What is hearsay?
Hearsay is an out-of-court statement offered to prove the truth of what it asserts, reaching the court through a document or another person's testimony instead of the declarant's live testimony.
Why exclude it?
- The declarant cannot be cross-examined.
- The judge cannot observe the declarant's demeanor, contrary to the principle of immediacy.
- Transmission may distort the statement.
The rule in Korea: art. 310-2
Except as provided in arts. 311-316, documents replacing in-court testimony and testimony relaying another person's statement are inadmissible.
Main exceptions
| Article | Evidence | Requirements (summary) |
|---|---|---|
| 311 | Records made by courts or judges | Admissible as such |
| 312(1) | Prosecutor's interrogation record of a suspect | Lawful procedure + the defendant or counsel admits its contents (amended 2020, effective 1 Jan 2022) |
| 312(3) | Police interrogation record | Lawful procedure + the defendant or counsel admits its contents |
| 312(4) | Witness statement records | Authenticity + opportunity to cross-examine + especially reliable circumstances |
| 313 | Written statements | Proof of authenticity, etc. |
| 314 | Declarant dead, ill, abroad or missing | Necessity + proof of especially reliable circumstances |
| 315 | Official family records, routine business records | Admissible as such |
| 316 | Hearsay testimony | Defendant's statement: reliability; others: necessity + reliability |
Co-defendants' police records
Korean case law holds that a police interrogation record of an accomplice is inadmissible against the defendant who denies its contents, and that art. 314 cannot cure this even if the accomplice has died, because art. 312(3) protects the defendant.
Consent
Under art. 318, documents or items that both prosecution and defendant consent to may be admitted if found authentic.
Comparison with the United States
The Federal Rules of Evidence 801-807 likewise exclude hearsay subject to many exceptions. Under the Sixth Amendment Confrontation Clause, Crawford v. Washington (2004) held that testimonial hearsay is admissible only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine. See also US criminal procedure.
References
- 형사소송법 제310조의2, 제311조~제316조, 제318조 (법률 제16924호, 2020. 2. 4. 일부개정; 국가법령정보센터 law.go.kr).
- 이재상·조균석·이창온 (2022). 『형사소송법』 (제14판). 박영사.
- 신동운 (2014). 『신형사소송법』 (제5판). 법문사.
- Federal Rules of Evidence, Rules 801-807 (Legal Information Institute, law.cornell.edu).
- Crawford v. Washington, 541 U.S. 36 (2004).