Risk of Evidence Destruction

A ground for detention prescribed by Article 70 of the Criminal Procedure Act, referring to a state in which it is recognized that a suspect or defendant is likely to destroy, fabricate, or conceal ev

Risk of Evidence Destruction

Overview

Risk of evidence destruction (concern that evidence may be destroyed) is one of the grounds for detention prescribed by Article 70(1)(2) of the Criminal Procedure Act. It refers to a state in which it is objectively recognized that a suspect or defendant is likely to eliminate, fabricate, or conceal physical or testimonial evidence, or to influence witnesses or accomplices. A mere possibility or vague speculation by investigative authorities is insufficient; the determination must be made by comprehensively considering specific circumstances, such as the nature of the case and the suspect's status, relationships, and conduct. It is also the issue most frequently contested in decisions on whether to issue a detention warrant, in grants of bail, and in reviews of the legality of arrest and detention.

Main Content

1. Legal Basis

Article 70(1) of the Criminal Procedure Act: A court may detain a defendant when there is probable cause to suspect that the defendant has committed a crime and (1) the defendant has no fixed residence, (2) there is a risk of evidence destruction, or (3) there is a risk of flight. It is sufficient if any one of these three grounds is satisfied.
Articles 200-2 and 201-2: Procedures for arrest and application for a detention warrant. A prosecutor must substantiate the grounds for detention when applying for a warrant.
Article 214-2: Review of the legality of arrest and detention. A suspect may contest the legality and necessity of detention.
Article 155 of the Criminal Act (Destruction of Evidence): A person who destroys, conceals, forges, or alters evidence concerning another person's criminal or disciplinary case, or who uses forged or altered evidence, is punished by imprisonment for not more than five years or a fine of not more than 7 million won. In principle, destroying evidence in one's own case is not punishable, but instigating or aiding another person to do so, or destroying evidence of an accomplice, may constitute a separate offense.

2. Standards for Assessment

The Supreme Court has consistently held that, to find a risk of evidence destruction, there must be objective and reasonable grounds in light of the nature of the case, the suspect's status, the progress of the investigation, and the accessibility of evidence. The circumstances considered in practice are as follows.

The seriousness of the case, the statutory penalty, and the scale of damage
The suspect's status, occupation, and social influence, and access rights to evidence
Specific circumstances such as destruction of documents, resetting of mobile phones, or requests for deletion before or after the investigation begins
Relationships with accomplices and the possibility of coordinating false statements
Whether there has been contact, coaxing, or intimidation of victims, witnesses, or persons of reference
Attitude after search and seizure and whether the person cooperates in submitting materials
Residence, family, and personal ties combined with risk of flight

3. Typical Types of Evidence Destruction

1. Physical evidence: destruction of contracts and account books, deletion of CCTV footage, manipulation of the scene

2. Digital evidence: deletion of messenger conversations, destruction of emails and cloud data, resetting of mobile phones, deletion of social media accounts, use of overseas servers

3. Testimonial evidence: coaxing or intimidating witnesses, contacting victims, coordinating statements with accomplices

4. Forgery and alteration: preparing false petitions or confirmations, backdating documents

4. Balance with the Right to Defense

It is a principle of the Constitution and the Criminal Procedure Act that legitimate defense activities—such as exercising the right to remain silent, appointing and receiving assistance from counsel, and collecting favorable materials—must not be assessed as evidence destruction. In accordance with the presumption of innocence and the principle that detention is a last resort (proportionality), detention must be approached cautiously if its purpose can be achieved through alternative measures such as residence restrictions, bail, or electronic location monitoring. However, unlawful destruction of evidence or contact with witnesses through counsel raises issues of lawyer ethics and may constitute a separate offense.

5. Procedural Issues

At the pre-detention examination of the suspect (warrant substantive review), the prosecutor must substantiate the risk of evidence destruction with specific materials, while the suspect and counsel rebut it by presenting contrary materials and circumstances. If the warrant is dismissed, the suspect is released immediately, and the prosecutor may apply again after supplementary investigation. After detention, bail (Article 95), suspension of execution of detention, and legality review are used.

Recent Trends

In 2024–2025, there is a clear trend in cases involving high-ranking public officials and corporate heads in which whether a risk of evidence destruction is recognized becomes a political and social controversy. In the process of issuing a detention warrant for a sitting president in early 2025, the risk of evidence destruction was also treated as a key issue. Changes in the investigative environment are also altering the assessment standards. As digital forensics and server log analysis have become widespread, greater emphasis is placed on access rights and the possibility of additional deletion than on evidence that has already been deleted, and generative AI conversation records, cloud backups, and overseas messengers have emerged as new channels for evidence destruction. In addition, as discussions continue on revising the Criminal Procedure Act to reduce the admissibility of prosecutor-prepared suspect interrogation records, the importance of securing statements and preventing evidence destruction is relatively increasing. Tension also continues between human rights discourse concerned about abuse of detention and discourse emphasizing the discovery of substantive truth in serious crimes.