A set of bills ostensibly to reform the nation’s criminal justice, which is likely to be enacted during the ongoing Diet session, includes a measure to prevent false charges — mandating the full electronic recording of interrogations for certain types of crimes. This constitutes a small step forward. But other parts of the proposed reform — the introduction of a plea bargaining system and expanded use of wiretapping — may result in beefing up the power of the police and the prosecution without achieving the purpose of protecting the rights of citizens who are being investigated.
The reform was prompted by the experience of Atsuko Muraki, currently vice minister of the Health, Labor and Welfare Ministry. She was arrested and charged with forging of an official document in 2009, but was acquitted in 2010 as the Osaka District Court turned down as evidence 34 of 43 depositions submitted by the prosecution, pointing to the possible use of leading questions or pressure against witnesses during interrogations. It also surfaced that a public prosecutor in charge of her case altered the content of a floppy disk that was presented as evidence.
The bills before the Diet are based on discussions by a special panel of the Justice Ministry’s Legislative Council, which was established in 2011 and included Muraki as a member.
Under the planned reform, public prosecutors will be required to show a list of all the evidence in their possession to a defense counsel prior to the start of a trial, and court-appointed lawyers will be assigned to all detained suspects. These steps will contribute to improving the fairness of criminal investigations and trials.
The recording of the entire interrogation process — to ensure transparency — will also be required for the serious crimes handled by lay-judge trials — such as murder, burglary leading to death, arson and kidnapping — and crimes investigated solely by public prosecutors. But since such cases account for only 3 percent of all crimes, the recording mandate is clearly inadequate, as demonstrated by Muraki’s case.
Apparently the government, which submitted the bills to the Diet, succumbed to pressure from investigative authorities who wanted to maintain their discretion in questioning suspects. Bribery cases, in which investigators are deemed likely to use leading questions to corner suspects into confessing, and cases involving molestation on crowded trains, in which false charges are frequently filed, are not covered by the recording requirement. There are also many exceptions to the new rule — including cases involving members of underground organizations and when investigators decide that the recording hampers their efforts to obtain useful testimonies.
The introduction of plea bargaining represents perhaps the most useful and powerful tool accorded to investigators under the reform. But it also raises the risk of innocent people being falsely charged. Under the new system, if a suspect or a defendant gives testimony or offers evidence that provides investigators with helpful leads concerning crimes committed by another person, public prosecutors can opt to drop their indictment or seek a lighter penalty for the suspect or the defendant. Ostensibly to prevent abuse, the lawyer of the suspect or defendant must give his approval before plea bargaining can commence. Without the presence of a lawyer, the suspect or defendant cannot negotiate with public prosecutors. In addition, the plea bargaining system will be used only for corporate crimes such as bribery and tax evasion, and the trafficking of drugs or firearms.
Given the nature of plea bargaining, however, it is possible that a suspect or a defendant could give false testimony to evade indictment or to get a lighter penalty. The government says that this risk will be minimized by the requirement that the suspect or defendant’s lawyer must approve the plea bargaining and because suspects or defendants who give a false testimony will face criminal punishment. But this contention seems weak because the lawyer giving the approval will naturally act in the interest of his client. An opposition proposal that the whole process that led a suspect or a defendant to engage in plea bargaining be electronically recorded was not adopted. Instead, public prosecutors will write up a record of the process and keep it through the end of the trial.
The nature of plea bargaining dictates that investigative authorities must make serious efforts to prevent abuse of the system. At the very least, investigators who have received tip-offs through plea bargaining should do their utmost to gather concrete evidence against those whom a suspect or a defendant has incriminated. They should never solely rely on the plea bargaining testimony to build a case against another person. Once the plea bargaining system starts, the Supreme Public Prosecutor’s Office should carefully monitor it to check if public prosecutors are abusing the new system.
Currently investigators are authorized to use wiretapping in probes of four types of crimes — drug and firearms trafficking, people smuggling themselves into Japan in large numbers, and murders committed in an organized manner. Under the planned reform, nine more types of crime will be added to the list, including organized battery and assault, fraud, theft, burglary and arson. This expansion could increase the possibility of citizens’ privacy rights being infringed upon. Currently wiretapping involves not only monitoring telephone conversations but Internet communication. Under the proposed reform, the presence of a telecommunication company employee during wiretapping will no longer be required. Instead, a police officer not involved in the investigation in question must be present. One wonders whether a police officer can strictly monitor the behavior of fellow investigators.
What started the discussion on reform of the criminal justice system was the awareness of the importance of preventing false charges. It is questionable if the legislation before the Diet mandates effective and adequate steps to prevent the improper use of the expanded power accorded to investigative authorities. The Upper House, which is now working on the legislation, should scrutinize the bills to help ensure that the planned reform will accomplish its original purpose.