Trends & Policies in Criminal Justice

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Trends & Policies in Criminal Justice

The Scope and Limitations of Open Investigations

We often see in the press cases of politicians, entertainers, high-ranking public officials, heads of corporations, etc., standing on photo-lines. Photo-Line is an, “autonomous line that prevents confusion by limiting reporters' movements when a large number of the press have to cover in a limited space.”

It is a common practice for an accused standing on a photo-line during an investigation stage in terms of the people's rights to know. However, standing on a photo-line is most often taken place in accordance with the media's customary demands, not on an accused's consent. The prosecution and the police have no grounds to regulate over photo-lines because it is an interview outside of the buildings of Public Prosecutors' Offices or Police Agencies. Thereby, it is considered as the freedom of the press.

While photo-line itself is a media coverage area, the ripple effect of media coverage is a factor that might shake the foundation of the presumption of innocence under the Criminal Procedure Law and infringe an accused's right to have a fair trial. Due to the media's intensive coverage on a photo-line, an accused might be psychologically contracted before being investigated, which in turn make the accused person difficult to accurately testify during the investigation process. In addition, before the alleged crime is confirmed, being set up on a photo-line and asked to respond to questions such as, “Do you admit your guilt?" and “How do you reflect on your crime?” are exposed to the public through the broadcast media. Thereby, an accused person experiences social stigma before conviction and there is a serious infringement of individual's personality rights and the rights of the accused that should be guaranteed in criminal proceedings.

In Germany, the United States, and other foreign countries, an accused's identity and charge are strictly disclosed, and investigation status and the details of an accused are not disclosed until the indictment is filed. First, the media reports before the investigation (especially a report in which an individual's face is exposed) are extremely avoided as it might lead to prejudgement in the investigation and trial. Second, even if there is a need for disclosure, the scope of the public figures is limitedly interpreted or compared with the actual gains from disclosure. Third, the continuous media monitoring is carried out through autonomous relief organizations or the guidelines from each media company to make self-purification efforts on its own.

Although the operation of photo-lines have a great impact on criminal proceedings, it is not desirable to abolish the photo-line system itself because it is the freedom of the press. The operation of the photo-lines should address such issues as a violation of individual's portrait rights, an infringement of the right to have a fair trial due to the formation of public opinion, a violation of the principle of presumption of innocence, and an incapacitation of an accused's right to defend due to psychological suppression by improving the media coverage practices in investigation processes such as the open summon system.

Although photo-line does not seem to have a direct relationship with the investigative agencies because it is an autonomous control line of the press, the information (attendance time and return time) as a premise for a photo-line comes out through the open summon procedure of the investigating agencies. Therefore, it is necessary to improve the private summon system which is applied to public figures in investigation practices. First, all cases under investigations should be closed to the public, so the principle of allowing at least private information should be adhered in summoning. Second, the prosecution's Regulations of the Media Reports on Investigation Information for the Protection of Human Rightsshould be allowed to disclose only when, "a summons of a public figure is known, so the media ask for a confirmation or physical conflicts are expected due to competitive media reporting." Further, the disclosure criteria should be limited to, "if the accused is a public figure and the crime information is necessary for the public's right to know and the public interest." Third, standing on a photo-line and agreeing to a summons should be strictly separated, and a prosecutor should separately continue with the procedure to ask whether the suspect agrees to stand on a photo-line during the summoning schedule adjustment process. Fourth, while in the contents of a open summons, various information such as the summoner, the date and time of a summons, the place of return, and the alleged offence are provided, it is desirable to minimize the scope of disclosure by providing such information as the date of a summons, the name of a suspect, and the alleged offence. Fifth, in order to guarantee a defendant's defense rights in a summoning stage, there should be a way to prevent open summoning without an attorney. Finally, it should be enacted as a separate law by integrating the regulations for the media reporting on investigation information that is currently operated by the rules of investigation agencies.

Customary practices in media coverage should also be improved. First, the scope of public figures corresponding to reporting investigation should be reduced in accordance with the Photo-line Operation Rules. Second, if a decision is made to reject a photo-line, other measures should be taken to protect summoner from having a separate procedure. Third, when it comes to media coverage, it is important to be careful about reporting issues that are being investigated according to reporting ethics and to report objectively considering the circumstances of both parties. Fourth, like the Washington Bench Bar Press Committee in Washington, a consultative committee consisting of investigative agencies, attorneys, and journalists should be established to seek ways to harmonize the freedom of the press and the right to a fair trial.