[Seocho-dong Legal Story] Why the Hidden Camera Perpetrator Was Found 'Not Guilty' Despite Confession and Evidence

[Asia Economy Reporter Bae Kyunghwan] A man who illegally filmed women's bodies dozens of times was caught but acquitted by the Supreme Court. Illegal filming videos poured out from this man's cellphone, and he confessed to the charges, but he escaped punishment. This was the result of the secured videos losing their evidentiary power and even the confession lacking supporting evidence. What happened?

A man in his 30s, Mr. A, was accused of filming the body of a female student (then 16 years old) with his cellphone camera on a bus in Ansan-si, Gyeonggi-do, around 8 a.m. on April 2, 2018, and of filming women's legs or under their skirts from March 9 to April 2 of the same year.

The police caught Mr. A a month earlier, on March 10, during an incident in a women's restroom. At that time, Mr. A followed Ms. B into the women's restroom and attempted illegal filming but was caught, resulting in an attempted crime. Accordingly, the police obtained a search warrant on April 5 for the alleged crime and seized two of Mr. A's cellphones to analyze the evidence.

However, the problematic footage from March 10 did not appear on Mr. A's phones. Instead, the police confirmed illegal filming footage on the bus on April 2. Based on this video, the police interrogated Mr. A, and the prosecution leading the investigation indicted him for violating the Sexual Violence Punishment Act (filming using a camera, etc.). In simple terms, after conducting a search for the March incident, they indicted him for the April incident.

However, the court ruled that the video files submitted as evidence were not specifically or individually related to the criminal facts described in the warrant. The illegally filmed videos presented as evidence had no objective connection to the charges in the police search warrant, and the investigative agency did not guarantee Mr. A's right to participate during the process of finding and securing evidence from the cellphone.

The court pointed out specifically, "Since the issued warrant was for a different crime, if the investigative agency accidentally discovered filming related to other criminal charges during the cellphone search, they should have stopped the additional search and obtained a new search warrant." It continued, "The police did not provide the defendant with an opportunity to participate during the exploration and filming of these videos. Therefore, the videos found on Mr. A's cellphone are illegally collected evidence and cannot be used as evidence of guilt even with the consent of the defendant or his lawyer."

The Supreme Court's judgment was slightly different but also ended in acquittal. The Supreme Court panel held that, unlike the lower courts, the illegally filmed materials secured during the investigation could be used as indirect or circumstantial evidence. Given the short interval between offenses, the method of selecting unspecified women in crowded public places for filming was the same, and if the victims' testimonies were the only evidence, the videos could be used as indirect or circumstantial evidence.

However, the exclusion of Mr. A's participation during the evidence collection process was problematic. The court stated, "There is no material to recognize that the defendant's right to participate was guaranteed, so each video is illegally collected evidence and cannot be used as evidence of guilt," confirming the lower court's ruling.