Making Your Voice Heard: A Guide to Strategic Objections (Igi) in Japanese Criminal Trials

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

In the dynamic environment of a Japanese criminal trial, the ability to make timely and effective objections (igi - 異議) is a crucial skill for any trial lawyer. Objections are not merely procedural interruptions; they are vital tools for ensuring fairness, controlling the flow of evidence, protecting the client's rights, and ultimately shaping the information upon which the court—comprising professional judges and, in many serious cases, lay judges (saiban-in - 裁判員)—will base its decision. While historically, the practice of making objections in Japanese courtrooms may have appeared less active than in some other jurisdictions, its importance has significantly increased with the evolution of trial practices, particularly the advent of the lay judge system, which places a greater emphasis on live, oral testimony.

Why Objections Matter in the Japanese Courtroom

Strategic objections serve multiple critical functions within a Japanese criminal trial:

  1. Ensuring Adherence to Procedural Rules and Fairness: Objections help keep the examination of witnesses and the presentation of evidence within the established bounds of legal procedure and fairness. This prevents one side from gaining an unfair advantage through improper questioning or inadmissible evidence.
  2. Preventing Improper Evidence: A primary role of objections is to shield the fact-finders from information that is legally inadmissible (such as improper hearsay or irrelevant material) or unduly prejudicial, ensuring that their decision is based on reliable and pertinent evidence.
  3. Protecting the Witness: Objections can protect witnesses from harassment, undue pressure, confusing or misleading questions, or questions that call for information beyond their competence or personal knowledge.
  4. Clarifying the Record: By challenging ambiguous or improperly phrased questions, objections contribute to a clearer and more accurate trial record, which is essential for the fact-finders' deliberations and for any subsequent appellate review.
  5. Shaping the Narrative: Effective objections can prevent the opposing side from improperly framing the evidence, suggesting unproven facts, or leading a witness to create a misleading impression in the minds of the judges and lay judges.
  6. Preserving Issues for Appeal: Formally objecting to an alleged error at trial and stating the grounds for that objection creates an official record of the issue. This is often a prerequisite for raising that issue on appeal if the defendant is convicted.

Key Grounds for Objection in Japanese Criminal Trials

While the nuances can be complex, several common and important grounds for objection arise during witness examination in Japan, largely governed by the Code of Criminal Procedure and the Rules of Criminal Procedure.

1. Leading Questions (Yūdō Jinmon - 誘導尋問) in Direct Examination (Rule 199-3, Rules of Criminal Procedure)

  • Explanation: A leading question is one that suggests the desired answer to the witness or is phrased so it can be answered with a simple "yes" or "no." For example, asking your own witness, "You saw the red car speed away, didn't you?" instead of "What, if anything, did you see after you heard the sound?"
  • Rationale: In direct examination (when a lawyer questions their own witness), the testimony should come from the witness in their own words, not be fed to them by the lawyer.
  • Strategic Importance: This is perhaps one of the most frequent and important objections. If uncontested, leading questions allow an opponent to effectively "testify" through a compliant witness, shaping the narrative in a way that may not accurately reflect the witness's independent recollection, especially on disputed critical points. While there are exceptions (e.g., for preliminary matters, undisputed facts, or hostile witnesses), leading questions on substantive, contested issues are generally improper.

2. Misleading Questions (Godō Jinmon - 誤導尋問)

  • Explanation: These are questions that are based on a misstatement or mischaracterization of prior testimony or evidence already presented, or that assume facts that have not been proven. For example, "Given that you testified earlier the defendant was angry, why did he then...?" when the witness had not actually testified the defendant was angry.
  • Rationale: Such questions can confuse the witness and cause them to give an inaccurate answer based on a false premise. They can also mislead the fact-finders. Objecting effectively requires the lawyer to have a firm and immediate grasp of the existing evidentiary record.

3. Questions Not Individual, Concrete, and Concise (Rule 199-13, Paragraph 1, Rules of Criminal Procedure)

  • Explanation: This rule mandates that questions should be, as far as possible, "individual, concrete, and concise." Objections can be raised to:
    • Compound Questions: Asking two or more questions rolled into one (e.g., "Did you see the defendant enter the room and what was he carrying?").
    • Vague or Abstract Questions: Questions that are so unclear or general that the witness cannot reasonably understand what is being asked.
    • Overly Verbose or Confusing Questions: Questions that are unnecessarily long or phrased in a convoluted way.
  • Rationale: Such questions can overwhelm or confuse the witness, leading to ambiguous or unresponsive answers, and can obscure the issues for the court.

4. Improper Questions as Defined by Rule 199-13, Paragraph 2, Rules of Criminal Procedure

This rule lists several categories of presumptively improper questions:

  • Intimidating or Insulting Questions (ikakuteki mata wa bujokuteki na jinmon): (Item 1) This type of questioning is never permissible. Examples include threatening a witness with perjury without a valid basis, making disparaging personal remarks, or using an overly aggressive and demeaning tone.
  • Repetitive Questions (chōfuku jinmon - Asked and Answered): (Item 2) Asking the same question, or substantially the same question, multiple times after it has already been answered (or the witness has indicated they cannot answer). This is often a tactic used when the questioner is not receiving the desired response and can become a form of harassment or an attempt to improperly wear down or influence the witness.
  • Questions Calling for Opinion or Argumentative Questions (iken o motome mata wa giron ni wataru jinmon): (Item 3)
    • Improper Opinion: Witnesses are generally required to testify about facts they directly perceived or experienced. Questions that ask a lay witness to offer opinions on matters requiring specialized expertise they do not possess, or to speculate about others' states of mind or motivations (e.g., "Why do you think the victim acted that way?"), are typically objectionable. While Article 156 of the Code of Criminal Procedure allows a witness to state an inference based on facts they personally experienced, there must be a proper factual foundation for such an inference, and it should not venture into pure speculation.
    • Argumentative Questions: Questions that are not designed to elicit factual information but rather to engage the witness in a debate, to state the lawyer's own opinion, or to summarize or characterize the evidence in an argumentative way (e.g., "Your entire story is unbelievable, isn't it?"). Arguments belong in the closing statements, not embedded in questions to a witness.
  • Questions about Facts Not Directly Experienced by the Witness (Lack of Foundation - shōgen no kiso ga nai): (Item 4) A witness can only testify about matters of which they have personal knowledge. If a question asks about something the witness did not see, hear, or otherwise directly experience, an objection based on "lack of foundation" or no personal knowledge is appropriate. For instance, asking an eyewitness who only saw an event from one angle to act out or describe aspects that would have been outside their field of vision.

5. Hearsay (Denbun - 伝聞)

  • Explanation: An objection to testimony that seeks to introduce an out-of-court statement made by a third party when that statement is offered to prove the truth of the matter asserted within it.
  • Rationale: The Japanese Code of Criminal Procedure (Article 320 et seq.) contains a general prohibition against hearsay, subject to various exceptions. If a question calls for inadmissible hearsay, a timely objection should be made. This also applies to attempts to indirectly introduce hearsay by, for example, improperly using documents containing out-of-court statements during direct examination in a manner that circumvents the rules (e.g., violations of Rule 199-3, Paragraph 4, or Rule 199-11 regarding refreshing recollection).

Strategic Considerations for Making Objections

Knowing the grounds is only half the battle; knowing when and how to object is equally crucial:

  1. Timeliness: Objections must be made promptly, as soon as the improper nature of the question or answer becomes apparent. Delaying an objection can be deemed a waiver.
  2. Stating the Grounds Clearly and Concisely: When objecting, the lawyer should stand and clearly state "Objection" (Igi arimasu - 異議あります) followed by the specific legal ground (e.g., "Leading," "Hearsay," "Argumentative"). Brevity is key; long, speaking objections are generally discouraged.
  3. Preparation and Anticipation (Junbi seyo - 準備せよ): A lawyer should thoroughly review all anticipated testimony and evidence to foresee likely improper questions from opposing counsel, especially concerning critical or disputed issues, and be mentally prepared to object. A deep understanding of the case facts and procedural rules is essential for quick and accurate objections.
  4. Professional Demeanor (Reisei ni tantan to - 冷静に淡々と): Objections should always be made in a calm, polite, and firm manner, addressed to the presiding judge, not directly to opposing counsel in an aggressive or argumentative tone. An overly emotional or hostile objection can be counterproductive and reflect poorly on the objecting lawyer.
  5. The Strategic Non-Objection: Not every technically improper question necessarily requires an objection. If the question is harmless, if the answer is unlikely to be damaging, or if objecting might draw undue attention to an issue or make the lawyer appear obstructive, a strategic decision might be made not to object. This is a nuanced judgment call based on the specific context and potential impact.

Objecting to Questions from Judges or Lay Judges

A particularly delicate area is objecting to questions posed by the judges or lay judges themselves.

  • Permissibility: While there's no specific rule explicitly limiting judicial questioning in the same way as party questioning, the general principles of proper questioning (e.g., avoiding undue leading on critical points, not revealing bias) are understood to apply. Therefore, it is generally accepted that lawyers can object to improper questions from the bench if they violate fundamental fairness or procedural propriety. Article 309, Paragraph 1 of the Code of Criminal Procedure, which provides for objections, does not limit the target of the objection.
  • Heightened Sensitivity and Tact: Objecting to a question from a fact-finder, especially a lay judge who is a citizen volunteer, requires extreme tact, respect, and a very clear, compelling reason. The manner of objection must be scrupulously polite and focused on the question's impropriety, not on the questioner.
  • Key Rationales for Objecting to Judicial Questions:
    • Correcting Misapprehensions: If a judge's or lay judge's question is based on a clear misunderstanding of prior evidence, a polite objection or request for clarification can be crucial.
    • Preventing Undue Influence on Lay Judges: If a professional judge's supplementary questions are unduly leading, suggestive of their own opinion on a witness's credibility, or reveal a bias, this can heavily influence the lay judges. In such instances, a carefully phrased objection may be necessary to protect the fairness of the trial and ensure lay judges are not improperly swayed. For example, if a judge attempts to "rehabilitate" a prosecution witness after a damaging cross-examination by asking a series_of leading questions that suggest the witness's current, revised testimony is the "true, organized" account, an objection may be warranted.

The Judge's Ruling and Making the Record

After an objection is made, the presiding judge will rule on it, either "sustaining" (upholding) the objection or "overruling" it. If sustained, the witness will typically be instructed not to answer, or if the question was for a document, its use might be disallowed. If overruled, the witness will usually be allowed to answer. Regardless of the outcome, the objection, its grounds, and the judge's ruling become part of the official trial record, which is vital for preserving the issue for any potential appellate review.

Conclusion

Strategic objections are an indispensable component of effective and ethical trial advocacy in Japan. They are not merely about interrupting the opponent but about upholding the rules of evidence and procedure to ensure a fair trial based on reliable information. The increasing emphasis on oral proceedings, particularly with the lay judge system, has magnified the necessity for lawyers to be adept and vigilant in making timely, well-founded, and professionally delivered objections. This skill requires not only a comprehensive knowledge of the applicable rules but also keen attention, rapid analytical judgment, and a composed, respectful demeanor in the dynamic and often high-stakes environment of the courtroom.