Five years after the introduction of "plea bargaining" is still applied 5 Why? The background is

It has been five years since the Japan version of the "plea bargain" was introduced. This system rewards suspects for cooperating with investigations, such as withholding prosecution. As a means of gathering new evidence, attention was focused on whether it would be a turning point in criminal justice.

However, only three cases have been found to be applied in the past five years. I would like to tell you in detail how the people involved analyzed and evaluated this.

【What is a plea bargain?】

A plea bargain (consultation and agreement system) is a system in which a suspect or defendant cooperates with an investigation by giving a statement or evidence about the crimes of an accomplice or ringleader, and in return, the prosecution withholds charges or lightens the sentence.

The application is limited to specific economic crimes and drug crimes, and has been expected to lead to the elucidation of corporate fraud and organized crime.

Excessive reliance on "interrogation" in the background

Plea bargains were introduced as a means of gathering evidence without relying too much on interrogation. In the background of this, in the wake of the false accusation case in which former director general of the Ministry of Health, Labour and Welfare Atsuko Muraki was acquitted, the way in which the prosecutor's office forcibly imposed the plot drawn by the prosecution behind closed doors was strongly criticized.

【Actual application】

5 cases in 3 years Even in the "Ghosn case"

How much has it been applied in the five years since its introduction? Prosecutors have not released details of the application, but three cases have been held, including the case in which former Nissan Chairman Carlos Ghosn was charged with violating the Financial Instruments and Exchange Act.

Both cases were investigated by the Tokyo District Public Prosecutors' Special Investigation Division, and the parties who accepted the plea bargain were not prosecuted.

"Credibility" referred to by the court

In two of the three cases, the court addressed the credibility of plea bargains.

Although the former president of an apparel company was found guilty in the judgment, he indicated that the "credibility of the statements" obtained through the plea bargain "needs to be approached with a very cautious attitude and should not be used as a basis for judgment on issues as much as possible."

In the trial of former Nissan CEO Greg Kelly, the former head of the secretary's office who accepted the plea bargain testified in about 3 witness hearings, but the court rejected much of the testimony that Kelly was involved in, saying that "there is no supporting evidence and the testimony is not credible."

Although some were convicted, many of the charges were acquitted.

【Why 3?】 What is credibility? Analysis and evaluation of each]

Expert: "The court is cautious"

How did experts analyze this situation?

Professor Yoshiki Ogawa of Waseda University, who presented plea bargains at the annual meeting of the Japan Criminal Law Association on March 3, said, "The absolute number is too small to read a certain trend from the application situation," and that "the court is taking a very cautious stance" regarding the credibility of statements obtained in plea bargains.

Regarding the danger of "involvement" such as making an innocent person an accomplice, he pointed out that "the investigative agency clearly presents advantageous arrangements, so the motivation of those who cooperate in the investigation to make false statements may be strengthened."

Judge: "The success and failure of the system is too early to judge"

A veteran criminal judge told an interviewer, "The issue of the credibility of accomplices' statements has been a point of contention since the system was introduced. I think we are now at the stage where investigative agencies are brushing up on how to implement the system, including the culture of the Japan and its own way of thinking."

Prosecutor: "Evidence that could not be obtained in the past"

We asked Tomoyuki Shirai, Prosecutor of the Criminal Division of the Supreme Public Prosecutors Office.

Q.In five years, three cases have been clarified. Isn't it few?
A. "The stance is to 'apply to what should be applied' on the premise of carefully examining the credibility of the statements, and the number of cases is only the result.

Q. How do you evaluate plea bargaining?
A. "It is a very important method because it has results that provide evidence that could not be obtained in the past, but it does not mean that the conventional investigative method has been lost and replaced by the consultation and agreement system (plea bargaining). We will continue to build on our achievements appropriately."

How did companies evaluate it?

The past three cases were all related to corporate activities, and in some cases, companies escaped prosecution as legal entities through plea bargains. With the possibility of using plea bargains in corporate crimes in the future, how do companies view this system?

At the time of the introduction of the system, a representative of an organization that hosted plea bargaining seminars for companies told NHK, "In the past few years, there has been almost no need from companies."

"It is unclear whether a plea bargain will be made even if the fraudulent declaration is filed."

A lawyer who is familiar with corporate crisis management said, "I feel the potential of this system, but at present, I don't know if a plea bargain will be concluded even if I report fraud.

On the other hand, there were also voices of expectation for future use.

"Plea bargaining is corporate crisis management"

Tadashi Kunihiro, an attorney who is familiar with corporate compliance, said, "It is one of the corporate crisis management for companies with a solid compliance system to use plea bargaining to eliminate the root of fraud.

【What will happen in the future】

Prosecutor Shirai, the Supreme Public Prosecutor, said, "In corporate crimes, there is often too much physical evidence to know where important things are, and in some cases, there are cases where there is a password on an electronic device and cannot be accessed, so this system plays a major role," demonstrating the usefulness of the system in that it makes it easy to collect objective evidence.

Even in the legal field, the perception of the result of "three cases in five years" differs depending on the position. How will it take root in Japan society in the future?

The Ministry of Justice has established a council where experts have begun to discuss the current situation and challenges of plea bargaining.