How not to protect human rightsCHANG HYE-SOO
The author is the head of the sports teamat the JoongAng Ilbo.
Mexican American Ernesto Miranda was arrested for a bank robbery in Phoenix, Arizona, in 1963. In the police investigation, Miranda confessed to raping an 18-year-old woman. Miranda’s defense counsel argued that a lawyer was not present during the investigation and the accused was not informed of his legal rights and, therefore, his confession could not be used against him as evidence.
Miranda was found guilty in an appeals court, but in 1966, the U.S. Supreme Court overturned his conviction due to his Fifth Amendment right against self-incrimination and Sixth Amendment right to an attorney. Miranda was indicted after another witness testified and was sentenced to 10 years in jail. Upon release, he was killed in a bar fight.
When a police officer makes an arrest in the United States, the officer says, “You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.” Then the officer asked, “Do you understand?”
The Miranda warning is a notification of the right to be silent and refuse to make comments that can be used against oneself. The key is the right against self-incrimination. The Korean Constitution states, “Statements unfavorable to oneself in criminal law cannot be forced,” and, “When a confession is recognized to be involuntary, it cannot be used as evidence of conviction or used as a ground for punishment.”
Let’s say there is a mobile phone which could contain unfavorable contents against an accused. If the investigative agency cannot unlock the phone, the accused may be “forced” to “testify” with the password. The Ministry of Justice is pushing for that. Justice Minister Choo Mi-ae is promoting the so-called “mobile phone unlock” act. Most lawyers have expressed concerns.
Edward Coke (1552-1634) wrote the draft of the Petition of Rights, and included a Latin phrase, “Nemo iudex in causa sua.” It means no one is a judge in his own cause. There’s another saying that was used at the time. Nemo tenetur seipsum accusare, meaning “no man has to accuse himself.”
Rejection of self-incrimination is not something new. It is a product of a long struggle to protect human rights.