このエントリは、「理想論と現実論と制度設計論」の私のコメントを転記したトラックバック用エントリです。
「真犯人を適正に処罰すべし」という理想は、つまるところ、その事件の被害者および将来的に発生するかも知れない被害者の人権保障の問題なんですけど、パブ弁！さんの発想の中には、そういう観点が完全に欠落しているように思われます。 つまり、人権保障対人権保障の緊張関係が存在するということなんですけど、パブ弁！さんは刑事政策というものを考えたことがないのでしょうか？パブ弁！さんのような発言をする弁護士がいるから、光市事件において安田弁護士バッシングが起こったと考えることもできます。
パブ弁！さんは過去ログなんか読んでないと思いますので余談として言っておきますが、私は、光市事件における安田弁護士を含む弁護団の弁護方針には批判的でしたが、弁護団バッシングについてはバッシングの不当性を強く主張していました。
橋下弁護士の懲戒請求扇動についても、弁護士ブロガーとしては最も強く橋下弁護士を批判した者の一人だったと思います。
これに対して小倉秀夫弁護士が以下の批判的エントリを書かれました。
「被疑者・被告人の人権と，被害者の人権とは，決して対立しない。」
それに対する反論が以下のコメントです。
私の「真犯人を適正に処罰すべし」という理想は、つまるところ、その事件の被害者および将来的に発生するかも知れない被害者の人権保障の問題なんですけど、パブ弁！さんの発想の中には、そういう観点が完全に欠落しているように思われます。 つまり、人権保障対人権保障の緊張関係が存在するということなんですけど、パブ弁！さんは刑事政策というものを考えたことがないのでしょうか？というコメントは、全くの素人の方には説明不足だったかも知れませんが、刑法の教科書ならどの教科書にも載っている刑法の法益保護機能、その中でも特に一般予防機能（つまり、悪いことをしたら処罰されるぞ、ということを国民全般に周知させることによって、犯罪を予防しようという威嚇効果。ひらったく言えば脅し）を指摘したものであり法学部の学生程度の知識があれば当然分かると思っていました。
小倉弁護士には、「将来的に発生するかも知れない被害者」という言葉が理解できなかったようです。
被害者が発生すると言うことは、命や財産を奪われる人が生じるということです。命や財産は「被害者の人権」です。そして一般予防のための威嚇効果を十分発揮させるためには、理想的には真犯人が必ず検挙され処罰されるという事実が必要だという、刑事司法に携わるものにとって常識的と言えることを述べたものです。
逆に言いますと、言い逃れなどによって罪を免れる真犯人が増えてくれば、犯罪防止のための威嚇力が失われるということです。ただし、現実的には、真犯人を起訴しようとして無理な取調べ行うと冤罪が生じる危険性が増大するというこれも実務家なら当然の理解のもとに「緊張関係」（対立ではない）が存在するという当たり前のことを述べたつもりなのですが、小倉弁護士には理解されなかったようです。
小倉弁護士は、
被疑者・被告人の手続的権利を十分に保障することなく引き出された「自白調書」に頼らなければ有罪判決を下せないような案件は，もともと冤罪である蓋然性が高いと言っていますが、法律家的にはとても違和感のある文章です。
小倉弁護士は、単なる「自白調書」ではなく、「被疑者・被告人の手続的権利を十分に保障することなく引き出された『自白調書』」と言っています。
どうしてそういう限定をつけて論じるのか疑問ですがそれはともかく。
法律家は、自白調書については証拠能力と信用性を問題にします。
証拠能力とは証拠として使えるかどうかの問題で、具体的には、任意性に疑いがある場合とそれより広く自白調書の成立経緯について手続的な違法がある場合が考えられます。
「手続的権利を十分に保障することなく引き出された」というのは、そういう意識のもとに書かれた文章なのか不明瞭ですが、証拠能力に問題がある場合という意味であるならば、そんな「自白調書」はそもそも頼ることができません。
小倉弁護士は証拠能力に問題がある「自白調書」に頼って有罪判決を下すことを認めるのでしょうか？まさかそんなことはないと思いますので、最大限善解すれば、警察や検察官は「「手続的権利を十分に保障することなく」自白調書を作成するが、裁判官はそれを見抜けない、ということが言いたいのかも知れません。
しかし、そうであるとすると、検事は、任意性に疑いのある自白調書に頼って、裁判官がそれを見逃してくれること期待して起訴していることになります。
小倉弁護士の同期にも検事や刑事裁判官が何人かいると思いますが、その人たちが小倉弁護士のエントリを読んで小倉弁護士をどう評価するかは、ある程度確実に予測できます。
小倉弁護士は、私に対する批判が私に対する批判にとどまらないところがあることを自覚されているのだろうか？「自白調書」には、「任意性や信用性に全く問題がない自白調書」、「任意性には問題がないが信用性に問題がある自白調書」、「任意性に疑いがある自白調書」があります。
小倉弁護士は、このうち「任意性に疑いがある自白調書」だけを問題にしたいみたいですが、それだけでは制度を的確に評価したり批判したりすることはできません。
それとも小倉弁護士は、およそ自白調書というものは任意性がないとでも言うのでしょうか。もしそうなら、それは刑事弁護実務からもかけ離れた認識です。上記引用部分以降の文章も、一般予防というものを全く念頭に置いていない記述のようですので、論評する前提を欠いていますが、
客観証拠がなくとも，怪しげな人間を捜してしょっぴいてきて，「真犯人であろうとなかろうと自白せざるを得なくなる」方法を用いて被疑者を「自白」させて，被疑者を起訴して，無罪判決嫌いの刑事裁判官に有罪判決を下してもらっていっちょ上がり，という流れという文章は法律家の文章とは思えません。
まだ、パブ弁！さんの文章のほうが弁護士的です（そうかな、という声も聞こえてきそうですが）。たぶん、文章の目的が法律的議論をするというものではないのだろうと思います。
まあ、弁護士が実名で自分のブログで何を書こうと（法令に反したり懲戒事由にあたらない限り）自由ですし（私も同じ＾＾；）、特定の誰かに対して粘着攻撃をしてもその相手がスルーしてしまえばいいのですが、裁判員制度が施行された現在、弁護士が実名で刑事裁判実務について誤った認識や偏った考えを繰り返し述べるというのは困ったものだと思っています。
小倉弁護士は、たぶん自分自身の論理性というものに絶対の自信をお持ちなのだろうと思いますが、論理の前提となる事実や実情を知らないと、結局独りよがりの意見にしかならないと思います。
小倉弁護士は、「脅迫されて仕方なくした約束を遵守しないことはそんなに非難されることか」において、現在の保釈面談の実情について説明していますが、その小倉弁護士の認識と、小倉弁護士自身がブックマークしている高野隆弁護士のブログエントリで紹介されている保釈面談の状況がかけ離れていることを理解しているのでしょうか？小倉弁護士は、
で，日本の裁判実務では，多くの場合，保釈のために面接に訪れた弁護人に対し，公判では起訴事実を全部認めるのか，供述証拠を全部同意するのかを尋ね，これらを全部約束しないと保釈決定をしないという運用が行われます。と書いていますが、実際は、裁判官はそんなことを尋ねてきませんし、弁護人のほうから一方的に約束したとしても、裁判官は約束してくれたから保釈を認めましょうなどと言いません。約束したってだめなものはだめとけんもほろろです。
実情は、高野弁護士が紹介されているように、何を言っても
裁判官：「......」というように返事をせず、たまに保釈を認めないことについての不合理な言い訳をするという裁判官が多いのです。
つまり、約束したら保釈が認められるという小倉弁護士の認識は、保釈における人質司法の現状認識として間違っており、甘すぎるのです。
なお、保釈面談の問題は、精確に議論しようとすると場合分けをする必要があります。こう言うコメントを書くと、また賑やかになるな（知る人ぞ知る）、と思いますが、私のブログはもともと刑事裁判の実情というものを書いてみたいという動機で始めたところがありますので、誤解曲解は正さざるを得ないです。
たぶん、何も反論しなくてもしても、あんまり変わらないでしょうからね（ヤレヤレ）。
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If you're still on the fence: grab your favorite earphones, head down to a Best Buy and ask to plug them into a Zune then an iPod and see which one sounds better to you, and which interface makes you smile more. Then you'll know which is right for you.
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Apple now has Rhapsody as an app, which is a great start, but it is currently hampered by the inability to store locally on your iPod, and has a dismal 64kbps bit rate. If this changes, then it will somewhat negate this advantage for the Zune, but the 10 songs per month will still be a big plus in Zune Pass' favor.