자백을 유도한 기망의 위법성 판단 - 미국의 판결들에 대한 분석을 중심으로 -

Abstract

If a deception of a law enforcement is too evil, it should be considered wrong. The notion of full wrongfulness that a deception per se denies admissibility of confession is too mechanical and simple. Regardless, the notion of partial wrongfulness which decides voluntariness of a confession based on the conceptual distinction of act and omission also can be hardly acceptable. Most of all, it is desirable to totally prohibit an affirmative and designed deception to induce confession. To understand what is an affirmative and designed deception, it is necessary to critically consult various American courts’cases that show larger varieties than those of us. For example, a deception involving a defendant’s constitutional or statutory rights, a deception that uses a defendant’s under-age, diminished capacity or under-custody, a deception of legal standards and a deception of evidential facts can be seriously taken into consideration to deny voluntariness. In contrast, the full prohibitions of a false notice of a victim’s state, a slight exaggeration of probative value of evidence, formation of a false intimate relationship with a defendant and overstatement that a confession will be the best interest of a defendant look to be excessive. To determine admissibility of a confession, it should be clarify that first voluntariness should be decided and then truthworthiness should be considered. The concept of volunatriness asks to determine wrongfulness a law enforcement’s act with the facts of a victim’s factor and other circumstances, but the concept of truthworthiness is considered mainly based on a hypothetical reasoning of likelihood of false confession. To deter vagueness and infinity inherent in the concept of truthworthiness from permeating into consideration of voluntariness, the two concepts should be taken separately. Therefore, the notion of exclusion of falsehood does not seem to provide an appropriate substance to determine volunatriness. The notion of compromising or the notion of comprehension are also proper based on the viewpoint of not mixing up the two concepts. Rather, the notion of protection of human rights or the notion of exclusion of wrongfulness look more desirable to support and protect a fundamental fairness of liberty that can be invaded by deception.