Kiyoshi Yasutomi: How Criminal Justice Will Change with the Introduction of the "Japanese Version of Plea Bargaining"

2018/10/17

Reports have emerged that the Tokyo District Public Prosecutors Office has indicted three individuals—a former director, a former executive officer, and a former department manager of a major domestic company—without detention for violating the Unfair Competition Prevention Act (bribery of foreign public officials) in connection with a thermal power plant construction project in Thailand.

In this case, after identifying suspicions through a whistleblower and conducting an internal investigation, the company reported the matter to the Special Investigation Department of the Tokyo District Public Prosecutors Office, citing potential violations of the Unfair Competition Prevention Act, which prohibits the bribery of foreign public officials. Following discussions and an agreement with the Special Investigation Department, the department decided on July 20 of this year not to prosecute the corporation, indicting only the former executives.

The handling of this case received significant media attention as the first application of the so-called "Japanese version of plea bargaining."

In 2016, the Act to Partially Amend the Code of Criminal Procedure and Other Acts was enacted, introducing a system of prosecutorial agreement, commonly known as the "Japanese version of plea bargaining," which came into effect on June 1 of this year. (The so-called "plea bargaining system" also includes the "criminal immunity system" [Articles 157-2 and 157-3], which grants criminal immunity to witnesses who exercise their right to refuse to testify during examination to compel their testimony; however, this article focuses on the prosecutorial agreement system.)

This partial amendment to the Code of Criminal Procedure and other acts aims to establish a new criminal justice system suited to the times, with the goal of optimizing and diversifying evidence collection methods and realizing substantial trial proceedings.

The newly introduced prosecutorial agreement system allows the prosecutor and the suspect or defendant, with the consent of defense counsel, to reach an agreement regarding certain financial and economic crimes or drug and firearm crimes. Under this agreement, the suspect or defendant cooperates in the collection of evidence for another person's criminal case, and the prosecutor, in consideration of that cooperation, may decide not to prosecute or seek a lighter sentence.

In organized crime and similar cases, it is often difficult to uncover the truth without obtaining statements from those directly involved in the crime or from within the organization to clarify the overall case, including the involvement of the mastermind. Consequently, investigations have had to rely almost exclusively on the interrogation of suspects and related parties. Furthermore, in organized crimes involving strong personal ties, it is often difficult to obtain statements that contribute to clarifying the case through interrogation, and there were not always effective methods for obtaining such statements. This investigative method, which relied on interrogation, sometimes led to the negative consequences of aggressive questioning by investigators.

For these reasons, it was deemed necessary to fundamentally review the nature of investigations and trials that rely excessively on interrogations and written statements. To build a new criminal justice system, it was necessary to introduce methods other than interrogation that make it possible to obtain statements contributing to the clarification of cases while ensuring the appropriateness of procedures in organized crime and similar cases.

The prosecutorial agreement system is an "investigation and trial cooperation type" system where a person cooperates in the investigation and prosecution of "another person's crime" in exchange for non-prosecution or a lighter sentencing recommendation for their own case. It is not a "self-incrimination type" plea bargaining system, such as the guilty plea bargaining in the United States, where a suspect or defendant admits guilt for "their own crime" in exchange for a lighter sentencing recommendation from the prosecutor.

Under the prosecutorial agreement system, targeting specific financial and economic crimes as well as drug and firearm crimes, the prosecutor and the suspect or defendant may, with the consent of defense counsel, reach an agreement to clarify the case. This agreement entails: (1) the suspect or defendant performing cooperative acts, such as providing statements or submitting physical evidence regarding another person's criminal case; and (2) the prosecutor providing favorable treatment, such as not prosecuting, indicting on a lesser count, or seeking a lighter sentence for the suspect or defendant's own case.

Cooperating in the investigation and prosecution of "another person's criminal case" typically involves a suspect or defendant cooperating in the investigation and prosecution of an accomplice in a different crime in which they were involved. However, it also includes cooperating in the investigation and prosecution of "another person's criminal case" for which the suspect or defendant possesses useful information, even if they were not directly involved in that specific crime.

Prosecutorial agreements are limited to "specified crimes" (Article 350-2, Paragraph 2 of the Code of Criminal Procedure). Since this system was established to clarify organized crime, these "specified crimes" include types known as white-collar or intellectual crimes (bribery, fraud, embezzlement, breach of trust, etc.), organized crime, and drug crimes. Additionally, crimes under tax laws, the Antimonopoly Act, the Financial Instruments and Exchange Act, and other financial and economic crimes designated by Cabinet Order are covered. Crimes such as murder, injury, and robbery are not included. This is because it is not appropriate to make crimes that infringe upon such significant legal interests or cases with strong victim sentiment subject to agreement.

The contents of the agreement are also stipulated in the Code of Criminal Procedure. The suspect or defendant promises to provide truthful statements or testimony during interrogation or witness examination and to cooperate in the submission or seizure of physical evidence. In return, the prosecutor promises to not prosecute, indict on a lighter charge, or seek a lighter sentence (for example, a sentence with a stay of execution).

Discussions are held between the prosecutor, the suspect or defendant, and the defense counsel. Defense counsel must always participate in the discussions to ensure that the agreement is reached appropriately and fairly.

Discussions begin when either the prosecutor or the defense counsel proposes a discussion to the other party and the other party accepts.

Since not all cases are initiated by the prosecutor, in cases such as those referred to the prosecutor by a police officer, the prosecutor and the police officer must hold prior discussions before the prosecutor engages in discussions with the suspect. This is to ensure that coordination and cooperation between the prosecutor and the police officer are sufficient and do not hinder the investigation.

When discussions are finalized and an agreement is reached, a written agreement is prepared, stating the contents and signed by the prosecutor, the suspect, and the defense counsel. Typically, once an agreement is reached, the prosecutor will seek to hear more detailed statements from the suspect to prepare written statements, receive physical evidence that corroborates the content, or request cooperation for the seizure of physical evidence to be used in proving "another person's" criminal case. This is to determine whether the suspect or defendant has a sincere intention to fulfill the agreement, what kind of evidence will be provided by the suspect or defendant if an agreement is reached, and to what extent that evidence is credible.

If an indicted suspect who has reached an agreement goes to trial, or if an indicted defendant reaches an agreement, the prosecutor must request an examination of the written agreement as evidence. This is to procedurally clarify that the case is subject to an agreement so that the court is fully aware of it. Furthermore, when using written statements or other evidence prepared based on an agreement in "another person's criminal case," the prosecutor must request an examination of the written agreement. This is because statements or testimony based on an agreement carry the risk of involving others in a crime or shifting responsibility to others out of a motive to lighten one's own punishment. Therefore, it is necessary for the court, the other person, and their defense counsel to understand the existence and content of the agreement and to carefully examine its credibility.

Furthermore, if one party violates the agreement, the other party may withdraw from the agreement.

If written statements have already been prepared or evidence has been provided in response to cooperation, and the prosecutor violates the agreement, those pieces of evidence generally cannot be used in court.

The prosecutorial agreement system was introduced as a means of collecting testimonial evidence for investigation and prosecution in a manner different from traditional methods of obtaining statements. It targets specified crimes to clarify the truth in cases where it is difficult to uncover the details of organized crime, including the involvement of masterminds.

However, the prosecutorial agreement system will likely be useful not only for clarifying organized crime by anti-social forces but also for investigative agencies to grasp the beginnings of corporate crime. Since corporations can also be suspects or defendants, if illegal acts involving a company occur, the company needs to understand the facts and respond reasonably in criminal proceedings. For example, after an officer or employee of a company participates in a crime such as bribery, tax evasion, or window-dressing, they might cooperate with investigative agencies in the investigation and prosecution of "another person's crime"—such as that of a supervisor or colleague—to escape their own criminal liability. Alternatively, a company might provide statements to investigative agencies regarding another company's involvement in a crime to avoid corporate punishment.

While companies have already been working on employee education and enhancing internal reporting systems to prevent scandals and respond quickly when they occur, it is expected that the use of the prosecutorial agreement system will increase in the future. In other words, the prosecutorial agreement system provides a strong motive to actively cooperate with investigations. Furthermore, within the same company, since officers and employees who are considered accomplices are "other persons" to each other, they can gain specific benefits by cooperating in the investigation and prosecution of "another person's crime." Additionally, while companies are subject to punishment for crimes with dual liability provisions, if a company's officer or employee becomes the subject of an investigation for a specified crime, the company itself could avoid being indicted by actively conducting an internal investigation and cooperating in the investigation and prosecution of the officer or employee.

The case introduced at the beginning can be said to be a precedent for exactly such a situation.

The prosecutorial agreement system makes it possible to obtain statements and other evidence that contribute to clarifying the full scope of organized crime, targeting certain financial and economic crimes. However, since it involves providing statements about "another person's criminal case," there are concerns that the risk of false statements, such as involving others or shifting responsibility, cannot be eliminated. Regarding this, defense counsel is required to be involved from the start of discussions until the conclusion of the agreement, and a mechanism has been established to punish those who provide false statements to investigative agencies after reaching an agreement. However, in its operation, it will be required that there are circumstances justifying the credibility of the statements—such as having sufficient evidence to corroborate the statements of the person testifying about "another person's criminal case"—and that it is recognized as reasonable for the prosecutor to obtain cooperation in the investigation and trial of "another person's criminal case" even after reducing the punishment for the person providing the statement.

It is expected that the prosecutorial agreement system will become established as a new investigative method through careful operation in the future.