Supreme Court: "Video of Prosecutorial Analyst Interviewing Child Sexual Abuse Victim Lacks Evidentiary Value"

"Actions During Investigation Process Cannot Be Subject to Article 313"

The Supreme Court has issued its first ruling that videos recorded by a statement analyst from the Supreme Prosecutors' Office, who interviewed child victims of sexual crimes during the investigation process, cannot be used as evidence in criminal trials.

According to the legal community on the 21st, the Supreme Court's Second Division (Presiding Justice Kwon Young-jun) delivered this ruling on the 28th of last month in the appeal trial of a case involving violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes.

The case involved the prosecution of a biological mother, stepfather, and acquaintances from 2018 to 2021 on charges of sexually abusing or raping a female child victim.

Under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, when the victim is a child, courts or investigative agencies require an inquiry into the credibility of the statement to assess the reliability of the testimony.

A statement analyst affiliated with the Supreme Prosecutors' Office received an inquiry from a prosecutor and recorded the interview conducted with the victim. Subsequently, the prosecutor submitted the recorded video as evidence to the court.

The key issue in the trial was whether this video recording could be used as evidence.

Both the first and second trials, as well as the Supreme Court, consistently ruled that the recording could not be used as evidence.

The Supreme Court stated, "This video recording cannot be considered as created outside the investigation process, and therefore its evidentiary value cannot be recognized under Article 313, Paragraph 1 of the Criminal Procedure Act."

In principle, in criminal trials, only statements made by persons who directly experienced the incident and appear in court to testify can be used as evidence. Other statements heard from others or documents containing statements are considered 'hearsay evidence' and lack evidentiary value.

However, the Criminal Procedure Act recognizes the evidentiary value of hearsay evidence in certain exceptions.

Statements by victims or witnesses who are not defendants, if made during the investigation process, must be documented in the form of records or statements according to Article 312. If the statements are made outside the investigation process, forms such as photos or videos containing the statements are allowed under Article 313.

The prosecutor argued that the statement analyst's interview recording was made outside the investigation process and thus should be admissible as evidence under Article 313. The reasoning was that the Supreme Prosecutors' Office statement analyst is not an investigator and only interviewed the victim without conducting an investigation or inquiry.

However, the Supreme Court judged that since the interview was conducted at the prosecutor's request, the statement analyst belonged to the Supreme Prosecutors' Office, and the interview location was a local prosecutor's office interrogation room, it should be considered an act that occurred during the investigation process. Therefore, Article 313, which allows video recordings as evidence when made outside the investigation process, cannot be applied.

The Supreme Court explained, "The video recording is neither an interrogation record prepared by an investigative agency nor a record containing statements of persons other than the defendant, nor is it a written statement prepared by the defendant or a person other than the defendant, so its evidentiary value cannot be recognized under Article 312 of the Criminal Procedure Act."

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