The introduction of the right to plea bargain in June marks a major development in the nation’s criminal justice system. The incoming system will enable prosecutors to not indict or file less serious charges against suspects or defendants who cooperate with investigations by offering testimony or evidence against their accomplices — but it will not be applied to suspects or defendants who agree to plead guilty to their own crimes in return for concessions from the prosecution. There are expectations that the system will serve as a useful tool in investigating organized crimes. However, there are also concerns that it could trigger false statements by suspects or defendants against others in seeking leniency for themselves, possibly leading to bogus charges brought against innocent people. The system must include sufficient measures to prevent such abuse.

Plea bargaining exists in varying forms in a number of countries. In the United States, where the system is said to have been in use for roughly 200 years, plea bargaining plays a major role in the criminal justice system. About 90 percent of criminal cases are settled through plea bargaining thus avoiding a lengthy trial process and helping to reduce the huge backlog of criminal cases. Most of the plea bargaining taking place in the U.S. reportedly involve defendants pleading guilty to their own crimes in return for leniency from prosecutors, such as indictment on lesser charges.

In Japan, the system is being introduced as an enhanced tool of investigation as part of broader criminal justice reforms. What triggered the reforms was a series of cases involving false charges being brought against innocent people. The police and prosecutors came under heavy criticism for investigations that relied heavily on the confessions of suspects — who were occasionally coerced or led by interrogators into make statements that supported the investigators’ cases.

To increase transparency in the interrogation process, the revised law on criminal proceedings in 2016 made it mandatory for the police and prosecutors to make audiovisual recordings of the interrogation of suspects in certain serious crimes that are subject to lay judge trials as well as in cases exposed by the prosecutors’ own probes. The introduction of plea bargaining was included in the 2016 amendment of the criminal proceedings law based on demands from the police and prosecutors that they need substitute means of collecting evidence in their investigations since the interrogation-recording requirement could make it difficult for them to obtain meaningful statements from suspects.

Under the system, prosecutors may decide not to indict or seek prosecution on lesser charges against suspects under arrest or defendants who cooperate with the police or the prosecution by providing evidence or testimony to expose the crimes of their accomplices. Criminal cases in which plea bargaining may be used will include drug and firearm offenses, bribery, organized fraud and antitrust violations. In view of the sentiment of crime victims, plea bargain will not be applied to such crimes as murder, burglary and sex offenses. Defendants or suspects will not be allowed to plead guilty to their own crimes in return for leniency after authorities determined that such a system might allow the defendants or suspects to evade adequate punishment by stalling the investigation as they try to bargain for a better deal for themselves.

Plea bargaining may indeed be a useful tool for investigators to obtain testimony and other evidence from low-ranking members of organized crime groups about their leaders or masterminds, or from company employees that expose the involvement of top executives in corporate crimes. At the same time, the very nature of the arrangement — receiving leniency in return for testifying against others — causes concern that the defendants or suspects may make false statements against innocent people. The Justice Ministry says a mechanism is in place — such as punishing people with up to five years in jail if they make false statements and the requirement that the defense counsel be present when a plea bargain is discussed — to prevent abuse of the system.

A system similar to plea bargaining was introduced in antitrust investigations in the 2006 revision of the Antimonopoly Law. Under the Fair Trade Commission’s leniency rules, companies voluntarily reporting antitrust violations can either avoid being fined or face reduced penalties. The company that does so first will also avoid criminal charges. In the ongoing investigation into alleged unfair bidding for the construction of a maglev line by Central Japan Railway Co., charges were withheld on executives of two of the four indicted major contractors that have reportedly owned up to rigging the bids. There were views that prosecutors effectively tested plea bargaining in the maglev case before its formal introduction. The plea bargaining system should be closely monitored to determine its effects.

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