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Within the criminal justice system of Japan, there exist three basic features that characterize its operations. First, the institutions—
police The police are Law enforcement organization, a constituted body of Law enforcement officer, people empowered by a State (polity), state with the aim of Law enforcement, enforcing the law and protecting the Public order policing, public order ...
, government prosecutors' offices,
courts A court is an institution, often a government entity, with the authority to adjudicate legal disputes between parties and administer justice in civil, criminal, and administrative matters in accordance with the rule of law. Courts gene ...
, and correctional organs—maintain close and cooperative relations with each other, consulting frequently on how best to accomplish the shared goals of limiting and controlling
crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
. Second, citizens are encouraged to assist in maintaining public order, and they participate extensively in
crime prevention Crime prevention refers to strategies and measures that seek to reduce the risk of crime occurring by intervening before a crime has been committed. It encompasses many approaches, including developmental, situational, community-based and crimin ...
campaigns, apprehension of suspects, and offender rehabilitation programs. Finally, officials who administer criminal justice are allowed considerable discretion in dealing with offenders. In 2021, the Japanese police recorded 568,104 crimes, of which 8,821 were cases of murder, robbery, arson, rape, sexual assault, indecent assault, kidnapping, and human trafficking, which are designated as major crimes (''jūyō hanzai'', 重要犯罪) by the National Police Agency. The arrest rate, which indicates the percentage of unsolved crimes recognized by the Japanese police by 2021 for which the perpetrators were arrested in 2021, was 46.6%. Of these, the arrest rate for cases involving murder, robbery, arson, rape, sexual assault, indecent assault, kidnapping, and human trafficking, which are designated as major crimes, was 93.4%. As of 2001,
Japan Japan is an island country in East Asia. Located in the Pacific Ocean off the northeast coast of the Asia, Asian mainland, it is bordered on the west by the Sea of Japan and extends from the Sea of Okhotsk in the north to the East China Sea ...
has a conviction rate of over 99.8%, even higher than contemporary
authoritarian regimes Authoritarianism is a political system characterized by the rejection of political plurality, the use of strong central power to preserve the political ''status quo'', and reductions in democracy, separation of powers, civil liberties, and ...
. Scholars say the biggest reason for Japan's very high conviction rate is the country's low prosecution rate and the way Japan calculates its conviction rate is different from other countries. According to them, Japanese prosecutors only pursue cases that are likely to result in convictions, and not many others. According to Professor Ryo Ogiso of
Chuo University , commonly referred to as or , is a private research university in Hachioji, Tokyo, Japan. The university finds its roots in a school called Igirisu Hōritsu Gakkō (English Law School), which was founded in 1885, and became a university in 1 ...
, prosecutors defer prosecution in 60% of the cases they receive, and conclude the remaining 30% or so of cases in summary trials. This summary trial is a trial procedure in which cases involving a fine of 1,000,000 yen or less are examined on the basis of documents submitted by the public prosecutor without a formal trial if there is no objection from the suspect. Only about 8% of cases are actually prosecuted, and this low prosecution rate is the reason for Japan's high conviction rate. According to Keiichi Muraoka, a professor at Hakuoh University, the 60% suspension of prosecution in Japan is due to excessive fear that prosecutors will lose the case and ruin their reputation. After the lay judge system ( system, ) in which citizens participate, began in 2009, the prosecution and conviction rates have declined; in 2006, the prosecution rate for murder, including attempted murder, was 56.8%; as of 2017, the rate had dropped to 28.2%. The overall conviction rate in the first instance also dropped to 97.8% as of 2017. Although the
Ministry of Justice A justice ministry, ministry of justice, or department of justice, is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
noted that the decline in the prosecution rate began before the introduction of the lay judge system, some lawyers and scholars have pointed out that the introduction of the lay judge system, in which citizens participate, has led to greater emphasis on direct evidence and testimony at trial and more cautious judgment on inferences. For example, according to Akira Sugeno, a lawyer who is a senior member of the Japan Federation of Bar Associations, a 2016 street crime in which three people were attacked with kitchen knives was charged with injury because there was no evidence of intent to kill, but before the system change it would have been charged as attempted murder because the judge's reasoning would likely have found intent to kill. They also pointed out that the reformed system has reduced lengthy interrogations and other forms of aggressive evidence-gathering, making it more difficult to create false convictions.


History


1868–1947

Until the
Meiji Restoration The , referred to at the time as the , and also known as the Meiji Renovation, Revolution, Regeneration, Reform, or Renewal, was a political event that restored Imperial House of Japan, imperial rule to Japan in 1868 under Emperor Meiji. Althoug ...
in 1868, the criminal justice system in Edo Japan was controlled mainly by ''
daimyō were powerful Japanese magnates, feudal lords who, from the 10th century to the early Meiji era, Meiji period in the middle 19th century, ruled most of Japan from their vast hereditary land holdings. They were subordinate to the shogun and no ...
s''. Public officials, not laws, guided and constrained people to conform to moral norms. In accordance with the
Confucian Confucianism, also known as Ruism or Ru classicism, is a system of thought and behavior originating in ancient China, and is variously described as a tradition, philosophy, religion, theory of government, or way of life. Founded by Confucius ...
ideal, officials were to serve as models of behavior; the people, who lacked rights and had only obligations, were expected to obey. Such laws as did exist were transmitted through local military officials in the form of local domain laws. Specific enforcement varied from domain to domain, and no formal penal codes existed. Justice was generally harsh, and severity depended upon one's status. Kin and neighbors could share blame for an offender's guilt: whole families and villages could be flogged or put to death for one member's transgression. After 1868, the justice system underwent rapid transformation. The first publicly promulgated legal codes, the Penal Code of 1880 and the Code of Criminal Instruction of 1880, were based on French models, i.e., the
Napoleonic code The Napoleonic Code (), officially the Civil Code of the French (; simply referred to as ), is the French civil code established during the French Consulate in 1804 and still in force in France, although heavily and frequently amended since i ...
. Offenses were specified, and set punishments were established for particular crimes. Both codes were innovative in that they treated all citizens as equals, provided for centralized administration of criminal justice, and prohibited punishment by
ex post facto law An ''ex post facto'' law is a law that retroactively changes the legal consequences or status of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were ...
. Guilt was held to be personal;
collective guilt Collective responsibility or collective guilt is the responsibility of organizations, groups and societies. Collective responsibility in the form of collective punishment is often used as a disciplinary measure in closed institutions, e.g., boa ...
and guilt by association were abolished. Offenses against the
emperor The word ''emperor'' (from , via ) can mean the male ruler of an empire. ''Empress'', the female equivalent, may indicate an emperor's wife (empress consort), mother/grandmother (empress dowager/grand empress dowager), or a woman who rules ...
were spelled out for the first time. Innovative aspects of the codes notwithstanding, certain provisions reflected traditional attitudes toward authority. The prosecutor represented the state and sat with the judge on a raised platform—his position above the defendant and the defense counsel suggesting their relative status. Under a semi-inquisitorial system, primary responsibility for questioning witnesses lay with the judge, and defense counsel could question witnesses only through the judge. Cases were referred to trial only after a judge presided over a preliminary fact-finding investigation in which the suspect was not permitted to have counsel. Because in all trials, available evidence had already convinced the court in a preliminary procedure, the defendant's legal
presumption of innocence The presumption of innocence is a legal principle that every person Accused (law), accused of any crime is considered innocent until proven guilt (law), guilty. Under the presumption of innocence, the legal burden of proof is thus on the Prosecut ...
at trial was undermined, and the
legal recourse A legal recourse is an action that can be taken by an individual or a corporation to attempt to remedy a legal difficulty. * A lawsuit if the issue is a matter of Civil law (common law), civil law * Contracts that require mediation or arbitration ...
open to his counsel was further weakened. The
Penal Code A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain Crime, offences that are recognised in the jurisdiction, penalties that ...
was substantially revised in 1907 to reflect the growing influence of German law in Japan, and the French practice of classifying offenses into three types was eliminated. More importantly, where the old code had allowed very limited judicial discretion, the new one permitted the judge to apply a wide range of subjective factors in
sentencing In criminal law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences f ...
.


Since 1947

After World War II, occupation authorities initiated reform of the constitution and laws in general. Except for omitting offenses relating to war, the imperial family, and adultery, the 1947 Penal Code remained virtually identical to the 1907 version. The
criminal procedure Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail ...
code, however, was substantially revised to incorporate rules guaranteeing the rights of the accused. The system became almost completely accusatorial, and the judge, although still able to question witnesses, decided a case on the evidence presented by both sides. The preliminary investigative procedure was suppressed. The prosecutor and defense counsel sat on equal levels, below the judge. The laws on indemnification of the wrongly accused and laws concerning juveniles, prisons, probation, and minor offenses were also passed in the postwar years to supplement criminal justice administration. In 2020, Japan ranked 9th in the sub-ranking "criminal justice" in the World Justice Project's Rule of Law Index, second highest among G7 countries. The World Prison Brief had the country incarceration rate in 2021 at 37 per 100,000 people, second lowest in the
OECD The Organisation for Economic Co-operation and Development (OECD; , OCDE) is an international organization, intergovernmental organization with 38 member countries, founded in 1961 to stimulate economic progress and international trade, wor ...
and a reduction of 42% compared to 2006.


Criminal investigation

In the
Empire of Japan The Empire of Japan, also known as the Japanese Empire or Imperial Japan, was the Japanese nation state that existed from the Meiji Restoration on January 3, 1868, until the Constitution of Japan took effect on May 3, 1947. From Japan–Kor ...
, the
criminal investigation Criminal investigation is an applied science that involves the study of facts that are then used to inform criminal trials. A complete criminal investigation can include Search and seizure, searching, interviews, interrogations, Evidence (law), ...
was presided over by
prosecutor A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...
s, like the Ministère public does in French law. Then, with the 1947 Police Law and 1948 Code of Criminal Procedure, the responsibility of investigations has been defined as uniquely resting with police officers. In order to fulfill this responsibility,
criminal investigation department The Criminal Investigation Department (CID) is the branch of a police force to which most plainclothes criminal investigation, detectives belong in the United Kingdom and many Commonwealth of Nations, Commonwealth nations. A force's CID is disti ...
s were set up in each prefectural police department. After the establishment of the 1954 amended Police Law, these departments are supervised by the Criminal Affairs Bureau of the National Police Agency.


Criminal procedure

The nation's criminal justice officials follow specified legal procedures in dealing with offenders. Once a suspect is arrested by police officers, the case is turned over to attorneys in the Supreme Public Prosecutors Office, who are the government's sole agents in prosecuting lawbreakers. Under the
Ministry of Justice A justice ministry, ministry of justice, or department of justice, is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
's administration, these officials work under
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
rules and are career
civil servants The civil service is a collective term for a sector of government composed mainly of career civil service personnel hired rather than elected, whose institutional tenure typically survives transitions of political leadership. A civil service offic ...
who can be removed from office only for incompetence or impropriety. Prosecutors presented the government's case before judges in the Supreme Court and the four types of lower courts: high courts, district courts, summary courts, and family courts. Penal and probation officials administer programs for convicted offenders under the direction of public prosecutors (see
Judicial system of Japan In the judicial system of Japan, the Constitution of Japan guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws" (Article 76). They cannot be removed from ...
). After identifying a suspect, police have the authority to exercise some discretion in determining the next step. If in cases pertaining to theft, the amount is small or already returned, the offense petty, the victim unwilling to press charges, the act accidental, or the likelihood of repetition not great, the police can either drop the case or turn it over to a prosecutor. Reflecting the belief that appropriate remedies are sometimes best found outside the formal criminal justice mechanisms, in 1990, over 70 percent of criminal cases were not sent to the prosecutor.


Juveniles

Police also exercise wide discretion in matters concerning juveniles. Police are instructed by law to identify and counsel minors who appear likely to commit crimes, and they can refer juvenile offenders and non-offenders alike to child guidance centers to be treated on an outpatient basis. Police can also assign juveniles or those considered to be harming the welfare of juveniles to special family courts. These courts were established in 1949 in the belief that the adjustment of a family's situation is sometimes required to protect children and prevent
juvenile delinquency Juvenile delinquency, also known as juvenile offending, is the act of participating in unlawful behavior younger than the statutory age of majority. These acts would be considered crimes if the individuals committing them were older. The term ...
. Family courts are run in closed sessions, try juvenile offenders under special laws, and operate extensive probationary guidance programs. The cases of young people between the ages of fourteen and twenty can, at the judgment of police, be sent to the public prosecutor for possible trial as adults before a judge under the general criminal law.


Citizens


Arrest

Police have to secure
warrants Warrant may refer to: * Warrant (law), a form of specific authorization ** Arrest warrant, authorizing the arrest and detention of an individual ** Search warrant, a court order issued that authorizes law enforcement to conduct a search for eviden ...
to search for or seize evidence. A warrant is also necessary for an arrest, although if the crime is very serious or if the perpetrator is likely to flee, it can be obtained immediately after arrest. Within forty-eight hours after placing a suspect under detention, the police have to present their case before a prosecutor, who is then required to apprise the accused of the charges and of the right to counsel. Within another twenty-four hours, the prosecutor has to go before a judge and present a case to obtain a detention order. Suspects can be held for ten days (extensions are granted in most cases when requested), pending an investigation and a decision whether or not to prosecute. In the 1980s, some suspects were reported to have been mistreated during this detention to exact a confession. These detentions often occur at cells within police stations, called . A suspect can be taken into custody after arrest and before prosecution for up to 23 days.


Prosecution

The prosecution can be denied on the grounds of insufficient evidence or on the prosecutor's judgment. Under Article 248 of the Code of Criminal Procedure, after weighing the offender's age, character, and environment, the circumstances and gravity of the crime, and the accused's rehabilitative potential, public action does not have to be instituted, but can be denied or suspended and ultimately dropped after a probationary period. Because the investigation and disposition of a case can occur behind closed doors and the identity of an accused person who is not prosecuted is rarely made public, an offender can successfully reenter society and be rehabilitated under probationary status without the stigma of a criminal conviction.


Inquest of prosecution

Institutional safeguards check the prosecutors' discretionary powers not to prosecute. Lay committees are established in conjunction with branch courts to hold inquests on a prosecutor's decisions. These committees meet four times yearly and can order that a case be reinvestigated and prosecuted. Victims or interested parties can also appeal a decision not to prosecute.


Trial

Most offenses are tried first in district courts before one or three judges, depending on the severity of the case. Defendants are protected from
self-incrimination In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where ...
,
forced confession A forced confession is a confession obtained from a suspect or a prisoner by means of torture (including enhanced interrogation techniques) or other forms of duress. Depending on the level of coercion used, a forced confession is not valid in rev ...
, and unrestricted admission of hearsay evidence. In addition, defendants have the right to counsel,
public trial Public trial or open trial is a trial (law), trial that is open to the public, as opposed to a secret trial. It should not be confused with a show trial. United States The Sixth Amendment to the United States Constitution establishes the right o ...
, and cross-examination.
Trial by jury A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial, in which a judge or panel of judges makes all decisions. Jury trials are increasingly used ...
was authorized by the 1923 Jury Law but was suspended in 1943. A new lay judge law was enacted in 2004 and came into effect in May 2009, but it only applies to certain serious crimes. The judge conducts the trial and is authorized to question witnesses, independently call for evidence, decide guilt, and pass sentence. The judge can also suspend any sentence or place a convicted party on
probation Probation in criminal law is a period of supervision over an offence (law), offender, ordered by the court often in lieu of incarceration. In some jurisdictions, the term ''probation'' applies only to community sentences (alternatives to incar ...
. Should a judgment of not guilty be rendered, the accused is entitled to compensation by the state based on the number of days spent in detention. Criminal cases from summary courts, family courts, and district courts can be appealed to the high courts by both the prosecution and the defense. Criminal appeal to the Supreme Court is limited to constitutional questions and a conflict of precedent between the Supreme Court and high courts. The criminal code sets minimum and maximum sentences for offenses to allow for the varying circumstances of each crime and criminal. Penalties range from fines and short-term incarceration to compulsory labor and the death penalty. Heavier penalties are meted out to repeat offenders.
Capital punishment Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence (law), sentence ordering that an offender b ...
is a legal penalty for aggravated murder in Japan, and is usually imposed for multiple murders. Executions are carried out by hanging. After a sentence is finalized, the only recourse for a convict to gain an acquittal is through a
retrial A new trial or retrial is a recurrence of a court case. A new trial may potentially be ordered for some or all of the matters at issue in the original trial. Depending upon the rules of the jurisdiction and the decision of the court that ordered ...
. A retrial can be granted if the convicted person or their legal representative shows
reasonable doubt Beyond (a) reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the standard of balance of probabilities (US English: preponderance of ...
about the finalized verdict, such as clear evidence that past testimony or expert opinions in the trial were false. On average, it takes 3 months to get a final judgment for a first trial.


Trial by lay judge

The first trial by citizen judge, , began August 3, 2009, under a new law passed in 2004. Six citizens became lay judges and joined three professional judges to determine the verdict and sentence the defendant. Japan belongs to an inquisitory system of the criminal process. Therefore, a judge oversees the proceedings and also determines the guilt and the sentence of the accused. The citizen lay judges, as well as professional judges, are allowed to put forth questions to defendants, witnesses, and victims during the trial. The new system aims to invite the participation of the wider community and also provide a speedier, more democratic justice system, according to Eisuke Sato, the justice minister. The first trial by lay judge lasted four days, while some comparable criminal cases may last years under the old system. The historic trial of 72-year-old Katsuyoshi Fujii, who stabbed his 66-year-old neighbor to death, had substantial media attention. The selected lay judges must be voters, at least 20 years old, and possess a secondary-level education. Professional lawyers and politicians may not serve as lay judges in the new system. At least one judge must concur with the majority vote from the lay judges in regards to a guilty verdict; however, a majority not guilty verdict by the lay judges will stand. During the inaugural case, the citizens relied on the professional judges to help ascertain a sentence for the verdict decided upon, but felt confident in their interpretation of the trial arguments presented by the prosecution and defense.


Conviction rate

One of the main features of the Japanese criminal justice system well known in the rest of the world is its extremely high
conviction rate The conviction rate, expressed as a percentage, represents the proportion of cases resulting in a legal declaration of Guilt (law), guilt for an offense, against the total number of trials completed. It is calculated by dividing the number of con ...
, which exceeds 99%. Some in the common law countries argue that this is to do with the elimination of the jury system in 1943; however, trials by jury were rarely held as the accused had to give up the right to appeal. Lobbying by human rights groups and the Japan Federation of Bar Associations resulted in the passing of a judicial reform bill in May 2004, which introduced a lay-judge system in 2009, which is often confused with the jury system in common law countries. Japan's criminal justice system has been dubbed " hostage justice" (, ) by critics, due to cases of extended detention (up to 23 days) and forced questioning of detainees without a lawyer and of violations of the right to remain silent. In order to meet the high confession rate, Japan's justice system can cause more false confessions and wrongful convictions. Detention is not only used to ensure that suspects appear in court. Many legal procedures also violate the
Constitution of Japan The Constitution of Japan is the supreme law of Japan. Written primarily by American civilian officials during the occupation of Japan after World War II, it was adopted on 3 November 1946 and came into effect on 3 May 1947, succeeding the Meij ...
due to the right of physical freedom, the right to remain silent, and the
right to a fair trial A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
. Critics say prolonged detention and interrogations to force confessions violates the prohibition of torture. Some allege that international
human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
are violated because there is no presumption of innocence,
psychological torture Psychological torture, mental torture or emotional torture is a type of torture that relies primarily on psychological effects and only secondarily on any physical harm inflicted. Although not all psychological torture involves the use of physica ...
is not prevented, and there are cases without access to counsel during interrogations. The latest criminal justice reforms, implemented in the 2000s, were largely unsuccessful in solving these flaws. Most interrogations are also not available in English, and so foreign detainees cannot understand it and are more likely pressured to confess quicker to get out of detention, even if they were innocent.


Analysis

J. Mark Ramseyer John Mark Ramseyer (born 1954) is an American legal scholar who is the Mitsubishi Professor of Japanese Legal Studies at Harvard Law School. He is the author of over 10 books and 50 articles in scholarly journals. He is co-author of one of the lea ...
of
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
and Eric B. Rasmusen of
Indiana University Indiana University (IU) is a state university system, system of Public university, public universities in the U.S. state of Indiana. The system has two core campuses, five regional campuses, and two regional centers under the administration o ...
examine if the accusation is, in fact, warranted. In their paper ("Why Is the Japanese Conviction Rate So High?") they examined two possibilities. One is that judges who come under the control of central bureaucracy are pressured to pass a guilty verdict, ensuring high conviction. Another possibility is that, given that the non-jury system under the inquisition system has a predictable ruling on guilt, Japan's understaffed prosecutors working on low budgets only bring the most obviously guilty defendants to trial, and do not file indictments in cases in which they are not certain they can win.Ramseyer & Rasmusen
"Why Is the Japanese Conviction Rate So High?"
/ref> The most likely reason why the Japanese conviction rate is so high is that prosecutors have a broad discretion to prosecute or not, taking into account many factors. The prosecutors may decide, for example, not to prosecute someone even if there is sufficient evidence to win at trial, because of the circumstances of the crime or accused. Article 248 of the Japanese Code of Criminal Procedure states: "Where prosecution is deemed unnecessary owing to the character, age, environment, the gravity of the offense, circumstances or situation after the offense, the prosecution need not be instituted." Thus, prosecutors in Japan have a very broad discretion in the decision to prosecute or not. All Japanese court rulings are accessible in digital format; the two academics examined every case after
World War II World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
in which the court found the defendant not guilty. The result is mixed. Simple statistical analysis shows that the judge's later career tends to be negatively affected by a not guilty verdict. However, by examining the individual cases, the two academics found that all of those cases which negatively affected judges' careers had political implications (such as labor law or electoral law) and that the facts of the case (i.e., the defendants committing the accused deed) itself were never in dispute. However, judges delivered not guilty verdicts on technicalities such as statutes of limitation or constitutional arguments, which were subsequently reversed in a higher court. In cases in which the judge delivered a not guilty verdict because they ruled that there was insufficient evidence to ascertain that the defendants did the accused deed, the judge suffered no negative consequence. For this reason, the paper argued that Japanese judges are politically conservative in legal interpretation but are not biased in a matter of fact. Japanese trials before the institution of the current lay judge system were discontinuous. The defense and the prosecutor would first gather in front of the judges and present the issue. Then, the court would enter recess, and both sides would go back to prepare their case. As they reconvened on different dates, they would then present each case, which the judges examined: the court would be put in recess again and each side would go back to gather further evidence. Some complex trials took years or even a decade to conclude, which is impossible under a jury system. During the questioning of evidence, judges were explicit about their opinions by the way they questioned the evidence, which gave greater predictability about the final verdict. For this reason, the prosecutor is far more likely to bring in the case where conviction is assured, and the accused is far more likely to settle. Moreover, the paper found that Japanese prosecutors have a far more pressing need to be selective. Out of a population of 125 million, the Japanese government only employs a mere 2,000 lawyers. Despite Japan having a low crime rate, such numbers create a significant case overload for prosecutors. According to Bruce Aronson of
New York University School of Law The New York University School of Law (NYU Law) is the law school of New York University, a private research university in New York City. Established in 1835, it was the first law school established in New York City and is the oldest survivin ...
, Japan's conviction rate is misleading because it is the rate at which defendants admit guilt in the cases they are charged with. According to him, if the method of calculating the conviction rate in Japan is applied to the United States, the conviction rate of federal defendants in the United States in 2018 was also over 99%. According to him, when there is a discussion about Japan, it is easy to misunderstand because people quickly rely on broad cultural generalizations and stereotypes.


Confessions in Japanese criminal investigations


Mandatory audio and video recording of interrogations

In Japan, mandatory audio and video recording of interrogations by police and prosecutors has been in place since the 21st century to prevent illegal outcomes such as forced confessions and to protect people from false accusations. In preparation for the introduction of the lay judge system (''saiban-in'' system, 裁判員制度) in 2009, prosecutors began experimenting with audio and video recording interrogations in 2006 and police in 2008. As of 2017, prosecutors had implemented full audio and video recording of interrogations in 98.4% of serious cases subject to ''saiban-in'' trials that resulted in the death of a person or other serious consequences. In addition, all cases of white-collar crime and corruption cases handled by the special prosecutor squads were recorded. The amended law took full effect on June 1, 2019, and full audio and video recording became mandatory for serious cases, white-collar crimes and corruption cases handled by the special prosecutor squads, and cases involving mentally ill suspects who tend to easily follow the instructions of interrogators. Including cases where audio and video recording is not mandatory, statistics for fiscal 2020, which runs from April 2020 to March 2021, show that prosecutors recorded 94% of cases, while police recorded only 12% of cases. The Tokyo Shimbun recommends making recording mandatory for all cases.


Claims by human rights organizations

Various
human rights organizations :''The list is incomplete; please add known articles or create missing ones'' The following is a list of articles on the human rights organizations of the world. It does not include political parties, or academic institutions. The list includes ...
have alleged that the high conviction rate is due to the rampant use of conviction solely based on
forced confession A forced confession is a confession obtained from a suspect or a prisoner by means of torture (including enhanced interrogation techniques) or other forms of duress. Depending on the level of coercion used, a forced confession is not valid in rev ...
s, including those that are innocent. Confessions are often obtained after long periods of questioning by police, as those arrested may be held for up to 23 days without trial. This can at times take weeks, during which the suspect is in detention, and are prevented from contacting a
lawyer A lawyer is a person who is qualified to offer advice about the law, draft legal documents, or represent individuals in legal matters. The exact nature of a lawyer's work varies depending on the legal jurisdiction and the legal system, as w ...
or family. Some academics have also claimed that Japanese judges can be penalized by a personnel office if they rule in ways the judicial office dislikes, and face biased incentives to convict. Using data on the careers and opinions of 321 Japanese judges, it was found that judges who engage in acquittals have worse careers. According to another study, cases that had a negative impact on judges' careers in Japan all involved political issues, such as labor or electoral laws, rather than disputes over the actual facts of the case (i.e., whether the defendants committed the alleged acts). In these instances, judges issued not guilty verdicts based on technicalities, like statutes of limitation or constitutional arguments, which were later overturned by higher courts. In contrast, when judges acquitted defendants due to insufficient evidence to prove they committed the alleged acts, they faced no professional repercussions. As a result, the study concluded that while Japanese judges tend to be politically conservative in their legal interpretations, they are not biased when it comes to determining the facts of a case. Article 38 of Japan's Constitution categorically requires that " no person shall be convicted or punished in cases where the only proof against a suspect is his/her own confession". In practice, this constitutional requirement takes a form of safeguarding known as the "revelation of secret" (''himitsu no bakuro'', ). Because suspects are put through continuous interrogation that could last up to 23 days, as well as isolation from the outside world – including access to lawyers, the Japanese judiciary, and the public – it can be suggested that the court is well aware that confession of guilt can easily be forced. Consequently, the court (and the public) take the view that mere confession of guilt alone is never a sufficient ground for conviction. Many foreign people in Japan who are arrested cannot afford bail. Instead, for confession to be valid evidence for a conviction, the Japanese court requires confession to include the revelation of verifiable factual matter that only the perpetrator of the crime could have known about, such as the location of an undiscovered body or the time and place the murder weapon was purchased, a fact about the crime scene, etc. Furthermore, to safeguard against the possibility that the interrogator has implanted such knowledge into the confession, the prosecutor must prove that such revelation of a secret was unknown to the police until the point of confession. For example, in the 1948 Sachiura murder case, the conviction was initially secured by the confession of the location of the body, which was yet to be discovered. It later transpired that the police had likely known the location of the body, and this created a possibility that the confession of this information could have been forged and implanted by the investigating police. This resulted in the higher court declaring the confession unsafe and reversing the verdict. Activists claim that the Japanese justice system consider that prolonged interrogation of a suspect in isolation without access to lawyers is justified to solve criminal cases without risking a miscarriage of justice. In addition, the requirement that the revelation of relevant information by the accused must be unknown to the police, and that the prosecutor must examine the police investigation before the case is brought to the court, is seen as an extra layer of safeguarding for the validity of confession as evidence. However, most miscarriages of justice cases in Japan are, indeed, the result of conviction solely based on the confession of the accused. In these case, (1) the record of sequence and timing of the police discoveries of evidence and the timing of confession is unclear (or even faked by the police), (2) the contents of the revelation of the secret has only weak relevance to the crime itself, or (3) the revelation of secret is so vague that it can only be loosely applied to the elements of the crime ( prosecutor's fallacy). Serious miscarriage of justice cases in Japan involve police deliberately faking evidence (and insufficient supervision by the prosecutor to spot such rogue behavior) such as where the police already knew (or suspected) the location of the body or the murder weapon, but they fake the police record to make it appear that it is the suspect who revealed the location. During the 1970s, a series of reversals to death penalty cases brought attention to the fact that some accused, after intensive interrogation, had signed "as-yet-unwritten confessions", which were later actually filled in by investigating police officers. Moreover, in some cases, the police falsified the record so that it appeared that the accused confessed to the location of where the body was buried, yet the truth was that the police had written the location into the confession after the body was discovered by other means. These coerced confessions, together with other circumstantial evidence, often convinced judges to (falsely) convict. Currently, the Japanese Federation of Bar Associations is calling for the entire interrogation phase to be recorded to prevent similar incidents from occurring."Interrogation of Criminal Suspects in Japan"
International Bar Association, December 2003
The International Bar Association, which encompasses the Japanese Federation of Bar Associations, cited problems in its "Interrogation of Criminal Suspects in Japan". Former Japanese
Minister of Justice A justice ministry, ministry of justice, or department of justice, is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
, Hideo Hiraoka, has also supported videotaping interrogations. Police and prosecutors have traditionally been opposed to videotaping interrogations, stating that it would undermine their ability to get confessions. The current office of prosecutors has, however, reversed their previous opposition to this proposal. Proponents argue that without the credibility of confessions supported by electronic recordings, the lay judges may refuse to convict in a case when other offered evidence is weak. It is also argued that recording of interrogation may allow for standards to be lowered in the "revelation of secret", where the confession must contain an element of the crime that police and prosecutor did not know about. Once the recording is introduced, it would become impossible for the police to forge a confession. Then, it may become possible to bring a conviction based on a confession of elements of the crime that only the perpetrator and the police knew.


Case studies

Within Japanese society, it is viewed that an arrest itself already creates the presumption of guilt which needs only to be verified via a confession. The interrogation reports prepared by police and prosecutors and submitted to the trial courts often constitute the central evidence considered when weighing the guilt or innocence of the suspect. In October 2007, the
BBC The British Broadcasting Corporation (BBC) is a British public service broadcaster headquartered at Broadcasting House in London, England. Originally established in 1922 as the British Broadcasting Company, it evolved into its current sta ...
published a feature giving examples and an overview of forced confessions in Japan. In the , 13 people were arrested and interrogated, but were found innocent in court after the presiding judge ruled that those who confessed did so "in despair while going through marathon questioning". In a different case, a man named Hiroshi Yanagihara was convicted in November 2002 of rape and attempted rape after a forced confession and apparent identification by the victim, despite an
alibi An alibi (, from the Latin, '' alibī'', meaning "somewhere else") is a statement by a person under suspicion in a crime that they were in a different place when the offence was committed. During a police investigation, all suspects are usually a ...
based on phone records. He was cleared only five years later in October 2007 when the true culprit was arrested for an unrelated crime. These two cases damaged the international credibility of the Japanese police. The issue of the extremely high conviction rates were brought into international scrutiny once again after the former CEO of
Nissan is a Japanese multinational Automotive industry, automobile manufacturer headquartered in Yokohama, Kanagawa, Japan. The company sells its vehicles under the ''Nissan'' and ''Infiniti'' brands, and formerly the ''Datsun'' brand, with in-house ...
,
Carlos Ghosn Carlos Ghosn (; ; ; , born 9 March 1954) is a businessman and former automotive executive. He was the Chief Executive Officer (CEO) of Michelin, Michelin North America, chairman and CEO of Renault, chairman of AvtoVAZ, chairman and CEO of Nissan ...
, was arrested in 2018 over allegations of false accounting. Ghosn subsequently fled Japan on 30 December 2019 while awaiting trial, and brought the very topic up in an interview as to why he had to flee the country – stating he will never have a right to fair trial. In a statement, Ghosn stated that he would "no longer be held hostage by a rigged Japanese justice system where guilt is presumed, discrimination is rampant and basic human rights are denied." At a subsequent press conference, Ghosn added that "I did not escape justice. I fled injustice and persecution, political persecution".


See also

*
Capital punishment in Japan Capital punishment is a legal penalty in Japan. The Penal Code of Japan and several laws list 14 capital crimes. In practice, though, it is applied only for Murder in Japanese law#Aggravated murder, aggravated murder. Executions are carried out ...
* Hostage justice *
Law of Japan The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role. Japan has a civil law legal system with six legal codes, which were greatly influenced b ...
* Public order and internal security in Japan * Law enforcement in Japan *
Judicial system of Japan In the judicial system of Japan, the Constitution of Japan guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws" (Article 76). They cannot be removed from ...
* Penal system of Japan * Rape in Japan * Daiyo kangoku (substitute prisons under police control) * International child abduction in Japan


Notes


References

* *


Further reading

* Masahiro Fujita. ''Japanese Society and Lay Participation in Criminal Justice: Social Attitudes, Trust, and Mass Media''. Singapore: Springer, 2018. * David T. Johnson. ''The Japanese Way of Justice: Prosecuting Crime in Japan''. Oxford: Oxford University Press, 2001. * Dimitri Vanoverbeke. ''Juries in the Japanese Legal System: The Continuing Struggle for Citizen Participation and Democracy''. London: Routledge, 2015. * Andrew Watson. ''Popular Participation in Japanese Criminal Justice: From Jurors to Lay Judges''. Palgrave Macmillan, 2016.


External links


Code of Criminal Procedure

Act on Penal Detention Facilities and Treatment of Inmates and Detainees
{{Webarchive, url=https://web.archive.org/web/20110717114206/http://www.japaneselawtranslation.go.jp/law/detail_main?re=02&vm=&id=142#en_pt1ch1at2 , date=2011-07-17 Government of Japan Japanese criminal law Law enforcement in Japan