In the past, cruel torture was executed in order to take confession legally or illegally because confession was the only and definite evidence. It cannot be denied that coerced confession still exist until today and confession obtained through old-fas...
In the past, cruel torture was executed in order to take confession legally or illegally because confession was the only and definite evidence. It cannot be denied that coerced confession still exist until today and confession obtained through old-fashioned interrogation practice plays an important role as evidence.
In order to abolish coercive police questioning in criminal procedure, the Korean Constitution adopted human rights guarantees of Anglo-American law such as the right to remain silent, the right to counsel and the warrant system.
Meanwhile, the stipulations made by the U.S. Supreme Court's decision on the Miranda Rule are as follows; "The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused person of their right of silence and to assure a continuous opportunity to exercise it, prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against himself, and that he has a right to the presence of an attorney, either retained or appointed. Opportunity to exercise these rights must be afforded to him throughout the interrogation. Unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."
It was based on the privilege against self-incrimination in Article 5 of the Affirmative Action of the U.S., and ruled out confession. Similarly, article 12 of the Korean Constitution set forth the same principle that "The privilege against self-incrimination."
However, it largely dealt with the exclusionary rule of confession in Korea and therefore there haven't had sufficient discussions about excluding confession on the basis of the privilege against self-incrimination.
This study tried to investigate in detail the Miranda Rule which the U.S. Supreme Court established and to find ways of securing the human rights of both the suspect and the accused on the ground of the privilege against self-incrimination.
There are 7 chapters in this thesis.
In chapter one, the purpose, range and descriptive manner of this study were introduced.
In chapter two, the history of the right against self-incrimination and the Miranda decision were reviewed.
In chapter three, the details of the Miranda Rule were made.
In chapter four, the argument on the Miranda Rule and re-triumph of Miranda Rule in the conservative Warren and Burger Courts were reviewed.
In chapter five, the discussion on the Miranda Rule in Korean law system and leading cases related to the Miranda Rule were examined.
In chapter six, the practical effect of the Miranda Rule and the attempt to implement Miranda in Korean law system were taken into consideration.
In chapter seven, the ways of securing the human right of both the suspect and the accused on the basis of the right against self-incrimination were discussed.