1. Concept, Cause and Relief of Miscarriage of Justice

It is still debated what ‘miscarriage of justice’ means. In general, miscarriage of justice refers to punishment of a person for something he or she has not done wrong. In other words, miscarriage of justice is wrongful conviction, or misjudgment that an innocent person is accused of a crime, which proves erroneous.

In seeking to define the concept of miscarriage of justice as the subject of the current study, this paper suggests that cases which were found guilty at lower court but have been proven not guilty at higher court, or established guilty verdicts which have been overturned by retrial proceedings are miscarriage of justice. In the U.S., miscarriage of justice refers to cases for which the original ruling is reversed through a retrial as an error in the trial has been confirmed, or cases for which compelling new evidence, such as DNA, was found and accepted by the appellate court and consequently a wrongful conviction is acknowledged for the convict or the person who has completed his or her sentence for the conviction. In Japan, the concept extends to erroneous judgments made by law enforcements, such as police and prosecutors, beyond misjudgments by the courts.
Concerning the cases of miscarriage of justice, the scope of the present study will be limited to the cases of which the initial guilty verdict is overturned in appeal and the wrongful conviction by the trial level is confirmed. The majority of these retrial cases result from the investigation authorities’ evasion of law or illegality which amounts to human right violation during their investigation process, faulty or pre-judgment of the judges, or careless defense by the lawyers. In principle, an error made in the court proceedings should be rectified through the appellate system. Comparing it to other countries, especially in Germany and Japan, the judicial administration can exercise its supervisory power, where a clear error or misjudgment is established in regard to the essential fact finding by the trial courts. In the U.S., too, evident errors of the lower court judges are often subject to supervisory power of the upper courts.
In Korea, only a few case studies are available in regard to miscarriage of justice. Nevertheless, reassessing the past history of 1970s and 80s and reviewing the records of the cases which have turned to be a wrongful conviction by retrial, it is noticeable that testimony and confession used to be taken as critical factors in ruling, and that torture and perjury were also involved. On the other hand, the researches conducted since 2000 indicate that the main causes of miscarriage of justice have been political bias and corruption of the criminal justice institution. Abuse of right to punish by the judicial authority, confession oriented-, as well as oppressive investigation practice, and false confession of the suspects also have contributed to miscarriage of justice. Therefore, to define miscarriage of justice based on a single factor may oversimplify the complexity of the concept. Fortunately, with the development of forensic science, studies continue to examine not only the admissibility of forensic evidence in the criminal justice system, but also the practical ways to perform it. Should the premises are satisfied that evidence is collected by due processes and analyzed by reliable experts, and that the judges make unerring judgments based on the results of those analyses, these can be essential criteria to reduce miscarriage of justice.
In reality, the rates of miscarriage of justice by wrongful conviction are almost impossible to estimate. Interpretation of statistics can differ among the researchers, but it is noteworthy that many agree that the possibility of misjudgment are increasing. In fact, the foundational materials and sources of this report signify that although there are only a few cases which have captured the public attention, the risk or possibility of misjudgment is certainly not low. Given that, it is critical to find the factor(s) that can increase the possibility and risk of misjudgment in the criminal justice process.
As for the cause of miscarriage of justice, the reports by the National Human Rights Commission of Korea, the Association of Crime Victims and the media, all reveal that problems are everywhere in the justice system, such as lax representation of the lawyers, and false testimonies by the witnesses at the prosecution and police investigation levels. The phenomenon shows that decision-making based on due process system and discretionary power has failed.
In the issue of miscarriage of justice, important is not only how misjudgments are made, but also how they develops. Since the causes are characteristic in each step of the criminal procedure, it would be necessary to prepare a customized system for individual steps to resolve the problem. Therefore, this paper will discuss and examine the causes of miscarriage of justice in each step of the justice system based on case studies.
First, concerning the investigation phase, until the defense counsel's right to participate in the interrogation of the suspect, or the video recording of investigative interviewing was accepted, the criminal investigation used to be conducted secretly, unopen to the public, to the extent that it was stigmatized as close-door interrogation. The courts, too, habitually pressured the suspects to sign and seal the statements, without ensuring the due process of the interrogation. That the examination records drafted in this way were admitted by the court and used as the critical materials for the judges' decision-making has weakens the fundamental principles of criminal trial, that is, trial-centeredness and direct cross-examination, and further turned trials into a mere formality. In addition, cognitive biases, such as tunnel vision or confirmation bias, are widespread among the professionals in the investigation agency and the judiciary, causing miscarriage of justice by wrongful conviction. Prejudged investigation is another evil of convention that most frequently occurs in the investigation process, and tends to cause improper use of evidence by faulty analysis of physical or circumstantial evidence or unfavorable interpretation to the accused. The problem of cognitive biases includes coercive interrogation, false testimonies by the witnesses, and incorrect statements by the accused themselves.
Secondly, concerning the trial or court hearing phase, trial used to be understood as the confirmation step of conviction based on the accused's statements. Thus, once the courtroom proceedings begin, the accused were naturally presumed to be guilty and the principle of presumption of innocence was incapacitated. Judges' probative power and ability to determine the admissibility of the evidence submitted to the court are critical in their ruling. Therefore, proof beyond reasonable doubt, or internalization or observation of presumption of innocence can reduce the risk of misjudgment. Nonetheless, there are still numerous factors that could cause misjudgement of the judges in the actual courtroom proceedings. Faulty testimonies of the eye-witnesses and the victims, probability of an error in forensic evidence, confession, and circumstantial evidence are the examples. Further, concerning the rule of voluntariness of the confession, it is problematic that criteria to determine the voluntariness is still not clear. Testimonies of the interviewees, confession statements of the accused, formality of preparing the examination records are not sufficient to prove the voluntariness of confession. In the U.S., not only the suspect’s statement that he or she committed the crime, but also the statement of voluntary confession, a consistent story about the criminal act, motivation and explanation of the crime, the details of the crime which only the suspect could know, and the psychological condition of the suspect after making such confession are required in the examination record.
In general, the remedies for miscarriage of justice can be categorized into two: appeal, and retrial as an emergency relief once a ruling is confirmed. First, appeal system is a way for the accused to request the higher court to expunge his or her guilty verdict. Appeal system is usually understood as a mechanism to redress misjudgment, but in a deeper sense, it is a system designed to correct the error of the original ruling, relieve the disadvantaged parties, and offer a unified interpretation of the relevant laws. On the other hand, retrial, or new trial is the only way that the accused can escape from the misjudgement under the current laws. Retrial is a correct system for misjudgment, as well as a system to protect the judicial victims. Through the precedents, it is clear that the idea of retrial system is to realize concrete justice where a serious error is made in the final judgement of the courts, even if doing so might undermine legal stability.

2. Case Analyses and In-depth Interviews

This study contains four retrial case analyses, two other case analyses, and in-depth interviews related to those. The retrial cases include Samrye Nara Supermarket Robbery-leading to Death case, Yakchon Junction Taxi Driver Murder case, Raping-Murdering of a Daughter of a Head of a Police Station in Chuncheon, and Injury-leading to Death of Suwon Homeless Girl case. Other cases include fabrication of espionage on a pubic servant in Seoul, and Brothers Home case. The in-depth interviews involve the retrial applicants in the Samrye, Yakchon Junction and Suwon Homeless Girl cases, respectively.

Samrye Nara Supermarket Robbery-leading to Death Case

It was a homicide case that took place at a local supermarket located in Samrye-eup, Wanju-gun, Jeonbuk-do by a trio of burglars. The suspects robbed the store, stole cash and jewelry and killed one of the victims. Right after the incident, the Wanju Police arrested three intellectually-disabled local residents and obtained their confession. However, one of the suspects, later, claimed that he made a false confession pushed by the police's pressure and threats, and maintained that he would deserve a retrial, especially since the real criminal was arrested by then. The court accepted the new evidence which was found after the court determined the criteria for retrial was met as evidence that proved the innocence of the accused, and thus ordered a retrial. At the new trial. the court found the accused not-guilty, as it recognized the credibility issue on the alleged confession of the accused and the motivation behind such confession, as well as rejected the so-called evidence of their killing of the victim in the original case.
The in-depth interview of the victims of misjudgement, that is the applicants of retrial, has discovered several issues and unfortunate circumstances which the retrial applicants had endured, such as their poor family backgrounds, police cruelty during investigation, and lack of legal counsel. The retrial applicants had intellectually-disabled, or disabled parents, and were from family of domestic violence associated with alcoholism. They also said that they were physically assaulted by the interrogators on their head, back and soles, and did not receive adequate counselling from the lawyer who lacked enthusiasm as public defender.
Yakchon Junction Taxi Driver Murder Case.
It was another homicide case of a taxi driver who parked his car at the Yakchon Jundction, Iksan-si, Jeonbuk-do. The retrial applicant who was accused of the killing argued that the police fabricated the examination records based false statements and that any of the newly discovered evidence, neither the witnesses' testimonies nor their statements, proved his alleged murdering of the victim. The court reviewed the new evidence in comparison with the old one and accepted the probability of the former, and thus granted a motion for retrial. The prosecution protested and counter-appealed, but as the supreme court dismissed the prosecutor’s case and the prosecution gave up the appeal, the judgment of not-guilty was confirmed in the end.
During the in-depth interview of the retrial applicant, the problems and difficulties that the applicant endured were mentioned. His poor family background, intellectual disability, police cruelty and false confession during the investigation process, lack of or false information, and inadequate representation by the legal counsel were such. In detail, the retrial applicant was raised by his grandmother and after her death lived with his father. Then, his father also passed away, he earned his living as a delivery man. Due to the inferior environmental factors, his intellectual capacity was significantly limited from the young age, and he was forced to confess and beaten by the police officers during the investigation. He also said that he was neither given any information regarding the right to refuse to make statements, nor dared to plead his innocence due to the perfunctory defence by the public defender.

Suwon Homeless Girl Injury-leading to Death Case

It was a case that a homeless girl was severely beaten and left to death at the entrance of a highschool in Suwon. The accused/retrial applicants were sentenced to imprisonment and monetary penalty for their assault and bodily injury causing death. However, the retrial applicants completely denied the allegation against themselves, and requested a retrial based on the forensic doctor's opinion on the cause of death and the estimated time of the victim's death, as well as the conflicting facts of the crime etc. The appeal court noticed the applicants’ consistent denial of involvement in the killing and contradiction in their alleged confessions, and raised a question about the credibility and truthfulness of the confession statements. Consequently, the court determined that the prosecution’s evidence was not convincing to prove the conviction and decided the accused not-guilty.
In this case too, the poor circumstances and problems the retrial applicants experienced through their lives, such as inferior family backgrounds, coerced false confession made during the investigation process, and insufficient or lack of information provision, were mentioned in the in-depth interview. An applicant stated that he had been abused by his step-mother while growing up, and after she left was exposed to the father's violence associated with alcoholism, which eventually pushed him to the street. According to him, he made a false confession due to the police's placation in this case and even came to believe that he, somehow, had committed the crime. He said that during the investigation, he was informed about the right to refuse to make statements, but did not understand what that meant and thus had no choice but to make statements following the intention of the interrogators.
Reviewing the case analyses and interviews, we can categorize the problems into the ones in the investigation process, the others in the courtroom proceedings. First, the problem in the investigation usually began with the illegal taking of the suspect to a police station. In the case of on-the-spot inspections, the investigators' direction or pressure was often extremely concrete and compelling, to the extent that the inspection was not just a crime reenactment but rather a process to fabricate the criminal or evidence. In preparing the accused's statements, the accused simply answered to the interrogators' questions or statements with either affirmation or negation. Moreover, hardly any suspects received help or assistance from their guardians or lawyer, their statements were made as a result of police brutality, such as physical violence or coercive control. As for the problems in the courtroom proceedings, the most noticeable include distortion of fact-finding by the prosecution, and ambiguous and extremely strict application of legal principles. Indiscreet appeal and reappeal by the prosecution, and insufficient hearing by the judges were another issues. Especially, the public defenders assistance was often no more than pro forma, so that the suspects could rarely rely on the legal counseling.

3. The Measures to Prevent Misjudgment and Relief in the U.S.

Building a system to prevent misjudgement with an effort to enforce preventive measures is important, needless to say. Unfortunately, the imperfection of human beings makes it impossible to entirely exclude the possibility of misjudgement, and therefore a relief system to remedy the victims of misjudgment must be prepared. Korea has retrial system as a final relief measure, but in comparison with the U.S, retrials are extremely rare in reality. In Korea, it may be due to the lack of public interest in miscarriage of justice and retrial; however, until 1980s, the U.S. experienced the same phenomenon as Korea. In fact, it was only after 1980s that the U.S. public became familiar with the request of retrial. Especially from 1989 to 2018, the number of misjudgment victims who have turned out to be innocent and acquitted reaches approximately 2,300. Give that, the public attention and consciousness on the issue seems to be an essential prerequisite to relieve the victims of miscarriage of justice.
The U.S. judicial system has the Writ of Habeas Corpus under the federal statue as an ultimate ex post facto relief for the victims of misjudgment, and motion for a new trial, as well as retrial system in each state. Despite that the U.S. retrial system does not exactly correspond to ours, several aspects related to criteria for retrial are common in both sides, except that in reality granting a motion to retrial is difficult in our system, whereas it is relatively simple in the U.S. side. For example, in the U.S., there is a relief measure called 'motion for a new trial', which allows a new trial without going through an appeal process after a judgment is made by the trial court. For more desperate victims who have tried every relief measure available but still failed to obtain acquittal, there is also the Writ of Habeas Corpus under the federal statue, which allows the victim to challenge the detention of a person in official custody. Furthermore, access to justice is likely to be better in the U.S., given that there are many cases that one person requested a retrial on multiple occasions and eventually has obtained an acquital. Since a variety of route to acquittal does not guarantee that a person will be actually acquitted, the access to the relief system is more wide open than in Korea. The key to obtain a retrial is to secure new evidence which can prove the misjudgement victim's innocence, and DNA evidence plays a critical role in this regard. Since 2000, a legal provision that ensures one's right to DNA testing has been adopted by all the states, except six, and in many states the courts have used a low bar in allowing people to request a retrial as long as the probability of proving one's innocence is acknowledged. Retrial is also possible by the judges' own discretion. All of these increase the possibility of acquital for the victim of miscarriage of justice, and provide greater accessibility to relief system. Further, since the failure to keep DNA evidence would reduce the possibility of retrial, the U.S. Code Section 3600(b)(2) obliges the federal government to preserve the biological evidence collected from criminal scenes, and thereby attempts to guarantee the people's right to DNA testing in practice.
It takes a long period of time for the victims of misjudgement to achieve a retrial and an acquittal, and nothing could ever replace what they have lost and suffered during those years. Acknowledging the harm, the U.S. criminal compensation system appropriates enormous amount of money for the victims of misjudgement, which is worth noting for us to improve our system.
Compared to Korea where studies on the cause of misjudgment are lacking, probably due to rare cases of retrial and relatively weak awareness of the issue, in the U.S. an effort to address the underlying causes has long been continued based on a strong foundation of relevant studies. For instance, in many cases, the cause of misjudgment arises in the investigation process, and thus more and more people criticize the improper investigation practice and seek to break from the traditional investigation techniques. Also, there are a lot of nonprofit organizations that campaign to prove post-conviction innocence across the country. One of the model institutions is the Innocence Organization which operates in almost all the states throughout the country, and even inside the prosecution the CIU (Conviction Integrity Unit) is actively engaged in prevention and rectification of misjudgment. Those institutions' painstaking efforts and work to prove the innocence of the people they believe have been wrongfully convicted of crimes must be what has eventually saved the countless innocent victims.
To prevent misjudgment and relive the innocent victims, a synthesis of efforts would be required among the relevant institutions and the judicial agencies, in addition to the retrial system. In other words, not only that the access to the system should be easy, but also that the judges have an open mind and attitude to allow a retrial, just like the justices in the U.S., is critical. An institution that can provide help to the socially vulnerable is also necessary, as their changes to become the victim of misjudgment are higher than other citizens. The most important element to prevent misjudgment is a fair judicial process to protect human rights during the investigation process.
Eradication of misjudgment would be the ultimate goal, as well as the permanent idea and task of the criminal justice. Criminal justice process is critical in that to make judgement free of fallacy and to prevent any error in judgment, properly operating criminal procedure is a prerequisite. Nevertheless, however legitimately the process is executed, because human beings are not perfect there always exists a possibility of misjudgment, not to mention the near impossibility of substantive truth-finding. That does not mean that we should take the status quo for granted, but rather that we should continue our effort to change for the better.

4. The Cause and Relief of Misjudgment in Germany

In Germany, although Peters's The Causes of Misjudgment in Criminal Cases (Fehlerquellen im Strafprozess) was published in 1970, 1972, and 1974, and became the classic text for this field of study for more than forty years since then, miscarriage of justice has still not appealed to the German audience. Relatively recently, however, as a series of retrials called Ruf, Peggy and Bortz respectively have generated public interest in the issue, and as the people observe the results of innocence project animated by the development of DNA testing techniques in the U.S., the question of whether you can trust the courts' judgment in criminal cases captures people's attention in both academia and the society at large.
To define misjudgment accurately, not only making a guilty verdict for the accused who is actually innocent, which is the subject of this study, but also making a not-guilty verdict for the accused who is actually guilty should be equally considered. However, in that, except extraordinary appeals, the Korea's retrial system by the Criminal Procedures Act applies only to the cases which would be made for the benefit of the person, this paper has focused on the former category.
From the examination above, we can conclude that the most critical and reasonable measure to prevent misjudgment is, with the help of competent legal counsel from the onset of investigation process, to prevent the investigation agency from distorting the facts. In addition, judges in the criminal court, prosecutors, police officers, and even the lawyers if applicable, should be modest to their duty, appreciate the significance of their duty, take caution against the potential of misjudgment at all times, and have reasonable doubt toward the evidence which is used to prove the guilty of the accused or the suspects.
As Dr. Kotsoglou has pointed out, the first thing we should discern in the misjudgment cases is whether the cases in which some facts were discovered later, that is, after the judgment was made at the trial, and a new trial, if granted, should be conducted based on such new facts and evidence, can be regarded as misjudgment, as well. To speak more precisely, unless the judge in the case failed to make a right decision, despite his or her ability to do so, due to some cognitive error, his or her judgement, that is, the subject judgment of a retrial should not be regarded as misjudgment. This approach would eventually be an effective starting point to improve the courts' rigid attitude toward retrial.
Meanwhile, the hard fact that misjudgments made by the judges will destroy not only the concerned parties' but also their families' lives, as well as their social networks should serve as the first warning to the criminal judges in their legal ethics.
Also, as Professor Sommer mentioned, while a business manager's error would result in monetary damage only, a criminal judge's error would destroy the life of a person. According to Sommer, what is problematic is most of the judges, prosecutors or legal professionals are not aware of this seriousness, or would never acknowledge their mistake. His advice that if we continue to ignore what is psychologically obvious, the criminal procedures will literally destroy itself is noteworthy.
Finally, it should be also considered whether the judicial police, prosecutors, legal counsels, and even the judges pressure the accuse to find the substantive truth, if not physicallt but at least psychologically. It is because, although we do not allow plea bargaining as the U.S., or Vetständigung as Germany in criminal procedures, any person involved or participating in criminal case can notice such discomfort easily.

5. Analysis of Retrial Cases and Discussion of Reformation in Japan

Reversing the conviction in criminal trial is not easy. In Japan, already in 1970s a retrial relieved a victim of misjudgement and for the next 20 years several more retrials made successful cases. And the society's attention to those retrial cases led to the campaign of changing legislation, efforts to prove the innocence of the accused in the private sector, and systematic support and research of the Japanese Federation of Bar Association, all of which have resulted in the reformation of the criminal justice system of the country. The basic goal of this paper lies in examining the retrial system and its operation in Japan and getting some useful insights for our own system, by doing so. Therefore, overview of the Japanese retrial system, its operation and problems, and discussion of reformation will be followed in the next.
Despite some successful post-conviction innocence cases, such as Dokusima case, it is extremely difficult to be granted a retrial, in general. The Japanese Criminal Procedure Act prescribes only the reasons to retry a case, bud does not provide the procedure to request a retrial. Thus, the prosecution usually argues that there is no reason to retry a case, and even if there is a reason, holds that such reason is not enough to overturn the previous guilty verdict. Even when the court grants a retrial, the prosecution usually protests till the end by using the appeal.
Further, in that the Japanese justice system allows retrial only if the retrial would be beneficial for the accused, the prosecution is generally thought to have the duty to prove the innocence of the accused/retrial applicant, and duty to find the truth. However, in reality, what the prosecution focuses on is making counter-argument to prove the guilty of the accused. For example, it is very much likely that there is a piece of evidence favorable to the retrial applicant among the evidence which has not been submitted to the previous, conclusive trial as it was not requested by the court. Noticing it, the retrial applicant would demand the submission of the evidence in the prosecution's possession, to which the prosecution scarcely accedes.
Concerning the issue of evidence, most of the post-conviction innocence cases involved confession at the trial level. In other words, based on the accused's confession, the judges made their decision. Then, in retrial, those confessions were proved to be false and made by the investigation agency during the interrogation process. In short, the investigation agency fabricated the false confessions and the court found facts based on such confessions in determining the credibility and voluntariness of the confessions.
In modern retrials, forensic analysis can be an important factor in the process to open the retrial or as new evidence base on which a request to retry a case is made. In other words, using forensic science, such as discovery process and DNA profile, and promoting defense in retrial seem to be an axis that leads to retrial. Among the final and conclusive evidence based on which the judges made a guilty verdict, the admissibility of some is questioned by the opponents as scientific examination has developed and continued. For example, in the Tokyo Electric Power Corp. OL Murder case, the DNA testing by using the semen collected from the victims' body served as the conclusive evidence for the retrial court to confirm the innocence of the accused. The police and the prosecution, therefore, should carefully collect and examine the evidence not to point an innocent person as the criminal. The court should reexamine the evidence by conducting forensic inspection if it deems sufficient grounds to doubt the credibility of the circumstances that led to the previous conviction.
In Japan, from 1975's Siratori case to 1990s, the retrial system played an important role to relieve the victims of misjudgment. Despite that, discussion concerning the retrial system, remedy for the victims of misjudgment, or preventive measures to avoid misjudgment has been rarely conducted until now.
The reasons are first, psychological pressure on the institution that receives the retrial request, such as the courts and the prosecution. The two institutions are closely connected through a junior-senior relationship among the professionals, and the exchange of human resources is frequent between the two. In this context, retrial is generally taken as a type of criticism toward a senior or colleague. Because of this, emotional tension and conflicts are said to be significant. Unless a real culprit is arrested, most of retrial requests rather deal with reasonable doubt against a not-guilty verdict and thus troubles surrounding retrial remain serious. 702)
The second reason is the widespread attitude of caution against granting a retrial. The more the retrial has been granted as if bursting, the more the voice of supporting stricter criteria to grant a retrial has been gaining grounds. Such argument was even published as annotation for the relevant laws and won the sympathy of both the courts and the prosecution.
Thirdly, more than anything, that the prosecution is allowed to protest the post-conviction innocence decision of the retrial by using an appeal incapacitates the retrial system. The prosecution's continued appeal and reappeal exhausts the retrial applicants and often make them give in.
Fourthly, as mentioned the above, there have been several successful cases of post-conviction innocence in Japan. Unfortunately, even after the innocence of the accused/victims was confirmed through retrial, a fundamental reform or review of the retrial system itself has never been discussed. The JFBA has once brought to the table the revision of retrial-related provisions in the legislation, but it was quickly forgotten and the issue of remedying the victims of misjudgment has lost the public attention.
It is necessary to make public the discussion regarding revision of retrial. In Korea, already in the early 2000s a demand for judicial reform was on the rise. It reached a practical direction and discussion of system reform, and even achieved some visible outcomes, such as citizen participation trial and 702) Ibuzki Makoto, ibid., p. 11. introduction of law school etc. However, from the perspective of relieving the victims of misjudgment, judicial reform did not matter so much. The direction in revising the Criminal Procedure Act in 2007 was designed based on the ideas of human right protection and advanced criminal justice; nevertheless, in reality, prevention of misjudgment and relief have been neglected or disregarded in the criminal justice. In Japan, the introduction of jury system in 2009 has received a favorable review that it encourages the court to be more careful in making severe sentence, such as death penalty. It is hard to conclude whether the Japanese jury system has actually helped preventing misjudgment. However, the jury trial is likely to suppress the prosecution's abuse of indictment right, at the least.
Furthermore, in Japan incomplete investigation and false confession are pointed out as another causes of misjudgment. Relying on the testimonies of the witnesses also increase the risk of misjudgment. Given that the examination records of the prosecution is almost automatically admitted to the court as reliable evidence, a careful approach to assess the admissibility of evidence would be required. Judges' personal biases also contribute to the issue. In this context, the jury trial system might be a meaningful mechanism to reduce the biases against the accused.
On the other hand, where support of the JFBA is unavailable. free consultation provided by legal aid lawyers, too, plays an important role in obtaining a retrial.
In fact, even for one case, it takes great amount of time and money to conduct necessary research and trial preparation until the retrial is actually granted. In Japan, too, non-profit organizations (NPO) or public interest groups sometimes pay the expenses to relieve the victims of misjudgement. For example, the Japan Association for Justice and Human Rights is the largest NPO in the private sector in Japan, dedicated to remedy the victims of misjudgment.
The role of journalists is influential, as well. They explore the individual cases for a long period of time and report the findings to the public, seeking the attention of the society at large. Some journalists even delve into the cases of their interest, apart from the mass media, to discover the truth. They may either enjoy the support of the Bar Association later, or capture the public attention and thus succeed in turning the latter's attention to the misjudgment cases and the victims therein.

702) Ibuzki Makoto, ibid., p. 11

6. System Reorganization to Prevent Miscarriage of Justice

Observation and Application of the Principle of Presumption of Innocence

Regardless of the forms of approach to misjudgment, there is a common principle that penetrates the diverse cases. That is in dubio pro reo under suspicious circumstances. A failure to follow this principle violates another rule of fact finding, and thus should be included in the category of misjudgment. The law in force acknowledges judges' discretion in determining the admissibility of evidence. However, if this principle is not set forth as a premise, judges' decisions are not by their discretion, but simply an abuse of the system under the pretense of discretion. The Supreme Court of Japan has commented in regard to the Siratori case, which is considered as a radical ruling, as follows: In assessing evidence which is explicit enough to consider the innocence of the accused, the principle of in dubio pro reo applies only if the evidence raises a reasonable doubt about the fact finding of the final and conclusive judgment. Therefore, we could hold that the criterion of explicitness is a marked and serious doubt against the justification of the original judgment, and in this sense the rule of in dubio pro reo would be a significant yardstick to assess the grounds for granting a retrial.

Method to Reorganize the System in the Investigation Stage

Investigation agency’s brutality, and justice authority profession's prejudice and disregard against the socially vulnerable underlie much of misjudgment. In legal reality, it is almost impossible to apply for a retrial for a case in which the accused was tortured by the interrogators and found guilty by the court consequently. Many cases in which a guilty verdict is made, despite cruelty or threats, fabrication of evidence, subornation of perjury, or contradictory statements, shows the reality of courtroom proceedings in Korea.
Interrogation of a suspect is an essential step in investigation. The hindsight is that the intellectually disabled or the socially vulnerable are more likely to be exposed to the trap of false statements or confession. For this group of people, the interrogation method should be improved and the relevant experts must participate in interrogation. Guaranteeing the right to counsel in the investigation process is also a critical mechanism to prevent false confessions. In fact, the ways to assure the right to counsel were prepared through the revision of the Criminal Procedure Act in July 2016.
Interrogation and confession of a suspect concern the core idea of procedural fairness and substantive justice. Thus, interrogation of a suspect stage plays a role, like a critical clue to understand the prototype of criminal procedure, and many other roles at the same time, such as to look into false confession, investigation agency's activity, interrogation environments, the police and prosecution's proper exercise of their power, and due process etc. As for the process leading to a false confession, exposing a suspect to coercive interrogation techniques can get the interrogators their intended goal, a false confession. False confession is created, in fact, by a combination of factors. In some cases, suspects make false confession 'voluntarily' as they actually believe what they are told by the police, doubt their own memories and are convinced, even temporarily, by the interrogators, which is an interrogation technique of the latter. To prevent this, the cause should be examined from the integrated perspective of forensic psychology analysis and criminal law study. Assuring transparency of the entire process of investigation, guaranteeing the right to counsel during interrogation, and promoting video recording of interrogation are further measures to prevent false confession.
Finally, education of investigation agency in charge of suspect interrogation is required. The investigation officers should be taught not to create intimidating investigation environments and to discern a false confession and statement.

System Reorganization in the Trial Stage

The court generally takes a position that, despite that it must assess the voluntariness of the accused in making their confession pursuant to the Confession Rule, it would presume the voluntariness of confession where there is one made unless otherwise a reasonable doubt is raised against the alleged voluntary confession. Regardless, the criteria for assessing the voluntariness of confession must be clear. It is not enough for the judges to accept the voluntariness based simply on the testimonies of the interrogators, the contents of the alleged confession, and the formality of examination records. Therefore, the court must carefully uate the cases by examining the possibility of coercive interrogation, the influence of, if any, such interrogation on the suspect or the accused, and the suspects' intellectual ability to respond to interrogation etc. The court also should direct the prosecution to prove the voluntariness of confession, especially in this case, by preponderance of evidence.
Further, to reduce the risk of false confession an effort to obtain objective and hard evidence should be made, apart from the suspects' statements, and the corroborating evidence for such confession must be substantive and independent.

Improvement Measures for Retrial System

This study seeks to materialize the discussion on the issues concerning the revision of retrial system and thus develop it as a theory of legislation. First, the qualification for retrial applicants in the criminal procedures should be extended to help them recover their impaired honor, and the public trust in the judiciary should be improved to restore the legislative intention of the retrial system. In the case of intentional non-submission of evidence, a broad interpretation should be applied in such a manner that the law stipulates that such non-submission will not be accepted as a ground for retrial, and therefore non-submission by mistake should be tolerated. The provisions concerning fact finding in the retrial procedure require improvement, as well. Further, since there is a possibility that the judges who were involved in the original trial have intellectual biases and tunnel vision, a provision to exclude the judges in this category should be newly prepared. Setting up an office or commission that would exclusively handles the affairs surrounding the grant of retrial, such as assessing the validity of the grounds for requesting a retrial, determining to open a retrial or dismissing the request entirely could be also a viable option to improve the system. By utilizing the public defender system to the fullest and thus assuring counsel's participation in investigation, misjudgement, especially as a result of illegal or evasion of the law, could be prevented. The scope of discovery must include not only the evidence submitted to the original trial, but also new evidence discovered later. Lastly, against the prosecutions' indiscreet appeal, it would be necessary to consider a two-track approach with both listening to the prosecutors' views and restraining their exercising the right to appeal.

Protection of the Socially Vulnerable Group in the Criminal Procedure

The socially vulnerable or the social minority are no more than 'erased people' within the judicial system. For people from poor and deprived households, equality before the law is only idealism and they are often at a greater risk of reverse discrimination by the investigation agency or courts. To help this group of people, a separate assessment is necessary for the intellectually-disabled and their ability to stand trial. More than anything else, the criminal procedure should be able to overcome the prejudice against the intellectually disabled. In many cases, the alleged potential of their crime and recidivism risk lead to denial of their legal rights without any legitimate reason. Therefore, an in-depth examination on the administration of the current protection system for the socially vulnerable group, including the people with intellectual disability in the criminal procedure should be conducted, based on which improvement measures should be sought.

Legislative Reorganization re Collecting, Preserving and Discarding Evidence

From the discussion above, it is now clear that the cases of misjudgment related to forensic evidence are not rare. The causes of such errors include not only intentional manipulation of the investigation outcome or intentional covering-up of a mistake, but also heavy workload, administrative complexity, and prejudice such as confirmation bias. Moreover, because the majority of retrial requests involve the cases more than 10~20 years ago, a good portion of evidence has been often discarded, already. Thus, a basic principle concerning preservation and discard of evidence by the investigation agency should be established, and related regulations needs to be updated, too. Further, to assure the accused's chances to test DNA evidence, relevant legislation should be prepared, and where evidence needs to be preserved adopting the procedures for evidence preservation and chain of custody might be a viable option.