Korean Law Demystified!

Being Interrogated by the Police/Prosecution (in Korea)

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If you ever become a suspect in South Korea and the authorities have you under custody, you will be interrogated either by a police officer or a prosecutor. Of course, the Korean Constitution guarantees a suspect’s right to a lawyer. But this does not mean that a suspect can have his/her lawyer attend instead. The suspect him/herself has to attend (with his/her lawyer). Once present, the suspect may refuse to answer any/all questions.

During interrogation, a lawyer’s role is to make sure unlawful interrogation does not take place. A suspect may consult his/her lawyer before answering each question, while the lawyer may object to any unreasonable action taken by the interrogator.

During/after interrogation, the interrogator will draft what is called a “Suspect Interrogation Record” (피의자신문조서). FYI, this is not a transcript (of the interrogation). It’s more a summary as paraphrased by the interrogator. Of course, the suspect will have a chance to review it + add his/her opinion before signing it.

As I said, the interrogator/drafter can either be a police officer or a prosecutor. The difference is important actually. A Suspect Interrogation Record drafted by a prosecutor is admissible as evidence in court even when the suspect decides to change his/her story (in court). In contrast, one drafted by a police officer is deniable in court (thus becoming inadmissible).

Recently, there’s been talk of revising the law so that both may be deniable in court. This would make prosecutors work doubly hard in gathering actual incriminating evidence. With a (lawful) confession, only minimal additional incriminating evidence is needed (for a conviction). Prosecutors generally like confessions.

Should you ever be interrogated, make sure you are reminded – before interrogation starts – that you can have an attorney present + you have the right to refuse answering any/all questions. (Or else, the whole interrogation becomes unlawful.) And before you sign the Suspect Interrogation Record, review it carefully. Especially if the interrogator/drafter was a prosecutor. (During his investigation in 2009, the late former President Roh Moo-hyun famously spent 2 hrs and 40 mins reviewing how his answers had been paraphrased by the interrogating prosecutor!)

FYI 1: At the end of an interrogation, the interrogator will ask the suspect if he/she has any final words. All suspects need to take full advantage of this opportunity. This is the time to state for the record any grievances regarding the interrogation, etc.

FYI 2: Interrogations are normally (video+audio) recorded, but such footage may be submitted (as evidence) only to corroborate the Suspect Interrogation Record (in case the suspect challenges its veracity). Not as stand-alone evidence in and of itself.

FYI 3: Sure, the interrogator is also supposed to remind you beforehand that “your refusing to answer will not work against you.” In reality, however, stonewalling is not always the best strategy. (e.g., In a guilty decision, the court could feel you were not penitent enough and decide to be less lenient in sentencing.)

FYI 4: There’s no plea bargaining in Korea. Also, it’s never a good idea to cut any sort of deal with prosecution (under the table). Never admit to anything you did not do. A prosecutor’s (true) role is not really about getting a conviction; in reality, it’s hard to tell. Prosecutors, too, are political, ambitious, and at times lazy.

FYI 5: Right now here in Korea, there is controversy over whether an incumbent President can indeed be subject to any form of investigation/interrogation from prosecution. The Korean Constitution only states that a President cannot be indicted while in office (unless the crime relates to insurrection/treason).

To learn more about Suspect Interrogation Records, click here.

Thanks for reading!

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