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

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 arrest for violations of the Unfair Competition Prevention Act (bribery of foreign public officials) regarding a thermal power plant construction project in Thailand.

In this case, after identifying suspicions through internal whistleblowing and conducting an internal investigation, the company reported to the Special Investigation Department of the Tokyo District Public Prosecutors Office that there was a risk of violating 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 and only indicted the former executives.

The media widely covered the handling of this case as the first application of the so-called "Japanese version of plea bargaining."

In 2016, an act partially amending the Code of Criminal Procedure and other laws was enacted, introducing a system of consultation and agreement 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 witness examination to compel their testimony; however, this article will focus on the consultation and agreement system.)

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

The newly introduced consultation and agreement system allows prosecutors and suspects or defendants, with the consent of defense counsel, to consult and 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, it is often difficult to uncover the truth without obtaining statements from those directly involved in the execution of the crime or from within the organization to clarify the overall case, including the involvement of the mastermind. Consequently, investigations have had to rely exclusively on the interrogation of suspects and related parties. Furthermore, in organized crimes involving strong personal relationships, 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 investigation method, which relied on interrogation, sometimes led to the negative effects of aggressive questioning by investigators.

For these reasons, it was deemed necessary to fundamentally review the nature of investigations and trials that relied 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.

The consultation and agreement system is an "investigation and trial cooperation type" system where one receives non-prosecution or a lighter sentence for their own case by cooperating in the investigation and prosecution of "another person's crime." It is not a "self-incrimination type" system of plea bargaining, such as plea bargaining in the United States, where a suspect or defendant pleads guilty to "their own crime" in exchange for a lighter sentence from the prosecutor.

In the consultation and agreement system, targeting specific financial and economic crimes and drug and firearm crimes, the prosecutor and the suspect or defendant may, with the consent of defense counsel, consult to clarify the case and reach an agreement where: (1) the suspect or defendant performs cooperative acts such as giving statements or submitting evidence regarding another person's criminal case; and (2) the prosecutor provides favorable treatment for the suspect's or defendant's own case, such as non-prosecution, indictment on a lighter count, or seeking a lighter sentence.

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.

Consultations and 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 crimes 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 specified by Cabinet Order are covered. Crimes such as murder, injury, and robbery are not target crimes. This is because it is not appropriate to make crimes that infringe on such significant legal interests or cases with strong victim sentiments the subject of an 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 evidence. In return, the prosecutor promises non-prosecution, indictment for a lighter crime, or a lighter sentencing recommendation (for example, a sentence with a stay of execution).

Consultations are conducted by the prosecutor, the suspect or defendant, and the defense counsel. Defense counsel must always participate in the consultation. This is to ensure that the agreement is conducted appropriately and fairly.

A consultation begins when either the prosecutor or the defense counsel proposes a consultation to the other party and the other party accepts.

Since not all cases are initiated by the prosecutor, in cases sent to the prosecutor by police officers, the prosecutor and the police officer must hold a prior consultation before the prosecutor consults with the suspect. This is to ensure sufficient coordination and cooperation between the prosecutor and the police officer so that the investigation is not hindered.

When a consultation is 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. Usually, once an agreement is reached, the prosecutor will likely seek cooperation to hear more detailed statements from the suspect to create written statements or to receive the submission of evidence or seize evidence to support those statements, for use in proving the "other 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 made, and to what extent that evidence is credible.

If an agreed-upon suspect is indicted and 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 the court can fully understand the situation. Furthermore, when using written statements created based on an agreement as evidence in the trial of "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 reduce one's own punishment. Therefore, the court, the other person, and their defense counsel must be aware of the existence and content of the agreement 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 created 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 consultation and agreement system was introduced as a means of collecting testimonial evidence for investigation and prosecution in a manner different from conventional methods of obtaining statements. It targets specified crimes to clarify the truth of cases where it is difficult to uncover organized crime, including the involvement of masterminds.

However, the consultation and 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 an illegal act involving a company occurs, 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 a supervisor or colleague—to escape their own criminal liability. Alternatively, a company might state facts regarding another company's involvement in a crime to investigative agencies to avoid corporate punishment.

While companies have already been working on employee education and enhancing internal reporting systems to prevent scandals and deal with them early when they occur, it is expected that the use of the consultation and agreement system will increase in the future. That is, the consultation and agreement system provides a strong motive to actively cooperate with investigations. Furthermore, within the same company, since officers and employees considered accomplices are "others" to each other, there is the merit of being able to obtain 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 may be able to 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 seen as a precedent for exactly this kind of situation.

The consultation and agreement system makes it possible to obtain statements that contribute to clarifying the full scope of organized crime targeting certain financial and economic crimes. However, because it involves giving statements about "another person's criminal case," there are concerns that the risk of false statements, such as implicating others or shifting responsibility, cannot be eliminated. Regarding this, defense counsel is required to be involved from the start of consultations to the conclusion of an agreement, and a mechanism is in place to punish those who make false statements to investigative agencies after reaching an agreement. However, in its operation, it will be required that there are circumstances to justify the credibility of the statement, such as sufficient evidence to support the statement of the person testifying about "another person's criminal case," and that it is recognized as reasonable for the prosecutor to obtain cooperation for the investigation and trial of "another person's criminal case" even after reducing the punishment for the person making the statement.

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