Amendments to the Criminal Procedure Law and the law on wiretapping, both enacted in 2016, were fully implemented at the beginning of this month, turning a new page in the reform of the criminal justice system that was triggered by a major scandal in 2010 involving prosecutors tampering with evidence in a criminal case and then trying to cover it up. Video recordings of the interrogation process of suspects — intended to ensure transparency and prevent false confessions — have become mandatory in cases subject to lay judge trials and those independently probed by prosecutors. Meanwhile, requirements on wiretapping in criminal probe have been eased as part of the steps to provide police and prosecutors with more investigation tools, such as the introduction of plea bargaining last year, in exchange for the tighter rules on interrogations.

Mandating the video-recordings of interrogations was a key reform intended to prevent false charges and convictions in the nation’s criminal justice system. Ahead of the mandating of such recording under the law, both the police and prosecutors have already begun video-recording their interrogation of suspects in 80 to 90 percent of the cases covered by the amendment — although they still account for a small portion of all the criminal cases they handle. On the other hand, the move by prosecutors to actively use recordings of interrogations as evidence in court has raised controversy.

Initially the prosecutors opposed the mandatory video-recording — designed to show whether suspects voluntarily gave statements in interrogations behind closed doors as opposed to being coerced or led by investigators to confess — on the grounds that investigators would find it harder to obtain statements. But in 2015, the Supreme Public Prosecutor’s Office ordered prosecutors nationwide to consider using such recordings as evidence against the accused in court. What stirred up the controversy was a trial involving the murder of a girl in Tochigi Prefecture in which more than seven hours of the recorded interrogation of the accused was shown in court. In 2016, the Utsunomiya District Court sentenced the accused to life in prison. While the accused said he had been led by prosecutors to falsely confess to killing the victim, the judges determined that the video of his interrogation supported the credibility of his confession.

A 2018 Tokyo High Court ruling in the appellate trial, however, overturned the lower court decision, casting doubt on its ability to judge the credibility of the confession solely on the basis of the video. The court said that while the video may help determine that the accused voluntarily made the statement, it cannot rule out the possibility that the defendant was telling a lie, noting that it was illegal for the lower court to find him guilty directly on the strength of the video — although the high court still sentenced him to a life term based on circumstantial evidence. Rules need to be established over the use of interrogation video recordings as evidence in court.

What was also discussed in the criminal justice system reform — but without reaching a conclusion on all the questions — was a rule on the disclosure of evidence in the possession of investigators.

In recently awarding ¥76 million in state compensation to a 72-year-old man who has been acquitted of a 1967 robbery-murder in Ibaraki Prefecture after spending more than a quarter century in prison, the Tokyo District Court said that during the man’s initial trial it was illegal for prosecutors to refuse to disclose a piece of evidence that would have promptly cleared him and led to his release had it been presented in court. The court thus ruled that prosecutors have a duty to disclose important pieces of evidence that could sway the outcome of the trial — either to the advantage or disadvantage of the accused — in the courtroom.

The criminal justice system reform made it mandatory for prosecutors to disclose the list of evidence in their possession. But while the defense counsel of the accused can seek disclosure of all evidence on the list that they consider necessary, prosecutors retain some discretion as to whether they will present all the requested evidence. A larger problem is that no rules exist on the disclosure of evidence by prosecutors in the process of seeking retrials — even though in many cases people convicted of crimes were acquitted in retrials on the strength of evidence hitherto undisclosed to the court — and the decision to urge prosecutors to disclose such evidence in the retrial process is often left to the discretion of judges in each case.

Rules on the disclosure of evidence is among the pending issues in criminal justice system reform that should be settled. Efforts to eliminate the risk of false charges and convictions need to continue even after the full implementation of the 2016 amendments.

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