National / Crime Legal
Japanese-style plea bargaining debuts but authorities fear spread of false testimony
by Sakura Murakami
Staff Writer
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
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