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Plea bargaining places heavy burden on those cooperating

  • November 22, 2021
  • , Nikkei , p. 39
  • JMH Translation

By Sakurada Yuki and Fujita Konori


More than three years have passed since the arrest of Carlos Ghosn, 67, former chairman of Nissan Motor Co., Ltd. Throughout the case, attention has also been paid to “plea bargaining,” which has greatly advanced the investigation. Since the introduction of plea bargaining in June 2018, there have been only three cases, including the Ghosn case, in which it has been applied. It is significant that the burden has been placed on the people involved in plea bargaining [who agreed to provide information to a prosecutor in exchange for lighter punishment or no punishment at all]. The question of how to reduce both the material and psychological burden on plea-bargaining participants is emerging as an issue.


“[The plea bargaining] gave me peace of mind because my punishment would be reduced,” said the former head of the secretary’s office at Nissan in late October 2020 during court proceedings for defendant Greg Kelly, 65, Nissan’s former representative director. Kelly had been indicted for under-reporting former Chairman Ghosn’s compensation. In the courtroom of the Tokyo District Court, the former head of the secretary’s office, who is said to have managed the “unpaid remuneration,” testified about the circumstances leading up to the agreement he made with prosecutors regarding the plea bargain.


The former head of the secretary’s office cooperated fully with the investigation by submitting documents related to Ghosn’s compensation, and in return, he was not charged as an accomplice. On Nov. 19, 2018, the Tokyo District Public Prosecutors Office arrested former Chairman Ghosn and former Representative Director Kelly on suspicion of violating the Financial Instruments and Exchange Act. “Without the evidence obtained through the plea bargain, we would not have been able to disclose the fraud committed by the top executives of this major corporation,” a senior official at the public prosecutors office said.


Plea bargaining was first used in July 2018 in a case in which a major Japanese generator manufacturer bribed foreign public officials. The case, however, resulted in the arrest of only an individual and the company involved in the bribery escaped punishment. This was criticized as “sacrificing a subordinate so that the company can escape punishment.” For this reason, the Ghosn case was also an opportunity for the public prosecutors office to rid itself of such stigma.


The plea bargaining system in Japan has been used in only three cases. Within the prosecutors office, some say that the system should be carefully implemented until it is firmly established, while others say that the number of cases is clearly too low. One of the reasons the system is not used more often is because it places an excessive burden on participants in the plea bargaining.


Burden of having to repeatedly appear in court


The Kelly trial had a total of 66 sessions until the trial concluded on Oct. 27, and the former head of the secretary’s office appeared before the court a total of 22 times as a witness for the prosecution.


The prosecutor used the former head secretary’s statements and testimony as core evidence to prove the allegation, while the defense counsel tried to discredit his statements and testimony. Thus, both the prosecutor and the defense counsel repeatedly confirmed the circumstances surrounding the case. This exhausted the former head secretary, and there were days when the questioning was cut short because his answers did not fit the questions asked.


Plea bargaining burdens participants not only because they have to cooperate with investigations and trials but also because they fear being harmed physically [by those seeking retaliation].


The third time plea bargaining was used in Japan was a case of embezzlement of corporate funds. In this case, an apparel company employee, who had been instructed by the company to commit a fraudulent act, cooperated with prosecutors. According to sources, the employee feared retaliation from company executives and so would claim to have a business matter to handle whenever he went to the prosecutors for an interview and he repeatedly moved residence.


A former public prosecutor who is now a lawyer explained the hardship faced by persons who cooperate with prosecutors: “In addition to being asked by prosecutors to cooperate in various ways to prove an allegation, they have to deal with being stigmatized by people around them who look down on them for being involved in wrongdoing. As a result, they tend to think that plea bargaining is not worth it unless the prosecutors guarantee they will not be arrested.” Even if they are exonerated from criminal responsibility, they may still be liable for civil damages as a party involved in wrongdoing.


Another lawyer said, “The legal fees are another factor that makes people hesitate to cooperate with prosecutors in plea bargaining.” As plea bargaining requires the “consent of the defense counsel,” the involvement of the defense counsel in the process is essential. In the cases of Ghosn and the apparel company, the companies covered the required costs. But the lawyer said, “It would be difficult for individuals [who cooperate with prosecutors] to bear such costs on their own, and this would arise if the individual’s cooperation with prosecutors would potentially harm the company’s interests.”


Witness protection


The Japanese version of plea bargaining is called “cooperation in investigation and trial.” According to Wang Yunhai, a professor of comparative criminal law at Hitotsubashi University, Japan’s version of plea bargaining is different from the U.S. version, which focuses on “self-incrimination,” in which defendants admit their guilt and get a lighter sentence. The difference is that the Japanese model emphasizes “precision justice,” which aims for a trial based on detailed evidence, and the U.S. model focuses on the efficiency of processing cases.


Professor Wang said, “While the U.S. and other countries have simplified trial procedures [in plea bargaining], Japan checks the arbitrariness and credibility of statements more carefully than in normal cases in order to avoid false statements and testimonies. This increases the burden on persons [who cooperate in plea bargaining].” The professor believes that “plea bargaining would spread in Japan if less weight were given to statements,” and allegations were proved by using objective evidence obtained through plea bargaining, for example.


Plea bargaining was introduced in Japan as part of the review of the country’s criminal justice system, which was triggered by an incident in which the Osaka District Public Prosecutors Office tampered with evidence. Plea bargaining is applied not only to [white-collar] economic crimes but also to bank transfer scams and drug and firearm crimes involving organized crime groups.


In order to expand the application of plea bargaining to organized crimes, the professor also stressed the need to “establish a system to protect witnesses,” referring to overseas systems that support witnesses in changes their names and moving residence to guarantee their safety.

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