When the Toyama Prefectural Police announced in January they had found the real culprit in two rape cases in 2002 — for which 40-year-old Hiroshi Yanagihara had already been convicted and served time — it was no surprise to legal experts.
“I don’t mean to exaggerate, but we do run into cases where clients had confessed to something they didn’t do,” said Osaka lawyer Hisashi Kosakai, a strong advocate of videotaping interrogations.
Experts say false convictions originate from forced confessions made behind closed doors, as was the case with Yanagihara, who was acquitted Wednesday in a retrial. In 2002, he was wrongfully arrested, indicted and sentenced to three years in prison. In the end he languished behind bars more than two years before he was paroled in January 2005.
To prevent such rights abuses, lawyers have been demanding that interrogations be videotaped to ensure there are no transgressions.
Although the Justice Ministry recently test videotapings of portions of interrogations to use as evidence to ensure confessions were voluntary, many lawyers argue that all questioning should be taped.
There are currently no such plans, but with the lay judge system set to debut in 2009, analysts think the increased civic participation in the judicial system may force the issue and lead to changes in the criminal investigation process.
Yanagihara had an alibi and initially claimed innocence. But police, who lacked sufficient evidence to prove his guilt, threatened him for hours in a closed room.
Driven into a corner with psychological pressure, Yanagihara lost hope and after three interrogation sessions confessed to everything police wanted to hear.
After his arrest, he not only lost his father to illness but also his job as a taxi driver. Once he finally got out, he was not able to find a stable job.
While admitting that legal professionals involved in the Yanagihara case all share responsibility for an innocent man ending up behind bars, lawyer Kosakai believes the tragedy could have been prevented if the interrogation had been videotaped.
Article 38 of the Constitution stipulates that people have the right to remain silent and that forced confessions will not be admitted as evidence. But investigators rely on confessions to an extraordinary degree and conduct interrogations that can run as long as 23 days to pressure suspects into caving in.
Another problem is the difficulty in judging whether a confession was voluntarily because the records do not necessarily show every word exchanged between the accused and investigators. This sometimes results in a court case that lasts for years.
A case in point was a trial in Kagoshima Prefecture where 12 people were acquitted of violating the Public Offices Election Law in connection with the April 2004 prefectural assembly poll.
Six of the accused owned up to their charges after investigators pressured them to confess. However, they all pleaded not guilty in court, and the trial lasted three years to last February, when they were cleared.
Videotaping interrogations from start to finish would not only make it harder for authorities to coerce suspects but will clarify how the questioning was conducted, Kosakai said.
Britain, Australia, Italy, Taiwan and some U.S. states videotape all questioning with the intention of preventing grave errors. Japanese authorities, however, are reluctant to reveal what goes on in their interrogations.
Michiaki Ozaki, a senior official in the Supreme Public Prosecutor’s Office, argues that videotaping from beginning to end would prevent law enforcement officials from reaching the truth.
Ozaki said obtaining confessions during interrogations is so important in Japan because investigative powers are limited. For example, unlike their U.S. counterparts, authorities here do not have a formal plea-bargaining system or engage in undercover probes. There are also tighter restrictions on phone taps than in other countries.
“Of course, it’s important to protect human rights,” Ozaki said. “But we are also expected to punish people who commit crimes in Japan, and to do this we must gather evidence. Under the circumstances, we are dealing with things as best we can.”
He argued that if suspects know everything they say is being videotaped, they may hesitate to talk about the details of the crimes they allegedly committed or about accomplices, which would make it difficult for authorities to obtain enough evidence to get at the truth, Ozaki said.
The National Police Agency also opposes videotaping entire grillings for the same reasons.
The ongoing experiment with partial videotaping, however, is part of the preparation for the lay judge system, the Justice Ministry said. Serious crimes will be adjudicated by six citizens chosen at random sitting alongside three professional judges. They will also determine sentences in line with guilty verdicts.
With the system due to come in by May 2009, legal professionals are now working on making their presentations clearer and easier for the public to understand.
Ozaki explained that when suspects confess, a videotaped session will take place to ask them why they decided to confess, how their statements were made and whether any form of coercion was applied or favors promised.
The Supreme Public Prosecutor’s Office said that once the recording begins, the camera will not be switched off until the session is over.
“The public probably wonders if suspects really (want to) confess to (offenses they can be punished for). But from experience, they do confess voluntarily,” Ozaki said. “This recording will not affect the role of interrogations but will serve as objective evidence that will help the lay judges realize that the confession was made voluntarily.”
The Justice Ministry is planning to set up videotaping devices in every prosecutor’s office next year to prepare for the lay judge system.
Lawyer Kosakai argued that only partial videotaping of interrogations is dangerous because lay judges may not be aware of actions taking place behind the scenes.
“Videotaping the part where suspects review their statement ignores the process of how it was made,” he said. “This will be misleading for the lay judges as they decide whether the confession was truly voluntary.”
Akira Goto, a professor at Hitotsubashi University School of Law, said videotaping only portions of interrogations is insufficient. He believes authorities will eventually have to tape entire interrogations because the public will demand it.
“People will want to know what happened in the rest of the investigation,” he said.
It is his belief that videotaping should be done not only of suspects but all people questioned during an investigation, including people claiming to be witnesses to crimes.
While Goto supports videotaping, he thinks it could eventually lead to authorities gaining new investigative powers, including plea bargaining, which would be used for cases where confessions are the only evidence. He predicted that this could lead to harsher punishments.
“The public will have to think seriously about what they will take and what they will have to give up,” he said.