진술거부권 행사 피고인의 양형 가중 문제 고찰

Remarks on sentencing guidelines for the defendant who has the right to remain silent

The right to remain silent follows from the development and expansion of the role of defense system. The Miranda warning acknowledged the common-law right to remain silent. The right to remain silent was regulated in the Fifth Amendment of the United States of America. But it is open to the court to draw appropriate inferences from the Criminal Justice and Public Order Act 1994(CJPOA) in England. It might be stressed that the CJPOA has not abolished the right to remain silent in the commom-law. It would be better to think about the guidance of estimating sentencing factor for the defendant who has the right to remain silent Nowadays the court has a dilemma for the defendants who have exercised the right to remain silent. At this situation for the most important thing, it needs criteria of sentencing guidelines in the korean jury trial. We have to pay close attention to allow the visual record to be introduced as evidence in trial, even in the case that we ask the prosecution or police to record the investigation procedure to guarantee the transparency of that procedure. However, in sentencing stage, the court could draw adverse inferences from the defendant who is apparently guilty in retrospective of the objective evidence. Labeling and Criminal Careers plays an important role in persistent criminal behaviours. Thus it must be appropriate criminal policy for the application of sentencing factors to resolve labeling against the defendants at the transient period of the korean criminal justice system.