Mastering Japanese Witness Examination: From "Chinjutsusho" (Affidavits) to Rehearsals and Objections

Witness and party examinations (証人尋問 - shōnin jinmon; 当事者尋問 - tōjisha jinmon) are pivotal moments in Japanese civil litigation, often playing a crucial role in the court's fact-finding process. Unlike systems heavily reliant on pre-trial depositions, in Japan, the live testimony given in court during formal examination sessions carries significant weight. Effective preparation and execution of these examinations require a distinct set of skills and an understanding of specific procedural nuances, including the critical role of written statements known as chinjutsusho, the delicate art of witness rehearsals, and the strategic use of objections.

I. The Landscape of Japanese Witness Examination

Before delving into preparation, it's essential to understand the typical structure and flow of witness examination in Japanese civil courts.

A. Concentrated Evidence Examination and Format:
Most Japanese civil trials employ a "concentrated evidence examination" (集中証拠調べ - shūchū shōko shirabe) approach, where multiple witnesses and parties are often examined on a single, dedicated day or over a short, continuous period. The examination itself proceeds in a question-and-answer format (一問一答 - ichimon ittō).

B. The Sequence: Adversarial Examination (交互尋問 - Kōgo Jinmon)
The standard order of examination is as follows:

1. Direct Examination (主尋問 - shu jinmon): Conducted by the attorney for the party who called the witness.
2. Cross-Examination (反対尋問 - hantai jinmon): Conducted by the opposing party's attorney.
3. Re-direct Examination (再主尋問 - sai-shu jinmon): Conducted again by the attorney who called thewitness, typically limited to matters raised during cross-examination.
4. Supplementary Questions by the Judge(s) (補充尋問 - hojū jinmon): After the parties have concluded their examinations, the judge(s) may ask their own questions to clarify points or explore areas they deem important.

This structured sequence is known as kōgo jinmon, or adversarial/alternating examination. While this is the default, the court retains the authority to change the order of examination or even to examine witnesses directly (Article 202(1), Code of Civil Procedure (CCP)). The party who requested the witness conducts the direct examination, the opposing party conducts the cross-examination, and the requesting party conducts the re-direct examination (Article 113(1), Regulations for Civil Procedure (Reg. Civ. Pro.)). The presiding judge may also permit further rounds of examination after re-direct if deemed necessary (Reg. Civ. Pro. Art. 113(2)).

II. The Pivotal Role of "Chinjutsusho" (陳述書 – Written Statements)

Perhaps one of the most distinctive features of Japanese witness preparation, especially when compared to U.S. practice, is the extensive use of chinjutsusho. These are detailed written statements prepared by a witness or party before their oral testimony in court, often functioning similarly to an affidavit or a direct testimony script.

A. Purpose and Benefits of Chinjutsusho:
When a court decides to hear from a witness or party (particularly a "friendly" witness or the party themselves), it will almost invariably request the prior submission of a chinjutsusho. Indeed, the submission of a satisfactory chinjutsusho is often a prerequisite for the court formally scheduling the witness for examination (this may not apply to strictly neutral, court-summoned witnesses).

While initially met with some skepticism (e.g., concerns that they were merely "lawyer's essays signed by the witness"), the utility of chinjutsusho is now widely accepted due to several key benefits:

1. Efficiency in Direct Examination: They significantly shorten the time needed for direct examination in court. Basic background information, undisputed facts, and even substantial portions of the narrative can be incorporated by reference to the chinjutsusho, allowing the live examination to focus on the most critical points.
2. Clarity in Complex Cases: For cases involving intricate factual patterns, specialized technical knowledge, or numerous actors, a well-drafted chinjutsusho can lay out these complexities in a structured and understandable manner, making it easier for the judge to grasp the issues before the oral testimony begins. Explaining numerous individuals' roles or complex technical jargon orally would consume excessive court time.
3. Facilitating Effective Cross-Examination: By providing a detailed preview of the witness's anticipated direct testimony, the chinjutsusho allows the opposing party to prepare more targeted and effective cross-examination.

B. Preparation of Chinjutsusho:
Given these purposes, the chinjutsusho is typically drafted by the attorney based on thorough interviews with the witness or party. It is not merely a verbatim transcript of what the witness said, but rather a carefully structured narrative designed to present their testimony clearly and persuasively.

• Content Strategy: To achieve efficiency, undisputed matters such as the witness's personal background, their relationship to the parties, or uncontested timelines are typically included. The attorney might then in court ask, for example, "Is your professional background as stated on page 1 of your chinjutsusho?" For the core, disputed facts that are central to the witness's testimony (e.g., an eyewitness account of an accident), the chinjutsusho will lay out the detailed narrative, but the live direct examination will still likely cover these key points, perhaps with more nuance or emphasis. Simply asking, "Is your account of the accident as described on pages 3-5 of your chinjutsusho?" for the most critical testimony would be insufficient and unpersuasive.
• Avoiding Pitfalls: A common critique from judges is of chinjutsusho that are little more than a reformatted version of a party's preparatory brief, with verb tenses changed. Such documents often lack the authentic voice of the witness and may be given little weight by the court. The statement should reflect the witness's own experiences and recollections, albeit structured and articulated with the assistance of counsel.

C. The Utility of the Drafting Process Itself:
The process of preparing a chinjutsusho offers a significant, often underestimated, benefit: it can reveal weaknesses, inconsistencies, or gaps in the witness's account or the overall case theory. As an attorney works with a witness to reconstruct events and commit them to writing, areas where memory is vague, where the narrative seems illogical ("this part of the story sounds odd"), or where crucial details were previously overlooked ("I forgot to ask why this happened") often come to light. These are effectively the witness's potential vulnerabilities. This discovery allows counsel to address these points, seek clarification, or adjust case strategy before the witness takes the stand. This is why some experienced practitioners begin drafting chinjutsusho relatively early in the litigation process, sometimes concurrently with the main rounds of preparatory briefs, using them as a tool to refine issues and solidify their proof plan.

D. Judicial Perspective on Effective Chinjutsusho:
From a judge's viewpoint, the most helpful chinjutsusho is one that is written clearly from the witness's perspective and, where possible, presents events in a chronological order. Judges often approach a case through the framework of requisite legal facts (yōken jijitsu), and the chinjutsusho serves as a vital bridge connecting these legal elements to the raw, lived experiences of the witness. It helps the judge grasp the overall human story behind the legal arguments. Key elements that enhance clarity for judges include:

• Precise Dates: Including specific dates for events is highly desirable. Even approximations like "around March 2023" or "two or three weeks after that incident" are more helpful than vague references.
• "Who, What, To Whom": Clearly identifying the actors involved and the specifics of their actions.
• Authentic Voice: As mentioned, statements that are merely repurposed legal briefs are far less effective than those that genuinely reflect the witness's own account in their own (assisted) words.

III. Strategic Proof Planning and Witness Selection

Effective witness examination begins long before entering the courtroom, with careful planning.

A. The Proof Plan (立証計画 - Risshō Keikaku):
A robust proof plan is essential. For the plaintiff, this means clearly identifying the requisite facts needed to establish their claim(s) and any necessary rebuttals to anticipated defenses, and then mapping the optimal evidence (including specific witnesses) to prove each of those facts. The defendant undertakes a similar process for their defenses and any surrebuttals. An incomplete or poorly conceived proof plan often leads to an unfocused presentation of evidence, such as submitting an excessive volume of documents or calling too many witnesses with overlapping or marginally relevant testimony. Conversely, a strong plan results in a lean, targeted, and persuasive evidentiary presentation. This planning also directly informs the "facts to be proven" (証すべき事実 - shōsubeki jijitsu) section of the formal witness application submitted to the court; difficulty in articulating this section often signals an underlying weakness in the proof plan.

B. Witness Application and Selection (人証の申請と選択 - Ninshō no Shinsei to Sentaku):

1. Party Examination: Examination of the parties themselves is almost always a necessary component of the trial.
2. Selecting Other Witnesses: When considering non-party witnesses, especially if multiple candidates exist, factors to consider include their demeanor, articulateness, and potential vulnerabilities. Individuals who are easily agitated, overly timid, excessively verbose, overconfident to the point of carelessness, poor communicators, or easily suggestible may not be effective witnesses. However, the reality is often that the choice of witnesses is limited. The more practical approach is to identify which potential witnesses are indispensable for proving key requisite facts. Simply applying to call every conceivable related person is ill-advised, especially under the concentrated evidence examination schedule; courts will often press counsel to narrow their witness list.
3. "Accompanied" vs. "Summoned" Witnesses: When a witness is approved, the court will confirm if they will be "accompanied" (同行 - dōkō) by the party calling them or formally "summoned" (呼出し - yobidashi) by the court.
   • Accompanied (dōkō): This is the more common route for friendly witnesses. It implies the witness will attend voluntarily and that the calling party will submit a chinjutsusho for them.
   • Summoned (yobidashi): This is used for neutral witnesses or those potentially unwilling to appear voluntarily. A formal summons is issued by the court. In such cases, obtaining a pre-examination chinjutsusho may be difficult or impossible, making their testimony less predictable but potentially highly impactful if they are perceived as neutral. Even if a party applies for a witness to be "summoned" to emphasize neutrality, the judge might still inquire if voluntary "accompaniment" is possible to streamline procedures.
4. List of Questions to be Asked (尋問事項書 - Jinmon Jikōsho): This document is attached to the formal witness application. For an "accompanied" witness providing a chinjutsusho, the jinmon jikōsho may be quite general, outlining the main topics to be covered (e.g., in a traffic accident case: witness's relationship to the party, circumstances of being in the vehicle, events leading to the accident, observations of the accident itself, injuries sustained). For a "summoned" witness, particularly one not providing a chinjutsusho, the court may request a more detailed list of anticipated questions. This is partly to allow the witness to prepare and to reduce their anxiety, but providing an overly detailed script could also make the witness unduly cautious or reveal too much of the examining attorney's strategy.

IV. Witness Rehearsals (尋問リハーサル – Jinmon Rihāsaru): A Balancing Act

Preparing a witness for their courtroom testimony is a critical part of an attorney's role.

A. Necessity of Rehearsals:

• For Parties: Rehearsals are almost invariably necessary for the parties themselves. Clients will naturally be anxious and will want to understand what to expect and how to best convey their account. Simply telling them to "tell the truth" is insufficient preparation.
• For Friendly "Accompanied" Witnesses: Rehearsals are also highly advisable for friendly witnesses for whom a chinjutsusho has been submitted. It helps them understand the process, clarifies the questions they will be asked based on their statement, and helps ensure their oral testimony is consistent and clear.
• For Neutral or Adverse Witnesses: Attempting to "rehearse" a strictly neutral or adverse witness is generally inappropriate and can lead to accusations of witness tampering or coaching.

B. Timing, Logistics, and Frequency:

• Timing: Rehearsals should be timed carefully – not so far in advance that the details fade from memory, nor so close to the hearing (e.g., the day before) that it causes undue stress or leaves no time to address unexpected issues that might arise during the rehearsal. Approximately three days before the examination is often a good benchmark.
• Location: Usually conducted at the attorney's office, unless the witness's health or age makes travel difficult.
• Frequency: For most witnesses, one thorough rehearsal session may suffice. However, for particularly complex cases, or if the witness is extremely nervous, prone to verbosity, or has difficulty recalling details, multiple shorter sessions might be more effective. Attorneys should try to get a sense of the witness's personality and needs early on.

C. The Rehearsal Process and Ethical Boundaries:
The primary ethical concern during witness rehearsals is avoiding "witness contamination" (証人汚染 - shōnin osen) or, worse, suborning perjury (偽証のそそのかし - gishō no sosonokashi), which is strictly prohibited under attorney ethics rules (e.g., Article 75 of the Basic Rules on the Duties of Practicing Attorneys - 弁護士職務基本規程第75条).

• Focus on Truthful Recall: The goal of a rehearsal is to help the witness accurately, clearly, and confidently articulate their own truthful recollection of events. It is not to feed them a script or instruct them what to say.
• Using Question Lists: It is common to provide the witness with a list of the questions the attorney plans to ask on direct examination (based on their chinjutsusho and prior interviews).
• The Danger of "Scripting Answers": Providing the witness with pre-written "model answers" is highly problematic and can cross ethical lines. If a witness states during rehearsal that they don't recall a specific detail or are unsure how to phrase something, the attorney's role is to help them refresh their genuine memory, perhaps by referring them back to their chinjutsusho (assuming it was based on their original, uncoached statements) or other contemporaneous documents. Directly telling a witness, "You should answer it this way," especially if it deviates from their actual recollection, constitutes improper coaching.
• The attorney must ensure the testimony ultimately given is the witness's own, not a recitation of the lawyer's preferred narrative.

V. Making and Handling Objections (異議 – Igi)

Objections are a part of the adversarial process, intended to ensure that questioning remains fair and adheres to procedural rules.

A. The Dual Nature of "Objections" in Practice:

• Formal Legal Meaning: Under Article 117 of the Regulations for Civil Procedure, an "objection" (igi) is formally a challenge made to the presiding judge's ruling concerning the conduct of the examination (e.g., a ruling on the order of questioning, a restriction on an allegedly improper question, or a decision about the use of documents during questioning).
• Common Courtroom Practice: More frequently, attorneys will exclaim "Objection!" (Igi!) directed at the questioning attorney, often to protest the form or substance of a question itself (e.g., "That's a leading question!"). While not strictly an "objection" in the formal sense of Article 117, this is a widely accepted courtroom convention.

B. Common Grounds for "Practical" Objections:
Attorneys may object to questions on various grounds, including that the question is:

• Leading (誘導質問 - yūdō shitsumon): Suggests the answer (restricted on direct, generally allowed on cross).
• Misleading (誤導質問 - godō shitsumon): Assumes facts not in evidence or presents a false premise.
• Repetitive (重複質問 - chōfuku shitsumon): Asks something already covered.
• Seeking an Opinion (意見を求める質問 - iken o motomeru shitsumon): Asks a lay witness for a legal or expert opinion.
• Irrelevant to Direct Examination (during cross-examination): Cross-examination should generally be limited to matters raised in direct or issues of witness credibility (CCP Art. 202(2)). Going beyond this requires court permission.
• Insulting or Unduly Confusing (侮辱しまたは困惑させる質問 - bujoku shi mata wa konwaku saseru shitsumon): Prohibited by Reg. Civ. Pro. Art. 115(2)(i).
• Hearsay-Inducing (though hearsay itself is not as strictly excluded in civil as in criminal cases in Japan).

C. Strategic Considerations and Judicial Response:

• Making Objections: Some attorneys object frequently, perhaps to disrupt the opponent's flow or for the benefit of their client observing in court. Most, however, reserve objections for genuinely problematic questions. The most effective objections are those that are well-founded, clearly articulated, and pertinent.
• Responding to Objections: The attorney whose question is objected to should pause, allow the objecting counsel to state their grounds, and await the judge's ruling or direction. Arguing with the objecting counsel is usually unproductive.
• Judicial Handling: The judge will rule on the objection. They might ask the questioning attorney to clarify the question's relevance or rephrase it, or they may overrule the objection and instruct the witness to answer. Judges generally prefer counsel to raise legitimate objections when necessary (e.g., if a key part of direct testimony is being improperly led) but are not appreciative of excessive or frivolous objections that bog down the proceedings. Objecting to misleading questions is particularly important, as the judge may not always immediately perceive the misleading premise without counsel's intervention.

VI. Examination Memos (尋問メモ – Jinmon Memo)

Taking effective notes during an opponent's direct examination is crucial for preparing a responsive cross-examination, yet it's a challenging skill. Trying to create a verbatim transcript while simultaneously formulating cross-examination questions is nearly impossible for most. A more effective approach is to listen critically, specifically looking for inconsistencies, ambiguities, new information, or statements that contradict prior evidence or testimony. Notes should focus on these key points and potential lines of inquiry for cross, rather than attempting to capture every word.

VII. Conclusion

Mastering witness examination in Japan is a multifaceted skill developed through diligent preparation, practical experience, and a keen understanding of both procedural rules and courtroom dynamics. From the foundational drafting of the chinjutsusho to the ethical conduct of witness rehearsals and the strategic use of objections, each element contributes to the overarching goal of presenting clear, credible, and persuasive testimony to the court. While the specific techniques may differ from those in other jurisdictions, the fundamental importance of thoroughness, clarity, and ethical advocacy remains universal.