As the 'Separation of Investigations and Prosecutions' Complicates Procedures, Law Firms Brace for a New Lucrative Niche

An overhaul of the criminal justice system centered on abolishing the Prosecutors' Office and separating investigations from prosecutions is expected to create new demand in the criminal defense market for law firms. The separation of investigations and prosecutions, which were previously handled by a single institution, will increase the number of agencies and procedures that case parties and their lawyers must deal with. The process could also widen disparities in the ability to mount a legal defense based on financial means.
According to legal industry sources on the 27th, once the revised Criminal Procedure Act takes effect on the 2nd of next month, prosecutors at the Public Prosecution Office will be able to request supplementary investigations by judicial police officers to decide whether to indict transferred cases, maintain prosecutions or seek warrants. They may also request a reinvestigation if they determine that the police decision not to refer a case was unlawful or unjust. A new procedure will allow persons involved in a case to raise objections if no substantive investigation has been conducted for six months or more after an investigation began, or if their rights were violated during the process.
The legal industry is paying the closest attention to what is being called a 'two-stage defense.'
At the investigative-agency stage, lawyers must persuade the police or the Serious Crime Investigation Agency regarding the alleged facts and applicable legal principles. Once a case is referred, however, they must again argue before prosecutors at the Public Prosecution Office over the need to bring charges, the sufficiency of the evidence and the need for a supplementary investigation.
A partner on a major law firm's criminal defense team said, "Previously, it was common to present views on the facts, legal principles and disposition together during a prosecution investigation. Going forward, however, lawyers will likely need to present separate arguments to investigative agencies and the Public Prosecution Office, each serving a different purpose." The partner stressed, "Especially in corporate cases, the need to design separate strategies for each stage—from the beginning of a case through its referral—will grow."
Major law firms are in fact developing response systems that distinguish between the investigative stages handled by the police and the Serious Crime Investigation Agency and the stage at which the Public Prosecution Office decides whether to bring charges.
Another change drawing lawyers' attention is the rise of 'procedural disputes.'
Issues such as whether materials outside the scope of a warrant were obtained during a search and seizure, whether the parties' right to participate was properly guaranteed during digital forensics, and whether lawful procedures were followed during questioning could emerge as separate issues for legal argument.
A criminal defense lawyer at a major law firm explained, "Going forward, the key defense issue may not only be whether the criminal allegations are substantiated, but also whether the evidence was collected lawfully." The lawyer added, "Because procedural flaws at the investigation stage can lead to questions about the admissibility of evidence during subsequent warrant applications, indictments or trials, the importance of an early response will grow."
Supplementary investigations and reinvestigations are also being cited as new areas for legal argument. Parties to a case may challenge which matters the Public Prosecution Office prosecutor requested be investigated further and whether the supplementary investigation was actually conducted within that scope.
As procedures become more complex, the legal industry also expects the criminal defense market itself to expand. Some law firms are considering moving away from the existing practice of handling everything—from responding to investigative agencies through the Public Prosecution Office's decision on whether to bring charges—under a single engagement. Instead, they are exploring separate engagements for the investigative-agency, Public Prosecution Office and trial stages. Although the overhaul of the criminal justice system could strengthen the procedural rights of suspects and defendants, critics also warn that it may widen the 'disparity in the right to mount a defense' based on financial means.
A lawyer with a background at the Legal Research and Training Institute stressed, "Separating investigations from prosecutions and strengthening procedural oversight at each stage is meaningful in that it can check abuses of investigative authority." The lawyer continued, "However, as procedures become more complex, the need for professional legal assistance will also grow. The system must therefore be operated in a way that prevents a gap from emerging between parties who can afford sufficient legal fees and those who cannot."

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