Noh Woongrae Acquitted in First Trial... Illegally Collected Evidence: Defense Shield or Due Process? [Invest&Law]

Noh Woongrae Acquitted in First Trial...
Mobile Phones and Other Digital Evidence
Increasingly Dismissed in Their Entirety
Emphasis on Due Process Means
Voluntary Submission and Consent Now Crucial
Counterarguments Raised About Hindering th

Yonhap News Agency

There has been a growing trend of digital evidence, such as mobile phones and servers, being dismissed entirely during the trial phase. Despite being key evidence, these materials are increasingly being ruled as illegally collected evidence (so-called "illegal evidence") in criminal trials. Within the legal community, there is a clash between those who argue that "illegal evidence has become a defense attorney's invincible logic" and those who view this as "part of the broader trend toward strengthening procedural justice."

According to the legal community on December 3, on November 26, Presiding Judge Park Kangkyun of the Seoul Central District Court's Criminal Division 4 acquitted former Democratic Party lawmaker Noh Woongrae in the first trial, citing "violation of due process" in a bribery case involving approximately 60 million won. The key issue was that the seizure procedure for the mobile phone of Ms. Cho, the spouse of businessman Mr. Park, which was considered decisive evidence (the smoking gun), was ruled illegal and thus dismissed in its entirety.

Previously, while investigating a bribery-for-mediation case involving Mr. Park and former Democratic Party Deputy Secretary-General Lee Jeonggeun, prosecutors expanded their investigation after discovering additional allegations against former lawmaker Noh during a search and seizure of Ms. Cho. The court found that, in the case of electronic information, if a separate offense is discovered during a search, the process must be halted immediately and a new warrant obtained. However, in this case, investigators proceeded without following this procedure and only obtained Ms. Cho's voluntary consent to submit the information.

The court stated, "It is reasonable to conclude that a de facto full search was conducted without the scope of the seizure being specifically defined," and noted, "Without this electronic information, the investigation could not have been initiated or conducted." With the exclusion of this key evidence, related statements and materials-so-called derivative evidence-also lost their admissibility under the "fruit of the poisonous tree" doctrine.

In fact, in last year's case involving Song Younggil, leader of the Pine Tree Party, the court ruled that the recorded files from former Deputy Secretary-General Lee Jeonggeun's mobile phone were illegal evidence, resulting in acquittal on those charges. Similarly, in the case of former Samsung Biologics CEO Kim Taehan, who was indicted for instructing the destruction of evidence during the company's listing process, a violation of due process in securing digital evidence was recognized, leading to a not-guilty verdict in the first trial. Similar cases have continued to appear in Supreme Court rulings.

Importance of Procedural Justice

The "genuineness" of voluntary submission during searches (whether the person under search consented and handed over the materials) and the "specificity" of the items to be seized (whether the seizure list was detailed) have emerged as critical criteria in determining guilt or innocence. A lawyer in Seocho-dong commented, "A mobile phone is a compressed file containing one's entire personal life, work, and finances. If procedures are not followed, it's only a matter of time before investigations become indiscriminate fishing expeditions." Another law firm attorney added, "Although the warrant appendix clearly states the right to participate and the scope of electronic information to be handed over, in practice, there are many cases where these requirements are not strictly observed."

A partner at a major law firm explained, "In the United States, judges determine the admissibility of evidence and juries assess its probative value, which has led to a sophisticated legal framework around illegal evidence. In Korea, however, all authority has long been concentrated with the judge, with a focus on 'substantive truth.' As digital evidence becomes more prevalent, the current trend seems to be a rebalancing of this approach."

Concerns About Hindering the Discovery of Substantive Truth

This is also why major law firms are rushing to strengthen their "search and seizure response teams." One law firm attorney stated, "Even a minor procedural misstep during the seizure stage can collapse an entire prosecution, so corporate and institutional clients now view early response as an essential strategy." In practice, Kim & Chang operates a seizure response unit within its criminal team, Lee & Ko has a search and seizure response team, Bae, Kim & Lee runs the "BKL On-Site Investigation Forensics Response Team," and Yulchon and Sejong also have preemptive search and seizure response teams. These teams provide comprehensive strategic advice from on-site response to trial support.

However, there is significant opposition to the idea that recognizing illegal evidence too broadly could impede the discovery of substantive truth. In particular, with the abolition of the prosecution service and the reduction of the prosecution's direct investigative powers, concerns are growing that this issue will become even more pronounced as the police take the lead in seizure procedures. Due to their lack of trial experience, police may be more prone to procedural errors, which could directly result in the collapse of evidence admissibility.

This content was produced with the assistance of AI translation services.