Daegum, 'Electronic Information Image File Storage' for Criminal Procedure Act Trial Preparation... Refutation of Newsbus Report

The Supreme Prosecutors' Office clarified regarding Newsbus's report that "the prosecution stored and managed electronic information not included in the seizure list on the D-NET server managed by the Supreme Prosecutors' Office," stating that "electronic information image files are preserved in accordance with the Criminal Procedure Act and Supreme Prosecutors' Office regulations to prepare for disputes over evidentiary admissibility during trials."

When information stored on electronic storage media such as mobile phones is seized and selectively extracted, it inevitably takes the form of an edited version. Since the defense side often claims technical errors, manipulation, or forgery regarding such edited evidence during criminal trials, the preservation of electronic information image files necessary for subsequent verification is unavoidable.

Seoul Seocho-dong Supreme Prosecutors' Office building. Photo by Younghan Heo younghan@

The Supreme Prosecutors' Office emphasized that if it were impossible to preserve such image files, they would have no choice but to keep the defendant's mobile phone itself until the trial concludes, which could cause greater inconvenience to the seizure subject. They stressed that access is strictly sealed except for the purpose of preserving evidentiary admissibility during the trial, and all files are destroyed once the evidence investigation procedure is completed, ensuring strict management with no issues.

Amendment to Article 313 of the Criminal Procedure Act in 2016... Establishment of 'Authenticity of Digital Evidence' through Digital Forensic Materials

In a press release distributed on the 23rd, the Supreme Prosecutors' Office stated, "With the amendment and enforcement of the Criminal Procedure Act on May 29, 2016, Article 313(2) stipulates that regarding evidentiary admissibility, 'If the author denies the authenticity of the document during the preparatory or trial proceedings, it may be admitted as evidence when the authenticity is proven by objective methods such as digital forensic materials based on scientific analysis or expert appraisal.'"

Article 313 of the Criminal Procedure Act pertains to the evidentiary admissibility of written statements and similar documents.

Before the amendment on May 29, 2016, Article 313(1) of the Criminal Procedure Act (Act No. 13454) stated, "Except as provided in the preceding two articles, written statements or documents containing statements made by the defendant or a non-defendant, bearing the handwritten signature or seal of the author or declarant, may be admitted as evidence when the authenticity is proven by the testimony of the author or declarant during the preparatory or trial proceedings. However, documents containing the defendant's statements may be admitted as evidence despite the defendant's testimony during the preparatory or trial proceedings only when the authenticity is proven by the author's testimony during those proceedings and the statement was made under particularly credible circumstances."

In this provision, the preceding two articles refer to Article 311 (Court or Judge's Records), which regulates the evidentiary admissibility of records containing statements by persons other than the defendant in court or records of court or judge's verification results, and Article 312 (Prosecutor or Judicial Police Officer's Records), which regulates the evidentiary admissibility of suspect interrogation records prepared by prosecutors or investigators, statements of non-defendants, or verification result records.

However, as the Supreme Prosecutors' Office revealed on this day, the amended Criminal Procedure Act (Act No. 14179), promulgated and enforced on May 29, 2016, added to Article 313(1) that it includes "information such as text, photos, and videos created or testified by the defendant or a non-defendant, stored on computer disks or similar information storage media. The same applies hereinafter."

Additionally, paragraph 2 was newly established, stating, "Notwithstanding the main text of paragraph 1, if the author of the written statement denies its authenticity during the preparatory or trial proceedings, it may be admitted as evidence when the authenticity is proven by objective methods such as digital forensic materials based on scientific analysis or expert appraisal. However, for written statements made by non-defendants, the defendant or defense counsel must have had the opportunity to examine the author regarding the contents during the preparatory or trial proceedings."

The amended Article 313(1) at that time states, "Except as provided in the preceding two articles, written statements or documents containing statements made by the defendant or a non-defendant, bearing the handwritten signature or seal of the author or declarant (including information such as text, photos, and videos created or testified by the defendant or a non-defendant, stored on computer disks or similar information storage media. The same applies hereinafter) may be admitted as evidence when the authenticity is proven by the testimony of the author or declarant during the preparatory or trial proceedings. However, documents containing the defendant's statements may be admitted as evidence despite the defendant's testimony during the preparatory or trial proceedings only when the authenticity is proven by the author's testimony during those proceedings and the statement was made under particularly credible circumstances."

In other words, text, photos, videos, and other information stored on storage media such as mobile phones can be used as evidence when the authenticity is proven by the testimony of the author or declarant in court (Article 313(1)). Even if the author or declarant denies the authenticity of such evidence in court, it can still be used as evidence if the authenticity is proven through digital forensic materials, as stipulated in the newly established provision.

This amended law has been applied to cases prosecuted after May 29, 2016, when the amendment came into effect, according to Supplementary Provision Article 2.

"No access except for trial use, strict management including destruction after evidence investigation"... "Regret over Newsbus citation in reporting"

On this day, the Supreme Prosecutors' Office stated, "To guarantee 'evidentiary admissibility through digital forensic materials based on scientific analysis' as stipulated in Article 313(2) of the Criminal Procedure Act, the Supreme Prosecutors' Office revised its regulations on May 20, 2019, allowing the preservation of image files necessary for subsequent verification to maintain evidentiary value during trials."

They also said, "When information stored on electronic storage media is seized, only parts relevant to the crime are selectively seized. Especially when extracting information stored on mobile phones, due to the technical characteristics of electronic information, it inevitably takes the form of an edited version."

The Supreme Prosecutors' Office added, "Therefore, during trial proceedings, the defendant and defense counsel raise various objections and claims regarding the edited form of electronic information, including technical errors, manipulation, forgery, unknown authorship, content omission, and hacking. For example, false claims of manipulation are still being made regarding the tablet PC evidence in the state power abuse case."

They explained, "To prepare for potential disputes over evidentiary admissibility during trials, it became necessary to temporarily preserve electronic information image files required for subsequent verification in accordance with the Criminal Procedure Act and Supreme Prosecutors' Office regulations. These image files are technically designed so that their content cannot be known by themselves. If these image files could not be preserved, it would be impossible to respond to various claims by defendants and others or conduct subsequent verification, and it would be unavoidable to keep the mobile phone itself without returning it, causing greater inconvenience to the seizure subject."

They continued, "Moreover, if there are no objections or disputes regarding evidentiary admissibility during the preparatory and trial stages, or when the evidence investigation procedure ends and the need for reproduction, verification, or analysis disappears, all files are destroyed. The entire process is transparently operated by notifying the seizure subject."

Finally, the Supreme Prosecutors' Office added, "Furthermore, technical measures are taken to ensure that image files necessary for verification are not used for any other purpose, and 'system sealing' measures are implemented to prevent any access except for preserving evidentiary admissibility during trials. Separate procedures for destruction are also being inspected."

The Supreme Prosecutors' Office also expressed dissatisfaction with some media outlets quoting Newsbus's report verbatim.

They stated, "Despite strictly operating the system to preserve evidentiary admissibility during trial procedures, we regret the quoting of unilateral claims by investigation subjects."

Newsbus, through a series of reports starting on the 21st, alleged illegal collection and management of seized mobile phone information by the prosecution, confirming a directive letter from a prosecutor instructing to "register and preserve files duplicating all electronic information stored on storage media in the business management system," including electronic information not listed in the seizure list, during the forensic observation of the mobile phone seized from Newsbus CEO Lee Jin-dong.