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Publications
Criminal Justice Polices and Judicial Systems (ⅩⅣ): Evaluation Research and Legislative Improvement on the Video Recording System in Criminal Procedure
Language
Korean
Authors
, , , ,
Date
December 01, 2020
ISBN
979-11-89908-81-2

Abstract

1. In 2007, in order to achieve due process by preventing the violation of criminal suspects’ human rights and ensuring transparent and lawful investigation, the video recording system was legislated through an amendment to the Criminal Procedure Act as a part of the efforts to reform Korea’s judicial system. More than ten years have passed, but the video recording of suspects’ testimonies under the Criminal Procedure Act have been constantly subject to theoretical and practical controversies, without being properly aligned to the guiding principles and general direction of the Criminal Procedure Act. Despite the significance and importance of video recording in criminal procedures, the system has failed to find its bearing within the Korean criminal justice system. A multi-faceted analysis of the cause of the issue will provide us with a foundation to discuss how video recording should be posited in criminal procedures in the future. In light of the above, this study carries out evidence-based analysis and assessment of the extent to which the purpose and intention envisioned at the time of the system’s adoption have been achieved. In addition, this study reviews the issues associated with the actual implementation of the video recording system from a legislative policy perspective, so as to examine the effectiveness of video recording as a control mechanism for protecting human rights, and proposes legislative improvements aligned with the guiding principles and general direction of the Criminal Procedure Act. 2. The video recording system has received substantial attention as a system required for addressing issues associated with human rights-violating investigation practices in the past, ensuring lawful investigation, and restoring public trust toward investigation agencies under the current criminal procedures. However, the system has been also criticized for reinforcing testimony-based investigation practices, and potentially distorting judges’ and jurors’ judgments. In addition, despite its purport to protect criminal suspects, the current law confers considerable discretion to investigation agencies in the operation of the video recording system, which restricts the practical effectiveness of the system. In fact, statistics show a continuous decline in the use of video recording during suspect interrogation at investigation agencies. The average use of the system is markedly low as well. On top of the poor performance of the video recording system for suspect testimonies, the 2020 amendment to the Criminal Procedure Act reduced the system into a due process procedure purely aimed at protecting human rights. For investigation agencies, video recording under the changed laws only represents perfunctory procedures that only serve to increase their workload. If left to the discretion of investigation agencies, the status of the video recording system may worsen in the future. 3. This study assesses how the video recording system is perceived and utilized by the parties involved in the operation of the system under the current criminal procedures, and whether the system has achieved its intended purpose and, if so, to what extent. To that end, this study conducted a questionnaire survey with 100 prosecutors, 130 police officers, 116 convicted inmates, and 58 attorneys with experience in video-recorded investigation. The findings of the survey are summarized below. The professionals (prosecutors, police officers, and attorneys) who responded to the survey reported an implementation rate that is lower than the official statistics. In addition, their responses indicate that investigation agencies perceive video recording as a source of heavier workload. However, the respondents believed that the video recording system is conducive to achieving the goal of human rights protection, and the system is indispensable under the current criminal procedures. However, the investigation agencies and attorneys were found to focus on different aspects of the system. The former emphasized its necessity as a means to achieving investigative purposes and facilitating investigations, whereas the latter stressed the need for the system as a means to prevent human rights violations. As for ways to promote the use of the video recording system, investigation agencies positively responded to maintaining the current practice while mandating the use of the system for specific crimes under the investigation guidelines. In addition, the highest percentage of respondents answered that a proper implementation of the video recording system requires the ability to use video-recorded testimonies of suspects as evidence. The responses from the professionals indicated a sizable gap in perception between investigation agencies, who actually carry out video-recorded investigations, and attorneys, whose duty is to protect the suspects. Investigation agencies understandably regard video-recorded investigations as a part of their investigation procedures. On the other hand, attorneys see the system as a procedure designed to protect suspects. Thus, whether video- recorded investigation consolidates its place within the criminal procedures may depend on how we incorporate the gap in perception into the actual system. The convicted inmates who experienced video-recorded investigations during interrogation reported higher levels of nervousness and pressure during video-recorded sessions, which led to perceptions that video-recorded investigation is not a favorable option for them. The finding is attributable to the environment of the video recording room itself, which imposes psychological pressure on suspects and thereby restricts their ability to give testimonies free from pressure. The survey also found that 90% of the surveyed inmates were interrogated without attorneys during video-recorded sessions. The finding suggests the need for a way to ensure the presence of attorneys during video-recorded investigations. Despite the purpose of the system to protect suspects’ human rights and ensure free testimonies, the survey findings show that the suspects did not feel the benefits of video recording. The finding warrants a critical review of the video recording system to verify whether the system is being implemented in alignment with its original purpose. 4. This study also compares the video recording of suspect testimonies in Korea with similar systems in other countries. In the United States, the majority of states have statutes regulating the electronic recording of investigations, including video recording, with a small number of states regulating the recording with state court decisions, state supreme court rules, or state police guidelines or policies. The findings indicate that the video recording and other electronic recording in the United States primarily serve the purpose of preventing false confession by suspects, whose detention places them in an inferior position. The prevention of false confession encourages the prosecution to prove the guilt of a criminal by relying on testimonies that correspond to the criminal facts. It also helps investigation agencies and law enforcement agencies, because they can use the video and other electronic recordings to prove that their investigation did not involve unreasonable or forceful measures. In the United Kingdom, the history of the adoption of mandatory video recording during suspect interrogation shows that the system was adopted primarily as a means to control the investigation practices of the police, rather than a source of testimonial evidence to be used at court. In the early years, the police perceived the system as a surveillance mechanism against them. However, they have come to see video recording as a means to protect themselves from suspicions from others. The United Kingdom has endeavored to change the relevant practices and policies by developing and disseminating new interrogation techniques, along with legislative efforts to ensure the successful operation of the system. In addition, video/audio-recorded suspect interrogations can be admitted as hearsay evidence under Sections 114 and 118 of the Criminal Justice Act, and are controlled under the provisions on the admissibility of confession evidence in the Police and Criminal Evidence Act (PACE). The admissibility of a suspect interrogation record is determined by judges at their discretion, barring special circumstances, such as forced confession, that clearly excludes the arbitrariness of the confession. The suspect interrogation system of the United Kingdom is regarded as a success in and outside the country. The 2018 revision to the PACE Codes of Practice E and F expanded the scope of crimes subject to mandatory recording to all crimes regardless of their seriousness. The revision shows the country’s confidence in the success of the system. Germany adopted the video recording of suspect interrogations in 2013, after Korea’s adoption of the same system. Germany inserted a legal basis for the video recording system in its Code of Criminal Procedure by applying the provisions on the video recording of witness testimonies mutatis mutandis to suspect interrogations. However, after a recommendation from the European Union (EU), the country revised its law on video recording in 2017 to create a new provision providing for the video recording of suspect interrogation, which went into effect in January 2020. Germany requires the video recording of suspect interrogations only in cases involving serious crimes such as homicide, and cases in which the suspects require special protection. Under the German law, a violation of the video recording requirement results in serious repercussions. However, the country granted the court with a wide scope of discretion regarding the issue. Germany plans to assess the outcomes of the system over five years starting in 2020, and use the findings to determine whether to expand on the system. Germany is content with using the video recording system as a means to discover truths, expediate criminal procedures, and protect criminal victims. As such, Germany sees the system as an aid to its criminal procedures, rather than a means for reforming the existing criminal procedures. For example, even though the country revised the relevant provisions to promote the use of video recordings of suspect interrogations, it did not insert provisions that confer admissibility to video recordings. In Japan, the video/audio recording of suspect interrogations was adopted under Article 301-2 of the Code of Criminal Procedure revised in 2016. However, the system was not implemented until June 2019. The Japanese police began the full audio/video recording of its procedures as early as in 2016. The country makes active use of the recording system; by 2019, the implementation rate of the system reached 94.2%. As for the admissibility of video/audio recording media, prosecutors welcome the use of the media as evidence, whereas attorneys and scholars are against the idea on the ground that the right to attorney presence is not fully granted to suspects. However, the benefits of the system (transparency of investigation process, and protection of suspects’ human rights) outweighs its drawbacks. The possible human rights issues are addressed by preventing prolonged screening of video recordings during trials through the active use of attorneys’ opinions regarding evidence and questions to defendants during evidence examination. As such, Japan continues to improve on the audio/video recording system to address its issues while maximizing on its benefits. As for the use of audio/video recordings as evidence, the country allows for the use of recordings depending on whether the “necessity of evidence examination” requirement is satisfied. 5. The adoption of the video recording of suspect testimonies was adopted in 2007 as part of the criminal justice reform at the time, with the prosecution leading the efforts. The use of video recordings created various controversies in regards to the rules of evidence. However, after 13 years of implementation, the video recording system has contributed to fostering interrogation practices that ensure the arbitrariness of suspects’ testimonies to some extent, by improving on the inappropriate interrogation practices at investigation agencies and creating room for proving and disputing the authenticity of suspect interrogation records. In addition, the survey in this study identified a highly positive outcome of the system’s adoption, which is the perception shared by investigation agencies that the video recording system is necessary under the current criminal procedures, despite its low usage in actual criminal proceedings. On the other hand, the video recording system has not consolidated its status as a means to protect suspects from human rights violations. To the contrary, suspects tend to feel pressured by video recording and try to avoid it if possible. In addition, under the current law, the video recording of suspect testimonies is left to arbitrary decisions by investigation agencies, and the law does not even list crimes eligible for video-recorded investigations. Under the current legal treatment of video recording, the operation of the system is bound to be guided by the needs of investigation agencies, rather than the need to protect suspects’ human rights. Therefore, to ensure the effectiveness of the video recording of suspect testimonies under the criminal procedures, the law should require the video recording of suspect testimonies, and list the crimes and suspects subject to the requirement. In addition, for suspects subject to such requirement, all investigation proceedings need to be video-recorded. Other ways to ensure the effectiveness of the system include requiring agencies to inform suspects of video recording in advance, and allowing suspects to request video recording of their interrogations. In addition, sanctions need to be introduced against violations of the video recording requirement. Other policy considerations include: development of interrogation techniques for video-recorded investigations; training and education of investigators on the developed techniques; lowering of workload on investigation agencies; and improving the openness of video recording rooms to lower the pressure felt by suspects interrogated in a closed room.

Heesung Tak

Public Safety and Crime Prevention, Criminal Law&Policy

Senior Research Fellow

Heesung Tak's picture

Research Interest (Major)

Criminal Procedure, Criminal Evidence Act, Digital Forensic Science

Report List

Advances in Neuroscience and Its Influence on Paradigm of Criminal Law(Ⅱ)

Criminal Justice Polices and Judicial Systems (ⅩⅣ): Evaluation Research and Legislative Improvement on the Video Recording System in Criminal Procedure

Development of Brain Science and the Transition of Criminal Paradigm - A Preliminary Study on the Intersection of Brain Science and Criminal Law

A Study on the Discovery of Electronically Stored Information(E-Discovery)

Criminal Justice Policies and Judicial Systems (V) -Evaluation on Civil Participation in Criminal Trials-

Criminal Policy and Judicial System (Ⅳ): Policy Analysis of Sentencing Reform and Sentencing Guideline System

Improvement of Prison Work -The Legal Status of Prison Work-

Achievements of Research in the Field of Criminology and Criminal Justice for the Past 30 Years and Future Challenges(Ⅱ) (Research on Criminal Law)

Reforms for the Criminal Justice System Based on Fairness and Human Rights (Ⅰ) - Measures to Enhance the Evidence Examination Methodology for an Objective Fact-finding in a Penal Offense

Analysis of Korean Criminal Justice System and its Management (Ⅲ): Diagnosis on Investigative Structure and Elements for Improvement

Comprehensive Integration Model Frame of Digital Forensic

A Preliminary Study on Building Crime Prevention System Utilizing Crime Big Data (Ⅱ)

Directions and Implications of Korean Criminal Legislation: Current Status Analysis and Future Suggestions

Jungho Lim

Criminal Law&Policy

Research Fellow

Jungho Lim's picture

Research Interest (Major)

Law

Report List

Criminal Justice Polices and Judicial Systems (ⅩⅣ): Evaluation Research and Legislative Improvement on the Video Recording System in Criminal Procedure

A Study on Rational Application Plan for ‘Publication of Facts of Suspected Crime’

Circumstances and Countermeasures of Unlawful Practices of Law (Ⅱ) - Focusing on the Reality of Corruption Committed by 'Attorney-At-Law Retired From Public Office' and Its Countermeasures

Improving the Prevention System of Corruption in the Private Sector

The Criminal Justice Response and Development Strategy in the Age of the Fourth Industrial Revolution (Ⅰ) Autonomous Vehicle and Drone

Critical Review of Criminal Justice Bills During the 19th National Assembly of Korea: Outcomes and Challenges

Strenghtening the Korean Criminal Justice System Applying Forensic Science (Ⅶ): Response to Environmental Crime in the Time of Climate Change Crisis

Diversifying Sanctions against Corporate Illegality

A Study on the Criminal Liability of Companies Profiting from Illegal Activities

Seulki Kim

Seulki Kim's picture

Report List

Sugil An

Sugil An's picture

Report List

Sangkyun Bae

Sangkyun Bae's picture

Report List

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Korean Institute of Criminology Official Video

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