小倉秀夫弁護士の「被疑者の手続的権利を保障しないことにより予防されるのは，せいぜい，捜査機関の不興を買うことだ」について、意見を述べます。
しばらくそのようなエントリが続くと思われます。
ひょっとすると永遠に続くかも知れません（＾＾；
別に、小倉弁護士を説得しようという意図は毛頭ありません。
小倉弁護士のエントリによって生じる恐れのある誤解に対処するためのものです。
なお、批判表現に遠慮はしないつもりです。
客観証拠がそろっていれば，自白を強要しなくとも被疑者を起訴し，有罪に持ち込むことが可能です
この記述において最初に指摘すべきことは、小倉弁護士が「自白を強要しなくとも」と言っている点です。
自白は、常に強要によって得られるものとは限りません。
これは取調べ全面録画が行われれば疑義無く明らかになることですが、誰が見ても自発的になされている自白、捜査官の説得によってする自白、強要される自白などいろいろありますが、小倉弁護士の論調によると、自白は強要されて得られるのが原則であるという印象を持つ人がいるかもしれませんので、そういうわけではないということは指摘しておきます。
任意性がない自白はもちろん、法律的な観点で任意性がないとは言えない自白でも、被告人が納得していない自白調書については弁護人に対して不満が述べられます。
そして、自白調書について被告人から不満が述べられた場合、弁護人の多くは自白調書の任意性を争います。
しかし、私の検事当時の経験で言えば、自白調書の任意性を争う事件は決して珍しくありませんが、比較すれば任意性が争われない自白事件のほうが圧倒的に多いです。
そのような弁護人の対応に照らして、少なくとも、自白は原則として強要されたものである、という指摘は正しくないと思われます。
次に指摘すべきは、「客観証拠がそろっていれば，（中略）有罪に持ち込むことが可能です」という文脈における自白の問題は、その要否の問題だと解されます。つまり、有罪判決を言い渡すのに、自白が必要か不要か？という問いに対して、「客観証拠がそろっていれば，不要だ。」と答えることができる、ということです。
そして、（客観証拠がそろっているが故に）自白は不要だ、と言う場合においては、刑事訴訟上は（民事の国賠の問題は別ですが）、自白の強要の有無は問題になりません。
自白の強要が問題になるのは、有罪認定のためには自白が必要である、という場合です。
以上を前提にした上で、「客観証拠がそろっていれば，（中略）被疑者を起訴し，有罪に持ち込むことが可能です」と言われれば、「そうですね。」と言いたいところなのですが、事件によっては、被疑者が犯人であることが被疑者の自白を待つまでもなく明々白々な事案であっても、被疑者の自供によって犯行動機を解明しないと、被疑者の責任能力に問題が生じるという事案もあります。責任能力を否定されますと無罪になります。
そうなりますと、動機を明らかにする努力が必要になるのであって、被疑者に対する取調べの必要が生じます。
ただし、「被疑者に対する取調べの必要」というのは「被疑者に対する自白強要の必要」という意味ではありません。
また、犯罪によって自白がないと罪名の決定（被疑者は何罪を犯そうとしたのか？）の問題について困難を来す場合があります。これは、刑法の規定の仕方によって生じる問題です。
以前に「自白の重要性」というエントリを書いていますので参考にしてください。
次に問題になるのは、有罪であることは明らかであるとしても、動機や殺意の程度や計画性の有無に関する自供を得ないと、量刑（被告人を懲役何年に処すべきか？、究極の問題として被告人を死刑に処すべきか否か？）の問題についての判断において適切な評価がむずかしくなる可能性があります。
特に単独犯の場合などには、動機や計画性の有無などは自供がないと明らかにならない場合が多いです。
まだ問題があります。
日本では（諸外国はよくわかりませんが）、被害者や国民一般に、事件の詳細な真相解明を求める声が強いです。
殺人事件の遺族などからな、「なぜうちの○○は殺されなければなかったの？」という悲痛な問いかけがなされることが多いですが、それに応えるためには詳細な自供を得る以外にありません。
つまり、詳細かつ信用性のある自白獲得の努力が期待されていると言えます。
そして、強要された自白の信用性に問題が生じることは、捜査機関を含めて刑事司法に携わる全ての者のコンセンサスです（どんな場合にも大多数に同意しない一部の人がいることは否定しません。）
従って，被疑者・被告人の手続的権利と緊張関係に立つのは，「客観証拠だけでは真犯人である蓋然性が高いとは認められない被疑者・被告人を，それでも起訴し，有罪に持ち込むこと」によって得られる利益ということになります。
前提に問題があるので「従って」と言っていいかどうかは若干疑問ですが、それはともかく、この文章自体は大雑把にいうと許容範囲と言えるかも知れません。
しかし、弁護士の立論として見ると突っ込みどころはあります。
「被疑者・被告人の手続的権利」とは何かということをもっと具体的に明示した方がわかりやすいと思います。
「蓋然性が高いとは認められない」というのも不適切です。ここでは「客観証拠だけでは真犯人であると証明できるとは認められない」と言うべきでしょう。
刑事裁判では「蓋然性が高い」という程度では有罪認定しないからです。
で、問題は「それでも起訴し，有罪に持ち込むこと」によって得られる利益」とはなんぞやということになりますが、この後の文章がいただけません。
そこでは，「悪いことをしなくとも（捜査機関ににらまれたら）処罰され，その分，悪いことをしても処罰されない人が発生する」わけですから，
この文章で問題になるのは、いうまでもなく「（捜査機関ににらまれたら）」の部分です。
誤解が生じやすいとても主観的な表現です。多くの法律家は法制度を論じるときにこのような表現は使いません。
小倉弁護士は、最近のエントリで捜査機関がヤマ勘に基づいて逮捕するというようなことをしきりに言っていますが、その文脈で （捜査機関ににらまれたら）という文章を読むと、「捜査機関のヤマ勘で犯人と思われたら」という意味に読んでしまう読者が少なくないと思われます。
しかし、別エントリやコメントで述べているように、ヤマ勘捜査で有罪率９９％はいくらなんでも無理でしょう。無理でないという人は裁判官をバカにしすぎです。
そのような運用がなされていることが周知されることによりもたらされる「教訓」は，「捜査機関ににらまれたら処罰されるぞ」ということであり，そこで予防されるものは，「国家機関，とりわけ捜査機関の不興を買う行為」ということになります。
「そのような運用」が「一般的に」なされているというのであれば、小倉弁護士の指摘は正しいだろうと思います。
しかし、問題は「そのような運用」が「一般的に」なされているのかそれとも一部のはき違えたものによって生じる捜査機関内部でも誤りとされている不正な運用なのかどうかです。
これに対する批判は容易です。
今回取り上げた小倉弁護士のエントリの内容そのものが「国家機関，とりわけ捜査機関の不興を買う行為」以外の何ものでもないということです。
小倉弁護士の現状認識が正しければ、小倉弁護士のエントリは予防すなわち抑止されなければなりません。
つまり、小倉弁護士としては、「悪いことをしなくとも（捜査機関ににらまれたら）処罰され」ることを覚悟して本件のエントリを書いたということになります。
そうであるとすると、小倉弁護士の勇気は尊敬に値することになりますが、私の印象では、そこまでの緊迫感をもって書いたようには思えません。
つまり、小倉弁護士自身としては、「悪いことをしなくとも（捜査機関ににらまれたら）処罰され」ると真剣に思っているかどうかはなはだ疑問である、ということです。
これは、陰謀論者が陥る典型的自己矛盾の一つだと思われます。
あるいは，被告人及び弁護人に犯人性を争うことを禁止し，情報統制を行うことによって，「捜査機関により真犯人であると見込まれた人＝真犯人」との誤った情報を国民全般に周知させることができれば，「悪いことをしたら処罰されるぞ」という脅しを国民に対し行うことができるということかもしれません。
たしかに被告人及び弁護人に犯人性を争うことを禁止すれば悪いことをしたら処罰されるぞ」という脅しを国民に対し行うことができるということかもしれませんが、そんなことを言っている人が法律家であるかどうかに関わりなく誰かいるのでしょうか？
私の記憶では、日本の法制度の議論として聞いたことも読んだこともありません。
少なくとも法律家としては、「被告人及び弁護人に犯人性を争うことを禁止する」などという発想は出てきません。
もやは妄想の類です。
ここまで読むと論評する気力も失せますが、その後に私に対する印象操作（小倉弁護士はこの言葉がお嫌いのようですが）がありますので、我慢して続けます。
しかし，自公連立政権で衆参３分の２の議席をとるにはいたらずそのような後ろ向きの憲法改正がなされる危険が遠のいた今，それはさすがに無理でしょう。
はい、照準が私に向いてきました（＾＾；
小倉弁護士は自民党か公明党の議員の誰かが、「被告人及び弁護人に犯人性を争うことを禁止すればいい」と言うのを聞いたことがあるのでしょうか？
ないのにこのようなことを言うのは（以下略）
創価大学の法科大学院では，被疑者・被告人の手続的権利を保障することは刑法の一般予防機能を害するから抑制されて然るべきだと教えているのかもしれませんが，かなりマイナーな見解ではないかと思います。
そりゃあマイナーな見解でしょう。
私も聞いたことがありません、教えたこともありません。
小倉弁護士はネットでさまざま批判されていますが、その理由の一つに、他人が言ってもいないことを言ったとして批判するという点が指摘されています。
いわゆる藁人形論法というやつです。
私も、幾度となく経験しています。
私の経験については、「モトケンの小倉秀夫ヲッチング」にまとめています。
私の認識が正しいかどうかは、読んだ方の判断にお任せします。
ちなみに、「 藁人形 小倉秀夫」でググると約 3,130 件ヒットします。
そろそろ疲れたのでこれで止めますが、保釈面談の実情については、私は高野隆弁護士と同様の認識を持っているとだけ言っておきましょう。
ところで、小倉弁護士は、ここ１０年くらいは刑事弁護はやっていないとご自身のブログで書かれていたと記憶していますが、そうであるとすると、小倉弁護士が刑事弁護をされていたのは弁護士登録後５年くらいだったことになると思います。
刑事司法の実情を語るにしては、若干経験不足の感を否めないかな、という気がしています。
ちなみに、小倉弁護士が紹介した伊東良徳弁護士は私と同期のはずですから、伊東弁護士の経験不足を主張するつもりはありません。
小田中聰樹教授については、私よりずっと経験を積んでおられると思います。
ただし、小倉弁護士が主張するようにバックグラウンドを考慮するというのであれば、お二人ともややバイアスがかかっている可能性はあると思います。
伊東弁護士の経験を否定するつもりはありませんし、小田中教授が指摘するような取調べはあり得ないというつもりもありません。
ただ、取調べや保釈面談のスタンダードはどこにあるか、という問題については、私は私なりの経験に基づいてものを言っています。
きれい事を言うつもりはありません。
追記
小田中教授と伊東弁護士に関する記述についてやや誤解を招く記述をしてしまったと思いますので、補足します。
私は、「お二人ともややバイアスがかかっている可能性はあると思います。」と書きましたが、それはお二人の意見を批判するものでもまして非難するものでもありません。
軸足の置き所についての少々の違いが有るという感じです。
小倉弁護士が引用した伊東弁護士の発言について補足します。
伊東弁護士は、ご自身のホームページで
弁護人が、保釈のために裁判官との面接に行きますと、裁判官から、公判で事実を争うのか、検察官の提出する証拠書類に同意する予定かどうかを聞かれます。ここで争うと言うと、ほとんどの場合、保釈は認められません。これは被告人にとっては、早期に釈放されたければ、起訴された事実を全面的に認めろという圧力になります。弁護士会は、このような裁判所の運用は、人質司法（ひとじちしほう）だと強く批判してきました。
と述べています。
このホームぺージの記述は、全体として私も同意・同感できます。
もっとも、私は、裁判官のほうからいきなり認否の予定を尋ねられたことはありませんので、その点は微妙に違うかも知れません。
ただし、認否の予定が話題にのぼることはあります。
小倉弁護士が引用した部分の伊東弁護士の主意は、「被告人が争うと保釈が認められない、という運用は不当だ。」というものです。
しかし、小倉弁護士はそれ以上のことを言っています。
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。
「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，」までは伊東弁護士と小倉弁護士は同じ認識です。
しかし、小倉弁護士の「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。」の部分については、伊東弁護士はそこまで言っていないと思います。
なぜなら、すでに指摘しましたが、何度も保釈請求をしている刑事弁護士なら、全部約束しても保釈決定をされないという事案を嫌と言うほど経験しているからです。
そして、身柄事件の私選弁護ではほぼ当然に行われる起訴直後の保釈請求では、そもそも証拠の認否の約束など問題にし得ないことは伊東弁護士が説明されているとおりです。
そもそも保釈面接の時点では、検察官の提出する予定の証拠書類は弁護人にまだ開示されていません。争う予定のない事件であっても、本来、まだ内容を見てもいない証拠に同意するかどうかなど答えようがありません。
この部分です。
伊東弁護士が言っているように「これは被告人にとっては、早期に釈放されたければ、起訴された事実を全面的に認めろという圧力になります。」というのが正しい認識です。
細かい話と思われるかも知れませんが、運用という制度運営の実情を問題にする場合は、無視できないところです。
小倉弁護士は、不用意に「約束」という言葉を使っています。
このような小倉弁護士のエントリを読んだ読者が将来不幸にして逮捕・勾留・起訴された場合に、刑事弁護に対する誤ったイメージのもとに弁護人の言葉を聞くことにより、弁護人の言葉が誤解されるおそれが生じることを心配しています。
同時に、小倉弁護士が捜査機関に対する不信を煽ることによって、被害者が泣き寝入りしたり、一般市民の警察に対する協力が得られなくなったりして、真犯人が処罰を免れることが増加することも心配しています。
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Between me and my husband we've owned more MP3 players over the years than I can count, including Sansas, iRivers, iPods (classic & touch), the Ibiza Rhapsody, etc. But, the last few years I've settled down to one line of players. Why? Because I was happy to discover how well-designed and fun to use the underappreciated (and widely mocked) Zunes are.
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I'll gear this review to 2 types of people: current Zune owners who are considering an upgrade, and people trying to decide between a Zune and an iPod. (There are other players worth considering out there, like the Sony Walkman X, but I hope this gives you enough info to make an informed decision of the Zune vs players other than the iPod line as well.)
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The new Zune browser is surprisingly good, but not as good as the iPod's. It works well, but isn't as fast as Safari, and has a clunkier interface. If you occasionally plan on using the web browser that's not an issue, but if you're planning to browse the web alot from your PMP then the iPod's larger screen and better browser may be important.
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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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The Zune concentrates on being a Portable Media Player. Not a web browser. Not a game machine. Maybe in the future it'll do even better in those areas, but for now it's a fantastic way to organize and listen to your music and videos, and is without peer in that regard. The iPod's strengths are its web browsing and apps. If those sound more compelling, perhaps it is your best choice.
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Zune and iPod: Most people compare the Zune to the Touch, but after seeing how slim and surprisingly small and light it is, I consider it to be a rather unique hybrid that combines qualities of both the Touch and the Nano. It's very colorful and lovely OLED screen is slightly smaller than the touch screen, but the player itself feels quite a bit smaller and lighter. It weighs about 2/3 as much, and is noticeably smaller in width and height, while being just a hair thicker.
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The new Zune browser is surprisingly good, but not as good as the iPod's. It works well, but isn't as fast as Safari, and has a clunkier interface. If you occasionally plan on using the web browser that's not an issue, but if you're planning to browse the web alot from your PMP then the iPod's larger screen and better browser may be important.
The Zune concentrates on being a Portable Media Player. Not a web browser. Not a game machine. Maybe in the future it'll do even better in those areas, but for now it's a fantastic way to organize and listen to your music and videos, and is without peer in that regard. The iPod's strengths are its web browsing and apps. If those sound more compelling, perhaps it is your best choice.
The Zune concentrates on being a Portable Media Player. Not a web browser. Not a game machine. Maybe in the future it'll do even better in those areas, but for now it's a fantastic way to organize and listen to your music and videos, and is without peer in that regard. The iPod's strengths are its web browsing and apps. If those sound more compelling, perhaps it is your best choice.
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The Zune concentrates on being a Portable Media Player. Not a web browser. Not a game machine. Maybe in the future it'll do even better in those areas, but for now it's a fantastic way to organize and listen to your music and videos, and is without peer in that regard. The iPod's strengths are its web browsing and apps. If those sound more compelling, perhaps it is your best choice.
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