Saturday, June 09, 2018
'Plea Bargaining Agreement' beneficiary's testimony and risk of miscarriage of justice?
Japan on Friday introduced a bargaining system as part of an overhaul of its criminal investigation and trial systems, while battling concerns the new practice could encourage suspects or defendants to make false statements that lead to miscarriages of justice.
The new bargaining system, which resembles what is known as plea bargaining in the West, allows criminal suspects to negotiate deals with prosecutors in exchange for information on another criminal.
Prosecutors can reward informants who snitch with a variety of benefits, such as a recommendation for a lighter sentence or a promise to drop his or her case altogether.
Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.
Prosecutors hold most of the bargaining power, barring some specific cases that involve the police, and deals can be made before or after prosecutors file formal charges.
The Japanese bargaining system is unique in that it permits deals only when the accused snitches, said Kana Sasakura, a professor at Konan University who specializes in criminal law.
“Bargaining systems around the world are usually based on rewarding suspects who confess” to a crime, but the revised Japanese law lacks that system and instead focuses entirely on deals between prosecutors and informants to aid investigations, she said.
Prosecutors had been advocating for the introduction of a bargaining system, claiming that changes in criminal procedure law, including a new rule obligating the recording of interrogations in certain investigations, required new and “diverse” ways to obtain evidence.
Yet critics are worried that pressure from prosecutors to cut deals will only reinforce the weaknesses of Japan’s current criminal justice system, which is largely dependent on confessions, unless proper measures are put in place to prevent false testimony and miscarriages of justice.
There will be “a strong incentive to “implicate others to get away with their own crimes or receive a lighter sentence,” said Sasakura. “That does lead to the possibility of wrongful accusations and convictions.”
Indeed, a 2005 report by the Center on Wrongful Convictions at Northwestern University School of Law (now Pritzker School of Law) found that, since 1973, more than 45 percent of the wrongful convictions involving men on death row in the United States who were later exonerated were obtained in part through such arrangements.
Also, out of 330 DNA exoneration cases in the U.S., 22 percent involved informant testimony that was used as evidence to convict, according to Brandon L. Garrett, a professor at the University of Virginia School of Law.
To prevent suspects or the accused from lying to get a deal, Japan’s revised law penalizes false depositions and obliges defense lawyers to be involved in the bargaining process. If depositions are found to be false, those giving them will face up to five years in jail.
But critics are skeptical these measures would be enough to prevent fabrications.
Penalizing false depositions could “make it harder for informants to retract what they said,” Sasakura pointed out. Instead of discouraging false statements, the penalty may instead push informants to stick with their story even if it’s false, she explained.
Getting lawyers involved doesn’t guarantee false statements won’t be made, either.
Defense lawyers might find themselves in an ethical dilemma — whether to fight for their client’s best interests by making a deal or to see justice served, said Yuji Shiratori, a professor at Kanagawa University who specializes in criminal procedure law.
The lawyer of the informant “won’t have access to the information needed to make a justified decision about the ‘other case’ (involving an accomplice) and decide what is best for the client” when considering whether to bargain with prosecutors, he added.
“There are measures to deal with individual issues arising from the introduction of the bargaining system. But upon closer examination of such steps, it’s hard to say they would do enough” to prevent miscarriages of justice, Sasakura said.
Nobuo Gohara, a former prosecutor and current lawyer at Gohara Compliance and Law Office in Tokyo, insisted it is necessary to record people’s statements to detect the false ones.
Fabricated statements usually change over time to fit objective facts, so “it’s very important to know whether any ex post facto tweaks to the story have been made” to assess whether the informant’s account is false, he said.
However, given that the bargaining process won’t be recorded, it will be hard to judge whether a statement is false, he added.
Since informants, defense lawyers and prosecutors all have a stake in ensuring the depositions of suspects or defendants are true, it may make the Japanese criminal justice system more prone to wrongful convictions, Gohara also said.
Sasakura, the professor at Konan University, pointed out that the reliance on confessions and statements is a distinct aspect of the Japanese criminal justice system.
Behind Japan’s wrongful convictions is an “underlying mentality that confessions and statements are the most reliable piece of information,” sometimes more so than scientific and objective evidence, she said.
In the past, Japanese investigators “forced suspects to confess by applying pressure and conducting torturous interviews,” said Gohara. With the new system, the prosecutors will try to make them speak up in return for benefits.
“The way prosecutors try to make suspects or defendants speak may change, but the reality (of the confession-based justice system) won’t,” he added. - Japan Times, 31/5/2018