A bill to revise the criminal procedure law, endorsed by the Cabinet based on a proposal last year by an advisory panel to the justice minister, introduces plea bargaining as a new tool for investigators and allows for wider use of wiretapping in criminal probes, while limiting the scope of mandatory electronic recording of interrogations. The Diet needs to closely examine if the revision will truly serve its intended purpose of ensuring transparency in criminal investigations with the aim of preventing false charges.
The Legislative Council’s proposal was an outcome of three years of discussions that followed a high-profile case in which Atsuko Muraki, now vice minister of the Health, Labor and Welfare Ministry, was arrested and indicted in 2009 on the charge that she ordered the forgery of an official document to enable the misuse of a postal discount system for associations of disabled people. She was subsequently acquitted in court as it emerged that a prosecution investigator, who was later convicted of tampering with evidence, led another ministry official into making confessions implicating Muraki to fit his version of events. The incident highlighted the danger of the emphasis that criminal investigations in this country place on testimony made in during interrogations, with a number of cases of false charges and wrongful convictions resulting from false confessions made by suspects who were led or coerced by investigators.
The discussions for reform of criminal proceedings focused on the introduction of electronic recording of interrogations to make the process transparent. Muraki, who took part in the discussions, and representatives from the Japan Federation of Bar Associations called for making the recording of interrogations in all criminal cases mandatory. Officials from the police and the prosecution, however, opposed the move on the grounds that such a requirement would make it difficult for investigators to obtain confessions.
In the end, the proposed revision makes it mandatory that interrogations in criminal probes be electronically recorded from start to finish in cases that will be handled in lay judge trials as well as in cases that prosecutors handle without a prior police investigation. But such cases combined will account for only about 3 percent of all criminal cases. And even among these cases, investigators will be given the discretion to not record interrogations if they determine that they may be unable to obtain meaningful testimonies by doing so, and in cases that involve members of the underworld.
The police and prosecutors do seem to understand that electronic recording is an effective means to verify the credibility and voluntary nature of confessions made in interrogations. In recent years, both the police and prosecutors began electronically record interrogations on a trial basis, particularly in many cases that were to be tried by lay judges. They are apparently aware of the risk that courts may question the credibility of testimonies that lack such proof. Last year, prosecutors as a whole reportedly set out a policy of proactively submitting DVDs of such recordings as evidence in court. Still, the police and prosecutors resisted legally mandating such recordings in a broad range of cases — which would have led courts to reject the interrogation testimonies as evidence if they fail to record them — and insisted on allowing discretion on the part of the investigators to forgo recording interrogations.
The draft revision to the law says the scope of mandatory electronic recording should be reviewed about three years after its implementation. But the Diet should examine whether the scope is sufficiently wide now when the bill is tabled in the current session.
Despite the very limited scope of electronic recordings, investigators secured expanded powers in criminal investigation in return for accepting them after they argued that they need new tools to obtain objective evidence without relying on confessions. The wiretapping of telephone and email conversations, currently allowed only in the investigations in four categories of crimes such as drug trafficking and firearms trade, will be permitted in the probe in nine more types of crimes in which the involvement of a group of people is suspected, including murder, arson, fraud and theft, if the court issues a warrant, when the revision takes effect. And the presence of a telecommunications carrier employee during the act of wiretapping will no longer be required.
The revision will also give prosecutors plea bargaining powers, under which investigators can forgo or withdraw charges against suspects or the accused in exchange for them cooperating in the probe by testifying or providing evidence of other people’s involvement in the crimes under investigation. Plea bargain would only be permitted in economic crimes and the consent of suspects’ lawyers would be required to make deals. Prosecutors may also choose not to pursue the criminal responsibility of people who give self-incriminating testimony in court — such as their own involvement in crimes.
Plea bargaining may give prosecutors more options to collect evidence to build their cases. But concern has been voiced that the new system may create another source of false charges because there is the risk of suspects making false statements to implicate others to escape charges against themselves.
A recent case involving the mayor of Minokamo, Gifu Prefecture, may highlight this risk. In acquitting Mayor Hiroto Fujii, who was accused of receiving ¥300,000 in bribes from a local groundwater supply company that had won the city’s contract for a water purification system at a public school, the Nagoya District Court said that it was possible that the company’s president — who was convicted of giving the bribes in a separate trial on the same case — may have falsely confessed to bribing the mayor to divert investigators’ attention away from another case in which he was being probed.
It is not clear how such risks would be averted under the new system that the revision bill seeks to introduce. That could defeat the very purpose of the revision to the criminal procedure law. The Diet should scrutinize whether the proposed revision contributes to eliminating false charges and wrongful convictions.