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Legal experts and journalists in Japan sometimes forget that defendants in criminal cases are guaranteed the right to remain silent.

Masumi Hayashi, who is charged with murdering four people by poisoning curry at a 1998 community festival in Wakayama, and her lawyers have been harshly criticized for her refusal to speak about the case since her arrest — not only to investigators but also in court.

Legal experts have urged Hayashi’s lawyers to persuade her to tell her version of the events of July 25, 1998, when four people, including two children, died and 63 others became ill after eating curry spiked with arsenic. She is also accused of attempted murder in connection with the victims who fell ill.

Some major newspapers slammed the perceived audacity of the 40-year-old former insurance saleswoman in remaining silent, despite the desire of the victims and the next of kin to know the truth, after prosecutors demanded the death sentence at her Wakayama District Court trial on June 5.

Facing these attacks, Kenichi Yamaguchi, a member of the defense team, said Hayashi and her lawyers decided she should exercise her right to remain silent mainly due to fears she might say something incriminating despite having pleaded not guilty.

“History clearly shows that false charges in Japan have been made based on forced confessions, and it is natural for Ms. Hayashi to keep silent if she does not want to speak,” the Osaka-based lawyer said in a recent speech in Tokyo.

“That is why we, the defense lawyers, decided not to question her in court,” he said.

Yamaguchi said the seven-member defense team believes in Hayashi’s right to invoke Article 38 of the Constitution, which states, “No person shall be compelled to testify against him- or herself.”

However, they have received numerous threatening letters directed at themselves and their family members.

“Most of these letters were anonymous,” he said.

“Those who are displeased with our stance seem to view the defendant’s rights and the victims’ rights in a confused manner, although these two should not be argued on an equal footing.”

Yamaguchi also said the defense team objects to the court’s decision in March to allow as evidence broadcast video footage of interviews Hayashi gave before her arrest.

The outspoken defendant did numerous interviews with television shows, newspapers and magazines before her arrest. In them, she claimed she was not the one who poisoned the curry.

Prosecutors indicted Hayashi without specifying a motive for the curry poisonings, but alleged she put poison in the curry because she was “incensed” after perceiving that several other women at the festival were displeased with her for turning up too late to help prepare the food.

She also stands accused of insurance fraud and other unrelated counts of attempted murder for insurance, including targeting her former husband, Kenji, a pest exterminator who has been convicted of insurance fraud.

In the curry deaths, prosecutors demanded that videotapes of Hayashi’s interviews be admitted as evidence on the grounds she made statements in them that demonstrate she was “incensed” at the time of the crime.

“If the videos of the interviews are admissible as evidence, the defendant’s right to silence will become meaningless,” Yamaguchi said.

Critics and journalists fear that a court decision to allow the tapes to be submitted as evidence could infringe on press freedom by undermining the media’s ability to conduct interviews, as people may be reluctant to speak freely if they think their statements might be used against them in court.

Yamaguchi contends, however, that reporters will in effect become investigators’ proxies, provided they dog a suspect’s every step with the help of information leaked from authorities.

“Investigators leak a suspect’s information to reporters, and reporters investigate the suspect in the investigators’ stead, in the name of news-gathering. If a court ruling is delivered based on taped interviews, despite the defendant’s wish to exercise the right to remain silent, it will damage due process,” he said.

Toshikuni Murai, a law professor at Ryukoku University, said, “As (a defendant’s guilt or innocence) should be judged based on objective evidence . . . the exercise of the right to silence should not be condemned.”

“While I feel sorry for the victims and the next of kin, I expect them and the media to respect a defendant’s rights,” he said.

Defense lawyers will present closing arguments on Sept. 18, and a ruling is expected to be handed down possibly by the end of this year.

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