Supreme Court limits pre-trial evidence use in fraud case

The Supreme Court rejected an appeal in a fraud case, affirming a lower court's guilty verdict while establishing strict limits on evidence gathered before a trial officially begins. The high court held that examining witnesses prior to the first public hearing for the purpose of substantive review is generally impermissible under South Korean law.

The court emphasized that such pre-trial investigations violate constitutional principles of direct examination and trial centrality, which require judges and jurors to form convictions based on evidence presented directly in open court. Lay jurors must participate in the entire fact-finding process, including witness questioning, to properly assess credibility; allowing evidence from closed-door sessions deprives them of the opportunity to observe original testimony.

However, the court outlined an exception where procedural errors can be rectified. If both the prosecution and defense explicitly agree to the pre-trial investigation and subsequently confirm they have no objections to the recorded results during the main trial, the evidence becomes admissible, provided the defendant's fundamental right to defend themselves has not been essentially infringed.

The underlying case involved a defendant accused of defrauding victims of 2 billion won between August 11, 2017, and August 2, 2018, by falsely promising shares and profits from new commercial building projects. The defendant was indicted on charges of violating the Act on Aggravated Punishment of Specific Economic Crimes.

Lower courts had convicted the defendant based partly on statements recorded in a fifth pre-trial preparation session. While maintaining the conviction, the Supreme Court clarified that the lower court's reliance on such records was valid only because the procedural defects were considered cured under the specific circumstances of this trial, where the parties had consented to the procedure and raised no subsequent objections.

The ruling, issued on February 12 in case number 2025Do10184, reinforces the presumption of innocence by preventing judges or jurors from forming premature guilty impressions before the formal trial commences.