檢訊中陳述之「證據能力」與「合法調查」──以最高法院一○二年度第十三次刑事庭會議決議（一）對實務操作傳聞法則之影響為中心

How Taiwan’s Courts Deal With Statement of Witnesses Before a Prosecutor as Hearsay Exception: A Highest Court Ruling and Its Influence on Lower Court Decisions

最高法院做成一○二年度第十三次刑事庭會議決議（一），使我國爭議多年的「檢訊中陳述」議題，終於具備完整的程序規範。本文回顧「檢訊中陳述」之證據法制建立過程、說明最高法院本次決議之重要性、觀察分析決議作成後實務判決之變動情形，並就事實審法院操作檢訊中陳述概念，常發生的各種錯誤情況，逐一加以說明。關於最高法院應如何判斷原審判決是否正確適用傳聞例外之要件，本文亦提出具體建議，以供我國未來實務運作之參考。

This article discusses how Taiwan’s Highest Court ruled on a long-term legal dispute about a hearsay exception in 2013 and studies how this decision has practically influenced lower court decisions afterwards. In Taiwan, if a witness makes a statement before the prosecutor, the statement is usually considered as a hearsay exception and shall be admitted as evidence, as long as it is not “obviously unreliable”. However, it is not clear if this applies when the witness fails to sign an affidavit.
The ruling from Taiwan’s Highest Court defined two specific scenarios: (1) if the witness making statement before the prosecutor does sign an affidavit, the statement is admissible evidence unless it is obviously unreliable; (2) if the witness making statement before the prosecutor does not sign an affidavit, the statement is inadmissible unless there is proof that it is particularly reliable, and that it is necessary in proving the facts of the criminal offense. While the  ruling seems reasonable and consistent with precedents of the Highest Court, this article describes cases where lower courts have had difficulty trying cases by applying the ruling and have even found ways to unsettled it.