In Japan as in many other Asian countries everything which is connected with government is held in high esteem. Among the four-characters idioms that all Japanese schoolchildren must learn by heart is kan son min pi (“respect officials, despise the people”)1. This idiom explains the relation between an individual and the state – one should do what a public official demand. The extent of obedience and people’s respect for the government is much greater that in Europe or USA. Among those officials public prosecutors are the ones having considerable authority. The vast privileges they have are also a great responsibility. The problem arises when their authority is abused and this is not uncommon in Japan’s criminal justice system. It is due to unlawful actions of prosecutors that Japan has one of the highest conviction rate in the world, which is not an indicator of a just criminal justice system.
The high conviction rate in Japan is one of the worldwide know features of it’s criminal justice system, which in 2009 (dependently on source) counted about 98-99,9%2. It is the highest rate in all democratic countries. This means that once suspect has been identified by prosecutors, he is almost inevitably charged. The data from 1994 show that 49598 out of 49643 suspects were punished. On the other hand, in USA on this time in federal courts 46773 out of 54980 (85%) were held guilty3. It is called „precise justice”4. Even though the conviction rate is so high, the imprisonment rates remain low – since 1992 it increased by 50%, which mean that in year 2007 Japan was imprisoning 1/25 of what USA do5. Nevertheless, prisons are over capacity, cells built for six convicts hold eight6. The number of prisons is too low for so many convicts.
The Japan’s conviction rate has not changed for many years. The reasons for it remaining so high are multifaceted.
First of all, on the stage of investigation, the suspect is often made to confess guilty. There is a belief in society that innocent people do not have any contacts with criminal law at all. If one is a suspect he or she must have acted wrongful in some way. This belief remain, despite §336 CCrP establishing presumption of innocence. Because the confession is regarded the „king of evidence”, the police and prosecutors put maximum effort to obtain it, rather than built a case on evidence. The confession is obtained from 95% of arrested people7, despite the fact that article 38 of Japan constitution grants the right to remain silence. Suspects, even innocent, claim themselves guilty to escape from long investigation. A suspect can be held for 48 hours without legal counsel or any contact with the outside world. Then, he or she is turned over to the public prosecutor for another 24 hours of grilling. Judge can grant a further ten days of detention, which can he renew for another ten days8. It may last up to 23 days before a suspect would even hear in court his exact charges. Despite the fact that Japan constitution states that confession obtained under compulsion, torture or threat, or after prolonged periods of detention, cannot be admitted as evidence. Nevertheless, threats and torture occur in detention centers, where suspects are placed. There is almost no prove for this, since Interrogators are not required to record their interviews. This is why even innocent people often confess guilt just to escape from 23 days of interrogation. „Victims are sacrificed at the conviction-rate altar”9. As an example may serve the case of a Taxi driver from Toyama prefecture who has been arrested for rape. He confessed and started to serve three years in prison. Meanwhile, another man, arrested confess for the same crime that the taxi driver did. He also goes to jail. If it was not for the press to act, the taxi driver would serve his full penalty, even though two persons were charged for the same crime10.
As for other evidence, it is often fabricated or obtained illegally. Even though article 35 of constitution bans warrantless searches, Supreme Court generally do not exclude fruits obtained unlawfully11. This evidence have in practice greater power than oral testimonies delivered during the trial, except from guilty plea. So the criminal trails are mostly paper affairs (chosho saiban), where the prosecutors are granted the wide discretion12. In recent case, prosecutor Tsunehiko Maeda, allegedly changed the date of a file on a computer disk of a woman accused of fraud. When he admitted this to his superiors, they ordered him to write a report explaining how it happened „unintentionally”. Mr Maeda was later charged, but the court acquitted him13.
Moreover, prosecutors charge only the easy to win cases. If there is no confession or hard evidence, probably, no charges would be made. So, one of the main reasons for conviction rate remaining so high is that courts are letting free people for who they don’t have enough proofs of guilt, or when the trial would be costly and long14. Procurators also practice kessai – collective deliberation, which eliminates acquittal-risky cases15. The cases are either „white”-easy to win, obvious, either „black” – no hard evidence, nor confession, so the person must be innocent. There are no „grey cases”. For professor Harrington, a specialist in Japan law, it is disgraceful for prosecutors to charge only clear winners16. Partly, it is because any failure may affect the prosecutor’s career. According to the words of a former Tokyo district court judge, a single courtroom loss can damage prosecutor’s career and a second one may end it17.
Another reason for high conviction rate is, in the view of law scholar Lawrence Beer, a psychological pressure to convict. By issuing an acquittal judge may displease prosecutors, who are often his friends. Moreover, he should explain the fact of acquittal to his superiors. This pressure existing at subconscious level may lead him to an „easier” decision claiming suspect guilty18.
Partly the problem may be affected by small number of lawyers in Japan – it is about one tenth the number per head of Britain19. The main reason for such a small number of lawyers is the fact that it very difficult to become one in Japan. For years the bar exam was passed by 3% of candidates. It has increased recently to 25%. It is common view in many countries in Asia that a high number of lawyers may lead the society to be more litigious. In countries where harmony is one of the biggest values this may indeed be considered a serious threat. Since the number of lawyers is so small they less encourage to compete and improve their qualification. It even deepen the previously mentioned problems.
The criminal justice system in Japan has significant drawbacks. The society is concerned about how the justice system works and press often writes about wrongfully decided cases. In a survey taken in 2001 90% of respondents sad that order (chian) gets worse20.
The cause may lay in the system itself. Japan has been changing from an inquisitorial to an accusatorial process. Adversarialism did not occur in developed form21. Tha Japan’s Code of Criminal Procedure advantages the prosecution, so the defense lawyers have little impact on the trial. The system is therefore unbalanced.
For this reason, and the aforementioned factors, the conviction rate remains high. In practice, there are more plea bargains in Japan than in U.S., even though Japanese law do not recognize it22. Moreover, the conviction rate is influenced by the actions of prosecutors, the unfavorable ones (making charges only in easy cases) and the illegal ones (forcing guilt confession, fabricating evidence). The main cause however lies in the system itself – the lack of adversarialism in courts, which is deeply rooted in Japanese culture.
1. Comparison of the conviction rates of a few countries of the world (http://nitawriter.wordpress.com/2007/09/27/comparison-conviction-rates-world/ access: 6.01.11)
2. D. Harrington, Law in Japan: a turning point, Washington 2007, p. 343-371
3. J.M. Ramseyer, M. Nakazato, Japanese law: an economic approach, Chicago 1999, p. 151-172
4. J.M. Ramseyer, E. Rasmusen, Why is Japanese conviction rate so high?, 1999, (http://ideas.repec.org/p/wpa/wuwple/9907001.html access: 7.01.11)
5. Japanese justice. Confess and be done with it, 2007, (http://www.economist.com/node/8680941 access: 6.01.11)
6. Japan’s judiciary on trial, Procesutors or persecutors?, 2010, (http://www.economist.com/node/17259159?story_id=17259159&CFID=158639541&CFTOKEN=94975695 access: 6.01.11)
1The Economist 14th Oct 2010, Japan’s judiciary on trial, Procesutors or persecutors?
299,9%, The Economist 14th Oct 2010, Japan’s judiciary on trial, Procesutors or persecutors?
3J.M. Ramseyer, M. Nakazato, Japanese law: an economic approach, p. 178.
4D. Harrington, Law in Japan: a turning point, p. 343.
5Ibidem, p. 343.
6Ibidem, p. 353.
7The Economist, 8th February 2007, Japanese justice. Confess and be done with it
9D. Harrington, Law in Japan: a turning point, p. 343.
10The Economist, 8th February 2007, Japanese justice. Confess and be done with it
11J.M. Ramseyer, M. Nakazato, Japanese law: an economic approach, p. 171.
12D. Harrington, Law in Japan: a turning point, p. 344.
13The Economist 14th Oct 2010, Japan’s judiciary on trial, Procesutors or persecutors?
14J.M. Ramseyer, M. Nakazato, Japanese law: an economic approach, p. 182.
15D. Harrington, Law in Japan: a turning point, p. 347.
16Ibidem, p. 349.
17The Economist 14th Oct 2010, Japan’s judiciary on trial, Procesutors or persecutors?
18J.M. Ramseyer, M. Nakazato, Japanese law: an economic approach, p. 179.
19The Economist 14th Oct 2010, Japan’s judiciary on trial, Procesutors or persecutors?
20D. Harrington, Law in Japan: a turning point, p. 352.
21Ibidem, p. 344.
22J.M. Ramseyer, M. Nakazato, Japanese law: an economic approach, p. 179.