Lawyer’s Attendance at Suspect Interrogations
Introduction: suspect interrogations in Japan
In November of 2018 Carlos Ghosn was arrested in connection with incidents involving Nissan Motors, and for a long time this affair was a major news story in Japan. It was also widely reported by overseas news organizations, and there was extensive coverage of both the events that occurred and the investigation. In the process doubts about Japanese suspect interrogation were expressed in foreign media.
In Japan, a suspect can be held in custody for up to twenty-three days after being arrested. During this period, the suspect (person suspected of having committed a crime) is continually questioned by investigators. In addition, suspects are not able to meet or exchange letters with their family members if it is prohibited by the court (meeting and corresponding with their lawyer is possible). Because this kind of suspect interrogation is a cause of false confessions and false accusations, interrogation reform has repeatedly been debated in Japan.
- These circumstances have been criticized both inside and outside of Japan as “hostage justice,” and in April of 2019 members of the legal profession in Japan released a “Statement of legal professionals demanding an end to ‘hostage justice.’”
Interrogation reform measure: Audio/visual Recording of Suspect Interrogations (Kashika).
There has been a great deal of debate over interrogation reform occasioned by many instances of suspects being found not-guilty at trial or at retrial (cleared of a crime after having been found guilty at their first trial) caused at least in part by the circumstances described above. In October of 2010 the “Investigative Commission on the State of the Prosecutor’s Office” was established, and the “Legislative council – Special Subcommittee on the Criminal Justice system for a new era” was then launched. The result was an effort to “Establishing a New Criminal Justice System that Goes with the Times” through the “Act to Amend Parts of Criminal Procedure Code and Other Acts” enacted in May of 2016, and the introduction of a system of audio-visual recording (hereafter referred to as “making visible”) of the entire process of interrogation in some criminal cases. (Other measures such as a consent system were also introduced). Many issues remain concerning interrogation reform, however, such as “making visible” being limited to only some criminal cases, the recordings actually presented at trial being only a partial selection, and an ongoing debate over the handling of these making visible recordings themselves under the rules of evidence. These issues reveal that there are limits to interrogation reform that relies solely on this method of making visible. Today the discussion has thus turned to “lawyer’s attendance at suspect interrogation.”
Lawyer’s attendance at suspect interrogations
You may have noticed that in interrogation scenes in U.S. TV shows there is another person alongside the suspect during questioning. This is the suspect’s lawyer, and s/he attend the interrogation to advise the suspect. The right to have lawyer attend interrogation (hereafter “lawyer’s attendance”) is recognized by most overseas justice systems (including, among others, the U.S., England and Wales, Dutch, French, German, Italian, Taiwanese, and South Korean justice systems). Lawyer’s attendance has been widely introduced as a means of reforming interrogations. In Japan, on the other hand, there is no regulation regarding the right to lawyer’s attendance during interrogation, and there is no lawyer when adults who have been taken into custody are interrogated. In October of 2018, the Japan Federation of Bar Associations released an “Opinion Calling for the Establishment by Law of the Right to Have Counsel Present in Interrogations” demanding the creation of a system of lawyer’s attendance, and this debate continues today. The phrase “lawyer’s attendance” can have different meanings, and while in some countries the lawyers are allowed to intervene, in others they are not allowed to speak during interrogations. And while there are some countries in which lawyer’s attendance is actually carried out almost all of the time, there are others in which lawyers are not actually attend interrogations in most cases, even though this right has been acknowledged (the example of U.S. TV shows was given above, but it seems that today it is quite rare for lawyer to attend interrogations. This is because most of suspects waiver their right to have their lawyer’s attend interrogations.)
- Reference: Criminal Defense Committee, Kinki Federation of Bar Associations (ed.) “30th Kinki Federation of Bar Associations Human Rights Protection Symposium 2nd Branch Meeting: Let us open the doors of the interrogation room!
From audio/visual recording to lawyer’s attendance the at suspect interrogations
Conclusion: Looking toward the future
Regarding the system of “lawyer’s attendance during interrogations” as a means of reforming interrogations, various implementations of such systems are being used around the world, and in Japan consideration of such systems itself has only just begun. It is necessary to think about further reform measures by making good use of both making visible and lawyer’s attendance. Going forward it is essential that we not only engage in jurisprudential consideration but also consider more broadly the psychology and mentality of suspects, investigators, defense lawyers, and even judges and lay judges regarding the pros and cons of the use of such systems as we continue the debate over their appropriate usage.