Japan Interrogation Reform

By: Ahnaleza Wilseck

In 2009, the senior bureaucrat at Japan’s Health, Labor and Welfare Ministry, Atsuko Muraki, was charged with document forgery.[1] Prosecutors accused her of helping an organization get certain postal discounts by forging a governmental certification.[2] The high-profile crime was dubbed the Postal Fraud Case, and there were suspicious of a deeper conspiracy at play.[3] The evidence against Muraki: the confession of a single junior official.[4]

            Under Japan’s Criminal Procedure Code, confessions are to be handled with particular care.[5] Only a confession that is a “written statement of the accused containing the admission of a disadvantageous fact and his/her signature” made voluntarily may be admitted into evidence.[6] Generally, these statements are not written by the suspect, but instead are typed by police or prosecutors, and brought to the suspect for review and signature.[7] When the voluntariness of the confession is questioned, the prosecutor and defense attorney can do no more than argue for their side’s narrative.[8]

            After Muraki was arrested based on the forgery charges in the Postal Fraud Case, the junior official accused the police and prosecutors of coercing a false confession from him.[9] Since an involuntary confession cannot be admitted into evidence, Muraki was acquitted.[10] The public was outraged and pushed for answers about what had really happened in the interrogation room.[11] In response, the Justice Ministry pledged to make interrogations more transparent so as to ensure confessions would be permitted in court.[12]

            According to Human Rights Watch, what really happened in the interrogation room might have been worse than most people imagine.[13] Suspects in Japan could be held for up to twenty-three days, and regularly questioned by police and prosecutors.[14] Each interrogation could use various forms of pressure from complete exhaustion, as suspects sat through up to ten-hour sessions, “to threats, deprivation of food and drink, and violence, in the form of poking, kicking and beating.”[15] Human Rights Watch listed recommendations for interrogation reform in 1995, which included strict rules on the time permitted for each session and clear bans on the use of violence and psychological pressure.[16] Far more impactful, however, was Human Rights Watch’s list of individuals who had falsely confessed to crimes to end their interrogations, which included four men acquitted of unrelated murders between 1983 and 1989.[17] Some of the major issues with interrogations, according to Human Rights Watch, stemmed to the fact that throughout the twentieth and early twenty-first century, including during the Postal Fraud Case, Japanese prison law had not been updated since 1908.[18] Rules that did not take into account the ability to be transparent could not keep up with the practice of law in a new, more transparent, century.

            After the Postal Fraud Case, the Justice Ministry’s pledge to increase transparency in interrogations lapsed until Japan amended its Criminal Procedure Code in 2016.[19] In an effort to make interrogations more transparent, the amendment included new mandates for interrogation practices, including “mandatory video recording of interrogations in certain types of crimes” that must be fully implemented by July 2019.[20] The crimes that require video recording are crimes punishable by death or life imprisonment, crimes punishable by over a year in prison when the victim has died due to the criminal act, and any crimes that are investigated by prosecutors rather than the police.[21] However, even in these crimes, the interrogator may at times waive video recording.[22]  This waiver is permitted for major issues, such as the suspect’s fear of retaliation if his confession was ever released, but video recording may also be waived by the interrogator for simple problems, including the video recording device being currently broken.[23] Even when the waiver is not invoked, this only leads to recorded interrogations in 3% of all Japanese criminal cases.[24]

            In order to lower the need for confessions in the first place, the law also created Japan’s criminal bargaining system.[25] Previously, no plea bargaining was permitting in Japan.[26] Since the 2016 amendment to the Criminal Procedure Code, however, prosecutors are permitted to drop or lower charges, but only when a suspect agrees to give information about another person’s crime.[27] Only certain charges may be dropped or reduced, and murder and burglary are always excluded.[28] Once a suspect has agreed to tell the truth about the other crime in the investigation or be a witness in the other person’s trial, the court must approve of the agreement, otherwise, it may be canceled.[29]

            Legal minds in Japan are “wary” of the use of testimony bargains.[30] The goal with the 2016 amendment was to increase transparency, but the inclusion of bargains with prosecutors do not bring more light to the issue of interrogations; they merely have diversified the types of investigations police and prosecutors use.[31] While the video recorded interrogations were meant to ensure confessions in Japan were not coerced, the new bargaining system has many worried that suspects will be enticed to lie about other people’s crimes.[32] Indeed, “critics are worried that pressure from prosecutors to cut deals will only reinforce the weaknesses of Japan’s current criminal justice system.”[33] The issue of false and coerced confessions looks to have not been solved. Further, the bargains between suspects and prosecutors will not be recorded.[34]

            With the deadline to record interrogations looming next year, journalists in Japan are wondering if the 2016 amendment has changed anything substantially for suspects, or if they have simply altered the procedures interrogators may use.[35] In order to make a true change to the Japanese interrogation system, Japan should implement video recording of all interrogations, including during the new bargaining procedures.[36] By recording interrogations, Japanese prosecutors have evidence to show that the confessions given were reliable and not coerced.[37] Similarly, by recording the bargaining process, prosecutors can show that the testimony against other defendants is consistent and not coerced.[38] The underlying issue is that the Japanese system is focused on confessions and testimony as the most important form of evidence in criminal proceedings.[39] This type of evidence must be supported, and it can be supported through video recordings in order to ensure the system maintains its integrity.

[1] Sakura Murakami, Japan’s Criminal Justice Reforms Aim to Enhance Transparency of Interrogations — Are They Working?, The Japan Times News (June 18, 2018), https://www.japantimes.co.jp/news/2018/06/18/reference/japans-criminal-justice-reforms-aim-enhance-transparency-interrogations-working/#.W94Nli3My8p.

[2] Id.

[3] Id.

[4] Id.

[5] Japan: 2016 Criminal Justice System Reform, The Law Library of Congress (Dec. 14, 2016), https://www.loc.gov/law/help/criminal-justice-system-reform/japan.php.

[6] Id.

[7] Id.

[8] Id.

[9] Murakami, supra note 1.

[10] Id.

[11] Id.

[12] Id.

[13] Prison Conditions in Japan, Hum. Rts. Watch xiii (Mar. 1995), https://www.hrw.org/sites/default/files/reports/JAPAN953.PDF.

[14] Id.

[15] Id.

[16] Id. at xx.

[17] Id. at 3–4.

[18] Id. at viii.

[19] Japan, supra note 5.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Murakami, supra note 1.

[26] Japan, supra note 5.

[27] Id.

[28] Id.

[29] Id.

[30] Murakami, supra note 1.

[31] Id.

[32] Sakura Murakami, Japanese-Style Plea Bargaining Debuts but Authorities Fear Spread of False Testimony, The Japan Times News (May 31, 2018), https://www.japantimes.co.jp/news/2018/05/31/national/crime-legal/japanese-style-plea-bargaining-debuts-authorities-fear-spread-false-testimony/#.W99bkS3My8o.

[33] Id.

[34] Id.

[35] See id.; see also Murakami, supra note 1.

[36] Murakami, Japanese-Style Plea Bargaining Debuts, supra note 32.

[37] Id.

[38] Id.

[39] Id.