檢訊筆錄與傳聞證據－－以日本法制之運作為中心

A Study on Prosecutor-Examined-Statements and Hearsay Evidence, with comparison centered on the operation of Japan judicial system

傳聞證據之所以加以排除，不得作為證據，乃因供述者本身並非親眼目擊證人，而係間接傳聞而來，故其證言可信度甚低，無從藉由被告反對詰問，推敲與驗證其陳述之真實性；惟此，並不當然導出傳聞證據乃毫無證據價值，若其具有「可信性之情況保證」足以取代反對詰問，且此種傳聞證據具有較高作為證據使用「必要性」的情況下，得例外承認其有證據能力。所謂「必要性」，包括供述不能，及其該陳述是證明犯罪事實所不可或缺之情形。而「可信性之情況保證」，指該陳述作成時，具有高度之信賴程度。偵查中之檢訊筆錄（或稱檢察官之訊問筆錄），乃為檢察官於偵查中，所為蒐集相關犯罪及保全人的供述筆錄之證據；此等筆錄之性質，係屬「審判外」之供述證據，屬於傳聞證據，原無證據能力，但若合於上開傳聞例外之要件，則允其具有證據能力；惟如果傳聞例外要件之立法寬鬆，則有可能剝奪被告反對詰問權之虞；是此，本文藉由日本檢訊筆錄之立法、學說與其實務之運作為中心，來檢視我國檢訊筆錄之有無缺失，及其謀求改進之道。

The hearsay evidence is not admitted as evidence in court because the oral statement teller is not the witness who did see the crime happening but instead obtaining the information through indirect hearsay. Therefore the credibility of hearsay evidence is low and cannot be verified its truthfulness via the statutory cross examination process of the Defendant. However it doesn’t necessarily means that the hearsay evidence is utterly worthless. Under the condition that its reliability can be assured to replace the cross examination and the degree of necessity to be used as evidence is high enough, exceptionally the hearsay evidence will be admitted as evidence in court. The so-called necessity comprises being impossible to reiterate again and it constitutes a must to prove the fact of crime. The so-called reliability assurance means the reliability was high enough at the time the statement was made. The prosecutor-examined-statements during the investigation proceeding are evidences collected by Public Prosecutor during the investigation proceeding so as to serve as proof of crime and preserve the statement of suspects. The nature of such statements is an oral statement made out of trial and is not admitted as evidence in court unless it complies with the abovementioned exclusion rule of hearsay evidence. However, the Defendant’s right to cross examination may be deprived if the exclusion rule of hearsay evidence was loosely legislated. Therefore this article compares with focus on the Japanese legislation, theory and practice operation of prosecutor-examined-statements so as to identify the inadequacy of current prosecutor-examined-statements we may have and seek the possible remedy for improvement.