[Law & Story] Confirmation Bias Toward Guilt, Confirmation Bias Toward Innocence

Warrant Review Is Not a Ruling on Guilt or Innocence
Opposition Mistakes Dismissal of Warrant for Acquittal
Cho Kuk, Kim Kyung-soo, and Ahn Hee-jung Found Guilty After Warrant Dismissals

“I have never seen a single person come for questioning who only told the truth.”

This is a common remark made by prosecutors and investigators alike. It is human nature for suspects accused of crimes to hide unfavorable information and lie to avoid punishment. This is why the Constitution guarantees the right to refuse self-incriminating testimony as a fundamental right, and why the Criminal Act does not punish false testimony or evidence destruction related to one’s own charges. Therefore, whether police or prosecutors, investigative agencies always approach suspects with suspicion. This is not because they are convinced of guilt, but because without such suspicion, it is difficult to uncover the substantive truth.

At this week’s Ministry of Justice parliamentary audit, the term “confirmation bias of guilt” became an issue. It arose during the process where Democratic Party lawmakers criticized Minister of Justice Han Dong-hoon for speaking as if guilt was already confirmed while explaining the reason for requesting the arrest approval for Representative Lee Jae-myung.

If the dissatisfaction was that the minister spoke too detailed and at length about the criminal charges facing the party leader who was at risk of detention, that might be somewhat understandable. However, if the issue is why he spoke as if guilt was certain, or if the problem lies with the minister’s choice of words or attitude, it is hard to accept readily. That occasion was where Minister Han, as the highest supervisor of prosecutorial affairs, was explaining the necessity of detention for Representative Lee. In such a situation, was he supposed to say, “We have no certainty that the suspect is guilty, but since there is suspicion, detention is necessary for investigation”?

After the court dismissed the arrest warrant for Representative Lee, pro-Lee (pro-Lee Jae-myung) Democratic Party lawmakers reacted as if a not-guilty verdict had been handed down. They demanded an apology from President Yoon Suk-yeol and the dismissal of Minister Han, and threatened to investigate and discipline Democratic Party lawmakers who approved the arrest consent motion, demanding “repentance and atonement.”

What is clear is that the warrant review, which assesses the necessity of detention, and the main trial, which determines guilt or innocence, are procedures with completely different standards. Although there were twists and turns in the legislative process, the current Criminal Procedure Act does not list “seriousness of the crime” as grounds for detention. It is only stipulated as a reference factor when judging the risk of flight or evidence destruction.

No matter how serious the charges are or how well they are substantiated, if there is no risk of flight or evidence destruction, the warrant can be dismissed. Didn’t the judge who reviewed Representative Lee’s warrant state that the charge of suborning perjury seemed substantiated and that there was considerable suspicion of Lee’s involvement in excluding a construction company during the Baekhyeon-dong development project?

Although detention was avoided for now, it is clear that Representative Lee’s judicial risk has not been resolved. Yet, Representative Lee and the Democratic Party are acting as if all charges have been cleared. At this point, Minister Han’s remark that “you seem to have a confirmation bias that there is no guilt” is not unreasonable.

Former Gyeongnam Governor Kim Kyung-soo, who denied allegations of comment manipulation, former Busan Mayor Oh Keo-don, and former Chungnam Governor Ahn Hee-jung, who denied sexual assault charges, all had their arrest warrants dismissed but were later sentenced to prison and detained during trial. Former Minister of Justice Cho Kuk, whose arrest warrant was dismissed in connection with the Yoo Jae-soo inspection cover-up case, was also found guilty of abuse of authority and sentenced to prison during trial.

Both Representative Lee and the Democratic Party must break free from the absurd confirmation bias that “dismissal of the arrest warrant means innocence.” Now is not the time to cheer the dismissal of the warrant and talk about discipline or impeachment, but rather to humbly reflect on why the arrest consent motion was passed in the National Assembly despite the promise to waive immunity being reversed after just three months and even a hunger strike being undertaken to appeal for rejection.