Comment Concerning the Verification of Audio/Video Recording of Interrogations by Public Prosecutors and Related Future Policies

Japanese

July 5, 2012
Japan Federation of Bar Associations

On July 4, 2012, the Supreme Public Prosecutors’ Office compiled the results on the verification of the experimental implementation of audio/video recording of interrogations of suspects at prosecutors' offices (hereinafter referred to as the “Verification Results”) and also compiled and issued its policies for audio/video recording of interrogations of suspects at public prosecutors' offices in the future (hereinafter referred to as the “Future Policies”).

Verification Results on Trial of Audio/Video Recording of Interrogations
The implementation of audio/video recording of the entire process of interrogations has been positively evaluated in some parts of the Verification Results. However, it also seems that a considerable amount of pages have been devoted to descriptions supporting interrogations made in isolated interrogation rooms or justifying the partial recording of interrogations. It has to be said that it is extremely regrettable that the Verification Results have indicated a passive stance of the public prosecutors' offices on the issue of video recording of the “entire process” of interrogations, based on presupposed continuation of conventional interrogation methods.

Now that a trial implementation of the audio/video recording of interrogations has been conducted for an extended period of time with a view toward its permanent implementation, it is high time that concrete steps were taken for such implementation. Lending an ear to the voices of the public regarding transparent interrogations (i.e. video recording the entire process of interrogations), the JFBA expects the Legislative Council of the Ministry of Justice to swiftly and appropriately deal with such matter.
Further Continuation of the Currently Conducted Trial on Audio/Video Recording
It is stated in the Future Policies that the trial run of audio/video recording of interrogations will continue to be actively implemented in cases such as: i) “special investigation cases which are handled by the special investigations section, the special criminal unit of public prosecutors' offices; ii) cases which are to be tried under the saiban-in (lay judge) system; and iii) cases involving suspects with communication problems due to intellectual disabilities. Further, concerning the trial implementation of audio/video recording of interrogations that has been conducted at police stations since the spring of 2012, it has been decided that for cases which are to be tried under the saiban-in (lay judge) system, not only cases where a confession has been made but also cases where the suspect denies guilt should be included in the coverage. In addition, regarding the parts of interrogations in which the audio/video recording is to be conducted, they have been expanded to include situations such as: i) procedures for taking a suspect’s explanatory statements; and also ii) confirming the contents of the statement with the suspect before completing the written statement. As regards cases for suspects with intellectual disabilities, a trial implementation for audio/video recording of interrogations has also already commenced, and the Future Policies state that such trial run will proceed in a more closely cooperative manner with the police in the future.

Since the JFBA has been proposing that “transparency of interrogations” should involve a recording of the entire process of all interrogations throughout the police and the public prosecutors' offices, it is evident that the audio/video recording of interrogations at such public prosecutors' offices are still far from sufficient, and recording of the “entire process” of interrogations at both the police stations and public prosecutors' offices should be carried out immediately.
New Scope of Cases which are to be Subject to Audio/Video Recording
The Future Policies state that the scope of the trial run of the audio/video recording of interrogations of suspects will be expanded to newly include cases such as those involving suspects who may have a reduction or negation of their criminal responsibility due to mental disability, etc. Such move can be evaluated positively as it is clearly a step in the right direction.

On the other hand, as regards cases involving juveniles, there is no definite decision on the trial run for the recording of interrogations set forth in the Future Policies and it is merely stated that “the scope and methods for audio/video recording of juvenile cases subject to audio/video recording will be further reviewed.” However, it is evident that in reality there are a significant number of problematic cases, thus a trial run for juvenile cases, aiming to improve the transparency of interrogations, should be implemented.
Review of how Interrogations should be Conducted in the New Era
As it has already been pointed out that there have been a great deal of problems arising from the use of conventional interrogation methods, it is patently obvious that such methods should be scientifically and systematically examined. The recent establishment of the “Team to Review How Interrogations should be Conducted in the New Era” at the Supreme Public Prosecutors’ Office should have been done much earlier. An aggressive review should be conducted from this point forward in cooperation with psychologists specializing in the psychology of witness statement analysis and experts in other related areas.

Some parts of the Verification Results indicate that conducting an interrogation behind closed doors is still approved of, even at this point. However, such notion should be fundamentally amended through the examinations conducted by the Team.
Further Verification for the Future
The JFBA submitted a request on May 15, 2012 entitled, “Request in relation to the Verification of the Trial Implementation of Audio/Video Recording of Interrogations of Suspects” to Mr. Toshio Ogawa, the Minister of Justice and Mr. Haruo Kasama, Prosecutor-General of the Supreme Public Prosecutors’ Office, requesting a factual and fair verification that could contribute to the discussions related to the implementation of transparency of interrogations currently under discussion at the“Subcommittee on the Criminal Justice System for the New Era”under the Legislative Council of the Ministry of Justice.

It is truly regrettable that the verifications made on this occasion were only those conducted within the public prosecutors’ offices, which is a closed group. A further verification needs to be conducted, using actual problematic cases, in a more open manner together with third parties including psychologists specializing in witness statement analysis and attorneys to be recommended by the JFBA. In addition, concerning a new trial implementation to be conducted in the future, the JFBA suggests verification be conducted with such third parties from an early stage.