Criminal justice system of Japan
Encyclopedia
Three basic features of Japan
's system of criminal justice
characterize its operations. First, the institutions—police, government prosecutor's offices, courts
, 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
. Second, citizens are encouraged to assist in maintaining public order, and they participate extensively in crime prevention
campaigns, apprehension of suspects, and offender rehabilitation
programs. Finally, officials who administer criminal justice are allowed considerable discretion in dealing with offenders.
in 1868, the Japanese criminal justice system was controlled mainly by daimyo
. Public officials, not laws, guided and constrained people to conform to moral norms. In accordance with the Confucian
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. (see Criminal punishment in Edo-period Japan
for details)
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
. 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
. Guilt was held to be personal; collective guilt and guilt by association
were abolished. Offenses against the emperor
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 counsel. Because in all trials available evidence had already convinced the court in a preliminary procedure, the defendant's legal presumption of innocence
at trial was undermined, and the legal recourse
open to his counsel was further weakened.
The Penal Code
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 important, 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
.
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
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 evidence presented by both sides. The preliminary investigative procedure was suppressed. The prosecutor and defense counsel sat on equal levels, below the judge. 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.
Criminal procedure=
The nation's criminal justice officials follows specified legal procedures in dealing with offenders. Once a suspect is arrested by national or prefectural police (See Prefectures of Japan
), the case is turned over to attorneys in the Supreme Public Prosecutors Office, who are the government's sole agents in prosecuting lawbreakers. Although under the Ministry of Justice
's administration, these officials work under Supreme Court
rules and are career civil servants
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
).
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 a 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.
. 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.
to search for or seize evidence. A warrant is also necessary for an arrest, although if the crime is very serious or the perpetrator 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 almost all 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 daiyo kangoku
.
, forced confession
, and unrestricted admission of hearsay evidence. In addition, defendants have the right to counsel, public trial
, and cross-examination. Trial by jury
was authorized by the 1923 Jury Law but was suspended in 1943. 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
. 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
consists of death by hanging and can be imposed on those convicted of leading an insurrection, inducing or aiding foreign armed aggression, arson, or homicide. On 17 September 2009, death-penalty opponent Keiko Chiba was appointed Minister of Justice. She wants a public discussion, a moratorium and the abolition of capital punishment.
After a sentence if finalized, the only recourse for a convict to gain an acquittal is through a retrial. A retrial can be granted if the convicted person or their legal representative show reasonable doubt
about the finalized verdict, such as clear evidence that past testimony or expert opinions in the trial were false.
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
. Some in the common law countries argue that this is to do with 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 jury system in common law countries.
J. Mark Ramseyer of Harvard Law School
and Eric B. Rasmusen of Indiana University
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 non jury system under inquisition system has predictable ruling on guilt, prosecutors rarely ever bring a case which have even minute chance of failure.
All Japanese court rulings are accessible in digital format; the two academics examined every case after WWII 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 non-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 matter of fact.
In the matter relating to Japanese prosecutors being extremely cautious, the paper found ample evidence for it. In Japan, 99.7% of all the cases brought to court resulted in conviction, while in the U.S. the figure is 88%. According to a cited research, in the U.S. the accused contest guilt in 22% of federal cases and 11% of state cases, while in Japan, the ratio is modestly less. The paper attributes this difference to greater predictability of the outcome in Japanese cases. This is due to two reasons. One is that it is the judge rather than the jury who determines the verdict. As judges "have seen it all before" and the lawyers on both sides "have seen them seeing it", as they can read the judge's previous ruling (which includes written reasoning for the previous verdict), the way that the judge thinks and argues is very predictable.
Secondly, 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 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. In the U.S., the federal government employs 27,985 lawyers and the states employ another 38,242 (of which 24,700 are state prosecutors). In Japan, with about a third of U.S. population, the entire government employs a mere 2,000. Despite Japan having a low crime rate, such numbers create a significant case overload for prosecutors. In the U.S., there are 480 arrests (96 serious cases) per year per state prosecutor. (The actual figure is lower as some are prosecuted in federal court). In Japan, the figure is 700 per year per prosecutor. In the U.S., a rough estimate is that 42% of arrests in felony cases result in prosecution - while in Japan, the figure is only 17.5%.
In murder, U.S. police arrested 19000 people for 26000 murders, in which 75% were prosecuted and courts convicted 12000 people. In Japan, 1800 people were arrested for 1300 murders, but prosecutors tried only 43%. Had the allegation that Japanese prosecutors use weak evidence mostly based on (forced) confessions to achieve convictions been true, the larger proportion of arrests would have resulted in prosecutions and eventual conviction. But the opposite is true. In fact, the data indicates that Japanese prosecutors bring charges only when the evidence is overwhelming and likelihood of conviction is near absolute, which gives a greater incentive for the accused to confess and aim for a lighter sentence, which, in turn, results in a high rate for confession.
The Japanese criminal justice system, despite retaining the death penalty, is relatively lenient in sentencing by the standard of other developed countries. Outside capital cases, many of those sentenced to life sentences are paroled within 15 years. Those convicted of less heinous murder and manslaughter are likely to serve less than 10 years. Those convicted of rape will often serve less than two to five years. It is even possible for someone convicted of murder to serve a suspended sentence if the defense successfully argues for mitigating circumstances. Moreover, in Japanese criminal proceedings the conviction and sentencing phase are separate. In the Japanese criminal justice system, these are distinct phases, echoing that of common law jurisdictions where sentencing is usually remitted to a later hearing after a finding of guilt. The court proceedings first determine guilt, then a second proceeding takes place to determine the sentence. Prosecutors and defense teams argue each phase. Defense lawyers, given the predictability of the outcome in term of guilt once the charge is brought, together with leniency of punishment (except in death penalty cases), often advise the accused to confess their guilt in trial. Remorse is seen as a mitigating factor which tends to bring reduced sentences.
Confession in Japanese criminal investigation=
Many Western human rights organizations alleged that the high conviction rate is due to rampant use of conviction solely based on confession
. Confessions are often obtained after long periods of questioning by police. This can, at times, take weeks or months during which time the suspect is in detention and can be prevented from contacting a lawyer or family.
Article 38 of Japan's Constitution categorically requires that "no person shall be convicted or punished in cases where the only proof against suspect is his/her own confession," In practice, this constitutional requirement take a form of safeguard known as "revelation of secret". Because suspects are put through continuous interrogation which could last over a month as well as isolation from the outside world, including access to lawyer, the Japanese judiciary as well as the public 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 any sufficient ground for conviction.
Instead, for confession to be a valid evidence for conviction, the Japanese court requires confession to include revelation of verifiable factual matter which only the perpetrator of the crime could have known 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 implanting such knowledge into confession, the prosecutor must prove that such revelation of secret was unknown to the police until the point of confession. For example, in the Sachiura murder case, the conviction was initially secured by the confession of the location of the body which was yet to be discovered. However, it later transpired that the police likely knew (or suspected) the location of the body and this created enough doubt that the confession of the location of the body was forged by the police, resulting in the reversal of verdict at the higher court.
While it is impossible for an innocent suspect to reveal relevant information about a crime even under severe torture, a guilty suspect is likely to crack under prolonged interrogation in isolation and make a damning confession. The Japanese justice system (and Japanese public to some extent) consider that prolonged interrogation of suspect in isolation without access to lawyers is justified to solve the criminal cases without risking the miscarriage of justice. In addition, the fact that the revelation of relevant information by the accused was unknown to the police and that the prosecutor examines the police investigation before the case is brought to the court, is seen as an extra layer of safeguard for the validity of confession as evidence.
However, most miscarriage of justice cases in Japan are, indeed, the results 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 secret has only weak relevance to the crime itself or that (3) the revelation of secret to be actually vague enough that it is apply only loosely to the elements of crime. Many miscariage of justice cases in Japan involve police deliberately faking this revelation of secret (and insufficient supervision by the prosecutor to spot such rogue behaviour) 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 1970s, a series of reversals of death penalty cases brought attention to the fact that some accused, after intensive interrogation, signed as-of-yet unwritten confessions, which were later filled in by investigating police officers. Moreover, in some case, the police falsify the record so that it appear that the accused confessed to the location where the body was buried yet the truth was that the police written in the location in 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 occurring. The International Bar Association, which encompasses the Japanese Federation of Bar Associations, cited problems in its "Interrogation of Criminal Suspects in Japan". Japan's current Minister of Justice
, Hideo Hiraoka
, has also supported videotaping interrogations. Police and prosecutors have traditionally been opposed 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 recording, 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 lowering standard in the "revelation of secret" that confession must contain the element of crime which police and prosecutor did not know. Once the recording is introduced, it would become impossible for the police to forge confession. Then, it may become possible to bring conviction based on confession of elements of crime which only perpetrator "and" police knew.
In October 2007, the BBC published a feature giving examples and an overview of "'Forced confessions' in Japan". The case was called "Shibushi Case". In addition, Hiroshi Yanagihara, who was convicted in November 2002 for attempted rape and rape due to forced confession and the identification by the victim despite alibi based on phone record, was cleared in October 2007 when the true culprit was arrested on unrelated crime. The two cases damage the credibility of Japanese Police.
To Japanese citizens and police, however, the 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.
See also=
External links =
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
's system of criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
characterize its operations. First, the institutions—police, government prosecutor's offices, courts
Judicial system of Japan
In the judicial system of Japan, the postwar constitution guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws"...
, and correctional organs
Penal system of Japan
The Penal system of Japan is part of the criminal justice system of Japan. It is intended to resocialize, reform, and rehabilitate offenders...
—maintain close and cooperative relations with each other, consulting frequently on how best to accomplish the shared goals of limiting and controlling crime
Crime in Japan
Crime in Japan is lower than in many other first world countries. While crime is still infrequent, the past decade has seen increasing crime. There are controversies regarding crimes committed by non-ethnic Japanese people and misconduct by police in reporting crime statistics.-Yakuza:The yakuza...
. Second, citizens are encouraged to assist in maintaining public order, and they participate extensively in crime prevention
Crime prevention
Crime prevention is the attempt to reduce victimization and to deter crime and criminals. It is applied specifically to efforts made by governments to reduce crime, enforce the law, and maintain criminal justice.-Studies:...
campaigns, apprehension of suspects, and offender rehabilitation
Rehabilitation (penology)
Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity....
programs. Finally, officials who administer criminal justice are allowed considerable discretion in dealing with offenders.
History
Until the Meiji RestorationMeiji Restoration
The , also known as the Meiji Ishin, Revolution, Reform or Renewal, was a chain of events that restored imperial rule to Japan in 1868...
in 1868, the Japanese criminal justice system was controlled mainly by daimyo
Daimyo
is a generic term referring to the powerful territorial lords in pre-modern Japan who ruled most of the country from their vast, hereditary land holdings...
. Public officials, not laws, guided and constrained people to conform to moral norms. In accordance with the Confucian
Confucianism
Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius . Confucianism originated as an "ethical-sociopolitical teaching" during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han...
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
Criminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
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. (see Criminal punishment in Edo-period Japan
Criminal punishment in Edo-period Japan
During the Edo period, Japan used various punishments against criminals. These can be categorized as follows:* Death penalty* Incarceration and Exile* Penal labor* Confiscation of property* Corporal punishment- Death penalty :...
for details)
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
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
. 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
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
. Guilt was held to be personal; collective guilt and guilt by association
Guilt by Association
Guilt by Association can refer to:* Association fallacy - sometimes called "guilt by association".* Guilt by Association Vol. 1 - album by Engine Room Recordings.* Guilt by Association Vol. 2 - album by Engine Room Recordings....
were abolished. Offenses against the emperor
Emperor of Japan
The Emperor of Japan is, according to the 1947 Constitution of Japan, "the symbol of the state and of the unity of the people." He is a ceremonial figurehead under a form of constitutional monarchy and is head of the Japanese Imperial Family with functions as head of state. He is also the highest...
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 counsel. Because in all trials available evidence had already convinced the court in a preliminary procedure, the defendant's legal presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
at trial was undermined, and the legal recourse
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* Many contracts require mediation or arbitration before a dispute can go to court...
open to his counsel was further weakened.
The Penal Code
Criminal Code of Japan
The Penal Code of Japan was passed in 1907 as Law No. 45. It is one of the Six Codes that form the foundation of Japanese law.- External links :* - Japanese Ministry of Justice...
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 important, 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
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
.
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
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
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 evidence presented by both sides. The preliminary investigative procedure was suppressed. The prosecutor and defense counsel sat on equal levels, below the judge. 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.
Criminal procedure=
The nation's criminal justice officials follows specified legal procedures in dealing with offenders. Once a suspect is arrested by national or prefectural police (See Prefectures of Japan
Prefectures of Japan
The prefectures of Japan are the country's 47 subnational jurisdictions: one "metropolis" , Tokyo; one "circuit" , Hokkaidō; two urban prefectures , Osaka and Kyoto; and 43 other prefectures . In Japanese, they are commonly referred to as...
), the case is turned over to attorneys in the Supreme Public Prosecutors Office, who are the government's sole agents in prosecuting lawbreakers. Although under the Ministry of Justice
Ministry of Justice (Japan)
The is one of Ministries of the Japanese government.-Meiji Constitution:The Ministry of Justice was established under the Constitution of the Empire of Japan in 1871 as the .-Constitution of Japan:...
's administration, these officials work under Supreme Court
Supreme Court of Japan
The Supreme Court of Japan , located in Chiyoda, Tokyo is the highest court in Japan. It has ultimate judicial authority to interpret the Japanese constitution and decide questions of national law...
rules and are career civil servants
Civil service of Japan
The Japanese civil service has over one million employees, with 400,000 workers in postal service, or Japan Post , being the biggest part, whilst the Japanese Self-Defence Force being the second biggest, with 247,000 personnel...
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
Judicial system of Japan
In the judicial system of Japan, the postwar constitution guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws"...
).
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 a 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 delinquencyJuvenile delinquency
Juvenile delinquency is participation in illegal behavior by minors who fall under a statutory age limit. Most legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention centers. There are a multitude of different theories on the causes of crime, most if not...
. 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.
Arrest
Police have to secure warrantsWarrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
to search for or seize evidence. A warrant is also necessary for an arrest, although if the crime is very serious or the perpetrator 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 almost all 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 daiyo kangoku
Daiyo kangoku
Daiyo kangoku is a Japanese legal term meaning "substitute prison." Daiyō kangoku are detention cells found in police stations which are used as legal substitutes for detention centers, or prisons...
.
Prosecution
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-incriminationSelf-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
, forced confession
Forced confession
A forced confession is a confession obtained by a suspect or a prisoner under means of torture, enhanced interrogation technique or duress.Depending on the level of coercion used, a forced confession may or may not be valid in revealing the truth...
, and unrestricted admission of hearsay evidence. In addition, defendants have the right to counsel, public trial
Public trial
Public trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...
, and cross-examination. Trial by jury
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
was authorized by the 1923 Jury Law but was suspended in 1943. 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
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...
. 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 in Japan
Capital punishment is legal in Japan. The only crimes for which capital punishment is statutory are homicide and treason. Between 1946 and 1993, Japanese courts sentenced 766 people to death , 608 of whom were executed...
consists of death by hanging and can be imposed on those convicted of leading an insurrection, inducing or aiding foreign armed aggression, arson, or homicide. On 17 September 2009, death-penalty opponent Keiko Chiba was appointed Minister of Justice. She wants a public discussion, a moratorium and the abolition of capital punishment.
After a sentence if finalized, the only recourse for a convict to gain an acquittal is through a retrial. A retrial can be granted if the convicted person or their legal representative show reasonable doubt
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
about the finalized verdict, such as clear evidence that past testimony or expert opinions in the trial were false.
Trial by lay judge
The first trial by citizen judge, “saiban-in”, 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 criminal process. Therefore, a judge oversees the proceedings and also determines the guilt and the sentence of the accused. The citizen jurors 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 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 jury 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 jurors must be voters, at least 20 years old, and possess a secondary level education. Professional lawyers and politicians may not serve as lay jurors in the new system. At least one judge must concur with the majority vote from the lay jurors in regards to a guilty verdict, however a majority not guilty verdict by the lay jurors will stand. During the inaugural case, the citizens relied on the professional judges to help ascertain a sentence for the verdict decided upon, however felt confident in their interpretation of the trial arguments presented by prosecution and defence.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
Conviction rate
The conviction rate of a prosecutor or government is the number of criminal cases brought divided by the number of convictions. Japan has a conviction rate that exceeds 99%, which has been attributed to low prosecutorial budgets impelling understaffed prosecutors to present judges with only the...
. Some in the common law countries argue that this is to do with 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 jury system in common law countries.
J. Mark Ramseyer of Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
and Eric B. Rasmusen of Indiana University
Indiana University Bloomington
Indiana University Bloomington is a public research university located in Bloomington, Indiana, in the United States. IU Bloomington is the flagship campus of the Indiana University system. Being the flagship campus, IU Bloomington is often referred to simply as IU or Indiana...
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 non jury system under inquisition system has predictable ruling on guilt, prosecutors rarely ever bring a case which have even minute chance of failure.
All Japanese court rulings are accessible in digital format; the two academics examined every case after WWII 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 non-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 matter of fact.
In the matter relating to Japanese prosecutors being extremely cautious, the paper found ample evidence for it. In Japan, 99.7% of all the cases brought to court resulted in conviction, while in the U.S. the figure is 88%. According to a cited research, in the U.S. the accused contest guilt in 22% of federal cases and 11% of state cases, while in Japan, the ratio is modestly less. The paper attributes this difference to greater predictability of the outcome in Japanese cases. This is due to two reasons. One is that it is the judge rather than the jury who determines the verdict. As judges "have seen it all before" and the lawyers on both sides "have seen them seeing it", as they can read the judge's previous ruling (which includes written reasoning for the previous verdict), the way that the judge thinks and argues is very predictable.
Secondly, 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 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. In the U.S., the federal government employs 27,985 lawyers and the states employ another 38,242 (of which 24,700 are state prosecutors). In Japan, with about a third of U.S. population, the entire government employs a mere 2,000. Despite Japan having a low crime rate, such numbers create a significant case overload for prosecutors. In the U.S., there are 480 arrests (96 serious cases) per year per state prosecutor. (The actual figure is lower as some are prosecuted in federal court). In Japan, the figure is 700 per year per prosecutor. In the U.S., a rough estimate is that 42% of arrests in felony cases result in prosecution - while in Japan, the figure is only 17.5%.
In murder, U.S. police arrested 19000 people for 26000 murders, in which 75% were prosecuted and courts convicted 12000 people. In Japan, 1800 people were arrested for 1300 murders, but prosecutors tried only 43%. Had the allegation that Japanese prosecutors use weak evidence mostly based on (forced) confessions to achieve convictions been true, the larger proportion of arrests would have resulted in prosecutions and eventual conviction. But the opposite is true. In fact, the data indicates that Japanese prosecutors bring charges only when the evidence is overwhelming and likelihood of conviction is near absolute, which gives a greater incentive for the accused to confess and aim for a lighter sentence, which, in turn, results in a high rate for confession.
The Japanese criminal justice system, despite retaining the death penalty, is relatively lenient in sentencing by the standard of other developed countries. Outside capital cases, many of those sentenced to life sentences are paroled within 15 years. Those convicted of less heinous murder and manslaughter are likely to serve less than 10 years. Those convicted of rape will often serve less than two to five years. It is even possible for someone convicted of murder to serve a suspended sentence if the defense successfully argues for mitigating circumstances. Moreover, in Japanese criminal proceedings the conviction and sentencing phase are separate. In the Japanese criminal justice system, these are distinct phases, echoing that of common law jurisdictions where sentencing is usually remitted to a later hearing after a finding of guilt. The court proceedings first determine guilt, then a second proceeding takes place to determine the sentence. Prosecutors and defense teams argue each phase. Defense lawyers, given the predictability of the outcome in term of guilt once the charge is brought, together with leniency of punishment (except in death penalty cases), often advise the accused to confess their guilt in trial. Remorse is seen as a mitigating factor which tends to bring reduced sentences.
Confession in Japanese criminal investigation=
Many Western human rights organizations alleged that the high conviction rate is due to rampant use of conviction solely based on confession
Confession
This article is for the religious practice of confessing one's sins.Confession is the acknowledgment of sin or wrongs...
. Confessions are often obtained after long periods of questioning by police. This can, at times, take weeks or months during which time the suspect is in detention and can be prevented from contacting a lawyer or family.
Article 38 of Japan's Constitution categorically requires that "no person shall be convicted or punished in cases where the only proof against suspect is his/her own confession," In practice, this constitutional requirement take a form of safeguard known as "revelation of secret". Because suspects are put through continuous interrogation which could last over a month as well as isolation from the outside world, including access to lawyer, the Japanese judiciary as well as the public 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 any sufficient ground for conviction.
Instead, for confession to be a valid evidence for conviction, the Japanese court requires confession to include revelation of verifiable factual matter which only the perpetrator of the crime could have known 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 implanting such knowledge into confession, the prosecutor must prove that such revelation of secret was unknown to the police until the point of confession. For example, in the Sachiura murder case, the conviction was initially secured by the confession of the location of the body which was yet to be discovered. However, it later transpired that the police likely knew (or suspected) the location of the body and this created enough doubt that the confession of the location of the body was forged by the police, resulting in the reversal of verdict at the higher court.
While it is impossible for an innocent suspect to reveal relevant information about a crime even under severe torture, a guilty suspect is likely to crack under prolonged interrogation in isolation and make a damning confession. The Japanese justice system (and Japanese public to some extent) consider that prolonged interrogation of suspect in isolation without access to lawyers is justified to solve the criminal cases without risking the miscarriage of justice. In addition, the fact that the revelation of relevant information by the accused was unknown to the police and that the prosecutor examines the police investigation before the case is brought to the court, is seen as an extra layer of safeguard for the validity of confession as evidence.
However, most miscarriage of justice cases in Japan are, indeed, the results 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 secret has only weak relevance to the crime itself or that (3) the revelation of secret to be actually vague enough that it is apply only loosely to the elements of crime. Many miscariage of justice cases in Japan involve police deliberately faking this revelation of secret (and insufficient supervision by the prosecutor to spot such rogue behaviour) 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 1970s, a series of reversals of death penalty cases brought attention to the fact that some accused, after intensive interrogation, signed as-of-yet unwritten confessions, which were later filled in by investigating police officers. Moreover, in some case, the police falsify the record so that it appear that the accused confessed to the location where the body was buried yet the truth was that the police written in the location in 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 occurring. The International Bar Association, which encompasses the Japanese Federation of Bar Associations, cited problems in its "Interrogation of Criminal Suspects in Japan". Japan's current Minister of Justice
Ministry of Justice (Japan)
The is one of Ministries of the Japanese government.-Meiji Constitution:The Ministry of Justice was established under the Constitution of the Empire of Japan in 1871 as the .-Constitution of Japan:...
, Hideo Hiraoka
Hideo Hiraoka
is a Japanese politician of the Democratic Party of Japan, a member of the House of Representatives in the Diet . A native of Iwakuni, Yamaguchi, Hiraoka passed the bar exam and civil service exam prior to his graduation at the University of Tokyo...
, has also supported videotaping interrogations. Police and prosecutors have traditionally been opposed 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 recording, 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 lowering standard in the "revelation of secret" that confession must contain the element of crime which police and prosecutor did not know. Once the recording is introduced, it would become impossible for the police to forge confession. Then, it may become possible to bring conviction based on confession of elements of crime which only perpetrator "and" police knew.
In October 2007, the BBC published a feature giving examples and an overview of "'Forced confessions' in Japan". The case was called "Shibushi Case". In addition, Hiroshi Yanagihara, who was convicted in November 2002 for attempted rape and rape due to forced confession and the identification by the victim despite alibi based on phone record, was cleared in October 2007 when the true culprit was arrested on unrelated crime. The two cases damage the credibility of Japanese Police.
To Japanese citizens and police, however, the 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.
See also=
- Japanese lawJapanese law-Historical Developments:Pre-Modern History The early law of Japan was heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were transplanted and adopted by the Japanese, the...
- Public order and internal security in JapanPublic order and internal security in JapanConditions of public order in Japan compare favorably with those in other industrialized countries. The overall crime rate is low by North American and West European standards and has shown a general decline since the mid-1960s. The incidence of violent crime is especially low, due mainly to...
- Judicial system of JapanJudicial system of JapanIn the judicial system of Japan, the postwar constitution guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws"...
- Daiyo kangokuDaiyo kangokuDaiyo kangoku is a Japanese legal term meaning "substitute prison." Daiyō kangoku are detention cells found in police stations which are used as legal substitutes for detention centers, or prisons...
(substitute prisons under police control)
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