How is Hearsay and Witness Testimony Handled in Japanese Civil Trials?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Testimony from witnesses and parties often lies at the heart of factual disputes in civil litigation. For legal professionals accustomed to common law systems, particularly the United States, understanding how Japanese civil courts approach witness examination and the admissibility of out-of-court statements (hearsay) is crucial. Japan’s approach, rooted in the Principle of Free Evaluation of Evidence, presents some significant differences, most notably the absence of a formal, exclusionary hearsay rule.

This article explores the procedures for witness and party examination in Japanese civil trials, the practical role of written witness statements, and how courts assess the credibility and probative value of testimony, including hearsay evidence.

I. Witness Examination (Shōnin Jinmon) in Japanese Civil Trials

The examination of witnesses (shōnin jinmon) is a formal evidence-gathering process governed by Articles 190 through 206 of the Code of Civil Procedure (CCP) (民事訴訟法 - Minji Soshō Hō).

A. The Framework: Duties and Rights of Witnesses

  • Duty to Testify: Generally, any person can be called as a witness and has a duty to appear in court, take an oath, and testify truthfully (CCP Arts. 190, 191, 201). Failure to comply without justifiable reason can lead to non-penal fines or even detention.
  • Right to Refuse Testimony (証言拒絶権 - shōgen kyozetsu-ken): Witnesses can refuse to testify under certain circumstances, including:
    • When testimony might lead to criminal prosecution of themselves or close relatives (CCP Art. 196).
    • When testimony concerns professional secrets learned in roles such as a doctor, lawyer, patent attorney, etc., unless released from their duty of confidentiality (CCP Art. 197). This also covers technical or professional secrets learned through their occupation, provided the need for secrecy is recognized.
  • The Oath (宣誓 - sensei): Witnesses are generally required to take an oath before testifying, affirming they will speak the truth, concealing nothing and adding nothing false (CCP Art. 201). Testifying falsely under oath constitutes perjury (偽証罪 - gishō-zai), a criminal offense.

B. The Process of Examination

The typical order of examination in court, outlined in CCP Article 202, is as follows:

  1. Principal Examination (主尋問 - shu-jinmon): Conducted by the party who called the witness. The aim is to elicit the witness's account of relevant facts. Leading questions are generally restricted.
  2. Cross-Examination (反対尋問 - hantai-jinmon): Conducted by the opposing party. This is an opportunity to challenge the witness's testimony, explore inconsistencies, and elicit favorable facts. Leading questions are generally permitted.
  3. Re-Principal Examination (再主尋問 - sai-shu-jinmon): The party who called the witness may conduct a further examination to clarify matters raised during cross-examination.
  4. Judge's Examination (補充尋問 - hojū-jinmon): The presiding judge or associate judges can ask questions at any stage of the examination to clarify points or explore issues they deem important (CCP Art. 202, Para. 2). Japanese judges often take an active role in questioning witnesses.

Remote witness examination via video conference is also permissible under certain conditions (CCP Art. 204).

C. The Prominent Role of Written Witness Statements (Chinjutsu-sho)

A distinctive feature of Japanese civil practice is the extensive use of detailed written witness statements (陳述書 - chinjutsu-sho) submitted to the court before the witness appears for oral examination.

  • Content and Purpose: These statements are typically drafted with the assistance of counsel and set out the witness's anticipated testimony in a comprehensive narrative form, often attaching supporting documents. They serve to inform the court and the opposing party of the witness's full account in advance.
  • Impact on In-Court Examination: Because the detailed account is already in writing, the in-court oral examination often becomes more focused. The principal examination might consist of the witness confirming the contents of their chinjutsu-sho and then being asked to elaborate on or emphasize key points. Cross-examination then proceeds based on both the written statement and the oral testimony.
  • Efficiency vs. Spontaneity: This practice is seen as promoting efficiency by narrowing the issues for oral examination and allowing for better preparation. However, it can also reduce the spontaneity of testimony compared to systems where the full story unfolds for the first time during oral examination. The chinjutsu-sho itself is typically submitted as documentary evidence.

D. Assessing Credibility under the Principle of Free Evaluation

The ultimate assessment of a witness's credibility and the weight given to their testimony rests with the judge, guided by the Principle of Free Evaluation of Evidence (自由心証主義 - jiyū-shinshō-shugi - CCP Art. 247). Judges consider various factors, including:

  • The witness's demeanor and responsiveness in court.
  • The internal consistency and plausibility of their account.
  • The consistency of their testimony with other evidence in the case (documentary evidence, testimony of other witnesses, physical evidence).
  • Any potential bias or interest the witness may have in the outcome of the litigation.
  • The witness's opportunity to perceive and remember the events they are testifying about.
    There are no strict legal rules (like a requirement for corroboration for certain types of testimony) that bind the judge's assessment; it is a holistic evaluation.

II. Party Examination (Tōjisha Jinmon)

The parties to the lawsuit themselves (plaintiffs, defendants, or legal representatives of corporate entities) can also be examined in court (tōjisha jinmon). This is governed by CCP Articles 207 through 211.

A. Framework

The rules for witness examination largely apply mutatis mutandis to party examination (CCP Art. 207). This includes the order of examination and the possibility of examination by the opposing party and the judge.

B. Oath and Sanctions for Falsehood

  • Oath: Parties can be ordered to take an oath before testifying (CCP Art. 207, applying Art. 201).
  • No Perjury Charge for Parties in Civil Cases: A significant difference from witnesses is that parties who testify falsely under oath in a civil case are not subject to criminal charges for perjury (gishō-zai). This distinction is based on the idea that parties inherently have a strong interest in the outcome, and applying perjury sanctions might unduly discourage them from presenting their case.
  • Non-Penal Fine (Karyō): However, if a party refuses to take an oath, refuses to testify without a justifiable reason, or provides false testimony after taking an oath, the court may impose a non-penal fine (過料 - karyō) of up to JPY 100,000 (CCP Art. 209). Furthermore, if a party refuses to testify or gives false testimony regarding matters for which they bear the burden of proof, it can lead to very strong adverse inferences.
  • Credibility is Key: Even without the threat of perjury, providing false or inconsistent testimony can severely damage a party's overall credibility in the eyes of the court, which can be far more detrimental to their case than a non-penal fine.

C. Evidentiary Value of Party Testimony

The testimony of a party is considered evidence and is subject to the court's free evaluation. Judges are naturally aware of the party's inherent interest in the litigation's outcome and will assess their statements accordingly. Corroboration from other, more objective evidence often becomes particularly important when evaluating party testimony.

III. Hearsay Evidence (Denbun Shōko) in Japanese Civil Litigation

One of the most striking differences for those familiar with common law systems is the Japanese approach to hearsay evidence (denbun shōko).

A. No Strict Exclusionary Hearsay Rule

The Japanese Code of Civil Procedure does not contain a formal, exclusionary hearsay rule equivalent to that found in U.S. federal and state courts (e.g., FRE 802). In common law, hearsay—an out-of-court statement offered to prove the truth of the matter asserted by the out-of-court declarant—is generally inadmissible unless it falls under a recognized exception. This is not the case in Japanese civil litigation.

B. Admissibility vs. Probative Value

  • General Admissibility: Hearsay statements, whether oral (e.g., a witness testifying about what someone else told them) or written (e.g., a letter from a non-testifying third party offered to prove the truth of its contents), are generally considered admissible as evidence, provided they are relevant to the issues in dispute.
  • Focus on Probative Value (証明力 - shōmeiryoku): The crucial question is not admissibility but the weight or credibility (probative value) that the court will assign to the hearsay evidence. This is determined by the judge under the Principle of Free Evaluation of Evidence.

C. Factors Influencing the Court's Evaluation of Hearsay

When assessing the probative value of hearsay evidence, judges will consider various factors, including:

  1. Necessity: Why is the original declarant (the person who made the out-of-court statement) not available to testify directly in court where their credibility could be tested through oath and cross-examination? If there's a good reason, the hearsay might be viewed more sympathetically.
  2. Circumstantial Guarantees of Trustworthiness: Are there any factors that suggest the out-of-court statement is likely to be reliable? For example:
    • Was the statement made spontaneously or contemporaneously with an event?
    • Was it against the declarant's interest?
    • Was the declarant disinterested in the outcome of any potential dispute?
    • What was the context in which the statement was made?
  3. Specificity and Detail: Is the hearsay account vague or precise and detailed?
  4. Risk of Error in Transmission: How many layers of hearsay are there? The more times a statement is repeated, the greater the risk of distortion, misremembering, or misreporting.
  5. Potential for Bias: Could the original declarant or the witness reporting the hearsay have a motive to fabricate or distort the information?
  6. Corroboration: Does the hearsay evidence align with or contradict other, more direct evidence presented in the case? Hearsay that is strongly corroborated by reliable, non-hearsay evidence is more likely to be given significant weight.

D. Hearsay in Documents

The same principles apply to hearsay contained within documents. For example:

  • A business record created in the ordinary course of business might be considered reliable for certain factual assertions it contains, even if the individual who input the data is not testifying (this has parallels to the business records exception in common law).
  • A written statement (chinjutsu-sho) from a witness who is available for examination is not itself hearsay when the witness confirms it in court. However, if that chinjutsu-sho recounts what another person told the author of the statement, that recounted portion is hearsay, and its value will be assessed based on the factors above.

IV. Comparing Japanese and Common Law Approaches

The differences in handling testimony and hearsay are significant:

  • The Hearsay Divide: This is the most fundamental divergence. The absence of a formal exclusionary rule in Japan means that evidence that would be inadmissible as hearsay in a U.S. court might be freely presented in a Japanese court, with the battle shifting from admissibility to weight.
  • Witness Preparation and Examination Styles: The heavy reliance on pre-submitted chinjutsu-sho in Japan leads to a different dynamic in court. Oral examination is often less about eliciting the primary narrative (which is already in writing) and more about confirming, clarifying, and challenging that written account. In common law trials, the oral testimony itself is often the primary evidence-in-chief.
  • Role of the Judge: Japanese judges tend to be more actively involved in questioning witnesses compared to the more umpire-like role of judges in purely adversarial common law systems.
  • Oaths and Perjury: While witnesses are under oath and subject to perjury, the absence of perjury charges for parties in civil cases (though non-penal fines apply) is a notable distinction.
  • Impact of Discovery: Limited pre-trial discovery in Japan means that witness and party examinations can sometimes involve more surprises or new revelations than in U.S. litigation, where extensive depositions often pre-empt much of this.

V. Strategic Considerations for Litigants

  • Presenting Witness Testimony:
    • Craft clear, comprehensive, and credible chinjutsu-sho. Anticipate areas of challenge.
    • Thoroughly prepare witnesses for focused in-court questioning, not just on their written statement but also on related issues and potential credibility attacks.
    • Emphasize corroborating evidence for key testimonial points.
  • Dealing with Hearsay:
    • If relying on hearsay: If direct evidence is unavailable, be prepared to explain why and to present arguments and supporting evidence bolstering the hearsay's reliability (e.g., evidence of the original declarant's neutrality, consistency with other facts).
    • If challenging opponent's hearsay: Focus on its weaknesses: the lack of opportunity to cross-examine the original declarant, potential for bias, inconsistencies, lack of corroboration, or vagueness.
  • Party Testimony: Clients must understand that even without perjury charges, their credibility is paramount. Inconsistent or demonstrably false statements can be devastating. The risk of a non-penal fine and adverse judicial inferences should not be discounted.
  • Adapting from Common Law Expectations: Litigants and counsel from common law jurisdictions must adjust their strategies. Instead of focusing on getting hearsay excluded, the focus must be on discrediting it or minimizing its weight through cross-examination and contrary evidence.

VI. Conclusion

The Japanese approach to witness testimony and hearsay evidence, anchored by the Principle of Free Evaluation of Evidence, reflects a system that prioritizes allowing judges to consider a wide range of information, with the critical assessment of credibility and probative value left to their reasoned judgment. While this offers flexibility, it also places a high premium on the inherent reliability and persuasiveness of the evidence presented.

For international businesses, navigating this system means understanding that the absence of a strict hearsay rule does not equate to a free-for-all; rather, it shifts the battleground from admissibility to credibility. Effective advocacy involves presenting clear, consistent, and well-corroborated testimony, while being adept at scrutinizing and challenging the reliability of all forms of evidence, including out-of-court statements.