The Kyungyang Daily has reported on an interesting development in Korea criminal law that may lead to issues for the prosecution in obtaining convictions based, primarily, on testing hair for the presence of drugs. Hair tests are widely used in Korea and have been considered by the Korean police and prosecution as one of the most useful tools for determining if a suspect is a drug user. Often, no other evidence is presented as evidence of guilt.
The police, in the the not so distant past, would request the testing of the hair of multiple people at clubs that were known for the distribution of drugs.
“The Supreme Court has ruled that estimating the length of time since a person used an illegal drug from the length of the person’s hair is baseless. Affirming a trial court decision, on the 21st the Court affirmed the dismissal of the indictment of 44-year old Mr. K on charges of using pilophon [amphetamines].
The Court wrote that “against the defendant’s denials of the charges, the prosecution’s indictment proposes to use nothing but the results of testing his hair to estimate the time, place, and method by which he used the drugs… The estimate of ‘November of 2010′ includes an entire month, and as the trial court correctly saw, this makes it difficult to know the true circumstances of the drug use and thus to trust the indictment.”
The Court explained that “hair testing, which is meant to reveal the circumstances of drug use, is a method of estimating the length of time since drug use by taking advantage of changes due to external factors. However, it relies on the assumption that rates of growth are uniform, and with rates varying across individuals, as well as differences caused by the particular region from which the hair is taken and with medical factors, the test’s reliability is uncertain and this represents a serious problem.”
The trial court judge had written that “in the indictment the crime is said to have occurred in ‘November of 2010′ based on the results of a test of a 4 to 5 centimeter sample of the defendant’s hair which tested positive for pilopon, and the indictment goes on to estimate the length of time of the drug use and even the location, which it gives as [redacted city] [redacted district] and ‘under a Buddha Statue.’ It is difficult to see this as a sound basis for a criminal prosecution.” That ruling was affirmed by an intermediate trial court.”
Sean Hayes, IPG’s Co-Chair of the Korea Practice Team, may be contacted at: SeanHayes@ipglegal.com
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