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Most criminal interrogations in Japan will remain opaque

by Masami Ito

Staff Writer

Notorious for a lack of transparency over how suspects are interrogated in criminal investigations, Japan has been under pressure to record its cross-questioning of detainees behind closed doors.

But at least 97 percent of criminal interrogations will continue to go unrecorded, after an advisory panel of bureaucrats, legal experts, professors and others under the Justice Ministry’s Legislative Council on Monday supported a draft compiled by the ministry that stops short of requiring investigators to keep detailed records in most cases.

Meanwhile, Japan is set to broaden the range of methods police and prosecutors can use by introducing plea bargaining and expanding the use of the wiretap law, something that investigators are eyeing eagerly as a new tool in securing prosecutions.

The panel is set to approve the draft as early as next week, and the Justice Ministry aims to submit bills based on it in the next ordinary Diet session, which begins in January.

Some outside observers have criticized the draft, arguing that without full transparency in interrogations the new system will lead to further misjudgments.

“Plea bargaining and complete transparency of interrogations are like two wheels of a cart — they are inseparable,” said former prosecutor Yoji Ochiai. “The whole point of introducing transparency loses significance on such a small scale,” he said, referring to the small number of cases transparency will apply.

Under the draft report, investigators must record all interrogations that will be tried by lay judges, including murder, arson and kidnap, and special investigations conducted only by prosecutors. Together, these account for only two to three percent of all criminal cases.

The advisory board added a supplementary resolution stating that it “strongly hopes that the recording and taping of interrogations will be conducted as widely as possible,” but fell short of saying recordings should be legally binding.

On the other hand, investigators will be allowed to offer suspects a plea bargain in certain cases, including white-collar crimes such as fraud and bribery, or drug trafficking and arms dealing.

Suspects may be given lighter sentences or may avoid indictment altogether in exchange for testifying against others, under threat of a maximum five-year prison term for false testimony.

However, Lawyer Hiroshi Kawatsu noted that interrogations resulting in plea bargaining will not be recorded and therefore the deals themselves will be held behind closed doors. Many legal experts voiced concern that it would be difficult to prove that the statements made are trustworthy because suspects would be tempted to frame others.

“Without full transparency, the system will be creating a double route — one that will be visible under the new plea bargaining system and the other that will take place behind closed doors,” said Kawatsu, who heads the Japan Federation of Bar Associations’ Research Office for Judicial Reform.

“This could lead to an increase in wrongful conviction,” he said.

The controversial wiretap law will also see a major change. Currently restricted to very limited cases, such as those involving drugs and arms dealing, the panel is set to expand the list of possible investigations, adding murder, arson, robbery, fraud, theft and child prostitution.

“The JFBA has been against the wiretapping law from the start and we believe it shouldn’t be easily expanded without sufficient measures to prevent authorities from abusing it,” Kawatsu said.

The Justice Ministry’s panel was set up in 2011 after a scandal in which prosecutors tampered with evidence and extracted forced confessions from suspects in the high-profile arrest of Atsuko Muraki, current vice health minister, for fraud. Muraki was later acquitted of all charges and is a member of the panel.

“The problem with this case was the common investigative measures used by the prosecutors of the special investigation unit — they had a preconceived scenario and used strong-arm methods to collect evidence that would back it up,” said lawyer Ochiai. “There was no turning back for them once they arrest someone of such a high social status as Ms. Muraki.”

The advisory panel’s goal was to “review investigations and trials that rely heavily on interrogations and depositions and introduce the recording and taping of interrogations to create a new criminal justice system that is fully up to date.”

During the meeting Monday, Muraki’s soft but earnest voice filled the room as she repeatedly expressed concerns over the limited transparency. She said she has given up hoping for full transparency but pleaded at least for a wording that recommends recordings as an “effective method that should be done proactively” for all cases.

“If we compromise any further, we will lose the original goal,” Muraki said.

Investigators, however, oppose recording interrogations, arguing that the presence of a camera might discourage suspects from speaking freely.

As a former prosecutor, Ochiai expressed understanding of the investigators’ concerns and said that was why a new “weapon,” or investigative tool, was needed in exchange for full transparency of interrogations for them to be able to do their job.

“We must look at the criminal justice system as a whole and not focus on certain parts of it. It needs to be a system that protects human rights but at the same time the truth must be uncovered as well. Without that balance, it won’t function properly,” Ochiai said.