series of a decision on the evidence, including the exclusionary rule, the fruits of poisonous tree doctrine, and the circumstance that would give exceptionally the admissibility of secondary evidence. In addition, there were a number of decisions that required to be prepared in compliance with the due process and proper methods in giving the admissibility of evidence in relation to the protocol, etc. prepared by prosecutor or senior judicial police officer. As a whole, due to the influence of making a stipulation of the exclusion of evidence illegally obtained, it is clear that the case law in the field of evidence law is proceeding in a direction to emphasize the guarantee of the due process. And in accordance with the provision of Article 314(Exception to Admissibility of Evidence) or 316(Statement of Hearsay) (2), in the case of Article 312 or 313, if a person who is required to make a statement at a preparatory hearing or a trial is unable to make such statement, which is impossible to exercise the right of cross–examination, the relevant protocol and other documents shall be admissible as evidence: Provided, that this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state. In relation to the above provisions, court’s decision maintains a more rigorous interpretation as a requirement for admissibility of hearsay evidence. In addition, court’s decision seems to be proceeding to apply strictly requirements for admissibility of evidence of documents or output from the digital storage media, explaining the requirements of seizure and search of digital storage media in response to overall scientific and information– oriented society. And the recent decision describes the problem of establishing the judgment criteria of scientific evidence as a solution to the problem of misuse of science among the problems in the process of interaction between science and law in accordance with the criminal case. In conclusion, it is still a question of how to realize concretely the general principle that the two sets of demands, namely the discovery of substantive truths and the protection of the human rights of defendants (the guarantee of due process and the deterrence of illegal investigation) under the exclusionary rule.

The scientific evidence has become more important in judicial conflict. Aside from its authenticity, scientific evidence combining with tendency in perception of people affect establishment of the fact greatly when it is adopted as evidence. Therefore, which channel is used to have the court recognize science evidence has emerged as an important issue, especially in the U.S. where jury trials have taken place in stead of judge trials. The U.S. Supreme Court has provided a variety of legal grounds on this issue and is developing the grounds. In this commentary, the progress of discussion in the U.S. regarding adoption of scientific evidence is reviewed in detail.Korea is about to introduce full-fledged criminal trial by jury, so how to adopt expert testimony including scientific evidence to confirm the fact of judicial conflicts will have more grave importance. In this regard, discussion over the role of a justice as a gate keeper, suggested in the Supreme Court’s decision on Daubert case, will take shape.The court has tried to evaluate scientific evidence through precedents on individual evidence including a polygraph. The subject decision is very significant because it went further to suggest common standard for validity of scientific evidence by referring to the reliability standard suggested in the U.S. Supreme Court’s rulings. However, suggesting the generality without legal basis like the U.S. Federal rules on evidence has a room for criticism such as ‘creating the law’ by court’s decisions. To resolve such concerns, admissibility of evidence and reliability should be divided and standards appropriate for Korea’s criminal procedure system where strict evidence reliability is needed. Then, based on those efforts, interpretation on court rulings should be developed. The discussion between the academia and the field is urgently necessary. Also, judgement on scientific evidence requires collaboration between the science and the judicial society. Therefore, various efforts for communication and institutional improvements shown in the commentary must be developed and there should be improvements regarding the system of seeking an expert opinion.