Japan’s Criminal Justice System – From a Comparative Law Perspective
Ancillary Meeting at the Fourteenth United Nations Congress on
Crime Prevention and Criminal Justice (Kyoto Congress)
～EVENT SUMMARY～
I. Date and Format
Sunday, 7 March 2021
Streaming of pre-recorded video
Streaming of pre-recorded video
II. Speakers (Listed in alphabetical order)
Bruce ARONSON
Adjunct Professor of Law, New York University School of Law
Daniel H. FOOTE
Emeritus Professor at the University of Tokyo, Graduate Schools for Law and Politics
KAWAIDE Toshihiro
Professor at the University of Tokyo, Graduate Schools for Law and Politics
SASAKURA Hiroki
Professor at Keio University, Graduate School of Law
Adjunct Professor of Law, New York University School of Law
Daniel H. FOOTE
Emeritus Professor at the University of Tokyo, Graduate Schools for Law and Politics
KAWAIDE Toshihiro
Professor at the University of Tokyo, Graduate Schools for Law and Politics
SASAKURA Hiroki
Professor at Keio University, Graduate School of Law
III. Summary
1. The event commenced with the speakers’ presentations mainly focusing on the following topics:
・ Principles in comparing different legal systems
・ Characteristics of Japan’s criminal justice system and comparison with the U.S.
・ Overview of Japan’s criminal justice reform
・ Overview of the detention and bail system in Japan and comparison with European countries and the U.S.
In the presentations, a speaker pointed out that it was not always desirable to evaluate the criminal justice practice of one country by using the legal system or theory of another country as a scale. In addition, it was noted that the conviction rate in Japan, which is over 99 % and often taken up as a “problem”, is not so different from that of the U.S. (Federal), if it is calculated in the same way as Japan, i.e., conviction per all indicted cases including cases where the defendant pleads guilty.
As for characteristics of Japan’s criminal justice system, speakers addressed the following topics: the importance of the rehabilitation and reintegration of the offender as well as obtaining an apology and compensation for the victim; nearly 40% of the charges are suspended through the exercise of prosecutorial discretion; and sentences in Japan tend to be relatively light.
・ Characteristics of Japan’s criminal justice system and comparison with the U.S.
・ Overview of Japan’s criminal justice reform
・ Overview of the detention and bail system in Japan and comparison with European countries and the U.S.
In the presentations, a speaker pointed out that it was not always desirable to evaluate the criminal justice practice of one country by using the legal system or theory of another country as a scale. In addition, it was noted that the conviction rate in Japan, which is over 99 % and often taken up as a “problem”, is not so different from that of the U.S. (Federal), if it is calculated in the same way as Japan, i.e., conviction per all indicted cases including cases where the defendant pleads guilty.
As for characteristics of Japan’s criminal justice system, speakers addressed the following topics: the importance of the rehabilitation and reintegration of the offender as well as obtaining an apology and compensation for the victim; nearly 40% of the charges are suspended through the exercise of prosecutorial discretion; and sentences in Japan tend to be relatively light.
2. The meeting continued with the following discussions:
i. Regarding the allegation that Japan’s detention and bail systems are “Hostage Justice” being utilized as tools to gain confessions, it was noted that criminal justice systems in many countries tend to aim for the confession of the suspect and hence the situation in Japan is not unusual. It was also noted that with its provocative tone, the expression “Hostage Justice” is not appropriate to describe concerns raised by such views and could hinder dispassionate and careful analysis. The speakers shared different views on how the denial of allegations by suspects and defendants is considered when determining whether there are grounds for detention or bail.
ii. As for the fact that attorneys are not guaranteed the right to be present during interrogation in Japan, the speakers agreed that the audio-video recording system of interrogation could replace the presence of the attorney, if the attorney’s role was to prevent illegal or inappropriate interrogation. On the other hand, it was noted that, if the role of the attorney included being actively involved in advising the suspect as to which facts might be incriminating and should not be told to the interrogator as well as ways to express such facts aiming to eventually negotiate with the prosecutor in order to avoid detention or conviction, or to obtain as lenient a sentence as possible, the presence of the attorney could not be fully replaced by the audio-video recording system. It was also noted that, in the U.S., where interrogations are often followed by guilty pleas, to allow the attorney being present during interrogation is necessary to build a defense strategy, including whether to exercise the suspect’s right to silence, and to be actively involved in the process as mentioned above. However, it was noted that it should be carefully examined whether the same should apply in Japan, where there is no self-incriminating plea bargaining system.
iii. It was also mentioned that, in Japan, interrogation fulfills its unique function of revealing the truth by ensuring that law enforcement officers listen attentively to the suspect (no matter innocent or guilty), and (if the suspect is guilty) it lets the suspect review and reflect on his or her conduct and thereby contributes to his/her rehabilitation. At the same time, it was also mentioned that this approach only works when the suspect intends to state the truth to the authorities, and it cannot be expected to apply to those who do not have such intention.
The titles of the speakers are as of the date of the event. The views expressed by the speakers reflect their personal opinions and do not necessarily represent the views of the Ministry of Justice of Japan.
ii. As for the fact that attorneys are not guaranteed the right to be present during interrogation in Japan, the speakers agreed that the audio-video recording system of interrogation could replace the presence of the attorney, if the attorney’s role was to prevent illegal or inappropriate interrogation. On the other hand, it was noted that, if the role of the attorney included being actively involved in advising the suspect as to which facts might be incriminating and should not be told to the interrogator as well as ways to express such facts aiming to eventually negotiate with the prosecutor in order to avoid detention or conviction, or to obtain as lenient a sentence as possible, the presence of the attorney could not be fully replaced by the audio-video recording system. It was also noted that, in the U.S., where interrogations are often followed by guilty pleas, to allow the attorney being present during interrogation is necessary to build a defense strategy, including whether to exercise the suspect’s right to silence, and to be actively involved in the process as mentioned above. However, it was noted that it should be carefully examined whether the same should apply in Japan, where there is no self-incriminating plea bargaining system.
iii. It was also mentioned that, in Japan, interrogation fulfills its unique function of revealing the truth by ensuring that law enforcement officers listen attentively to the suspect (no matter innocent or guilty), and (if the suspect is guilty) it lets the suspect review and reflect on his or her conduct and thereby contributes to his/her rehabilitation. At the same time, it was also mentioned that this approach only works when the suspect intends to state the truth to the authorities, and it cannot be expected to apply to those who do not have such intention.
The titles of the speakers are as of the date of the event. The views expressed by the speakers reflect their personal opinions and do not necessarily represent the views of the Ministry of Justice of Japan.