[Examining Complete Prosecution Reform⑦] Police Investigate, Prosecutors Try... Digital Forensics Also Separate

[Asia Economy Reporter Kim Hyung-min] From the restoration of the tablet PC revealing the Park Geun-hye administration's ‘state power abuse’ (2016), to the ‘Burning Sun Gate’ (2019) exposing the true faces of idol singers, and the ‘Nth Room sexual exploitation material production and distribution’ case by Jo Joo-bin and his group (2020).

Digital forensics has played a ‘vanguard’ role in uncovering key clues in investigations of major cases that have recently captured nationwide attention. Both the prosecution and the police operate dedicated centers and actively utilize digital forensics in investigations. It is no exaggeration to say that most of the ‘smoking guns’ revealing the full story of cases were uncovered through digital forensics. As time goes on, intelligent crimes using digital devices are expected to increase, making the importance of digital forensics even greater.

Digital forensics will also be directly affected by the so-called ‘complete removal of prosecution’s investigative authority’ (검수완박) law amendments to the Prosecutors’ Office Act and Criminal Procedure Act coming into effect this September. It is expected that the police will use digital forensics for investigations, while the prosecution will use it in trials, clearly distinguishing their roles. Although digital forensics has been widely used during investigations, with the prosecution losing investigative authority, its use is expected to focus on trials. Kim Seung-eon, Chief Prosecutor of the Digital Investigation Division at the Western District Prosecutors’ Office (48 years old, Judicial Research and Training Institute class 33), who formerly served as head of the Digital Investigation Division at the Supreme Prosecutors’ Office, told this publication in a phone interview, “(From September) there won’t be much difference in the overall framework of the prosecution’s digital forensics. However, there may be some changes in workload. While support for on-site operations may decrease, there are many disputes over evidentiary admissibility in trials. The court may request digital forensics to prove evidentiary admissibility or enhance credibility, and we respond to that.” The Supreme Prosecutors’ Office’s Digital Investigation Division has established a trial support team responsible for evidence analysis work required during trials. If the prosecution’s digital forensics focuses on the trial process, the workload of this team is likely to increase in the future.

There are also concerns about side effects that may arise if the prosecution’s digital forensics is limited to trials. The problem is seen as occurring when the police’s digital forensics fails. A legal sector official said, “Although the police, with a longer history in digital forensics, are known to have superior technical skills compared to the prosecution, there are still times when analysis of certain mobile phone devices is difficult. When the police’s analysis fails, there is currently no alternative. Waiting until the prosecution analyzes the evidence during trial means the police investigation is only half done. The prosecution should have authority from the investigation stage and cooperate with the police to conduct digital forensics.”