It remains to be seen whether plea bargaining can become a useful new technique for crime investigations.
Plea bargaining, which has been used widely in the United States and European countries, will be introduced in Japan on June 1. The government adopted an ordinance setting the date for the system to take effect at a Cabinet meeting.
Under the system, prosecutors would refrain from indicting suspects and defendants in return for their revealing the crimes of their accomplices. In some cases, sentences sought by prosecutors can be reduced. That is an outline of the Japanese version of plea bargaining. As part of criminal justice system reform, the introduction of plea bargaining has been incorporated into the revised Criminal Procedure Code, which was enacted in 2016.
The ordinance has also specified the crimes for which plea bargaining is applicable. In addition to organized crimes, corruption and other offenses stipulated in the Criminal Procedure Code, a wide range of economic crimes such as bid-rigging and insider trading set forth in the Antimonopoly Law or Financial Instruments and Exchange Law have been covered.
In many cases of bank transfer fraud, among other crimes, there has been difficulty in reaching ringleaders even though marginal suspects are arrested. It is also difficult to establish the involvement of top executives in corporate crimes.
Plea bargaining has raised hopes as a tool to cut into the heart of organized crimes. Deterrent effects on company-wide illegal acts could also be expected.
What is important is whether investigative authorities will operate the system with restraint.
Prevent false charges
A similar measure, which contains an element of plea bargaining, has been already introduced in Japan. It involves self-declaration regarding involvement in cartels and bid-rigging, based on a leniency system under the Antimonopoly Law.
If companies voluntarily report to the Fair Trade Commission their involvement in violations, fines will be reduced. Since the leniency system was introduced in 2006, a succession of cases have come to light as a result of self-declaration.
While a certain degree of progress has been achieved, questions cannot be wiped away about the handling of some cases. The Tokyo District Public Prosecutors Office's special investigation squad has arrested senior officials of two companies that denied an allegation in connection with a bid-rigging scandal over the Chuo Shinkansen magnetic levitation high-speed railway project. Four major general contractors were involved in the scandal.
The squad stopped short of arresting relevant people in the two companies that voluntarily declared their violation. This is apparently intended to show a willingness to give positive consideration to their treatment if they admit their wrongdoing. However, this could be interpreted as forcing them into self-declaration.
In plea bargaining, there is the risk that suspects or other parties may try to lay false charges against others in a bid to reduce their own penalties.
To secure the veracity of statements, a crime of false statements has been newly established with penalties. Plea bargaining will require the consent of defense lawyers, and the content of plea bargains will be kept in writing.
More than anything, it is vital to operate the system in a manner that will not lead to false charges. In the United States, a probe has found that more than 20 percent of major cases of false accusations involved provided false information.
Police and prosecutors need to conduct thorough investigations to back up statements. Courts must look into the credibility of the statements more strictly and carefully.
(From The Yomiuri Shimbun, March 17, 2018)
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