‘Bihwaphone·Hong Jangwon Memo’, Smoking Guns Must Pour Out Like Park An Jongbeom’s Notebook... ‘Evidence War’ Begins [Preview of Yoon’s Defense Battle]①

[Preview of Litigation War] ① Evidence
Prosecution Special Unit and Joint Investigation Unit Each Have ‘Flaws’ in Treason Investigation Authority
Illegally Collected Evidence May Be Contested in Trial
Attorney Kim Yong-hyun Claims “Illegal Investigation”…Urgent Need for Special Prosecutor

Editor's NotePresident Yoon Seok-yeol stands trial for impeachment amid the unprecedented ‘December 3 Martial Law Crisis.’ There is also a possibility of emergency arrest due to his refusal to comply with the prosecution's summons. Asia Economy is launching a series of reports to analyze the flow, context, core, and key points of this crisis, examining how the ‘Yoon Seok-yeol Treason Trial’ will unfold in court and highlighting the main issues. The series will diagnose the issues over three installments with the keywords: ① Evidence, ② Arguments, ③ Punishment.

The biggest point of contention in President Yoon Seok-yeol’s impeachment trial, which is expected to involve sharp legal disputes, will likely be the battle over evidence proving the illegality of the ‘December 3 Emergency Martial Law Crisis.’ Currently, aside from the ‘Arrest List Memo’ disclosed by former National Intelligence Service First Deputy Director Hong Jang-won, there is no clear direct evidence that can serve as a ‘smoking gun’ to prove the circumstances during the martial law period. The minutes of the Cabinet meeting have also not been found. Police Chief Jo Ji-ho stated that he tore up the martial law documents he received at his residence in Samcheong-dong.

Testimonies also conflict. In a public address on the 12th, President Yoon said, “We ensured that National Assembly officials were not blocked from entering the National Assembly,” and that the deployment of troops “was not intended to dissolve the National Assembly or paralyze its functions.” However, military officials who appeared before the National Assembly testified that “the president ordered the removal of lawmakers” (Special Forces Commander Kwak Jong-geun) and “we were instructed to detain and arrest” (Director Kim Dae-woo of the Counterintelligence Investigation Unit). These statements directly contradict President Yoon’s claims.

According to the legal community on the 16th, disputes over ‘evidentiary admissibility’ are expected to be a crucial issue in both President Yoon’s impeachment trial and criminal proceedings. Examples of decisive evidence include the ‘tablet PC’ and ‘Ahn Jong-beom’s notebook’ from former President Park Geun-hye’s impeachment trial. When evidence is lawfully obtained during investigations, recognized as admissible by the court, and used as a basis to prove guilt, charges are substantiated. The same applies to the acquisition of burner phones among the president, former Defense Minister Kim Yong-hyun, Police Chief Jo, and military leadership. Although burner phones are known to be incapable of recording, the call times with interlocutors can be verified. Currently, the police have secured the burner phones of former Minister Kim and Chief Jo.

Several legal experts point out that the current situation, where multiple investigative bodies such as the prosecution’s special investigation headquarters and joint investigation headquarters are conducting investigations simultaneously, could deal a fatal blow to evidentiary admissibility during future trials. The unclear ‘treason investigation authority’ of the prosecution and legislative gaps in the cooperation system of the joint investigation headquarters (police, Corruption Investigation Office for High-ranking Officials, Ministry of National Defense) could lead to arguments of ‘illegally obtained evidence,’ potentially hindering the trial.

First, the prosecution’s special investigation headquarters’ ‘treason investigation authority’ remains ambiguous. The prosecution initiated the treason investigation based on abuse of authority (Criminal Act Article 123) and the authority to commence investigations into police officers’ crimes (Prosecutors’ Office Act Article 4, Paragraph 1, Subparagraphs 1(b) and (c)). However, legal opinions diverge on whether statements by former Minister Kim or military officials during summons investigations will be accepted as ‘lawful evidence’ in court. Kim Woong, a lawyer and former member of the 21st National Assembly, said, “The president’s defense team is likely to argue that evidence and statements obtained by investigative bodies with unclear ‘treason investigation authority’ have no validity.” Another former judge turned lawyer stated, “If the logic that treason investigations are allowed based on crimes by police officers is accepted, then the scope of investigation restrictions can be entirely breached,” adding, “If it is later revealed that the case is unrelated to police officer crimes, the initiation of the investigation itself could be deemed illegal during the trial.”

In fact, former Minister Kim’s defense team is also probing these ‘procedural flaws.’ On the 14th, Kim’s side declared their intention to exercise the right to remain silent, stating, “Illegal acts of investigating the suspect without a lawyer present were committed.” Cheon Dae-yeop, Chief of the Court Administration Office (Supreme Court Justice), also responded “I do not think so” to a question from Democratic Party lawmaker Park Ji-won on the 10th at the National Assembly’s Legislation and Judiciary Committee, asking whether the prosecution’s treason investigation authority should be recognized if an arrest warrant is issued upon the prosecution’s request.

Evidence obtained during joint investigation headquarters’ inquiries also carries procedural defects. The police launched the ‘joint investigation headquarters’ in cooperation with the Corruption Investigation Office for High-ranking Officials (CIO) to gain the authority to request warrants without going through the prosecution. However, while there is a procedure for transferring investigation materials from the police to the prosecution, the transfer from the police to the CIO lacks a complete legal basis under the Criminal Procedure Act. A current prosecutor said, “If there is no legal basis in criminal procedures, analogical interpretation is not allowed,” adding, “There is no ‘bridge’ between the CIO and the police, so if they transfer materials or cooperate, problems arise.” Another senior prosecutor said, “Without regulations, conducting investigations through joint investigation headquarters cooperation is akin to a ‘vigilante group.’ There is a high risk that evidentiary admissibility will be lost during the trial.”

Confessional and expos? testimonies pouring out in the National Assembly will also have different effects if they reach the courtroom. This is because all testimonies in the National Assembly, including media reports, are filtered through witness acceptance and cross-examination in court. President Yoon’s side can emphasize consent to evidence and the guarantee of cross-examination. They are likely to argue that only statements made after being informed of the ‘right to remain silent’ by investigative bodies with treason investigation authority are lawful as evidence to prove guilt.

Voices inside and outside the legal community call for the swift resolution of these issues through the introduction of a special prosecutor. The special prosecutor bill stipulates that ‘the joint investigation headquarters and prosecution must transfer investigation materials’ and calls for related regulations to be revised to preserve evidence and prevent illegally obtained evidence from becoming obstacles in future trials. A legal community official said, “Even if the special prosecutor takes over the materials, if investigations and arrests proceed with unclear treason investigation authority, all evidence becomes futile. An application for evidence preservation must be made first.”