How Can Lawyers Avoid "Nurikabe" (Repetitive Questioning) in Japanese Cross-Examinations? Focusing on Unstated Facts

I. Introduction: The Peril of the "Plaster Wall" in Cross-Examination

In the theater of a Japanese criminal courtroom, cross-examination is a pivotal act. It is the defense counsel's primary opportunity to test the prosecution's evidence, challenge witness credibility, and introduce elements of reasonable doubt. However, a common yet critical error can transform this powerful tool into an exercise in futility, or worse, an inadvertent reinforcement of the prosecution's case. This misstep is known in some Japanese legal circles as "Nurikabe" (塗り壁), literally meaning "plaster wall." It describes a cross-examination that merely rehashes, or "plasters over," the testimony already elicited during the prosecutor's direct examination, ultimately proving ineffective and potentially detrimental.

This article delves into the "Nurikabe" phenomenon, illustrating why such repetitive questioning fails and, more importantly, exploring a potent antidote advocated by seasoned Japanese criminal defense practitioners: the strategic focus on facts and details not brought to light during direct examination. By shifting attention from what was said to what was omitted or left unexplored, counsel can unlock new avenues for impeachment and sow significant seeds of doubt in the minds of judges, including lay judges in Japan's saiban-in (lay judge) system.

II. Understanding "Nurikabe": The Pitfall of Echoing Direct Testimony

Imagine an eyewitness in a park who testified during direct examination about seeing a suspect shortly after a robbery-assault. The prosecutor likely guided the witness to describe the scene, the lighting (perhaps acknowledging it was dim but adequate due to a streetlamp), what the witness was doing (e.g., waiting for a friend, perhaps briefly looking at their phone), the distance to the suspect, and key features of the suspect (e.g., young, blond hair, a beard). The prosecutor might also have preemptively addressed potential weaknesses, such as the witness admitting to less-than-perfect eyesight.

A "Nurikabe" cross-examination would then proceed to cover the same ground, often with leading questions that simply confirm the points already made or highlight weaknesses already conceded:

• "Your eyesight is 0.2 in the right eye and 0.3 in the left, isn't that correct?"
• "It was nighttime in the park, even with the streetlight, wasn't it?"
• "You were sending an email just before you looked up, right?"
• "You only saw the man's face directly for a moment, correct?"

At best, such questions are redundant. The witness has already testified to these matters, and simply repeating them does little to undermine their credibility further. In fact, as Japanese trial advocacy experts point out, this approach can be actively harmful. The witness, by calmly agreeing to these rehashed points, may appear more candid and credible. The cross-examination, instead of chipping away at the direct testimony, ends up applying another layer of "plaster," solidifying the existing narrative. The judges might perceive the witness as forthrightly acknowledging limitations, thereby ironically strengthening their overall testimony. This is the essence of the "Nurikabe" failure – an exercise that, despite perhaps adhering to some superficial rules of cross-examination (like using leading questions or touching on impeachment-related facts), ultimately reinforces the direct testimony.

III. The Strategic Antidote: Focusing on What Was Not Said

The truly effective counter to "Nurikabe" lies in a fundamental shift of focus: from the facts stated during direct examination to those unstated, omitted, or unexplored. Advanced Japanese advocacy techniques emphasize that the most fertile ground for impactful cross-examination often lies in these unaddressed areas. Instead of dwelling on what has already been presented, the skilled cross-examiner probes the periphery, seeking out new information or contradictions that can cast the existing testimony in a different, less credible light.

Consider the same eyewitness from the park. The direct examination might have covered the suspect's hair color, facial hair, and approximate age. But what if a crucial physical characteristic, readily observable yet unmentioned, directly contradicts the defendant's known features?

An improved cross-examination might proceed as follows, after confirming the witness's initial observations as stated in direct examination:

• "You mentioned the impression the man you saw in the park made on you."
• "You stated you were standing, and the distance was only about one meter."
• "Is there anything else about his appearance that stood out, anything you may have forgotten to mention?" (Often, the witness will say "No, not really.")
• "Regarding your height, you are about 165 centimeters tall, is that correct?"
• (After confirming the witness's height) "Would you please stand? And could the defendant, Mr. [Defendant's Name], also stand, approximately one meter from the witness?"
• (As the defendant stands, revealing a significant height, say 185 cm) "Witness, looking at the defendant now, and considering the man you saw at a distance of one meter, did you realize Mr. [Defendant's Name] is this tall, 185 centimeters?"
• The witness might hesitate, "Well... I'm not sure he was this tall..."
• "You weren't aware that Mr. [Defendant's Name]'s actual height is 185 centimeters when you previously described the man in the park, were you?"
• "No, I didn't know his exact height."

This line of questioning, based on a real Japanese case where it contributed to an acquittal, doesn't rehash the direct testimony. Instead, it introduces a new, objective piece of information—the defendant's actual, significant height—and contrasts it with the witness's likely perception of the perpetrator based on their own height and close proximity. If the witness did not mention the perpetrator being unusually tall, this omission, when juxtaposed with the defendant's stature, becomes a powerful impeachment fact. It suggests a significant discrepancy between the observed perpetrator and the defendant, thereby undermining the identification. This is not "Nurikabe"; it is a targeted strike based on an "unstated fact."

IV. Strategic Approaches to Uncovering "Unstated" Impeachment Material

Identifying these potent "unstated facts" requires diligent preparation and a multi-faceted analytical approach. Japanese criminal defense practitioners emphasize several key strategies:

A. "Genba Hyappen" (現場百遍) – The Hundred-Fold Scene Visit

The adage "genba hyappen"—to visit the scene of the event a hundred times—is a cornerstone of meticulous Japanese investigative and defense philosophy. It underscores the irreplaceable value of firsthand, in-depth examination of the location where the alleged events transpired.

• Beyond Official Records: Defense counsel cannot rely solely on police reports, photographs, or diagrams. These official records are inherently selective and may not capture nuances of the environment crucial to understanding witness perspectives or the feasibility of certain actions.
• Sensory Experience: Visiting the scene, preferably at the same time of day and under similar conditions as the event, allows counsel to experience the lighting, acoustics, sightlines, distances, and overall atmosphere. This direct sensory input can reveal inconsistencies in witness accounts or highlight unstated environmental factors that could have influenced perception or memory. For instance, an unmentioned obstruction, an unexpected source of noise, or the actual narrowness of a space can become powerful impeachment tools when contrasted with a witness's testimony.
• Uncovering Unstated Conditions: In the park eyewitness example, repeated visits might reveal that the specific streetlamp casts deep shadows, or that the "one meter" distance described by the witness was actually across uneven ground, making a precise height judgment difficult.

B. Deconstructing and Simulating the Narrative (事実を細かく分解・分析し、シミュレーションする)

This involves a forensic-like breakdown of the prosecution's narrative and the witness's account into their most granular components.

• Component Analysis: Every element of the event—the environment, the witness's position and actions, the alleged perpetrator's position and actions—is individually examined and then reconstructed.
• Simulation and Perspective-Taking: Counsel should attempt to simulate the event, both physically (if possible) and mentally, from the witness's stated perspective. This can reveal physical impossibilities, unlikelihoods, or overlooked details. For example, considering the witness's eye level in relation to the described actions can be crucial. If the witness claims to have seen a specific detail on the perpetrator, but their relative positions and heights would have made such an observation improbable, this "unstated" improbability becomes an impeachment point.
• Logical Chains: The height example illustrates a logical chain:
  1. The witness's perceived eye level aligns with the perpetrator's eye level.
  2. The witness's perceived eye level (based on their own height) does not align with the defendant's actual eye level (due to a significant height difference).
  3. Therefore, a strong inference arises that the perpetrator's eye level was different from the defendant's, suggesting the perpetrator and defendant are not the same person.
     This type of logical deduction, rooted in unstated but deducible facts, forms a powerful basis for cross-examination.

C. "Reading Between the Lines" of Evidence (証拠の行間を読む)

This skill involves critically analyzing documentary evidence—witness statements, police reports, expert opinions—not just for the information explicitly stated, but also for what is significantly omitted.

• Identifying Gaps: An investigator's report that fails to mention a standard procedural step, or a witness statement that omits a detail one would naturally expect to be included given the circumstances, can be highly significant.
• Questioning Omissions: Why was this detail not recorded? Did the witness not mention it? Did the investigator not ask? Such omissions can suggest an incomplete investigation, a flawed recollection by the witness, or even an attempt to shape the narrative.
• Contextual Importance: The significance of an omission is often amplified by its context. For instance, if an eyewitness to a traffic accident fails to mention the color of the traffic signal in their initial detailed statement, but later testifies definitively about it in court, this "unstated fact" (the prior omission) becomes a crucial point for impeachment.

D. Expanding the Scope of Inquiry (検討の対象を拡げる)

Effective impeachment often requires looking beyond the narrow confines of the alleged criminal act itself and examining the broader context, including the investigation process.

• Investigating the Investigation: How was the witness's statement obtained? Were there leading questions by investigators? Was the witness exposed to suggestive information before or during their statement?
• Challenging Identification Procedures: In Japan, as elsewhere, identification procedures can be flawed. For example, the "single-person show-up" (単独面通し, tandoku mentsūshi), where a witness is shown only the suspect, carries a high risk of suggestion and memory contamination. If such a procedure was used, the defense can argue that the witness's memory of the actual perpetrator may have been supplanted or distorted by the memory of the suspect shown during the flawed procedure. This "unstated" influence becomes a critical area for cross-examination.
• Witness Contamination: Exploring if the witness discussed the event with other witnesses, media reports, or investigators in a way that could have altered their original memory. The introduction of post-event information is a well-documented source of memory distortion.

V. The Impact of Uncovering Unstated Facts on Judicial Assessment

Cross-examinations that successfully unearth significant unstated facts, omissions, or contextual influences tend to resonate more powerfully with Japanese judges, including the lay judges who participate in serious criminal cases.

• Shifting the Narrative: Unlike "Nurikabe," which often just solidifies the existing story, introducing new, relevant, and often undisputed factual dimensions can fundamentally alter the court's perception of the case. It moves the focus from simply attacking the witness's direct assertions to questioning the completeness and reliability of the entire evidentiary picture presented by the prosecution.
• Creating Reasonable Doubt: Unstated facts, once revealed, can create critical gaps in the prosecution's narrative or highlight inconsistencies that give rise to reasonable doubt. The height discrepancy, for example, doesn't just make the eyewitness seem less certain; it actively suggests the defendant could not have been the person observed.
• Perceived Thoroughness of the Defense: This approach demonstrates a defense that is not merely reactive but has conducted its own diligent investigation and critical analysis of the evidence.

VI. Integrating with Broader Cross-Examination Goals

Focusing on unstated facts is not an isolated tactic but a powerful component of a comprehensive cross-examination strategy. It can be seamlessly integrated with other established goals:

• Eliciting Favorable Testimony: Sometimes, an "unstated fact" is actually a piece of information known to the witness that is helpful to the defense but was simply not solicited by the prosecutor.
• Impeaching with Prior Inconsistent Statements: An omission in a prior statement can be a form_ of inconsistency. If a witness now testifies to a crucial detail they never mentioned before despite ample opportunity, this "unstated past" can be used for impeachment.
• Setting Up Closing Arguments: The facts and inferences developed by focusing on unstated elements during cross-examination provide rich material for the defense's closing argument, allowing counsel to weave a more compelling counter-narrative.

VII. Conclusion: Beyond the Plaster Wall – The Art of Proactive Cross-Examination

The "Nurikabe" or "plaster wall" cross-examination represents a missed opportunity, a failure to engage critically and creatively with witness testimony. In the sophisticated landscape of Japanese criminal defense, the true art of cross-examination lies not in merely echoing the prosecution but in proactively unearthing the "unstated"—the omissions, the overlooked details, the unexamined contexts.

By diligently applying strategies like "genba hyappen," deconstructing narratives, reading between the lines, and expanding the inquiry, defense counsel can move beyond reactive impeachment to a more powerful, narrative-shaping form of advocacy. This approach, which demands an investigative mindset and meticulous preparation, is essential for challenging the prosecution's case effectively and upholding the principles of justice within the Japanese legal system. It is through this deeper, more analytical engagement with the evidence – and its absences – that defense attorneys can truly fulfill their role in the pursuit of truth and the protection of their clients' rights.