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

Abstract

In general, it is unlawful for a police or a prosecutor to suggest a unpermitted form and substance of promise in reward of the confession. In other words, a confession of a defendant with a motive of unpermitted promise by a police or a prosecutor is considered involuntary. Most of all, a investigative technique in which a law enforcement simply tells a defendant that a confession will be beneficial should be taken lawful. In addition, an expression that does not contain any particular benefit but a kind of vague possibility of leniency should be a necessary investigative technique. If a law enforcement gets a confession from a defendant after telling him that he will inform a prosecutor of his cooperation, that confession should not be considered unreasonable. In contrast, a police or a prosecutor is not allowed to ask for a confession by delivering a promise of a particular level of leniency of crime and punishment. Especially, a confession taken by a law enforcement who does not have a discretion of prosecution through a promise of leniency of prosecution is inadmissible. Moreover, it should not be allowed to take a confession through a prosecutor’s promise of leniency outside of his discretion. In addition, a defendant’s confession taken by a ordinary person who has a appearance of a authority assigned by a police or a prosecutor will not be admissible. Besides, even a promise of leniency on a family member or a friend, which is within authoritative discretion, will be considered to invade voluntariness of a confession. That kind of promise loose the connection between legitimate purpose and proper means. However, it is reasonable that the investigative technique is allowed, which is within a discretion of a police or a prosecutor and through which a confession was taken. For instance, a police’s promises to postpone an arrest in case of a suspect’s cooperation should not be consider illegal. Furthermore, it is hard to see unlawful a prosecutor’s promise to stop prosecution or give a leniency of punishment. What should be noted is that a defendant’s factor is necessarily considered when determining whether a law enforcement’s promise falls short of reasonableness. A defendant’s age, intoxication, drug consumption, insanity, education, IQ, arrest, understanding of criminal justice system, are important factors to be considered to determine the lawfulness of a promise or a threat. It is problematic to take the issue of how a confession is close to the truth in considering a promise or a threat to invade voluntariness of a confession. This is just like seeing a confession taken through a torture is still admissible if it is close to the truth. In conclusion, it is desirable that the concept of voluntariness take a distance from the concept of truthworthiness.