Won’t Japan’s current system eliminate wrongful convictions!?

Is there a “confession” in spite of a wrongful conviction?

The Hakamada case is increasingly being viewed as a case of mistrial and wrongful conviction. In fact, in recent years alone, there have been several cases in which retrial acquittals were issued, including the Higashi Sumiyoshi case, the Matsubase case, and the Koto Memorial Hospital case. In addition, in the Hino-cho case, which is currently pending before the Supreme Court, the district court and the high court have issued decisions to initiate a retrial.

How do innocent people get arrested and found guilty in court?

The causes are often pointed out as the inducement or coercion of a confession by the investigating authorities, as well as the withholding or fabrication of evidence. Let us take the Hakamada case as an example.

In 1966, four members of the family of the senior managing director of a miso manufacturing company in Shizuoka Prefecture were murdered and set on fire in their home. Mr. Iwao Hakamada, an employee of the miso manufacturing company, was arrested as the culprit.

Mr. Hakamada denied the charges when questioned by the police, but 19 days after his arrest, he was forced to “confess” the day before the indictment because he could not endure the long hours and consecutive days of interrogation. At the trial, Mr. Hakamada again consistently maintained his innocence, but in 1980 the Supreme Court confirmed his death sentence.

In March 2014, a second request for a retrial resulted in a decision to begin a retrial, and Mr. Hakamada was released after nearly 48 years in jail. However, following an appeal by the prosecution, the trial continued. On March 20, 2023, the decision to begin a retrial was finally confirmed when the prosecution renounced their special appeal to the Supreme Court. It has actually been 57 years since Mr. Hakamada’s arrest.

The retrial will now begin, where the judge will again determine the guilt or innocence of the accused. In Japan, it is almost certain that a verdict of acquittal will be rendered at a retrial hearing. Conversely, only cases that result in a 100% acquittal at the retrial hearing are eligible for a retrial. That is how high the hurdle for a retrial is.

Mr. Hakamada’s acquittal is almost certain. In other words, Mr. Hakamada was not the murderer. However, Mr. Hakamada, who is supposed to be innocent, was forced to confess to the crime.

In fact, not only in the Hakamada case, but in many other wrongful conviction cases, innocent people were forced to confess. The number of people who can maintain their innocence is far fewer, even if they are innocent.

There have been four death penalty retrial cases with acquittal in Japan, the Menda case, Saitagawa case, Matsuyama case, and Shimada case. The Hakamada case is the fifth, and in each case there was a “confession.” In the recent retrial acquittal cases mentioned above (the Higashi Sumiyoshi case, Matsubase case, and Koto Memorial Hospital case), there was a confession in all cases.

In the 2002 the Himi case (a case of home burglary and rape and attempted rape), in which the true culprit later emerged, the former defendant not only made a confession but also drew a floor plan of the crime scene (the victim’s room).

How in the world could an innocent person draw a floor plan of a crime scene he had never been to? Why would he admit to a crime he did not commit? It is clear that part of the reason for this lies in the way the investigative agencies conduct their interrogations.

Is evidence being withheld or falsified?

There was no strong physical evidence in the Hakamada case. However, one year and two months after the incident, five pieces of bloodstained clothing (pants, underpants, etc.) were found in miso tanks at a miso manufacturing plant.

Mr. Hakamada claimed that they were not his own clothes. However, the court found that the five pieces of clothing belonged to Mr. Hakamada, and this was the deciding factor in his conviction and death sentence.

However, when the defense conducted an experiment in which the bloodstained clothes were soaked in miso for one year and two months, it was found that the redness of the blood no longer remained. After less than a month of soaking in miso, the color of the blood turned a deep black. The prosecution’s experiment also showed that the redness of the blood did not remain.

It was clear that the redness of the blood did not remain after being soaked in miso for a long period of time. However, the five pieces of clothing that were supposed to have been soaked in miso for one year and two months had a clear redness of blood on them. Why was this?

The Tokyo High Court, which approved the initiation of a retrial, ruled that the five pieces of clothing could only have been placed in the miso tank by someone just before they were discovered, and that it was very likely to be an investigative agency.

Incidentally, why didn’t the defense realize earlier that when soaked in miso for a long period of time, the redness of blood does not remain?

It is because they were not informed of the existence of the color photographs of the five pieces of clothing. The prosecution did not disclose these color photographs to the defense until the second request for retrial.

This is not the only evidence that was not disclosed to the defense. In fact, of the five pieces of clothing that were considered to be the clothes from the crime, the pants were too small and could not be worn by Mr. Hakamada.

However, the prosecution argued that the pants may have shrunk because they had been soaked in miso for a long period of time, or that they may have shrunk when the pants were dried. As the basis for their argument, they claimed that there was a “B” symbol on the pants’ tag, and that it was a symbol meaning a larger size.

However, the “B” did not indicate the size of the pants, but the color. After finding the pants, the police contacted the manufacturer, who confirmed that the “B” was a symbol for color. This fact is preserved in a statement prepared by the police themselves. However, this record was also not disclosed until the second request for retrial.

In fact, under Japanese law, the prosecution is not obligated to disclose evidence at the retrial stage. Therefore, even if the defense requests disclosure of evidence, they are usually denied. In the Hakamada case, as many as 600 pieces of evidence were disclosed at the retrial stage by chance owing to the recommendation of the judge.

If this evidence had not been disclosed, would the retrial have been initiated? Would we have realized that the five pieces of clothing were fabricated evidence?

On the other hand, if these pieces of evidence had been disclosed from the beginning and seen by the judge, Mr. Hakamada would not have been found guilty in the first place. At the very least, the trial would not have taken so long.

How can we reduce the number of wrongful convictions?

I do not think anyone would disagree that wrongful convictions are a gross injustice. So how can we reduce the number of wrongful convictions as much as possible?

To prevent wrongful convictions, we must first identify the causes of wrongful conviction. There are many possible causes of wrongful convictions, such as false eyewitness testimony, overconfidence in scientific evidence, and false statements implicating a third person by accomplices. In the case of Japan, however, the biggest causes are the existence of false confessions and nondisclosure of evidence.

This is because false confessions and hidden evidence are almost always present in cases of wrongful convictions, just as they were in the Hakamada case.

The most effective way to prevent false confessions is to make the interrogation of suspects more visible. As is widely practiced in other countries, it is possible to curb illegal and unreasonable interrogations by investigative authorities by recording and videotaping interrogations and having the defense counsel present during interrogations.

In Japan, recording and videotaping of interrogations was finally institutionalized with the 2016 amendment of the Code of Criminal Procedure (effective from 2019). However, the recording and videotaping of interrogations is limited to a small number of cases, such as those subject to Saibanin Saiban (jury trial).

In addition, Japan still does not have a system for the presence of the defense counsel during interrogations. The police and prosecutors argue that allowing the presence of the defense counsel would prevent suspects from making statements (confessions) and hinder the investigation of the truth.

However, suspects have the right to remain silent (Article 38, Paragraph 1 of the Constitution and Article 198, Paragraph 2 of the Code of Criminal Procedure). Even if the presence of a defense counsel prevents a suspect from making a statement, it is a legitimate exercise of the right and should not be criticized in any way.

The presence of the defense counsel system exists widely in Western countries, and it also exists in East Asia, such as in South Korea and Taiwan. Of course, just because they exist in other countries does not mean that this must be the same in Japan. However, it is important to be aware that the Japanese criminal justice system is not up to global standards.

In order to prevent wrongful convictions, it is also necessary to have an evidence disclosure system at the retrial stage. In the Hakamada case, evidence favorable to the defense was not disclosed at the beginning. Even now, with the decision to retry the case having been finalized, there is no guarantee that all relevant evidence has been disclosed.

In the Hakamada case, the defense demanded that the prosecution disclose a list of all evidence in its possession. However, the prosecution refused to disclose the list of evidence until the very end. This means that there is no way to check whether all the necessary evidence has really been properly disclosed.

At the very least, a system should be established where the prosecution should make a list of all the evidence it possesses and disclose this list to the defense so that evidence favorable to the defense is not left buried.

Even so, it may not be possible to eliminate all wrongful convictions, since trials are conducted by human beings. Nevertheless, new legislation allowing the presence of the defense counsel during interrogations and the establishment of a system of disclosure of evidence at the retrial stage should help more victims of wrongful convictions.

* The information contained herein is current as of March 2023.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

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