In criminal/juvenile cases an investigative authority interrogates the suspect to solve cases. It sometimes carries out an authoritative, coercive, and strict interrogation to force the suspect into confessing. In the current practical operation, in many cases the presence of a defense counsel at interrogation is not permitted. Therefore, the suspect may be forced into making a statement against him/herself.
However, most of the contents which the suspect had spoken at interrogation may be used as evidence in criminal trials by putting his/her statement into writing such as a written statement.
This page will explain the rights of the suspect when he/she is interrogated and the significance of having a counsel.
1 Rights to Interview or Other Contact and Communication with Outside Persons
The suspect in custody has an extreme difficulty in doing defense activities such as release.
Then, it is important to secure opportunities for the suspect to have an interview with outside persons. That the suspect in custody personally has an interview with outside persons is called “interview” (sekken in Japanese), while a mean as a whole to communicate with outside persons including sending and receiving other documents or objects is called “detainee’s or prisoner’s interview or other contact and communication with outside persons” (sekken ko-tsu in Japanese).
The interview or other contact and communication with outside persons is categorized into the rights to interview or other contact and communication with those other than lawyers (for example, the family of the suspect) and that with lawyers. The Code of the Criminal Procedure protects the rights to interview or contact and communicate with lawyers more heavily than that with the family.
For example, those other than lawyers such as the family of the suspect are not permitted to have an interview (interview: sekken) with the suspect from arrest to detention (up to 72 hours). Where the suspect is under detention, he/she may have an interview with his/her family. However, the interview with the family is permitted in the presence of investigative officials and within the time limit.
Moreover, in cases where there is probable cause to suspect that the suspect may flee or destroy/conceal evidence, a judge may prohibit the family of the suspect from having an interview with him/her (order of prohibition of the detainee or sentenced inmate from having an interview or other contact and communication with outside persons).
On the other hand, a lawyer may have an interview with the suspect freely, moreover, without any investigative officials being present and time limit.
One in custody or under detention often may get mentally tired from the prolonged examination in a closed room and a breakdown in contact with outside. Under such circumstances, the suspect may make a mistake in dealing with interrogation, which may bring irreparable problems. Therefore, it is important to make a person in custody feel at ease by sending a lawyer to him/her promptly.
The suspect or the accused may consult the case with a lawyer and get advices by exercising the rights to interview or other contact and communication with a lawyer. The suspect or the accused may also pass message along to his/her family or receive message or things sent in to him/her from the family through a lawyer.
2. Right to Remain Silence
①What is the right to remain silence?
Where interrogated by the police or the prosecutor, there might be questions which the suspect does not want to answer. The right not to force him/herself to answer such questions is the right to remain silence. The incident that a suspect forcedly gave a statement that ran counter to the truth and he/she got to be responsible for the crime continuously occurs. The right to remain silence is the very important right to protect oneself. Even though one is an offender, the right to remain silence is significant in order to avoid from making a written statement against him/her which contradicts truth and conveys different nuance.
Regardless of having gotten arrested/detained or being investigated on a voluntary basis, the right to remain silence is surely notified in the interrogation or trial. If the notification were not given to the suspect/accused, the following investigation would be illegal. Therefore, the suspect/accused should confirm whether the notification was given to him/her. If the notification was not given, the suspect/accused should keep a record of the fact, for example by making a note.
In cases where an investigator gave a question which the suspect did not want to answer, he/she may say, “I do not want to answer,” or “I do not want to talk about it.”
➁May remaining silence and speaking truly be benefit to the suspect/accused?
First of all, speaking truly may bring favorable punishment.
Here, a favorable punishment may include suspension of prosecution (the suspect is not prosecuted and will not have a previous conviction (「前科」zenka)); summary indictment (a simple proceeding ending up with a fine); and request for an expedited trial (a procedure resulting in suspension of execution of the sentence) in a confession case. On the other hand, in cases where the suspect denies alleged fact of the crime, when the suspect has an affirmative defense (for example, there is alibi or self-defense) it is highly likely that not remaining silence and speaking the fact would bring a good result.
However, lawyers will determine whether it would be better for the suspect to remain silence after they hear a talk of a consulter. Whether the suspect should remain silence is a tough decision.
When you worry if you will remain silence or not, please come to AICHI Criminal Cases Law Firm to consult with rich experienced criminal lawyers.
3. Right to Refuse Signature and Seal (right to be exercised when a written statement made by an interrogator has errors)
What the suspect/accused talked to a police officer and a public prosecutor during examination is to be recorded in a writing that is called a written statement. The written statement is made to keep a record of the suspect’s statements in the examination as evidence. An interrogator asks the suspect/accused to write his/her name on the written statement and stamp it with his/her thumb (to sign and seal) after he/she confirmed the contents of the written statement at the end of the examination. Once the suspect/accused has signed and sealed on the written statement, it is more likely that a court would not admit a claim that he/she made mistakes in the written statement. To put it the other way around, even though a written statement is made, it would not be evidence unless the suspect/accused signed and sealed it. Moreover, the suspect/accused does not need to explain a reason why he/she refused to sign and seal the written statement.
Where one spoke to the police or the prosecutor but does not want to leave what he/she said to them as a written statement, there is a way to refuse to sign and seal the written statement (right to refuse signature and seal). If one feels a heavy burden from remaining silence, he/she may refuse to sign and seal the statement while speaking about the case.
4. Right to Make a Motion for Any Addition, Removal, or Alteration (right to be exercised when there are the shortages or unnecessary parts in the contents of a written statement)
After a written statement was made, a police officer or a public prosecutor shows the written statement to the suspect, and they confirm whether there is no ‘error’ in the written statement by reading showing it to the suspect. When the suspect/accused wants to correct the contents of the written statement which was read to him/her, he/she may ask an interrogator to correct the written statement.
The ‘error’ include not only ①that the fact is clearly wrong; but also ➁that there is slight difference in expression and the nuance is different.
If you feel that you did not say in that way, please do not hesitate to ask for correction and correct the wording in to your way of saying.
If you think that the written statement has almost the same meaning as what you meant at the examination and sign the written statement, texts in the written statement may turn into those written by a totally different person. Then, that may become influential later.
In this sense, please do not hesitate to ask to correct the written statement if there is error in the contents of the written statement.
In addition, please respond with ‘refusing to sign and seal’ in cases where the investigative authority did not correct errors in the written statement.
5. Right to Counsel
That a person is examined without having a counsel is the same as that a layperson fights a battle to an investigation professional without any countermeasures.
Therefore, the right to appoint a counsel at any time is jurally guaranteed to the suspect and the accused.
This is called the right to counsel.
The suspect/accused may learn the following procedure and how to deal with the examination by hearing legal knowledge necessary to defend him/herself from the counsel.
If you felt anxiety before or during the examination, please come to AICHI Criminal Cases Law Firm to consult with rich experienced criminal lawyers.
Criminal lawyers personally provide with ‘free consultation.’ In cases where the suspect got arrested, we provide with the ‘first interview’ that our lawyer personally goes to interview with him/her at the earliest on that very day.