Suspect Interrogation Protocol | Analysis of a Supreme Court Decision Holding That a Suspect Interrogation Protocol Not Consented to by the Defendant Cannot Be Used as Evidence

The background of the dispute surrounding the suspect interrogation protocol is as follows.

The defendant in the relevant case was A, who was charged with Violation of the Narcotics Control Act.

A was indicted on charges of administering an unspecified quantity of methamphetamine and selling a portion of it to an acquaintance.

At the time, the urine test returned a “negative” result for narcotics, while the hair test returned a “positive” result.

A asserted innocence during the trial.

Although the hair test returned a positive result, A argued that the amount of hair used for the appraisal was small, so there was a possibility of error.

A also pointed out that the facts charged did not contain a precise account of when, where, and by what method A had administered the drug.

A actively rebutted the methamphetamine-sale charge as well.

A maintained that there had been no fact of paying money to and handing methamphetamine to the acquaintance B, and that B had made a false statement in order to obtain leniency.

A then stated that A denied the suspect interrogation protocol containing the statements B had made during the police investigation stage.

The outcome of the trial relating to the suspect interrogation protocol is as follows.

First, both the court of first instance and the court of second instance found A guilty of the drug-administration charge.

The reason was that the appraisal by the National Forensic Service established that a positive result had been returned from A's hair, and that there were no specific circumstances indicating a mistake or error.

The court also stated that, considering as a whole that the investigative agency had specified the facts charged by reflecting the hair and urine test results, and had investigated whether A had contacted a drug dealer by examining A's mobile phone usage records, the description of the facts charged was not so unspecified as to impair A's exercise of the right of defense.

However, the two courts' determinations on the ‘methamphetamine sale’ diverged.

First, the court of first instance found the methamphetamine-sale charge not guilty.

The main reason was that A denied the sale charge and was denying the contents of the suspect interrogation protocol concerning B that had been prepared by the police.

The appellate court, however, took a different view. It rendered a judgment holding that the methamphetamine-sale charge could be found guilty.

The appellate court emphasized that it was not proper to allow the protocol of an accomplice or counterpart offender to be rejected unconditionally whenever the defendant denied it.

It further emphasized that, while the Criminal Procedure Act designates ‘the defendant who had been the suspect’ as the party who may deny a protocol in order to exclude its admissibility, an accomplice falls under a ‘person other than the defendant’ under Article 312(4) of the Criminal Procedure Act.

Accordingly, it added that the admissibility of a suspect interrogation protocol concerning an accomplice must be determined separately in accordance with that provision of the Criminal Procedure Act.

In addition, the appellate court referred to a 1986 Supreme Court precedent on an accomplice's suspect interrogation protocol.

At that time, the Supreme Court rendered its first judgment holding that an interrogation protocol concerning another defendant or suspect in an accomplice relationship with the defendant likewise could not be used as evidence where the defendant in question did not consent to it.

Most lower courts and Supreme Court panels thereafter followed this precedent, but the appellate court emphasized that this line of authority was unpersuasive.

Regarding the suspect interrogation protocol, the Supreme Court overturned the appellate court's determination. It reversed the lower judgment and remanded the case.

The Supreme Court reiterated its existing precedent, stating that the ‘suspect interrogation protocol prepared by a prosecutor’ provided for in the Criminal Procedure Act includes not only a protocol concerning the defendant in question but also an interrogation protocol concerning a suspect or another defendant in an accomplice relationship.

It held, however, that even though A and A's defense counsel had expressed the view that they ‘did not consent to the use of this evidence,’ to the effect of denying the contents of the suspect interrogation protocol in this case, the lower court had nonetheless found the facts charged guilty on the basis of this evidence, and therefore the ground of final appeal had merit.