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United States v. Lipscomb
United States Court of Appeals, District of Columbia Circuit
Mar 11, 1983
WALD, Circuit Judge:
A jury convicted Michael Lipscomb of possession of heroin with intent to distribute, and he now appeals. Lipscomb did not testify in his own defense; had he done so, the government would have impeached his credibility with an eight-year-old robbery conviction under Rule 609(a)(1) of the Federal Rules of Evidence. Three other defense witnesses did testify and were impeached by prior felony convictions. In ruling that these prior convictions satisfied Rule 609(a)(1)'s requirement that "the probative value of admitting this evidence outweighs its prejudicial effect to the defendant," the district court had before it only the names of the crimes, their dates, and, for the defendant Lipscomb, his age when the robbery was committed.
(a) IN GENERAL. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.
(b) LIMIT ON USING THE EVIDENCE AFTER 10 Years.
This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
Lipscomb contends that without some information on the facts and circumstances underlying a prior conviction, the district court cannot determine whether the conviction is probative of a witness' credibility at all or, if it is probative, whether the probative value of the conviction outweighs its prejudicial effect.
The government contends that the district court not only does not need to inquire into the facts and circumstances of a prior conviction in order to balance probativeness against prejudice but should not be permitted to do so.
피고의 전과를 FRE 609a(1) 에 적용 하여 증인의 신뢰도를 측정할 증거로 사용할지를 판단하는 과정에서 판사님이 피고의 전과에 대한 얼마나 많은 정보와 구체적인 사실들을 알아야 하는 지가 문제 입니다. 본 사건의 사실심 판사님은 과거 피고가 저지른 범죄 종류와 날자 그리고 피고가 강도를 저질렀을 때의 나이만으로 증거로 채택 하였습니다. 피고측은 전과사건에 대한 어느 정도의 배경정보 없이는 609에 따라 probative value and prejudicial effect balancing 이 불가 하므로 증거 채택 여부를 결정 할 수 없다고 주장 하고 있고 원고인 정부측 에서는 증거채택 여부를 따지기 위해 사실심 에서 전과사건에 대한 배경정보가 필요치도 않으며 배경정보를 통해서 판단 해서도 안된다고 주장 하고 있습니다.
이에 법원은 609(a)(1) general rule (of more than one year) 을 충족 한다면 증거로서 가치가 있으며 사실심 판사님의 자유재량으로 balancing 에 필요한 정보의 정도를 결정 할 수 있다고 판시했습니다.
We hold that
(1) all convictions that meet the Rule 609(a)(1) threshold are at least somewhat probative of credibility;
(2) the trial court has discretion to decide how much background information, if any, it needs to perform Rule 609(a)(1)'s balance of probativeness against prejudice to the defendant; and
(3) the district court did not abuse its discretion in this case. We, therefore, affirm the conviction.
I. BACKGROUND
A. Facts
Lipscomb was tried twice on a charge of possession of heroin with intent to distribute under 21 U.S.C. § 841(a)(1). The first trial ended in a hung jury; the second led to a conviction. He was sentenced to two to six years imprisonment. At both trials, the prosecution and the defense offered radically different versions of the events leading to Lipscomb's arrest. Thus, the credibility of the defense witnesses was central to the case.
...
피고 Lipscomb 은 마약소지 및 판매 혐의로 체포 되었고 불일치 배심(hung jury)으로 인해 두 번 재판을 받았습니다. 검사 측이 주장하는 팩트와 Lipscomb 이 주장하는 팩트가 달랐기에 Lipscomb 증언의 신뢰도가 핵심적인 이슈로 대두 되었습니다.
Smith, Green, Little 와 달리 첫번째 재판에서 Lipscomb 은 검사 측의 전과기록에 대한 직접 신문을 피하기위해 의도적으로 증인석에 서지 않았습니다.
사실심에서는 배심원에게 적절한limiting instructions 전달 했고 Lipscomb 변호사는 전과기록에 대한 증거 채택 제한을 요구 했습니다.
The government impeached Lipscomb's credibility at the first trial with an eight-year-old robbery conviction and would have impeached his credibility at the second trial if he had testified.
The government also impeached Smith's credibility with a 1980-armed robbery conviction, Green's credibility with a 1976 conviction for accessory after the fact to manslaughter, and Little's credibility with a 1976 robbery conviction.
The district court gave appropriate limiting instructions, and Lipscomb's attorney properly requested exclusion of the prior convictions, both before trial and in a post-trial motion for a new trial.
B. The District Court's Decision to Admit the Prior Convictions
1. Lipscomb
The district court admitted Lipscomb's eight-year-old robbery conviction into evidence under Rule 609(a)(1) of the Federal Rules of Evidence. Rule 609(a) states:
GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Rule 609(b) creates an exception to Rule 609(a) for a prior conviction which is remote in time:
TIME LIMIT. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines . . . that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
609(b) 는 유죄판결후10년이 이상이 지난 전과에 대해서는 증거로 쓸 수 없다는 내용 입니다. 투옥, parole, probation 의 처벌을 받았다면 복역 후 10년이 지나야 합니다. Lipscomb 의 전과는 8년밖에 되지 않되었기에 609(b)에 따라 사용 할 수는 있지만 Lipscomb 변호사는 그래도 더 많은 정보를 통한 예를 들어 길티플리를 했는지 여부와 형량 같은 추가정보를 통한 balancing 이 필요 하다고 주장 하는 듯 합니다. Lipscomb의 8년 전 전과는 강도사건 이였으며 사건당시 그의 나이는 16세 였습니다. 법원은 범죄의 종류와 당시 그의 나이만으로 “누군가를 강탈할 정도로 절박한 사람은 증인석에서 거짓말을 할 만큼 절실한 사람” 이라는 논리로 balancing test를 통과 시켰습니다.
In ruling that the probativeness of Lipscomb's conviction outweighed its prejudicial effect, the court knew only the name of the offense (robbery), the date of conviction (1973), and Lipscomb's age when the crime was committed (16). The court did not know the details of the crime, whether Lipscomb had pled guilty or not guilty, or the sentence imposed; it had inquired but the prosecutor stated that he had no more information. The court found that Lipscomb's prior robbery conviction was probative because anyone "desperate enough to rob somebody . . . is desperate enough to lie on the witness stand," and because "the Defendant's testimony will be so important to his defense." The court did not discuss the extent of prejudice, but did state for the record that "the probative value of admitting this evidence outweighs the prejudicial effect."
Lipscomb was tried as an adult; thus, the special conditions in Rule 609(d) for admission of "juvenile adjudications" are not relevant. See ...
재판은 Lipscomb 이 성인 되어서 이루어 졌기 때문에609(d) 와는 상관이 없습니다.
(d) JUVENILE ADJUDICATIONS. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
In making this ruling based on limited information, ... the most recent panel . . . supports the Government's position [that detailed inquiry is unnecessary] . . . and I will let it in."
2. Smith, Green, and Little
The district court admitted Smith's armed robbery conviction because, as for Lipscomb's conviction, "the desperate person who would commit an armed robbery would also lie under oath." The court did not expressly explain why Little's robbery conviction or Green's accessory after the fact to manslaughter conviction were probative of credibility. The court did, however, state its opinion as to both Little and Green that the "probative value of the convictions outweighs the prejudice to the Defendant."
Smith의 전과기록은 Lipscomb과 같은 이유로 채택 되었고 Green 과 Little 의 전과기록 채택에 대해서는 별다른 이유를 대지도 않았습니다.
3. The Motion for a New Trial
The district court was unsure whether it had adequately supported its decision to admit the prior convictions, and therefore suggested that if Lipscomb were convicted, defense counsel ought to "give me an opportunity to review this further on a motion for a new trial."
Counsel did so, and the government, at the court's insistence, had by that time produced supplemental background material on the prior convictions of Lipscomb, Smith, Green, and Little.
Lipscomb 의 케이스가 'Very close' 하여 사실심 판사님도 전과 기록증거의 채택 문재를 결정 하는 것이 쉽지 않다는 사실을 인정 하시고 검사에게 Lipscomb, Smith, Green, and Little 의 추가적인 배경 정보를 요청 했습니다.
The new information showed about Lipscomb:
(1) in February 1973, with two others, he had robbed a man on the street, threatening him with a B-B gun, and taking $13, his hat, and his coat;
(2) in May 1973, he pled guilty while maintaining his innocence pursuant to North Carolina v. Alford...(1970), and was sentenced to three years probation;
What happened in North Carolina v. Alford?
Alford (1970) is a United States Supreme Court case that dealt with circumstances in which a defendant may plead guilty while maintaining their innocence. The defendant in this case pleaded guilty to second-degree murder but claimed that he only did so in order to avoid the death penalty.
(3) then he spent four months in a halfway house, but was evicted for "disruptive behavior," including smuggling in a gun, and shortly thereafter was arrested for burglary; the burglary charges were dismissed on the government's motion, but Judge Penn revoked Lipscomb's probation and sentenced him to an indeterminate six-year sentence;
(4) in 1976, he failed to return from an unescorted furlough and was placed on escape status, but soon turned himself in;
(5) while at a community care center in the District of Columbia, he was arrested and convicted for several burglaries in Virginia and reincarcerated;
(6) he was finally released when his robbery sentence expired in November 1979.
다른 기소자들에 비해 범죄행위가 심각해 보이지는 않지만 결정적으로 석방 된 지 4년이 체 안된 것 으로 보입니다.
Smith had robbed a man at gunpoint and also stolen his car; he was convicted after pleading not guilty.
Little and his younger brother had robbed a man at gunpoint, with Little stating "I've got a gun, punk, give me your money"; he was convicted after pleading not guilty.
Green had been part of a group who had robbed an 18-year-old boy; another member of the group had stabbed and killed the boy and the group then fled to Green's home. The principal in the stabbing was convicted of first-degree murder. In pleading guilty to accessory after the fact to manslaughter, he "expressed no regret" and explained his plea by stating "All of my witnesses stood up for the government."
The district court concluded from all this that "there are even stronger reasons than I knew at the time for admitting the convictions," and denied the motion for a new trial.
하지만 모든 기소자들 전과의 추가 배경정보의 내용은 다소 실망 스러웠습니다.
...
II. THE PROBATIVENESS OF FELONY CONVICTIONS
...
III. INQUIRY INTO BACKGROUND FACTS AND CIRCUMSTANCES
Part II established that all felony convictions are probative of credibility to some degree.
However, evidence that a witness is a convicted criminal can also seriously prejudice the defense, especially when the witness is the defendant himself.
The jury is told to consider the defendant's prior conviction only on the issue of credibility and not on the overall issue of guilt. But limiting instructions of this type require the jury to perform "a mental gymnastic which is beyond, not only their powers, but anybody's else." Nash v. United States, (2d Cir.) denied, (1932). In the words of Justice Jackson: "The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction." Krulewitch v. United States, (1949) (Jackson, J., concurring). The transcript in this case ironically confirms these observations. It includes the following interchange between the trial judge and the prosecutor:
THE COURT: Say again why [Lipscomb's prior robbery conviction] is probative of his guilt in this case.
MR. CORNELL: It is not probative. If it was probative of his guilt —
THE COURT: Probative of his credibility. Why is it probative of his credibility?
When the defendant is impeached by a prior conviction, the question of prejudice, as Congress well knew, is not if, but how much. Congress in Rule 609(a)(1) therefore instructed the courts to admit evidence of a prior felony conviction "only if . . . the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant."
...
“probative value of the conviction outweighs its prejudicial effect” 를 결정 함에 있어 신중을 가해야만 하는 이유는, 특히 증인이 피고 자신일 경우에 전과 기록이 배심원단에 공개 된다면 적절한 배심원 지침이 주어진다 하더라도 배심원들의 편견을 피할 수가 없기 때문 입니다.
In this part, we consider how much information the trial judge needs to perform this balance. To meet its burden of justifying admission of the conviction, the government at a minimum must furnish the district court with the name of the crime (to show that it is a felony) and the date of the conviction (to show that the conviction is less than 10 years old). At issue here is when the district court can or must seek additional information, and how much. Lipscomb argues that the district court must usually inquire into the underlying facts and circumstances, while the government argues that the district court should not be permitted to do so.
이러한 배경으로 얼마나 많은 정보가 balancing 에 필요한지가 이슈가 되었습니다. 검사는 609 를 적용 하기 위해 최소한의 정보인 피고 전과의 종류와 날짜를 제공 해야 할 것 입니다. 구체적으로는 법원이 검사가 제공한 언급된 최소한의 정보 이상으로 얼마나 더 많은 정보를 요구 할 수 있는지가 이슈 입니다.
We note preliminarily that the district court must carefully and thoughtfully consider the information before it to determine if probativeness outweighs prejudice to the defendant. This balancing must not become a ritual leading inexorably to admitting the prior conviction into evidence. Rather, the final version of Rule 609(a)(1) must be understood as a compromise between the House preference for excluding all prior convictions unless the crime involved "dishonesty or false statement" and the Senate preference for admitting all prior felony convictions. In particular, there can be no legal presumption of admissibility. To the contrary, as noted earlier, the burden is on the government to show that the probative value of a conviction outweighs its prejudicial effect to the defendant.
하원의회는 불성실 및 거짓 증언과 관련된 전과 외에는 모두 제외되야 한다는 입장을 가지고 있고 상원의회는 모든 전과기록을 사용하는데 찬성하는 입장을 가지고 있다는 사실 외에는 이에대한 특별한 지침 이 없습니다. 하지만 “probative value of a conviction outweighs its prejudicial effect” 를 입증하는 책임은 검사에게 있다는 점을 기억 해야 합니다.
There is less risk of prejudice when a defense witness other than the defendant is impeached through a prior conviction because the jury cannot directly infer the defendant's guilt from someone else's criminal record. The jury may, however, still presume guilt or lack of credibility of the defendant by association or may unduly discount the defense witness' testimony.
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A. Plain Meaning
A comparison of Rule 609(a)(1) with Rule 609(b) strongly suggests that Rule 609(a)(1) does not require the district court always to inquire into the facts and circumstances underlying a prior felony conviction.
Under Rule 609(b), a felony conviction more than 10 years old can be admitted only if "the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
Rule 609(a)(1), in contrast, does not require that the probative value of the conviction be supported by specific facts and circumstances. We must presume that the omission was intentional.
On the other hand, Rule 609(a)(1) is broadly phrased to require balancing of probativeness against prejudice, with no specific instructions as to how the balance is to be performed. The language of the Rule gives no hint that Congress intended to preclude the district court from considering all relevant evidence. And Rule 609(b) shows Congress' belief that the "specific facts and circumstances" of the prior crime are relevant to the balancing inquiry.
In addition, Rule 609(b) controls admission of convictions for which more than 10 years have elapsed "since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date." To determine if the defendant was released from confinement less than 10 years ago even though the conviction occurred more than 10 years ago, the trial judge must inquire into some of the background facts; in particular, the sentence imposed and the release date.
609(b) 와는 달리 609(a)(1) 에는 “specific facts and circumstances” 가 언급 되지 않고 있다는 사실은 10 년 미만의 중죄전과 기록들은 assumption of probative enough 의 의미를 가지고 있는 듯 합니다.
Moreover, Rule 609(a)(2) creates a per se rule that probativeness outweighs prejudice for crimes "involving dishonesty or false statement." Often, however, the trial judge will not be able to determine from the name of a crime whether the defendant's conduct involved dishonesty or a false statement. All circuits that have considered the question, including our own, have held that the prosecution may adduce specific facts to bring a prior conviction within Rule 609(a)(2). United States v. Smith, (D.C. Cir. 1976). It seems equally appropriate to permit the district court to elicit such facts in balancing probativeness against prejudice under Rule 609(a)(1).
전과내용이 609(a)(2) (불성실 및 거짓 진술) 과 관련이 있을 경우 검사는 추가 배경정보를 법원에 제공하여 probativeness 주장할 필요가 있을 것 입니다.
We conclude from the language of Rule 609, then, that the district court can inquire into the background facts and circumstances, but need not always do so. Because the Rule does not indicate when the district court should seek this additional information, we further conclude that the district court has the discretion to decide when it should do so.
결론적으로 법원은 상기 설명한 바와 같이 법원은 증인의 신뢰도를 공격 하기 위하여 증인의 전과 기록을 사용할지 여부를 결정 할 때 추가 배경 정보를 요구 해야 할 때도 있지만 항상 요구 해야 할 필요는 없습니다.
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C. Policy Considerations
The government argues that even if the district court can look into the facts and circumstances underlying a prior conviction, we should discourage the court from doing so because the inquiry would be burdensome and time-consuming and "is likely to yield nothing more than the fact, for example, that a larceny was a typical larceny." A sufficient response is that Congress did not discourage such inquiry. But we are also unconvinced as a policy matter that we ought to discourage the district court from inquiring into the underlying facts.
검사측은 추가배경 정보를 제공 하는 것이 불필요한 부담이고 시간 낭비일 뿐이라고 주장 합니다. 말하자면 절도죄는 절도죄일 뿐이지 더이상의 정보는 필요 없다는 말입니다.
First, the facts of this case contradict the government's assertion that the additional information will generally be of little help to the district court in assessing probative value. Smith's and Little's robberies seem fairly typical robberies. However, the extra information requested by the trial court and belatedly furnished by the government shows that both pled not guilty and were convicted after trial. The record does not indicate whether either Smith or Little testified in his own defense, but if the government had shown that to be so, "the jury's verdict . . . is in a sense a de facto finding that the accused did not tell the truth when sworn to do so." Gordon.
하지만 현 사건을 예를 들자면 그렇지 않습니다. Smith 와 Little 가 강도를 저지른 후 무죄를 주장(pled not guilty)했었다는 기록은 없습니다.(거짓증언과 연관 시킬 수 있는 부분 인 듯 합니다.) 그들이 재판 때 직접 자신의 증인이 되었고 강도전과가 공개 되었다면 배심원은 틀림없이 그들을 신뢰 하지 않았을 것 입니다.
Moreover, the extra information on Lipscomb — in particular, his more recent burglary conviction — shows that he has not been rehabilitated since his robbery conviction, and therefore enhances the probativeness of the robbery conviction.
게다가 Lipscomb 의 경우 또한 검찰이 기소취소를 했지만 중간에 한번 더 주거침입 강도를 저지른 추가 기록이 있습니다.
즉 그의 전과 기록은 더욱더 probative value 가 높아졌습니다.
And Green, although convicted only for accessory after the fact to manslaughter, had in fact been part of a group, another member of which had robbed and stabbed an 18-year-old boy; the group members then fled to Green's home.
Green 의 경우는 형량이 낮은 방조자범죄일 뿐 이였지만 불성실 및 거짓증언과 연관이 있을 가능성이 높습니다.
The reported cases supply numerous other examples of the relevance of background information.
In some cases, the specific facts will make a conviction automatically admissible under Rule 609(a)(2).
In others, one specific fact — the date of release from confinement — will determine whether the district court rules on admissibility under Rule 609(a)(1) or under the much stricter standards of Rule 609(b).
이처럼 여러가지 경우에서 추가 배경정보가 요구 됩니다.
609(a)(1) 와 609(b) 를 적용 하기 위해 유죄판결 및 퇴소 날자는 반드시 필요 합니다.
609(a)(1)
Only more than one year of imprisonment is admissible.
609(b)
If 10 years have passed after the release from imprisonment, the evidence monst likely would not be accepted.
In yet others, specific facts will simply prove relevant to the Rule 609(a)(1) balancing. The cases suggest the broad range of potentially relevant information. See, e.g., Jackson, (manslaughter conviction; defendant had shot his wife and "the man who was with his wife at the time"); United States v. Rosales, (10th Cir. 1981) (defense witnesses were serving substantial prison terms, hence would have "some motivation to testify falsely in a dispute with prison guards"); United States v. Jones, (6th Cir.) (prior crime was committed when defendant was only 20 years old), cert. denied, (1981); United States v. Hayes, (2d Cir.) (defendant had been convicted after testifying in own defense), cert. denied, 3 (1977).
Nor do we consider the burden on the government or possible delay of the trial to be serious problems.
First, the district court is fully capable of taking possible burden or delay into account in deciding how much information it needs.
Second, in many cases, the district court may be satisfied with readily available information — perhaps the witness' case jacket or presentence report, if available. Such information was sufficient to satisfy the district court in this case. The burden on the government to obtain this information is slight and may well be outweighed by the possibility that — as for Lipscomb and Green — the extra information will strengthen the government's argument for admitting the convictions.
Also, there need be no delay at all if the government makes a regular practice of obtaining this basic information before trial. We join the district court in urging the government to do so.
Third, extra information is most likely to be important for the defendant because prejudice is far greater when the defendant himself is impeached. But we find it hard to imagine a conscientious prosecutor not making a reasonable effort to obtain at least some details of the defendant's past convictions before deciding whether to seek an indictment, which charges to bring, or what sort of a plea bargain to offer.
Finally, we are unwilling to tell the trial judge to decide without adequate information the important question of whether to admit a prior conviction, simply because the government finds it a nuisance to gather the information.
법원은 세가지 이유로 검사의 추가 배경정보의 제공은 불필요한 부담이며 시간 낭비일 뿐 이라는 주장을 받아들이지 않았습니다.
1) 사실심은 그 부담과 시간 지연을 충분히 감당 할 수 있습니다.
2) 보통은 증인 파일 제킷 이나 판결 전 자료 보고서 만으로도 충분한 정보를 얻을 수 있으며 검사가 추가정보를 제공 하는 일은 어려운 일이 아니며 오히려 추가정보는 검사의 사건에 유리한 경우가 많습니다.
3) 피고가 자신의 증인이 되었을 때 편견의 위험은 더 커지는 데 이러한 경우 양심적인 검사라면 피고의 전과사실에 대해 추가 배경 정보를 조사하는 것을 마다하지 않을 것 입니다.
D. Summary
In sum, we hold, based on the language of Rule 609, the legislative history, and sound policy, that the district court has discretion to determine when to inquire into the facts and circumstances underlying a prior conviction and how extensive an inquiry to conduct.
We decline at this time to establish general guidelines for determining when inquiry beyond the name and date of a conviction is necessary, although our discussion below of the specific convictions at issue, in this case, may shed some light on the matter. We will review the district court's decision as part of our overall deferential review of whether a decision to admit or exclude evidence is an abuse of discretion.
...
Affirmed
결론: 사실심에서 증인의 신뢰도가 이슈가 될 때 필요에 따라 추가 배경정보를 검사에게 요구 할 수 있습니다. 현제로서 구체적인 가이드라인을 설정 하기에는 무리가 있습니다. 다만 사실심 판사님의 결정에 맞기는 것이 최선 입니다. affirmed
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