被疑者・被告人の手続的権利の保障とは、被疑者・被告人が捜査及び刑事裁判において自己の利益を守るために認められている種々の権利のことです。
黙秘権がわかりやすいと思いますので、黙秘権を例にとります。
真実発見というのは、説明するまでもないかも知れませんが、要するに裁判で真相を明らかにすることです。
刑事裁判における最も重要な「真相」とは、被告人が犯人であるかかないかです。
殺人事件の遺族からは、被告人が真犯人であるかどうかとともに、真犯人であることを前提にして、犯行の動機、目的などの解明が強く求められることもあります。
小倉秀夫弁護士は、「およそあり得ない理由」において、
起訴前弁護を担当する弁護士のほとんどは，警察官が無理矢理被疑者を「自白」に追い込むことを阻止するために活動することにより「ああ，おれは将来の犯罪被害者を増やす活動をしているのだなあ」と葛藤することなどないのです。すなわち，被疑者の手続的権利の保障と刑罰法規の一般予防機能とを対立関係に置く見解を支持している弁護士を探すことがまず困難なのです。
と述べていますが、その前段部分である「起訴前弁護を担当する弁護士のほとんどは，警察官が無理矢理被疑者を「自白」に追い込むことを阻止するために活動することにより「ああ，おれは将来の犯罪被害者を増やす活動をしているのだなあ」と葛藤することなどないのです。」の部分は、弁護士の行動原理としてまさしくそのとおりだと思います。というか、こんなこんな葛藤を覚える弁護士にお目にかかったことがありません。
しかし、後段の「すなわち，被疑者の手続的権利の保障と刑罰法規の一般予防機能とを対立関係に置く見解を支持している弁護士を探すことがまず困難なのです。 」については、個々の事件における弁護士の行動原理の問題ではなく、司法制度全体に対する理解という観点で見るならば、被疑者の手続的権利の保障と刑罰法規の一般予防機能とを対立関係にないと見る弁護士（だけではなく法律家）はまれではなかろうかと思います。
一般予防効果を最大限に発揮するためには、真犯人が確実に処罰される必要があると同時に真犯人でないものは処罰されてはならないことはすでに述べました。
つまり、一般予防の前提には真実の発見ということが前提になります。この部分は、刑事司法については少しは考えたことのある法律家にとっては、当然のことだろうと思われます。
つまり、被疑者の手続的権利の保障と刑罰法規の一般予防機能との対立構造というのは、被疑者の手続的権利の保障と実体的真実発見との対立構造に他ならないことになります。
ここで「対立構造」という小倉弁護士の表現を使いましたが（私は「緊張関係」と言っています）、被疑者・被告人が真犯人ではない場合は実質的には対立するものとは言えないと思われます。
被疑者・被告人が無実であることを確認することと、被疑者・被告人が黙秘権を行使することは、当該事件の処理の目的において一致するからです。
しかし、被疑者・被告人が真犯人である場合は、対立関係が生じることになります。
真犯人である被疑者・被告人が黙秘権を行使することによって罪を免れることになれば、黙秘権行使によって真実の発見が妨げられたことになります。
（被疑者・被告人が真犯人であるとしても、黙秘権の行使によって事案の真相が解明されずに被害者・遺族に不満が残る場合もあります。）
ところで、私は、被疑者・被告人が真犯人である場合とない場合とに分けましたが、真実に従って分ければそうなるといういうだけであり、神様でも仏様でもない検察官、弁護人、裁判官にとっては、被疑者・被告人が真犯人かどうかなどは結局のところ分かりません。
検察官が被疑者こそが真犯人であるとして起訴する場合も、裁判官が被告人が真犯人であるとして有罪判決を言い渡す場合も、証拠に基づいて被疑者・被告人が真犯人であると認定しているだけです。
「認定して」というのは言い換えれば「確信して」という意味です。
確信というのは「信じる」ということであって、どこまで言っても、被疑者・被告人が真犯人であると「知っている」というわけではありません。
すなわち、常に検察官や裁判官の判断に誤りが混入する可能性が否定できません。
そこに、神様の目から見れば、真犯人でなくても真犯人であっても、被疑者・被告人の立場にある人全てに対して、手続的権利が認められなくてはならない理由があります。
その結果として、真犯人と取り逃がすことになる可能性が生じるわけですが、その可能性に対するスタンスは法曹三者のそれぞれによって違ってきます。
制度全体の理解としては、被疑者の手続的権利の保障と刑罰法規の一般予防機能とを対立関係が存在すること（正確には対立する場合があること）を当然のこととして認めるとともに、個々の事件における弁護人の行動原理として被疑者・被告人の利益だけを追究して弁護活動をすべしということを認めることは、現行の刑事司法制度の理解として何の矛盾もないことであり、そのように考えるのは、弁護士としてはごく普通のことであると思います。
つまり、「すなわち，被疑者の手続的権利の保障と刑罰法規の一般予防機能とを対立関係に置く見解を支持している弁護士を探すことがまず困難なのです。 」という小倉弁護士の認識は正しくないと思われます。
一般予防との関係で若干付言しておきます。
さきほど、被疑者・被告人が真犯人であるかどうか、神様以外は分からないという趣旨のことを述べましたが、実は、神様以外に真犯人であるか否かを知っている人間がこの世に一人だけいます。
それは被疑者・被告人その人です。
真犯人である被疑者・被告人が処罰を免れた場合には、本人だけは罪を免れたことを知っていますから、その「成功体験」により再犯の危険が増加します。
そして、その「成功体験」を聞いた犯罪予備軍の犯罪実行のハードルを下げる恐れが生じます。
ついでに、小倉弁護士の「ご冗談を」についても意見を述べておきます。
エントリを立てるまでもないと思いますので付記扱いです。
小倉弁護士は、
検事は、常に辣腕弁護士ならどのような弁護活動をするだろうかということを考えて仕事をしています。多くの弁護士は「ご冗談を」と思ってしまうのではないでしょうか。あるいは，検察の主張立証の甘さを救済する判決を下すことを余儀なくされている刑事裁判官も「ご冗談を」と思っているかもしれません。
と言っていますが、私が述べたのは一般論であることは言うまでもありません。
それに対して、数例の無罪事例を指摘して全体を評価するというのは公正な評価とは言えないと思います。
民事弁護士に対して、その弁護士が敗訴した事件を数例指摘して、「あなたは負けてばかりですね。」と言うのと同様の誤りを犯しているのではないでしょうか。
もっとも、検察において、救済判決に甘んじることなく、無罪判決を真摯に反省するということはとても重要なことだと思います。
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