지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
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On November 15, 2008 the Korean Supreme Court made a landmark
decision to exclude illegally obtained physical evidence. It also
adopted the “fruit of poisonous tree" doctrine, which excludes the
derivative evidence obtained through the first tainted evidence. This
Article reviews the Supreme Court's two decisions that applied the
“fruit of poisonous tree" doctrine.
First, the Decision of March 12, 2009 provides more specific
standards to decide whether to exclude “tainted fruits." It requests
comprehensive evaluation of all the circumstances regarding the
collection of the first tainted evidence: the reasons and degree of
process violation, the possibility of avoiding the violation, the causation
between process violation and evidence collection, and the willfulness
or negligence of law enforcement officers. Then, it does not
exclude the physical evidence obtained without warning the suspect
of the right to silence.
This Article argues that the right to silence is the most crucial
legal instrument to protect a suspect, particularly when the suspect is
under interrogation without his/her counsel; it is a grave violation for
a police officer not to warn a suspect of the right; in this case,
exceptions of the “fruit of poisonous tree" doctrine are not applicable;
so the physical evidence obtained without warning a suspect of the
right to silence should be excluded.
In the Decision of October 23, 2008 the Supreme Court held that
the fingerprints on the illegally seized bottles and cups are admissible
even if the seizure of the bottles and cups is illegal. This Article
argues that such a view may weaken the constitutional request for
warrant for search-and-seizure; the illegal seizure of the bottles and
cups contaminates the evidentiary power of the fingerprints. In this
case, however, the consent of the victim who is the owner of the
bottles and cups is reasonably inferred, so the seized bottles and cups
are admissible and the fingerprints on them are also admissible.
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