Opinion Concerning Legislating for the Observer’s Presence at Interrogations of Intellectually-Challenged Suspects
September 14, 2012
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (“JFBA”) prepared its “Opinion Concerning Legislating for the Observer’s Presence at Interrogations of Intellectually-Challenged Suspects” dated September 14, 2012 and submitted it to the Minister of Justice, the Minister of Health, Labor and Welfare, the Public Prosecutor-General and the Commissioner General of the National Police Agency on September 27, 2012.
The JFBA strongly believes that a system concerning interrogations of suspects who are intellectually- challenged, including the presence of an observer at such interrogations, should be established, taking into account the following standpoints:
- ) preventing miscarriages of justice
- ) securing the credibility of written interrogation statements of intellectually-challenged suspects
- ) guaranteeing intellectually-challenged suspects a) the right to due process, and b) the right totrial,
- ) guaranteeing equal rights to those enjoyed by suspects who don’t suffer from intellectual handicaps
The JFBA states this opinion regarding the presence of an observer at interrogations of intellectually-challenged suspects as follows:
- The state should immediately establish a system which ensures the presence of an observer at interrogations of intellectually-challenged suspects based on the following important pillars:
- ) Observers to be present at such interrogations should, in principle, be in a neutral position independent from investigative authorities such as the public prosecutors’ office. Further, also in principle, such an observer should have a full understanding of the nature, degree and characteristics of the disability. However, in exceptional cases, the following person should also become an observer in cases where it would otherwise be difficult for an authority to conduct questioning, including a case of interrogation of a suspect with speech disability: a person who is familiar with and has a good understanding as to the daily life of such suspect, for example, a) a guardian of such suspect who generally has regular daily contact with the suspect, or b) a supporter or person with a similar nature who is close to such suspect.
- ) It should be ensured that i) an expert conduct a full assessment as to the degree and characteristics, etc. of the disability of a suspect with intellectual disability before starting an interrogation of the suspect so that the interrogator and observer are able to grasp the characteristics ofthe disability as well as those of the statement made by such suspect, and that ii) an interrogation be conducted by such interrogators who have a full grasp of such characteristics, taking such characteristics, etc. into consideration when performing the interrogation.
- ) In order to secure people throughout Japan who are able to take the role of observer, who are both in a neutral position and also able to fully understand the characteristics of the disability, the followings should be done: i) establishing a network of volunteer observers who have deep roots in each community, ii) providing the necessary training to such observers, and iii) providing sufficient physical and human resources in order to nurture observers as such.
- Until the system described in Item 1. above is fully implemented, the following measures should be tentatively performed in all cases involving interrogations of intellectually-challenged suspects: it should be ensured that a person who is familiar with and has a good understanding as to the daily life of such suspect, including, a guardian of the suspect who has regular and extensive contact with the suspect, or a supporter who is close to the suspect be able to be present at such interrogations.
- Regarding the interrogation of intellectually-challenged suspects, the JFBA believes that it is not sufficient that merely introducing a new system enabling a presence of an observer at every interrogation, and the followings must rightly be included in the new system:
- ) At interrogations of intellectually-challenged suspects, both with and without the presence of an observer, an audio/video recording of the entire process of the interrogations must be conducted.
- ) In order to cultivate the expert knowledge and experience concerning the characteristics of various disabilities and the features of the statements made by intellectually-challenged suspects, which are essential for interrogators to conduct such interrogations, the following points should be ensured: i) interrogation skills securing protection of rights should promptly be established, referring to and taking into account the opinions of external experts and similar examples being adopted in jurisdictions abroad: ii) an effective training program should be conducted; and iii) interrogations should only be conducted by interrogators who have taken such training and mastered the use of interrogation methods which ensure the protection of rights.