Protecting the Secrecy of Communications Between Suspects / Accused Persons and Their Legal Counsel

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Other Title
  • 刑事手続における通信秘密の保護 : 弁護人の効果的援助の保障と正確な事実認定
  • ケイジ テツズキ ニ オケル ツウシン ヒミツ ノ ホゴ : ベンゴニン ノ コウカテキ エンジョ ノ ホショウ ト セイカク ナ ジジツ ニンテイ

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Description

Article 39(1)of the Code of Criminal Procedure guarantees the secrecy of faceto- face communication between the accused/suspect in custody and his/her legal counsel. However, it does not protect the secrecy of the letters or documents between them. In Anglo American Law and the laws of other countries, the secrecy of the communication on legal matters between the client and his/her lawyer is totally protected under the legal professional privilege. At present, this protection is deemed to be a legal right of the client and to be an essential part of his/her right to counsel. This article argues that the secrecy of the communication between the accused/suspect and his/her legal counsel should be totally protected, whether face-to-face communication or one by means of the letters or other documents, under International Covenant on Civil and Political Rights which is legally effective in Japan. This article examines the criticism by Jeremy Bentham and asserts that the privilege does not interfere but promote the accuracy of fact-finding. Under the privilege, the suspect/ accused is able to prepare his/her defense more effectively. This will enable him/her to challenge the prosecution evidence more effectually and to introduce the defense evidence to the court. The examination and introduction of the evidence from both sides of the prosecution and the defense will be indispensable for the accurate fact-finding. If it were not for this, the error in fact-finding would occur more frequently due to the tunnel vision.

Journal

  • 一橋法学

    一橋法学 20 (3), 1-35, 2021-11-10

    一橋大学大学院法学研究科

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