Abstract
Japan has recently introduced the “Audio-Visual Recording of Custodial Interrogation” system to verify the voluntariness of confessions or other disadvantageous statements of the accused that are contained in their depositions. Although digital images recorded in the new system are supposed to be used as supplementary evidence, it appears that they can be used to directly prove the truth of the matter asserted, which is the question to be left open. This article considers whether the digital images can be used to prove guilt or innocence, and if so, whether they need to meet more strict requirements than those for depositions. First, the article discusses the legal grounds pertaining to the application of a conventional hearsay exception to the digital images. Second, it explains how the use of the digital images, which could be concerning, can meet the legal demands of the adversary system underlying the Hearsay Rule. The article concludes that these recordings may be used to prove guilt or innocence if the accused or defense counsels have the meaningful opportunity for impeachment.
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Notes
- 1.
Article 301–2 provides as below (The author translated this new provision with reference to [1], which does not currently include the new provision. Translations of Japanese codes in this article also refer to [1]).
“(1) With regard to the cases prescribed in the following items, when a public prosecutor requests examination of a written statement made during an interrogation about the case pursuant to the provision of paragraph (1) of Article 198 (limited to the interrogation of an arrested or detained suspect; the same shall apply hereinafter in paragraph (3)) or an opportunity for explanation pursuant to the provision of paragraph (1) of Article 203, paragraph (1) of Article 204 or paragraph (1) of Article 205 (including cases to which these provisions apply mutatis mutandis pursuant to the provision of Article 211 and Article 216; the same shall apply hereinafter in paragraph (3)) that may be admissible pursuant to the provision of paragraph (1) of article 322 and contains an admission of a disadvantageous fact, and the accused or defense counsel raises an objection to the request of examination on the grounds that there is a doubt about the admission being voluntary, the public prosecutor shall request examination of the recording medium on which the statement of the accused and the circumstances during the interrogation or opportunity for explanation are recorded from beginning to end in accordance with the provision of paragraph (4) of this Article to prove that the admission has been made voluntarily; provided, however, that this shall not apply when there is no such recording medium because of the fact that the statements of the accused and the circumstances have not been recorded in accordance with the provision of paragraph (4) due to any of the items of the paragraph, or other unavoidable reasons.
(i) cases involving offenses punishable by death penalty or life imprisonment with or without work;
(ii) cases involving offenses that are punishable by imprisonment with or without work for a minimum period not less than one year and that have caused a victim to die by intentional criminal acts; and
(iii) cases other than cases that a judicial police officer has sent to a public prosecutor (excluding those falling under the preceding two items)
(2) When a public prosecutor does not request examination of the recording medium prescribed in the preceding paragraph in violation of the preceding paragraph, a court shall rule to dismiss the request of examination of the written statement prescribed in the preceding paragraph.
(3) The preceding two paragraphs shall apply when, with regard to the cases prescribed in any of the items of the paragraph (1) of this Article, the accused or defense counsel raises an objection to the use of the statement made by a person other than the accused that may be admissible pursuant to the provision of paragraph (1) of Article 322 applied mutatis mutandis by the provision of paragraph (1) of Article 324 and that contains the statement of the accused (limited to the statement containing an admission of a disadvantageous fact) made during an interrogation about the case pursuant to the provision of paragraph (1) of Article 198 or an opportunity for explanation pursuant to the provision of paragraph (1) of Article 203, paragraph (1) of Article 204 or paragraph (1) of Article 205 on the grounds that there is doubt about the admission being voluntary.
(4) When a public prosecutor or public prosecutor’s assistant officer, with regard to cases prescribed in any of the items of the paragraph (1) of this Article (excluding those falling the item (iii) of the paragraph whose related cases have been sent to a public prosecutor and that are expected to be sent to a public prosecutor by a judicial police officer due to the fact that a judicial police officer is investigating the cases or other circumstances), interrogates an arrested or detained suspect pursuant to the provision of paragraph (1) of Article 198 or gives a suspect an opportunity for explanation pursuant to the provision of paragraph (1) of Article 204 or paragraph (1) of Article 205 (including cases to which these provisions apply mutatis mutandis pursuant to the provision of Article 211 and Article 216), the public prosecutor or public prosecutor’s assistant officer shall, except when any of the following items applies, record the statement of the suspect and the circumstances on the recording medium by means of the audio-visual recording. The same shall apply when a judicial police official, with regard to cases prescribed in the item (i) or (ii) of the paragraph (1) of this Article, interrogates an arrested or detained suspect pursuant to the provision of paragraph (1) of Article 198 or gives a suspect an opportunity for explanation pursuant to the provision of paragraph (1) of Article 203 (including cases to which these provisions apply mutatis mutandis pursuant to the provision of Article 211 and Article 216).
(i) when the malfunction of equipment necessary for recording or other unavoidable reasons prevent the recording;
(ii) when deeming that, judging from his/her refusal of the recording or other behaviors, the suspect will be unable to make enough statements if recorded;
(iii) when deeming that the case involves an offense that has been committed by a member of an organized crime group that has been designated by the Prefectural Pubic Safety Commission in accordance with the provision of Article 3 of the Act on Prevention of Unjust Acts by Organized Crime Groups; and
(iv) in addition to those provided in the preceding two items, when deeming that, judging from that there is a risk of physical or property harm, or threat or confusion of the suspect or his/her relatives through disclosing of his/her statements and the circumstances according to the nature of the crime, the behaviors of those concerned in the case, the character of a group to which the suspect belongs or other circumstances, the suspect will be unable to make enough statements if recorded”.
- 2.
When there is a doubt that given confessions or other disadvantageous statements have been made voluntarily, they may not be admitted into evidence.
- 3.
No “document” nor “statement of another person made on a day other than the trial date” that is produced to prove the truth of the matter asserted may be admitted into evidence in principle primarily because an out-of-court statement contained in said document or statement cannot be subjected to a cross-examination.
- 4.
Case cited in [2].
- 5.
Case cited in [3].
- 6.
[4] pp.134-135.
- 7.
[5] p.167.
- 8.
- 9.
The case [14].
- 10.
- 11.
[17] pp.7–8.
- 12.
[16] p.18.
- 13.
[18] p.426.
- 14.
- 15.
[22] pp.1977, 1989-2000.
- 16.
[22] pp.1977, 2002–2003.
- 17.
[23] pp.214-215, 217.
- 18.
[22] p.2002.
- 19.
They are practically addressed in the same manner ([24] pp.28-29).
- 20.
[22] p.2038.
- 21.
[25] pp.144-145.
- 22.
- 23.
- 24.
- 25.
[32] p.6.
- 26.
- 27.
[35] p.365.
- 28.
[36] pp.356-357.
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Acknowledgment
This article was supported by JSPS KAKENHI Grant Number JP18H05656 and JP19K20860.
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Nakamura, M. (2020). Examining the Possibility of Expanding the Use of Digital Images Recorded in the “Audio-Visual Recording of Custodial Interrogation” System. In: Kreps, D., Komukai, T., Gopal, T.V., Ishii, K. (eds) Human-Centric Computing in a Data-Driven Society. HCC 2020. IFIP Advances in Information and Communication Technology, vol 590. Springer, Cham. https://doi.org/10.1007/978-3-030-62803-1_4
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