Only 3 Cases of Plea Bargaining in 5 Years Since Its Introduction in Japan

By Shinpei Suzuki and Yuina Takada / Yomiuri Shimbun Staff Writers

17:53 JST, June 7, 2023

Five years have passed since the introduction of the Japanese version of plea bargaining. So far, the procedure has been applied in only three cases, but company executives were found guilty at trials in all cases.

Still, with courts in two of the three cases denying the credibility of statements obtained through plea bargaining, the procedure has not played its intended role as a “trump card for investigating organizational fraud.” For the system to take root, issues remain to be addressed.

“I was worn out physically and mentally, as I had to cooperate with the investigators while keeping it a secret from the company,” said a man who used the plea bargaining framework in an embezzlement case that led to the arrests of a former president and another former executive of an apparel company by the special investigation squad of the Tokyo District Public Prosecutors Office in December 2019.

According to the man, who was interviewed by The Yomiuri Shimbun, he was involved in the embezzlement at the order of the former president when he was working at the apparel company.

Out of a sense of remorse, the man went with his attorney to turn himself in to the authorities and sought a plea bargain, which was agreed to in about six weeks.

The special investigation squad questioned him about 10 times. For each questioning, he had to find an excuse to leave his workplace for hours at a time. He sometimes had to ask a trusted superior to back up his excuses so his colleagues would not think his actions were suspicious.

The man was not prosecuted, and the former president and former executive were indicted and convicted of embezzlement in the course of their duties. However, the man’s statements were not reflected in the verdict because the court decided to avoid relying on parts of his statement that “lacked objective support.” The man said, “Even so, I was able to get the result I wanted, which was the guilty verdicts.”

Danger of fabrication

Plea bargaining was introduced in June 2018 as part of criminal justice system reform. Also called the “consultation and agreement system,” it allows suspects who cooperate with investigations of other people’s crimes to have their own cases dropped or their sentences reduced. Economic and organized crimes are the main target areas, and the framework is not applicable to crimes that cause death or bodily harm.

It was expected from the design stage that the court would carefully judge the credibility of statements obtained through plea bargaining. This was due to concern that false statements spurred by the prospect of reduced criminal penalties might lead to innocent people being wrongly implicated.

The credibility of statements was not a point of concern for the first case that involved plea bargaining, as the concerned party was a major power generation equipment manufacturer involved in a case of bribery of a foreign public official. The manufacturer cooperated with the investigation mainly by providing objective evidence such as documents.

However, in the second case, which involved the underreporting of former Nissan Motor Co. Chairman Carlos Ghosn’s executive remuneration, the court took a notably stricter stance.

In its verdict for former Nissan representative director Greg Kelly, the Tokyo District Court denied the credibility of most of the statements made against Kelly by former Nissan colleagues who engaged in a plea bargain, stressing that his statements had to be “examined more carefully in the absence of objective support.” Kelly received a guilty verdict, but he was acquitted of many of the charges in his indictment.

A veteran judge said, “There will be more cases in the future where judges presented with statements obtained through bargaining will be sensitive to the risk of implicating innocent people and hesitate to take them up.”

“The courts’ judgments over the past five years have been harsher than expected,” said a senior prosecutor. “The framework has become more difficult to use than anticipated, as it became a rule that statements not supported by objective evidence are no good.”

Issues to be examined

Based on the supplementary provisions of the revised Code of Criminal Procedure, which came into full effect in 2019, the Justice Ministry established a council of experts last July to examine issues including the audio and video recording of interrogations and plea bargaining. The six meetings held so far have focused on recording interrogations, with plea bargaining to be discussed in the future.

Despite the use of plea bargaining in only three cases and the credibility of statements being denied by courts, a senior official of the Justice Ministry stressed the significance of plea bargaining, saying: “As a result [of plea bargaining], we have been able to take up cases that would have been difficult to investigate otherwise, such as the bribery case involving foreign public officials.”

“Japanese people have a deep-rooted belief that we should atone for our own sins, so plea bargaining is unlikely to increase very much,” said Osamu Watanabe, a special visiting professor at Konan University who is an expert in the Code of Criminal Procedure. “Plea bargaining is very effective in obtaining initial information about a major crime. The council of experts should discuss how the current framework, which encourages people to reveal crimes of others in order to lessen their own punishments, should be expanded in a way that is suitable to Japan.”