This study discusses the question of whether defense lawyers should be prohibited from taking pictures while they interview the accused or suspects in custody. The study concludes that they should not be prohibited from taking such pictures. Article 34 and 37（3）of the Constitution of Japan guarantee the right of the accused or suspects in custody to have lawyer assistance. Article 39（1）of the Law of Criminal Procedure states that they may, without an official present, 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. The Decision of the Supreme Court admitted that the right of the accused person or suspects in custody to interview freely and confidentially with a defense lawyer was essential to their having effective lawyer assistance. In practice, the rules of the institution detaining the accused or suspects prohibit defense lawyers from taking pictures while interviewing them. They insist that it would cause the risk of concealing/destroying evidence or the fleeing of the accused or suspects or impose a danger to the discipline and the order of the institutions if they permit lawyers to take pictures during the interview with them. There have been several cases in which the staff of the institution intervened and stopped the interview by reason that they found that the defense lawyer had taken the pictures of the accused in custody. The defense lawyers respectively brought lawsuits requesting state compensation. They argued that the prohibition of taking pictures and stopping the interview infringes the right of the accused person or suspects in custody and the defense lawyers to interview freely and confidentially with each other. Decisions of the lower courts held that the rights were not infringed. This study examines the issues concerning this question. The study concludes that the defense lawyers should not be prohibited from taking pictures during the interviews with the accused or suspects in custody because taking pictures is a necessary and appropriate measure for the accused or suspects to have and the lawyers to afford effective assistance.

一橋大学大学院法学研究科

2016-11-10

Japanese(jpn)

departmental bulletin paper

VoR

10.15057/28235

1347-0388

AA1161370X

一橋法学

15

3

1

18

15巻3号(2016.11)

https://hdl.handle.net/10086/28235