Problematic criminal justice reforms

Revisions to three laws, including the Criminal Procedure Laws, enacted by the Diet late last month were prompted by a call to prevent false charges in criminal trials, in particular by electronically recording the entire interrogation of suspects. This call was triggered by the 2009 indictment of Atsuko Murai, a section chief of the Health, Labor and Welfare Ministry, on a forgery charge and her acquittal in 2010. But the enacted amendments not only give more power to investigative authorities but could also lead to more false charges. The Diet should review the problematic features of the amendments and take steps to correct them.

The amendments consist of three pillars: mandatory electronic recording of interrogations in certain types of crimes, and the introduction of plea bargaining and a widening of the scope of wiretapping as investigative tools.

The full electronic recording of interrogations is meant to prove that confessions by suspects have been made voluntarily, instead of being led or forced by investigators during closed-door interrogations — the source of many wrongful charges and false convictions. But the amendments make it mandatory for police officers and prosecutors to video-record interrogations in cases that will be handled by lay judge trials and cases that are independently uncovered by prosecutors — which account for a mere 3 percent of the nation’s criminal cases. Investigators are also allowed to forego recording interrogations if they determine that they cannot obtain meaningful statements even if they interrogate suspects.

Since mandatory recording is limited to the interrogations of suspects being detained or under arrest, investigators have no obligation to record statements made by people being questioned on a voluntary basis either prior to arrest or after indictment. Likewise, recordings aren’t required when suspects arrested for crimes not subject to lay judge trials are questioned by investigators over their possible involvement in separate, more serious crimes that will be handled by lay judge trials — even though suspects could confess to serious crimes during such interrogations. If suspects who are subjected to rigorous questioning on a voluntary basis make false confessions after they have been served arrest warrants, the process leading to the confessions may not be recorded.

These loopholes were highlighted in the recent trial of Takuya Katsumata, who was convicted of murdering a 7-year-old girl in Tochigi Prefecture in 2005 on the basis of confessions he made during interrogation — which he later reversed in court — as there was no physical evidence tying him to the murder. The prosecution showed seven hours of video recordings of his interrogation in court, but these did not include his initial confession to killing the girl, which he made while being detained for unrelated offenses. In addition, his subsequent questioning by police on a voluntary basis for more than three months before he was served a new arrest warrant on suspicion of murder was not electronically recorded. Clearly, the recording loopholes can prevent crucial parts of interrogations from being scrutinized by judges.

The plea bargaining system is being introduced in response to a call by the police and the prosecution for more investigation tools in exchange for agreeing to the mandatory recording of interrogations for some crimes. Suspects and defendants will be able to receive lesser punishments or have charges dropped in exchange for information or evidence on accomplices and others in such crimes as embezzlement, bribery, violations of the Anti-Monopoly Law, organized fraud and firearms and narcotics trade. Plea bargaining won’t be used in cases involving violent crimes such as murder and burglary.

The government contends that suspects won’t falsely accuse innocent people because the plea bargaining will take place in the presence of the suspects’ lawyers and false incrimination is punishable by up to five years in jail. But suspects may still be tempted to lie to improve their prospects and investigators may prod them to name others involved in crimes. The presence of lawyers in the process may not be a sufficient deterrent since they place priority on protecting the interests of their clients and may not have enough information to determine whether statements made by their clients are true or false. Concerns have been raised that the system could serve as a new source of false charges and wrongful convictions.

The revisions expands the scope of criminal cases in which investigators can employ wiretapping as an investigation tool from four — the sale and possession of narcotics and firearms, murders by crime syndicates and large-scale people smuggling — to include nine others, including ordinary murders, injuries, theft, confinement of people and violations of the law against child prostitution and child pornography.

Investigators will be able to request that telecom carriers send to them ciphered data of communication involving criminal suspects, and then decode the data. The decoded communication may include conversations of people not involved in criminal activities — thus violating their privacy. More importantly, the new rules will enable investigators to use wiretaps in an extremely large number of cases. For example, thefts account for about 70 percent of all the crimes recognized by the police in this country.

A supplementary provision to the amendments calls for a review of the measures three years after they take effect. But given the risk of abuse of the investigative tools by the police and the prosecution, the Diet should take immediate action to revise the laws in question.