弁護人による接見時の情報通信機器の使用をめぐる法的問題 [in Japanese] Legal Problems Regarding the Use of Electric Communication Devices by Defence Lawyers Meeting Detained Suspects or Accused Persons [in Japanese]
Access this Article
Search this Article
This article discusses the legal problems raised in the Endo Case pending at Chiba District Court. In this case, when the defence lawyer appointed by the judge visited and met the defendant detained in Chiba Prison and used his electric communication device in order to show the suspect a picture from Google maps around the hotel at which the suspect had stayed in Hong Kong, the prison officer entered the visiting room and stopped their meeting because the lawyer had used an electric communication device. In prisons, jails and police detention facilities in Japan, the use of electric communication devices even by defence lawyers is banned by the authorities on the grounds that such use would disturb the discipline and the order of penal institutions. Article 34 and 37（3）of the Constitution of Japan guarantee the right of an accused person or suspect in custody to have the assistance of lawyers. Article 39（1）of the Law of Criminal Procedure states that, without an official present, an accused person or suspect in custody may have an interview with, or send to/receive documents or articles from counsel or prospective counsel upon the request of a person entitled to appoint counsel. In 1999, the Supreme Court stated that the right of an accused person or suspect in custody to have an interview freely and confidentially with a defense lawyer was essential to their having effective assistance of a lawyer. This article examines the problems and concludes that the use of electric communication devices by defence lawyers should not be prohibited in the case the use is important to the consultation between an accused person or suspect and their lawyer, therefore the use is considered a part of their interview in Article 39（1）of the Law of Criminal Procedure. The stopping of an interview because of the use of an electric communication device by a defence lawyer should be proscribed by this Article and is inconsistent with the Constitution, which guarantees the right of an accused person or a suspect in custody to have the effective assistance of a defence lawyer as an essential part of their due process of rights.
一橋法学 17(3), 841-881, 2018-11