Kobe University Repository : Kernel

タイトルTit le Discovery in Japanese Criminal Procedure

著者Author(s) Suzuki, Shigetsugu

掲載誌・巻号・ページCitat ion Kobe University law review,6:13-25

刊行日Issue date 1966

資源タイプResource Type Departmental Bullet in Paper / 紀要論文

版区分Resource Version publisher

権利Rights

DOI

JaLCDOI 10.24546/00166868

URL http://www.lib.kobe-u.ac.jp/handle_kernel/00166868

PDF issue: 2020-05-10

Discovery ill Japanese Criminal Procedure

Shigetsugu SUZUKI

I

Japanese criminal procedure under the former Code of Criminal Procedure

of 1922 was based on the German system. I t has been deeply influenced,

however, by American law since the end of World War II in the direction of

"strengthening its accusatorial or adversary principle.'" 1) The old Japanese

criminal procedure, though it had indeed some accusatorial or adversary as­

pects, could be essentially characterized as inquisitorial system. All evidence

collected by the prosecution used to be submitted to the court at the time of filing

an information. As a result, the defense had an opportunity before trial to

see the evidence of the prosecution in the court. On the other hand, postwar

procedure under the Code of Criminal Procedure of 1948 has adopted a rule to

the effect that an information unaccompanied by any evidence shall be submit­

ted to the court at the beginning of prosecution - a rule designed to prevent the

trial judge from being prejudiced as a fact finder.2) Under the 1948 Code, the

evidence of the prosecution should not be presented to the court before trial,

with the necessary result that the defense has been deprived of its opportunity

for pre-trial inspection in the court. In practice the prosecution used to give

the defense before trial an opportunity to inspect and copy documentary or phy­

sical evidence in its possession. Since 1952 or 1953, however, the prosecution

began to prohibit traditional pre-trial discovery in such cases as disorderly con­

duct, corruption or election offenses. The prohibition gave rise to a hot dis­

pute among defense attorneys and prosecutors. Some courts tried without

much success to find a solution of the problem by unofficially "recommending"

1) For a brief historical account of Japanese criminal justice, see H. Abe, Self-Incrimination in Japan in "Police Power and Individual Freedom" (1962), pp. 268-270.

2) Art. 256, Code of Criminal Procedure.

14 KOBE UNIVERSITY LAW REVIEW No.6 (1966)

the prosecution to disclose evidence in its hands.

In January 1953, the Bar Association of Osaka presented a written demand

to the High Public Prosecutors' Office of Osaka that in all criminal cases the

defense be permitted by the prosecution, on request, to inspect or copy statements

or other documentary evidence. The Prosecutors' Office answered in these

words: "It is legally sufficient for the prosecution to give the defense an oppor­

tunity for inspection immediately before moving for the examining of evidence

at the trial stage. vVe have hitherto permitted the inspection of evidence at any

time for the smooth conduct of a court trial. However, that is essentially a kind

of expedient on the part of the prosecution, the time for and the degree of ins­

pection being left to its discretion. In the light of the convenience of investigation

or proof, the prosecution may, in its discretion, reject requests for evidentiary

inspection." They promised, however, to -endeavor to make an early inspec­

tion possible under these limitations.

Dissatisfied with the answer, the Bar Association repeated the same proposal.

At last, on February 21, 1953, the Japan Federation of Bar Associations proposed

to the Supreme Court, the :Nlinistry of Justice and the Supreme Public Prosecutors'

Office, the insertion of a new rule in the Rules of Criminal Procedure, which

re~ds: "The prosecution, on the request of the defense, shall permit at any

time after filing an information the inspection or duplication of such documen­

tary or real evidence as the prosecution may present for examination under

Articles 321-328, Code of Criminal Procedure." 3) But the Supreme Court was

not very favorably inclined towards discovery in criminal procedure. The

proposal has so far been barren of any substantial result.

II

On October 3, 1959, a judge oTthe District Court of Osaka, while trying

a criminal case, ordered the prosecution to disclose to the defense all evidence

in its possession. This order is very noteworthy in that the judge ruled that

the prosecution has as a matter of duty to disclose all the evidence of the case

- an inherent duty it is supposed to perform independent of a discovery order

of the judge.

The most basic ground for the ruling is that the prosecution is not only a

party to the case to be tried at bar, but also a representative of the public interest,

and that it has a duty to bring to light the truth of the case - in other words,

3) These Articles provide for exceptions to the inadmissibility of heal"say evidence.

S, SUZUKI: Discovery in Japanese Criminal Procedure 15

that it has a constitutional and procedural duty to cooperate with the court to

ascertain the substantive truth. Such cooperation should be not only subjec­

tive but also objective. The requirements of the accusatorial principle in

criminal procedure are not satisfied by simply achieving formal equality be­

tween the contending parties. It requires substantial equality. Another ground

for the ruling is the duty of the prosecution to see that a speedy trial is had.

From the said ruling of the District Court the prosecution took a special

appeal to the Supreme Court to complain of an error in constitutional construc­

tion and application, and of a violation of precedent. The Supreme Court

overruled the discovery order of the trial court in favor of the appellant on the

ground that it was against a precedent of the Tokyo High Court.

The Supreme Court dwelled on its reason for overruling the discovery order:

"It is a constitutional duty of the prosecution as a representative of the public

interest to present in court evidence which may be favorable to the defense.

It is desirable that the prosecution as well as the defense should cooperate with

the court in making possible a concentrated and speedy trial except under special

circumstances. The trial judge in this case seems to have deduced the prosecu­

tion's duty of disclosure from its duty of bringing the truth to light. Needless

to say, however, the ascertainment of the truth by the judge or the prosecution

in criminal procedure should be made through methods prescribed by statutory

provisions of criminal procedure." The Court inquired into the question

whether such provisions existed. As a result of investigation it concluded as

follows: "There is neithe~ any provision authorizing the court to order the

prosecution to afford the defense an opportunity to inspect part or all of the

documentary or real evidence in its possession; nor any provision imposing upon

the prosecution the duty of affording the defense an opportunity of such eviden­

tiary inspection as a matter of right." 1)

One of the Justices of the Court, though skeptical of the propriety of denying

the right of discovery, finally agreed with the opinion of the C0ll;rt on the ground

that no provision of law was to be found as to such things as the effect of an

discovery order, the subjective or objective scope of the right of inspection or

measures against possible abuses of the right.

The attention of the reader must be called to the following two points: First,

this decision, despite its apparently broad bearing, practically related only to

1) Decision of the Supreme Court, 3d Petty Bench, December 26, 1959, 13 Sup. Ct. Crim. Rep. 3404.

16 KOBE UNIVERSITY LAW REVIEW No~ 6 (1966)

the pre-trial discovery of the material not intended to be produced in evidence

at trial. Now criminal discovery may be classified as follows:

Ia) Discovery before trial

Ib) Discovery at trial

II a) Discovery of the material one of the parties has decided to produce

in evidence at trial.

lIb) Discovery of the material about which such decision is pending.

The case mentioned above related to the discovery of the combined type

(Ia+IIb). Logically, therefore, it left room for the Court to dicide otherwise

as to discovery "at trial".

Secondly, while the original order of discovery issued by the district court

judge discussed the discovery problem from the substantial standpoint, for

instance, of the prosecution's duty to bring to light the truth of the case, the

decision of the Supreme Court saw the problem only from the formal standpoint

of the absence of legal provisions relating to discovery.

At any rate, that was the first decision in which the Supreme Court assumed

a negative attitude toward discovery in criminal procedure. It was not long

before the same attitude was taken to discovery at trial as well. The Court

held that the prosecution had no duty to afford the defense an opportunity to

inspect its documentary evidence which mayor may not be offered for examina­

tion at trial but about which no decision has not yet been reached. 2) That

holding did not state any new ground for denying the right of discovery. As

a result of these two cases, the defendant's right of discovery of type IIb in

Japanese criminal practice, whether pre-trial or not, is denied.

Now we must turn to the pre-trial discovery of the material intended to

be produced in evidence at trial (type IIa). The Code of Criminal Procedure

has an express provision for this type of discovery. It reads: "The public

prosecutor, the accused or his defense attorney, before moving for the examina­

tion of witnesses, expert witnesses, interpreters or translators, shall give the other

party an opportunity to know the names and addresses of such persons, and,

before moving' for the examination of documentary or real evidence, an opport­

unity to inspect it, provided, however, that this does not apply where th~ other

party makes no objection" (Article 299). It should be noted that mutuality

in evidentiary discovery is required by the provision. In other words, the

2) Decision of the Supreme Court, 3d Petty Bench, February 9, 1960, Hanrei-Jiho,.No. 215, p.34.

S. SUZUKI: Discovery in Japanese Criminal Procedure 17

defense as well has to disclose its evidence to the prosecution. Here, however,

a question arises as to whether such evidentiary disclosure by the defense is

consistent with the privilege against self-incrimination. The absence of discus­

sions on this topic in Japan suggests that the question is answered in the affirma­

tive. The writer is inclined to support that conclusion on the ground that

the evidence involved is what the defense has already dicided to offer for exami­

nation.

Except the above-quoted article and related provisions in the Supreme

Court's Rules of Criminal Procedure implementing the· Code of Criminal

Procedure, there is no direct provision l:e1ative to discovery.

m

From the absence of any other provisions, does it logically follow that the

possibility of the discovery of type lIb is eliminated? It is not clear what was

the position of the Supreme Court on this point in rendering the above cited

decisions.

The Code of Criminal Procedure has neither any broad provisions for

general discovery nor against it. Furthermore, its legislative history reveals

no sign of any effort toward restricting the scope of Article 299. It should not

be concluded, therefore, that the absence of any such provisions means a legisla­

tive intent to exclude the possibility of all evidentiary discovery with the aforesaid

exception of type lIa.

One of the constant objections against discovery in criminal procedure is

that it is incompatible with the accusatorial or adversary principle. But the

adversary principle, If carried to the full extreme, would result in surprising

the opposite party at trial, delaying the trial, and preventing the ascertainment

of the truth. It should be thoughtfully noted that discovery in Anglo-American

law was ·first developed in civil procedure which was typically characterized by

the adversary principle.

In criminal procedure the discovery of type IIb cannot be mutual because

of a defendant's privilege against self-incrimination, with the logical result that

discovery by the prosecution is inpermissible. In this denial of mutual discovery

inconsistent with the adversary principle? This question cannot be answered

without an adequate understanding of the raison d'etre .of the adversary principle

in criminal procedure. The adversary system of criminal procedure is, as its

historical developement shows, a means of achieving the important objective,

18 KOBE UNIVERSITY LAW REVIEW No.6 (1966)

among others and above all, of improving the defendant's position in criminal

procedure. It may be safely asserted then that discovery by the defense is not

conflicting with, but is conducive to, the objectives of the adversary principle.

It goes without saying, on the other hand, that the adversary system must also

serve the purpose of ascertaining the truth. In order to achieve this object,

both parties must have. procedurally equal power. Here substantial equality,

not nominal, is required. Does unilateral discovery by the defense impair the

balance of power between the parties? Adverse critics of such unilateral

discovery point out some of the defendant's privileges which the prosecutor does

not share, such as the important privilege against self-incrimination, and the

presumption of innocence. They claim that the defense already enjoys sufficient

advantage over the prosecution, and that discovery by the defense impairs the

balance of power between the parties. But this argument may be refuted by

pointing out the prosecution's strong and comprehensive power in collecting

evidence. No one can deny that there is a decisive difference between passive

privileges and active power in collecting evidence and preparing for the trial.

In Japan many restrictions have been placed on the investigating power

of the prosecution since the end of World War II.

writers declare against discovery by the defense.

In view of this fact, some

But such restriction have

been introduced to check the abuses of the investigating power that used to

exist before and during the War. Law prefers the protection of defendant's

rights over the efficiency of the investigating power. A mere comparison between

the prewar and postwar investigating power of the prosecution does not ration­

alize the denial of the defendant's right of discovery. With regard to the investi­

gating power of the prosecution, it is more important to compare Japan with

the United States where the discov~ of evidence by the defense is permitted.

It is needless to say that there are many important differences between Japanese

procedure and its American, for example, Californian, counterpart. 1) However,

most of the differences seem to favor the permission of discovery rather than its

prohibition.

(a) First, it should be noted that there is no preliminary examination in

Japan.

In English criminal procedure the preliminary examination practically

1) For an excellent analysis of the discovery situation in California, see David W~ Louisell, Modern California Discovery (1963), Part II.

S. SUZUKI: Discovery in Japanese Criminal Procedure 19

performs the function of discovery. 2) In American criminal procedure, the

priliminary examination, if somewhat different from its English predecessor,

none the less provides one of the most important opportunities for the defense

to see evidence in the hands of the prosecution.

In Japan the prosecutor can request the judge to detain a ,suspect after

arrest, and the accused shall not be placed under detention before he is informed

of the charge against him and given opportunity to be heard.3 ) But it is a. mere

procedure for notice and hearing in court that does not rest on the adversary

principle. Here the accused is denied any right to know, cross-examine or

impugn evidence produced by the proseelltion. The accused is not regarded

here as a party participating in the adversary procedure. In short, the Japanese

pre-detention hearing can by no means be identified with the Anglo-American

preliminary examination.

On the other hand, a detained defendant may request the 'court to show

grounds for his detention. 4) Thus the presiding judge who represents the court

should show reasonable grounds for suspicion of a crime. But, in practice,

he simply states legal grounds in terms of the factual elements constituting the

suspected crime. It is usual with him not to disclose any evidence supporting

his suspicion. Therefore, this procedure falls short of performing the function

of discovery.

(b) In the United States a person arrested on a charge of having committed

a crime is entitled to a preliminary examination before a proper officer, usually

a magistrate, without unnesessary delay, to determine whether the crime has

been committed in fact and, if so, whether there is probable cause to believe

that the person is guilty of its commission.5 ) And it is generally held that delay

caused by questioning the suspect cannot be regarded as reasonable or necessary

delay.

In Japan an arrested person is often held in the custody of the prosecution

as long as 72 hours before he is brought in front of the judge, who in his turn

dicides whether the arrested person is to be held to answer or released.

Article 203, Code of Criminal Procedure, provides: "Where the judicial

police officer has arrested a suspect upon a warrant of arrest or received a

2) P. Devlin, The Criminal Prosecution in England (1960), p. 93. 3) The Code of Crim. Proc., Art. 61. 4) Ibid., Art. 82. 5) Morland, Modern Criminal Procedure (1959), p. 152.

20 KOBE UNIVERSITY LAW REVIEW No.6 (1966)

suspect arrested upon a warrant of arrest, he shall immediately imform him

of the essential facts of the crime and of his right to counsel, and shall then,

upon giving him an opportunity for explanation, immediately release the suspect

when he believes it unnecessary to detain him, or take steps to transfer the

suspeet together with the documents and evidence to a public prosecutor within

48 hours after the suspect was subjected to physical restraint, when he believes

it necessary to detain him." Article 205 I reads: "Where the public prosecutor

has received a suspect delivered in accordance with the provision of Article

203, he shall give the suspect an opportunity for explanation, and immediately

release the suspect if he believes it unnecessary to detain him, or shall request a

judge to detain him within 24 hours after he received the suspect, if he believes it

necessary to detain him." Such detention should not exceed 72 hours after the

suspect was subjected to physical restraint. In the case of arrest by the public

prosecutor himself, the maximum is 48 hours instead 72.

These provisions function in practical application as if they gave the prosecu­

tion 'days of grace'. In other words, the arrested person during this period

of detention has no right to request to be brought in front of the judge. The

prosecution usually makes full use of this period for interrogating the arrested.

A person under arrest is not free to refuse to appear in the office of the

prosecution or to withdraw from there. Article 198, Code of Criminal Proce­

dure, provides: "The public prosecutor, public prosecutor's assistant officer

or judicial police officer may ask any suspect to appear in his office and question

him, if it is necessary for purpose of criminal investigation. However, the

suspect may, except where he is under arrest or under detention, refuse to appear

or, after he has appeared, may withdraw at any time."

Though the suspect should, before such questioning, be notified that he is

not required to make any statement -against his will, the questioning itself may

relate to the suspected crime unless it is compulsory.

The statement of the suspect may be recorded in a protocol. It should

be inspected by or read to the suspect for his verification, and if he makes a

motion for any addition, deletion or alteration, his remarks should be entered

in the protocol. If the suspect affirms that the contents of the protocol are

correct, he may be asked to sign and seal it, though he is at liberty to refuse to

do so. Such signed and sealed protocols, especially those made before the

prosecutor, may be produced in evidence at trial under some conditions. 6)

6) The Code of Crim. Proc., Art. 322 1.

S. SUZUKI: Discovery in Japanese Criminal Procedure 21

(c) A judge may detain the accused for a period not exceeding 10 days

before the institution of prosecution, where there are reasonable grounds to

suspect that he has committed the crime and where the case falls under any

one of the following items: (I) if he has no fixed dwelling, (2) if there . are

reasonable grounds to suspect that the accused may destroy evidence, or (3) if

there are reasonable grounds to suspect that he may escape. 7)

The attention of the reader must be called to the following fact: The

judge may detain the accused if there are reasonable grounds to suspect that

he has committed a crime and may destroy evidence. In this case the accused

may be detained even though he is not likely.to escape. The detention before

the institution of prosecution is of great advantage to the prosecution.

The judge may, if he thinks unavoidable circumstances exist, extend the

above period upon request of the public prosecutor, so long as the total period

of extention or extensions does not exceed 10 days. 8) Furthermore no release

on bail is possible in regard to the detention before the institution of prosecu­

tion.

A prison (house of detention) is a place to detain the accused.9 ) But a

police jail may be substituted for it. Where the police jail is used to detain

the accused, the detention will be very convenient for the prosecution to inter­

rogate the accused under detention.

(d) Article 39 I, Code of Criminal Procedure, reads: "The accused or

suspect placed under physical restraint in any way may, without having any

official present, have an interview with his defense counsel or the person who

will . become his defense counsel upon request of the person entitled to select

defense counsel, and may deliver or receive any documents or other things."

According to Article 39 III, such interview and delivery or receipt of things

may be restricted by the prosecution to some extent: "Where it is necessary for

investigation the public prosecutor, public prosucutor's assistant officer or judi­

cial police officer may designate the date, place and time of the above-referred­

to interview and delivery or receipt of things prior to the institution of prosecu­

tion only provided that such designation does not unreasonably restrict the sus­

pect's right to prepare for his defense."

It seems clear that the prosecution may designate the date, place and time

7) Ibid., Art. 60 I. 8) Ibid., Art. 60 II. 9) The Prison Act, Art.. 1 III.

22 KOBE UNIVERSITY LAW REVIEW No.6 (1966)

of the interview specifically, only when it is necessary for the actual investigation,

for example, when they are conducting the interrogation of the accused. The

public prosecutor, however, sometimes issues to the prison officials a general

appointor relative to an accused placed under detention. I t states that a spe­

cial appointor will be issued afterwards in regard to the interview between the

accused and his defense counsel. Such special appointor specifies where, when,

and how long the interview may be had. Where the general appointer has

been issued, the defense counsel who goes to the prison to see his client will be

denied an interview by the prison officials if he does not bring with him the spe­

cial appointor designating the date, place and time of an interview.

(e) Some people contend that Japanese law attaches more weight to the

. subjective elements of a crime than Anglo-American law, and that the Japanese

prosecutor has a heavier burden of proving the defendant's guilt. However, In

the case of bribery, for example, often spoken of in Japan as a crime the mens

rea of which is very difficult of proof, a corrupt intent is an important element

of the crime in America, say ia California. I t is true that we find, for instance,

in the California Penal Code some provisions for the presumption of intent or

knowledge as to crimes like purchase of stolen goods, libel or slander. These

provisions lighten the prosecution's burden of proving the subjective elements

of a crime. Those in Japan who ground the prohibition of discovery on such

difference ~n the burden of proof are afraid lest a statement or confession to

prove intent or other subjective elements of a crime should be destroyed or tam­

pered with if discovery is available to the defense. But we have some preventions

against it. First, punishment is inflicted on anyone guilty of suppression of

evidence, perjury and intimidation of a witness. Secondly, detention before or

during the trial will be used as a prevention against such destruction of or tam­

pering with evidence. Thirdly, the prosecutor can request a judge to investi-...

gate a witness before trial. 10) In this case, the protocol may be produced in

evidence at trial.

We may safely conclude that the balance of power between the two parties

will not be destroyed by the introduction of discovery by the defense.

IV

With these cosiderations in the background, we can expect the criminal

10) The Code of Crim. Proc., Arts. 226 & 227.

S. SUZUKI: Discovery in Japanese Crhninal Procedure 23

discovery to be realized in Japan to some extent through the application of the

presen t provisions:

( 1) Article 299 of the Code of Criminal Procedure

This article, as stated above, relates to the discovery of the material which

a party has already dicided to produce in evidence at trial. The provision is

calculated to prevent surprise at trial. It may be possible, however, to interpret

the provision more broadly so as to include the discovery of the material which

has a possibility of being produced in evidence at trial. In this case, Article 299

will be efficient not only for the prevention of-surprise at trial, but also in some

degree for the discovery of the new material favorable to the defense.

( 2) Article 300 of the Code of Criminal Procedure

According to Article 321 I (2), the document recording statements made

by a person other than the defendant before the public prosecutor under special

circumstances warranting their credibility is competent as evidence, if the person

makes inconsistent statements at public trial. Article 300 requires the pro­

secution to request the examination of such prior statements. But we must call

the reader's attention to the following points: (1) The request is obligatory only

where such prior statements of a witness are contradictory to his testimony at

trial. (2) Therefore, the request may be made after the examination of the

witness at trial. (3) The discovery by the defense as provided for in Article 299

will be made only after such examination.

If the prosecutor neglects his duty to request the examination of prior con­

tradictory statements, the defense may request such examination. But in this

case the defense has to produce prima facie evidence to show not only the

identification of the written statements, but also the contradiction between the

statements and the testimony at trial. The discovery function of this provision

is thus limited.

( 3) Article 99 of the Code of Criminal Procedure

The court may, whenever necessary, order the seizure of evidentiary matter

or matter subject to confiscation, or may order the owner, possessor or custodian

of matter subject to seizure to submit it to the court. Evidentiary matter includes

real and documentary evidence. Where the existence of evidentiary matter

is known to the opposing party, this procedure seems to be available for the

24 KOBE UNIVERSITY LAW REVIEW No.6 (1966)

purpose of discovery. But this extensive interpretation demands serious con­

sideration in the light of the principle of preventing judicial prejudice (in the

sense of premature judgment).

( 4) Rule 178.11, Rules of Criminal Procedure

A public prosecutor, following the institution of prosecution, must consider

whether to invoke the provision as to the restoration and provisional restoration

of seized matter (Article 123 of the Code of Criminal Procedure) so as to make

available to the defendant and defense counsel in their preparation anything

seized in connection with the case. To the extent that restoration depends on

the discretion of the prosecutor, its discovery function is also limited.

v Finally we must consider whether a court may, in its discretion, order the

prosecution to disclose to the defense the material not intended to be introduced

at trial. As stated above, the Supreme Court held that the ascertainment of

the truth by the judge and prosecutor in criminal procedure must be made

through methods prescribed by law. We need hardly say that the control of

proceedings by the court must not be inconsistent with such legal methods.

However, what we are now discussing is proceedings for which there is no pro­

vision of law. The Supreme Court has power to make procedural rules and

every court has an inherent power to control its proceedings. It would be rea­

sonable to infer that every court can use its discretion in controling procedural

matters unless it goes against statutes or rules. This inherent power of the court

to control procedural matters is not so strong as to exclude restrictions imposed

by the legislature or the Supreme Court, but strong enough to be excercised

without authorization by either of diem. It may be said that criminal discovery

belongs to this category of matters. But two limitations must be taken into

consideration. First, though the power to control the. trial proceedings is exer­

cised in principle by the presiding judge, the power to issue a discovery order

resides in the court itself because of its importance. Secondly, the court should

exercise the power only upon a motion of the defense.

VI

The above analyses may be summarized as follows:

( 1) In Japanese law there is no provision that requires the prosecutor to

S. SUZUKI: Discovery in Japanese Criminal Procedure 25

disclose the material not intended to be introduced at trial.

( 2) However, it does not mean that the law prohibits this kind of discovery.

( 3) The absence of such provision can be made up for by an • order of the

court based on its power to control proceedings.

I t is highly desirable that courts should establish reasonable standards as

to when and how far discovery should be allowed. But it will not be a drastic

remedy for the inadequate criminal discovery in Japan. In order to issue a

discovery order properly, the court has to look into the material in advance.

On the other hand, the court is not supposed to learn the details of any evidence

before the time of its examination at trial, because it is inconsitent with the prin­

ciple of preventing judicial prejudice. Therefore, it is strongly recommended

that we establish a system in which a judge not a member of the trial court may

examine the documentary or real evidence whose discovery has been moved for

by a party and may issue a discovery order if he deems it necessary for the

ascertainment of the truth. Without conflicting with the important principle

of preventing judicial prejudice, this system will serve the duoble object of crimi-

. minal procedure: the ascertainment of the truth and the protection of the de­

fendant.