공판이 진실발견의 장이 되어야 한다는 데는 많은 사람들이 동의할 것이 다. 우리 법 제310조의2도 법정에서의 진술을 최상위에 두고 있다. 이 점 은 대륙법의 직접심리주의이든 영미법의 전문법칙이든 차이가 없다. 사실 판단자가 법정에서 진술을 듣고 진실을 발견하라고 한다. 하지만 이러한 원칙에 모두 예외를 두고 있다. 전문법칙에도 법정 외 진 술을 사실인정의 자료로 쓰는 예외가 꽤 규정되어 있고, 직접심리주의에서 도 법관 앞에서 한 진술은 법정 외 진술이어도 증거로 할 수 있는 길을 열 어두고 있다. 이제 문제는 수사기관이 작성한 서류라면 조금 더 폭넓게 증거능력의 예 외를 인정할 것인가? 검증조서에 수사기관의 목격 진술을 적고, 압수조서나 수사보고서에도 적게 할 것인가, 하는 점이다. 그건 아니라고 본다. 예외가 원칙을 훼손하지 않도록 하기 위해서는 우리 대법원이 어느 지점 에선가 ‘더는 안 된다’는 말을 해 주어야 한다. 검증조서와 압수조서, 수 사보고서에 들어가 있는 진술의 증거능력에 대한 법원의 꼼꼼하고 단호한 검토를 기대하는 이유다. 중요한 것은, 증거서류 규정의 합리적 해석을 통 해 공판중심주의를 강화하는 것이기 때문이다.

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.

Article 60 of the ICJ Statute provides a mechanism for interpreting a previous binding judgment in the event of dispute as to the meaning or scope of that judgment. Procedural legal issues such as jurisdiction and admissibility in interpretative proceedings under Article 60 are different from those in regular contentious or advisory proceedings before the ICJ. The Court has developed a set of concrete rules in its jurisprudence under the simple wording of Article 60 to adjudicate on these procedural issues. However, a case-by-case examination of the Court’s jurisprudence reveals that there is still no structurally clear and logically sound framework, because the ICJ fails to conceptually divide the issues of ‘power,’ ‘jurisdiction,’ and ‘admissibility’ in interpretative proceedings. In order to rectify this problem, this article proposes an analytical framework for the ICJ with a clearer conceptualization of the Court’s ‘power,’ ‘jurisdiction,’ and ‘admissibility’ under Article 60 to clarify the meaning of its previous judgments in interpretative proceedings.

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.

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.

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.

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.

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.

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.

On the evidence for the impeachment, in literature, four problems are in discussion. At first, whether a hearsay evidence is admissible for impeachment, although it is not admissible in view of the hearsay rule. Second, whether the oral evidence of the defendant in trial is impeachable, and whehter the defendant's pre-trial statements protocol of the police is admissible for impeaching the oral evidence of the defendant in trial. At last, whether the authentification is required for the admissiblity of the hearsay written statement for impeachment. For first problem, though a hearsay evidence is not admissible according to the hearsay rule, it is admissible for impeachment. The hearsay rule is operated only where pre-trial statement is produced for asserting the truth of the statement. Because impeachment is not asserting the truth of the pre-trial statement, but swaying the crediblity of the oral evidence in trial, hearsay rule is not operated when the evidence is produced for impeachment. For second problem, the oral evidence of the defendant in trial can be impeached for the appropriate way of truth-finding. In practice, the prior inconsistent statement of the defendant can be often used for impeaching the oral evidence of the defendant in trial. § 312 ② of the Korean Criminal Procedure Act provides that the defendant's pre-trial statesments protocol is not admissible when the defendant or the counsel of the defendant denies the truth of the statesment. Because of the provision, some say that the defendant's pre-trial statesments protocol is not admissible for impeachment when the defendant or the counsel of the defendant denies the truth of the statesment. But the Court admits the defendant's pre-trial statesments protocol although the defendant or the counsel of the defendant denies the truth of the statesment, and it is with me on that. For the last problem, the majority in literature and the Court are with the opinion that the authentification is not required for the admissiblity of the hearsay written statement for impeachment. In this point I cannot agree with the Court. The requirement of the authentification is essential for producing all the evidences. It is a different rule from the hearsay rule. In my opinion, It could be said that the majority and the Court confuse the difference. It should be said that a hearsay written statement cannot be used for impeachment when it is not authentifcated.

The hearsay rule was introduced into the Criminal Procedure Law by the Act No. 705, Sep. 1, 1961 in Korea. Any document which contains statements in place of the statements made at the preparatory hearing or at the public trial shall not be admitted as evidence of guilt except as provided by a few articles of the Criminal Procedure Law(§310-2). The investigation report which contains statements of witnesses prepared by the public prosecutors or by the judicial police officers may be introduced into evidence if the genuineness thereof is established by the person who made original statements at the preparatory hearing or at the public trial(§312 (1), §313 (1)). If the witnesses are unable to be present or to testify at the preparatory hearing or at the public trial because of death, sickness, residing abroad or other reasons, the recorded statements of witnesses are not excluded by the hearsay rule(§314). And the probative value of evidence shall be left to the discretion of the judges(§308). Recently the innovative reformation of trial has been the hottest issue and the Criminal Procedure Law is amended by the Act No. Apr. 30, 2007. During that turmoil the Supreme Court ruled that even though the admissibility of recorded statements of witnesses is accepted on the basis of agreement between adversarial parties(§318), the credibility of those statements is extremely restricted in the case the confrontation right of the defendant is limited. The witness-investigation report may have probative values when the recorded statements are so accurate that they are self-evident or if other evidences collaborate the reliability of the recorded statements.

In 1983, Supreme Court ruled that policemen could not testify to the defendant's confess when the defendant objected. The Court reasoned that since the Code of Criminal Procedure denied the admissibility of the documents which was made by the police and contained the defendant's confess when the defendant object, the policeman was not allowed to testify to that effect, either. The Code of Criminal Procedure, however, does not explicitly prohibit the use of such testimony. As for the document which contains the confess of the defendant, it is extremely difficult to contest. Because the defendant cannot cross-exam the policeman who interrogated the defendant or the defendant himself. But as for the testimony, the reliability can be guaranteed by the cross-examination. In addition, such testimony often includes first-handed, accurate information and cannot be obtained otherwise. This study is an attempt to illustrate such an occasion. In this case which was ruled in 2005, Supreme Court once again denied the admissibility of the interrogator's testimony. However there are some special elements to be considered. Here, the policeman met the defendant near the crime scene just after he had committed homicide; the setting was not interrogatory; the defendant freely admitted that he had killed the victim. If he had met a civilian, he would have told the same story. In situation like this, there is no danger of misconception, manipulation, or memory lapse. This case clearly shows that under certain circumstance it is necessary, sometimes desirable to admit interrogators' testimony. In conclusion, the admissibility of the policeman's testimony should not be decided uniformly. Rather, it should be decided case by case in the light of reliability.

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.