Editorials

Build public trust in the plea bargain system

The right to plea bargain was finally introduced in Japan in an amendment to the criminal procedure law that took effect Friday. The system enables prosecutors to forego indictment of or to file less serious charges against suspects or defendants in return for their cooperation in investigations by offering testimony or evidence against accomplices. There are hopes that the system will serve as a useful tool for investigators in cracking down on organized crime.

While the plea bargaining system has been introduced in many other countries, it marks a major development in Japan’s criminal justice system. But whereas the system is widely used in the United States, for example, to expedite criminal investigations and trial proceedings by allowing suspects or defendants to seek leniency in return for agreeing to plead guilty to their own crimes, the new system in Japan does not allow such bargaining by suspects or the accused concerning their own crimes. It is being introduced essentially as a new investigation tool for police and prosecutors.

Due to the very nature of the practice of suspects or defendants testifying against others in an effort to gain leniency, concern lingers that they could lie to prosecutors for their own benefit, possibly resulting in false charges being levied against innocent people. That, if it ever happens, would defeat the whole purpose of the criminal justice reform, which had been triggered by an incident in which false charges were filed against a senior Health, Labor and Welfare Ministry bureaucrat in a case that was built by prosecutors intent on manipulating evidence against the official. The plea bargain system should be constantly reviewed to see if effectively guards against the risk of false charges based on false testimony against innocent people — so as to develop public trust in the system.

Plea bargaining will be allowed in the investigation of certain crimes as defined by the law and related ordinances, ranging from illegal drug and firearms-related offenses to bribery and a host of economic crimes such as violation of the antimonopoly law and the law regulating transactions of financial products. In view of the sentiment of crime victims, plea bargaining in cases involving violent crimes such as murder and burglary is not allowed.

The system might, for example, be used by investigators to zero in on the mastermind of an organized crime who otherwise would escape prosecution. In a bank transfer scam, for example, the police might arrest members of the fraud group who actually collect the swindled money, but then have trouble gaining access to the people who organize the scams. Testimony and evidence against the leaders provided by the arrested suspects through a plea bargain might enable the police to crack down on the whole group.

There are also expectations that plea bargaining will help investigators dig deeper into corporate crimes as opposed to an all too common situation in which only the employees who actually engaged in the wrongful acts are prosecuted and the top executives who may have ordered the acts remain out of reach. In a bribery case, for example, investigators may be able to obtain testimony from the arrested employee over the involvement of the company’s higher ranks in return for a promise of leniency.

A plea bargain may be proposed by either the prosecutors or the suspects/defendants, and discussions for a deal must be attended by the lawyer of the suspect/defendant. Suspects/defendants will present what they can offer to cooperate with the investigation, and prosecutors will try to ascertain the credibility of the offered testimony or evidence through interviews of the suspects/defendants or through an investigation, and explain to suspects/defendants about the leniency that can be offered in return. Once both sides agree on a plea bargain, the deal will be reflected in a document to be signed by suspects/defendants, the defense counsel and the prosecutor.

The Justice Ministry says that the mandatory presence of the defense counsel and the punishment of up to five years in jail for false testimony will serve as sufficient deterrence against suspects/defendants falsely implicating others for their own benefit. Since the defense counsel will be in a position to protect the interests of their client, however, it’s not clear whether their presence will indeed prevent false testimony. Some experts say that to ensure transparency of the plea bargain process, detailed records of the process, including interviews of the suspects/defendants by the prosecutors, must be kept — an idea the Supreme Public Prosecutor’s Office dislikes. Whether a mechanism is needed to review the process conducted behind closed doors should be discussed further.