The Justice Ministry on April 30 submitted a proposal concerning criminal investigations and trials to a special panel of the Legislative Council, an advisory body for the justice minister. The proposal will serve as a basis for further discussions among the panel members.
But the proposal by the ministry, which serves as the secretariat for the council, allows investigators wide discretion to evade an obligation to electronically record the entire interrogations of criminal suspects and expands the range of investigative methods that authorities can utilize.
The ministry should keep in mind that the special panel was set up in June 2011 primarily to eliminate the possibility of false charges being filed. Those members of the special panel who hail from the ministry, the National Police Agency and the Supreme Public Prosecutors Office should concentrate on establishing a system that will prevent the police and the prosecution from filing false charges.
The special panel was established when former assistant judge Satsuki Eda of the Democratic Party of Japan was justice minister — following revelations that a prosecutor in the Osaka District Public Prosecutors Office had tampered with evidence in the case of Atsuko Muraki, now administrative vice minister of the Health, Labor and Welfare Ministry, who had been indicted for allegedly forging an official document.
The Osaka District Court found Muraki innocent in September 2010, ruling that she had been falsely charged. The public prosecutor in question was arrested that same month, and his two superiors were arrested the following month.
Muraki is now a member of the panel, along with movie director Masayuki Suo, who directed the 2007 feature film “Soredemo boku wa yatte inai” (I Just Didn’t Do It) — the story of a man falsely accused of groping a female junior high school student on a crowded train.
Muraki, Suo and three other panel members in March proposed that the prosecution first phase in electronically recording the entire interrogation process for all crimes except traffic offenses before the police adopted the same procedure.
Unfortunately the Justice Ministry has come up with a proposal that falls far short of their call. Its proposal limits the full electronic recording of interrogations by police investigators to cases subject to trials by lay judges, such as murder, arson, kidnapping for ransom and burglary leading to death. Specifically the proposal suggests two options. The first is to mandate that both police investigators and public prosecutors electronically record the entire interrogation process in cases subject to lay judge trials. The second option is to mandate that public prosecutors record the entire interrogation process of all criminal suspects while keeping the first option in force.
Whichever option is adopted, the police will not be required to make full recordings in most cases they handle because cases subject to lay judge trials account for only about 3 percent of criminal cases. The proposal is deplorable given that false charges have taken place not only in violent crimes, the prosecution of which is typically conducted in a lay judge trial, but also in white-collar as well as less violent crimes.
Attention should be paid to the fact that the ministry’s proposal even lists exceptions. Police investigators and public prosecutors would not be required to record entire interrogations when recording equipment is out of order; the suspect refuses to have the interrogation recorded; investigators determine that they cannot get meaningful testimony from the suspect if the interrogation is recorded; it is judged that disclosure of the testimony would harm either the suspect or his or her family members; or a case under investigation involves members of an underworld organization.
Investigators would very likely use these exceptions to their advantage, thus deliberately shying away from electronically recording the entire interrogation of suspects.
In such a situation, the possibility of coercion and leading questions being used during interrogation cannot be ruled out. The provision that exempts full electronic recording if investigators think that they cannot get meaningful testimony from a suspect, in particular, serves as a giant loophole to avoid recording interrogations.
While the ministry does not appear to be serious about requiring full recordings of interrogations, it appears eager to expand investigation methods available to investigators. It calls for expanding the types of crimes for whose investigation investigators can intercept communication such as telephone calls and email from the current four — drug crimes, gun crimes, group smuggling and organized murders — to 14 including murder, battery and assault, confinement, burglary, fraud, arson, use of explosives, kidnapping and production of child pornography. What is dangerous about the proposal is that wiretapping will not be limited to organized crimes. This would carry the danger of investigators invading the privacy of ordinary citizens and civic organizations.
The ministry also proposes allowing prosecutors to drop an indictment if a suspect or a defendant cooperates in disclosing a crime by another person, and to ask the court to grant immunity to a witness if he or she refuses to testify in court for fear of indictment. These measures are completely new to Japan’s justice system. Their benefits and problems must be fully discussed by panel members.
Other measures proposed by the ministry include the requirement that the prosecution disclose a list of all evidence items in their possession to defense lawyers and the assignment of court-appointed lawyers to all detained suspects for any type of crime if they cannot hire lawyers on their own. It is not clear to what extent the evidence list should be detailed, and no punishment is provided for prosecutors who hide evidence. The ministry has rejected a call from the Japan Federation of Bar Associations that court-appointed lawyers be assigned as soon as a person is arrested.
In a nutshell, the proposal the Justice Ministry submitted to the special panel will strengthen the power of investigative authorities but will not serve as an effective tool for preventing false charges — which was the primary purpose of setting up the panel. In light of what happened in the Hakamada case, for example, it is difficult to give full trust to the police and the prosecution. In ordering the retrial of Iwao Hakamada, a 78-year-old man who was sentenced to death in 1968 for the 1966 murder of a family of four, the Shizuoka District Court in March raised the suspicion that the prosecutors had fabricated the evidence. Hakamada reportedly admitted to committing the murders — a confession that he later retracted in court — at the end of grueling interrogation by police officers who coerced and intimidated him for days to go along their version of events — a process that would have been exposed if his interrogation had been electronically recorded in full.
The ministry should change the basic direction of its proposal with the aim of eliminating the possibility of false charges. If it fails to adequately pursue interrogation reform, lawmakers should take up the issue in the Diet.