How are Witnesses Protected in Japanese Criminal Trials? Measures for Safety, Anonymity, and Reducing Testimonial Burden

The testimony of witnesses is a cornerstone of any criminal justice system, providing crucial information for uncovering the truth and ensuring fair judgments. In Japan, particularly with the introduction of the lay judge system (saiban-in seido, 裁判員制度), which involves citizen participation in serious criminal trials, the emphasis on direct oral testimony has grown. Consequently, ensuring the safety and well-being of those who come forward to testify has become an increasingly critical concern. Japanese law has developed a multi-layered approach to witness protection, addressing two primary needs: first, shielding witnesses from potential harm, intimidation, or harassment, and second, alleviating the psychological burden that testifying can impose, especially on vulnerable individuals and victims of crime.

I. Ensuring Witness Safety: Preventing Harm and Securing Anonymity

A primary concern is protecting witnesses who may face retaliation or undue pressure for their cooperation with the justice system.

A. General Legal Protections and Bail Conditions

Existing Japanese law provides some general safeguards. Article 105-2 of the Penal Code criminalizes acts of intimidating a witness. Procedurally, the Code of Criminal Procedure (CCP) allows courts to deny bail if there is a reasonable suspicion that the defendant may harm or intimidate a witness or their relatives (CCP, Art. 89(5)), or to revoke bail if such acts occur (CCP, Art. 96(1)(4)).

B. Protecting Witness-Identifying Information: The Anonymity Toolkit

Recognizing that the disclosure of a witness's identity (name, address, workplace) can itself create risks, Japan has progressively strengthened measures to protect such information.

1. Safeguards in Pre-Trial Disclosure

Japanese law generally requires the prosecution and defense to give each other an opportunity to know the names and addresses of witnesses they intend to call (CCP, Art. 299(1)). However, this can be problematic in high-risk cases.

• Early Measures (1999 CCP Amendments): Amendments in Heisei 11 (1999) introduced CCP Article 299-2. This allows the party disclosing witness information (typically the prosecutor) to request the opposing party (typically the defense counsel) to ensure that information which could identify the witness's usual location (like their address or workplace) is not revealed to the defendant or associated parties, if there's a risk of harm, intimidation, or harassment to the witness or their relatives. This protection does not apply if withholding the information would significantly impede the proof of the crime, the investigation, or the defendant's ability to prepare a defense. Further, CCP Article 295(2) empowers the presiding judge during trial to restrict questioning that might reveal such identifying information if it would prevent the witness from testifying adequately, subject to similar exceptions for essential proof or defense needs.
• Enhanced Anonymity Measures (2016 CCP Amendments): More robust protections were introduced in Heisei 28 (2016) through amendments primarily codified in CCP Articles 299-4, 299-5, and 299-7. These created a tiered system:
  • Conditional Disclosure (条件付与等措置, jōken fuyo tō sochi) (Art. 299-4(1), (3)): In situations where there's a risk of harm, intimidation, or harassment, the prosecutor can now disclose a witness's name and address only to the defense counsel, with the explicit condition that this information must not be revealed to the defendant. Alternatively, the prosecutor can specify the timing or method by which such information might be conveyed to the defendant. This measure cannot be used if it would cause substantial prejudice to the defendant's defense (e.g., by preventing them from investigating potential bias of the witness). If defense counsel violates these conditions, the prosecutor can notify the relevant bar association to request appropriate disciplinary action (Art. 299-7).
  • Non-Disclosure (Alternative Disclosure) (代替開示措置, daitai kaiji sochi) (Art. 299-4(2), (4)): If even conditional disclosure to defense counsel is deemed insufficient to prevent the risk of harm, the prosecutor has the power to withhold the witness's actual name and/or address from the defense counsel as well. In such cases, alternative identifying information must be provided, such as a pseudonym, a previous name, or the contact details of a designated lawyer's office acting as an intermediary. This, too, is impermissible if it would substantially prejudice the defendant's defense. This applies both to live witnesses and to individuals whose names or addresses appear in documentary evidence.
  • Judicial Review (Art. 299-5): The defendant or their counsel can petition the court to revoke or modify these protective measures taken by the prosecutor. The court must grant such a petition if it finds that (a) the risk of harm does not exist, (b) the measure causes substantial prejudice to the defendant's defense, or (c) in the case of non-disclosure, conditional disclosure would have been sufficient to protect the witness. This judicial oversight is a key safeguard.
• Constitutionality of Anonymity Measures: The constitutionality of these witness anonymity provisions (specifically Arts. 299-4 and 299-5) was challenged as potentially violating the defendant's right to confront witnesses (Article 37, paragraph 2 of the Constitution of Japan). However, the Supreme Court, in a decision on July 3, 2018 (Supreme Court Decision, July 3, 2018, Keishū Vol. 72, No. 3, p. 299), upheld their constitutionality. The Court reasoned that these measures are permissible because they are (i) aimed at the legitimate purpose of protecting witnesses and ensuring their testimony, (ii) narrowly tailored, applying only when there is a recognized risk of harm and no substantial prejudice to the defense, and (iii) subject to judicial review, ensuring that the defendant's confrontation rights are not unduly curtailed. The Court noted that even with these measures, the defendant still has the opportunity to cross-examine the witness in court, and other information (like prior statements or alternative identifiers) can help in assessing credibility and preparing for cross-examination.

2. Non-Disclosure of Witness Identifying Information in Open Court

Complementing pre-trial measures, amendments in Heisei 28 (2016) also introduced CCP Article 290-3, which allows for the protection of witness-identifying information (shōnin tō tokutei jikō, 証人等特定事項 – matters that specify the witness, such as name and address) during public trial proceedings.

• The court can issue a decision to not publicly reveal such information if doing so would create a risk of (a) harm, intimidation, or harassment to the witness or their relatives, or (b) severe damage to the witness's honor or peace in their social life. This measure is broader than a similar provision for victims (Art. 290-2) as it applies to any witness meeting these criteria.
• When such a non-disclosure decision is in effect, the reading aloud of the indictment or evidentiary documents, as well as questions and statements during testimony, must be conducted in a way that avoids revealing the protected information, unless doing so would cause serious hindrance to proving the crime or result in substantial disadvantage to the defendant's defense (CCP, Art. 291(3), 305(4), 295(4)).
• The constitutionality of this type of in-court anonymity has not been directly ruled upon by the Supreme Court for general witnesses. However, a similar measure for victims (Art. 290-2) was upheld (Supreme Court Decision, March 5, 2008), on the grounds that the essential aspects of the trial remain public. It is widely considered that the same reasoning would apply to Art. 290-3, ensuring it does not violate the constitutional principle of open trials (Constitution, Arts. 37(1) and 82).

II. Reducing the Burden of Testifying: Easing the Ordeal for Witnesses

Testifying in a criminal trial can be a stressful and emotionally taxing experience, particularly for victims of crime (who may suffer secondary victimization), children, or other vulnerable individuals. Japanese law incorporates several measures aimed at mitigating this burden.

A. Support During Testimony

• Attendant for Witness (証人への付添い, tsukisoi) (CCP, Art. 157-4): Introduced in Heisei 12 (2000), this provision allows the court to permit a "suitable person" (e.g., a family member, therapist, support worker) to accompany the witness while they are testifying. The attendant's role is to provide emotional support and help alleviate the witness's anxiety and tension. They must not interfere with the questioning or improperly influence the testimony.

B. Modifying the Testimonial Environment

• Closing Court Proceedings to the Public (公開の停止, kōkai no teishi): While trials are fundamentally public (Constitution, Art. 82), an exception allows for proceedings to be closed if publicity is likely to endanger public order or good morals. This is sometimes invoked during testimony concerning sensitive details of sexual offenses, but it applies only to that specific portion of testimony, not the entire trial.
• Out-of-Courtroom Testimony (公判期日外における証人尋問, kōhan kijitsugai ni okeru shōnin jinmon) (CCP, Arts. 158, 281): This allows for a witness to be examined outside of the formal trial date and potentially outside the main courtroom (e.g., in a different room in the courthouse, or even at another location like a hospital if the witness cannot travel). While traditionally used for witnesses unable to attend court due to illness or distance, its application has been discussed for witnesses who can physically attend but would suffer extreme psychological distress if forced to testify in a standard open court setting.
  The Tokyo High Court decision of September 7, 2016 (Hanrei Jihō No. 2349, p. 83), an Aum Shinrikyo-related case, permitted out-of-courtroom testimony for a crucial witness (a former cult member, now a layperson) who expressed strong fears that reappearing in open court would lead to media exposure of his past, jeopardizing his current employment and social life. The court, noting the witness's severe burden and the importance of his testimony, found it "necessary" under Article 281. This was before the broader 2016 witness anonymity provisions (Art. 290-3) were enacted, which might offer an alternative solution today.
• Defendant's Removal from Courtroom (被告人の退廷措置, hikokunin no taitei sochi) (CCP, Art. 304-2): If a witness is likely to be unable to testify adequately in the defendant's presence due to pressure or fear, the court can order the defendant to be temporarily removed from the courtroom during that witness's testimony. The defendant must still be informed of the testimony content afterward and given an opportunity for cross-examination (typically through their counsel, or by the defendant themselves after the witness has concluded their main testimony and is no longer facing them directly).
• Screening Measures (遮へい措置, shahei sochi) (CCP, Art. 157-5): Introduced in Heisei 12 (2000), this allows the court to place screens or partitions so that the witness cannot see the defendant and/or spectators, or vice versa, during testimony. This is permissible if the witness is likely to feel pressure or anxiety and be unable to testify sufficiently in the presence of the defendant or public.
  The Supreme Court, in a decision on April 14, 2005 (Supreme Court Decision, April 14, 2005, Keishū Vol. 59, No. 3, p. 259), upheld the constitutionality of both screening measures and video-link testimony (see below). It found that these measures do not violate the defendant's right to confront witnesses (as the defendant can still hear the testimony and conduct cross-examination, and defense counsel can always observe the witness's demeanor) nor the principle of public trials.
  The Tokyo High Court decision of May 24, 2016 (Kōtō Saibansho Keiji Saiban Sokuhōshū (Heisei 28), p. 96) considered a case where screens were placed between the witness and defendant. While questioning the statutory grounds under Art. 157-5 for that specific instance (lack of proof of severe psychological distress for that particular witness from facing the defendant), the court suggested that such screening might still be permissible under the court's general discretionary power to manage proceedings (soshō shiki-ken, 訴訟指揮権) if, for example, it's necessary to prevent a witness from tailoring their testimony based on the defendant's appearance, provided it doesn't substantially impair the defendant's cross-examination rights.
• Video-Link Testimony (ビデオリンク方式による証人尋問, bideo rinku hōshiki ni yoru shōnin jinmon) (CCP, Art. 157-6): Also introduced in Heisei 12 (2000) and expanded in Heisei 28 (2016), this allows a witness to testify from a room separate from the courtroom, with communication occurring via a live video and audio link. The witness, judges, prosecutor, and defense can see and hear each other. This is intended for witnesses who would likely suffer extreme psychological distress if testifying in the actual courtroom.
  The 2016 amendments broadened this to allow testimony from a room in a different courthouse if the witness (i) would suffer severe psychological distress from coming to the trial courthouse, (ii) faces risks to their safety or property during travel to/from the courthouse, (iii) risks their location being identified by being followed from the courthouse, leading to harm, or (iv) lives far away and travel is excessively difficult due to age, occupation, health, etc. This expansion highlights a move towards facilitating testimony for a wider range of reasons beyond just courtroom-induced stress.

C. Mitigating Repetitive Testimony (供述の繰り返しの回避)

Having to recount traumatic events multiple times is a major source of burden for witnesses, especially victims.

• Using Recordings of Prior Video-Link Testimony (CCP, Art. 157-6(3), Art. 321-2): When a witness testifies via video link, their testimony can be recorded with their consent. This recording (specifically, the part of the official court record containing it) can then be admitted as evidence in subsequent criminal proceedings concerning the same facts (e.g., in the separate trials of co-defendants). This aims to avoid forcing the witness to give live testimony repeatedly on the same matter. However, the witness must generally still be made available for cross-examination if requested in the later trial.
• Unmaterialized Proposals for Pre-Trial Statements: Discussions were held during the deliberations for the 2016 reforms (by the "Special Subcommittee for a New Era of Criminal Justice System") about allowing pre-trial recorded statements of vulnerable witnesses (e.g., victims of sexual offenses, children) taken during the investigation phase or in pre-trial depositions to be used in lieu of their direct examination in chief at trial. The goal was to further reduce the number of times they would have to testify. However, these proposals were not adopted into law, largely due to strong concerns about potential infringements on the defendant's right to confrontation and doubts about whether it would truly lessen the overall burden on witnesses (who might still face intense cross-examination on their pre-recorded statements).
• Judicial Interviews (Shihō Mensetsu, 司法面接) for Child Witnesses: In practice, Japan has been increasingly adopting "judicial interview" techniques for child witnesses. This involves collaborative, carefully structured interviews conducted by trained professionals, often with representatives from the police, prosecution, and child guidance centers present or observing, to obtain a child's account in a developmentally appropriate and minimally distressing way, aiming to reduce the need for multiple interviews by different agencies. While the recordings of these interviews are valuable for investigation, they do not currently have a special, privileged status as evidence in court that would automatically replace live testimony, though they can be used to assess credibility or refresh memory.

III. Broader Context: The Absence of Comprehensive Witness Protection Programs

While Japan has implemented various procedural safeguards within the criminal trial process, it notably lacks comprehensive, state-run witness protection programs that exist in some other countries—programs that might offer witnesses at extreme risk services like relocation, new identities, and long-term support. The need for such programs, especially to protect informants or key witnesses in organized crime or serious violent crime cases, has been acknowledged in legal reform discussions, particularly in the context of newly introduced systems like plea bargaining (agreements on charges/sentencing) and criminal immunity for testimony.

However, establishing such programs involves complex legal and administrative challenges that extend beyond criminal procedure, touching upon civil registration, social security, taxation, and more. Thus, while the necessity is recognized, concrete legislative steps towards a full-scale witness protection program have yet to materialize, and it remains an area for future development.

Conclusion: A System Striving for Balance

Japan has made significant strides in developing a framework for witness protection within its criminal justice system. The array of measures, from pre-trial anonymity provisions to in-court testimonial aids like screening and video-link systems, reflects a growing recognition of the need to ensure witness safety and reduce the often-considerable burdens associated with testifying. These protections aim to encourage witness cooperation, which is essential for truth-finding, while upholding the defendant's right to a fair trial and confrontation.

The ongoing challenge lies in the effective implementation and continuous refinement of these measures, ensuring they strike the correct balance between the welfare of witnesses, the rights of the accused, and the public interest in the fair administration of justice. As societal and criminal landscapes evolve, so too must the mechanisms designed to protect those who step forward to aid the cause of justice.