Opinion concerning the Establishment of the New Criminal Justice System (No.2)
September 13, 2012
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (“JFBA”) has prepared its“Opinion concerning the Establishment of the New Criminal Justice System (No.2)”dated September 13, 2012, and submitted it to the Minister of Justice and the chairperson of the“Subcommittee on the Criminal Justice System for a New Era”under the Legislative Council of the Ministry of Justice.
(Enhancement of the system concerning the disclosure of all evidence)
1. In order to prevent occurrences of facts being misunderstood and punishments thereby being meted out to a defendant because of concealment of evidence favorable to the defendant, the JFBA has proposed that a provision stipulating full-scale evidence disclosure be established including the issuance of an evidence/discovery list, which should be applicable to all cases (including retrial cases filed after a guilty verdict has been finalized), and not limited to cases subject to the pretrial conference procedure, as follows:
(1) The provision should stipulate an obligation on prosecutors to prepare a list of all evidence items which investigative authorities have made or obtained, and deliver such list to the defendant soon after the prosecution proceedings have been instituted.
(2) The provision also should outline an obligation on prosecutors to provide an opportunity for the defendant and the defense attorney, in principle, to inspect and copy all evidence items which prosecutors have made or obtained through the investigation process of the case soon after the institution of prosecution.
(Introduction of appropriate separation of procedures and arraignment)
2. The JFBA has proposed that there should be a strict differentiation and delineation between cases in which there is a dispute over the charged facts and those not involving any such dispute, and trial procedures best suited to each of the above cases should be decided as follows:
(1) Cases in which there is a dispute over charged facts: i) The procedures for judging existence or non-existence of charged facts, and the procedures for sentencing should be established separately; ii) The determination of guilt or innocence should be judged based upon the existence or non-existence of the charged facts, as well as evidences related to the such facts; and iii) Only when the defendant has been judged as guilty would an assessment of the sentencing be performed.
(2) Cases in which there is no dispute over the charged facts: When a defendant pleads guilty, on the conditions that a defense attorney has been selected and the court follows the procedure for confirming the true intention of the defendant in open court, the sentencing hearing of such defendant should be able to commence immediately.