Protecting Victims and Witnesses in Japanese Criminal Trials: An Overview of Protective Measures

The active participation of victims and witnesses is fundamental to the functioning of any criminal justice system. However, their willingness to come forward and provide testimony can be significantly undermined by fears of retaliation, concerns about privacy, or the potential for re-traumatization during legal proceedings. Recognizing these challenges, the Japanese legal system has, over time, developed a range of protective measures designed to safeguard these crucial participants, encourage their cooperation, and ensure that the pursuit of justice does not come at an unacceptable personal cost to them. This article provides an overview of the key victim and witness protection mechanisms available under Japan's Code of Criminal Procedure (CCP).

Protecting Identifying Information in Open Court

One of the primary concerns for many victims and witnesses is the public disclosure of their personal identifying information during a trial, which is typically open to the public in Japan.

A. For Victim-Identifying Information (Higai-sha Tokutei Jikō - CCP Article 290-2):
Japanese law allows for measures to prevent the public revelation of "victim-identifying information" (higai-sha tokutei jikō), which includes the victim’s name, address, place of employment or school, and even the names of their relatives, or any other information that could lead to the victim being identified.

• Purpose: The primary goals are to protect the victim's honor and privacy, particularly in sensitive cases such as sexual offenses or child abuse, and to shield them from potential secondary victimization that can arise from public exposure. Furthermore, this protection extends to situations where public disclosure could lead to a risk of physical harm, property damage, intimidation, or harassment directed at the victim or their family.
• Applicable Cases: While initially focused on sexual offenses and crimes against children, CCP Article 290-2 was expanded to cover other cases where public disclosure of victim-identifying information would either (a) significantly harm the victim's honor or the peace of their social life due to the nature of the crime or the damage suffered, or (b) create a risk of harm (to body or property) or intimidation/harassment to the victim or their relatives. This latter ground allows for broader application, including in cases of violent crime or organized crime where retaliation is a concern.
• Procedure: A request for such non-disclosure is typically made by the victim, their legal representative, or a lawyer acting on their behalf. This request is usually submitted to the court via the public prosecutor, who will forward it with their own opinion. The court then makes a decision after also hearing the opinions of the defendant and their defense counsel.
• Implementation in Court: If the court grants the request, several measures are taken:
  • Modified Readings: The public reading of the indictment (CCP Article 291(2)) and any documentary evidence (CCP Article 305(3)) must be done in a way that does not reveal the protected information. In the case of the indictment, the prosecutor must still show the full, unredacted indictment to the defendant.
  • Use of Pseudonyms: The Rules of Criminal Procedure (Article 196-4) allow the court to assign a pseudonym (e.g., "Victim A," "Hanako Yamada") to be used in place of the victim's actual name throughout the proceedings.
  • Restrictions on Questioning: The presiding judge has the authority (CCP Article 295(3)) to restrict any questions or statements made by the prosecution, defense, or defendant during the trial if they would lead to the disclosure of the protected victim-identifying information. This restriction applies unless withholding the information would significantly hinder the proof of the crime or cause substantial disadvantage to the defendant's ability to mount a defense.
• Important Limitation: It is crucial to understand that these measures primarily prevent the public disclosure of the victim's identity in open court. They do not necessarily mean that the defendant or their defense counsel will be kept unaware of this information through other pre-trial or trial processes, though separate measures (discussed later) address disclosure to the defense.

B. For Witness (and Other Participant)-Identifying Information (Shōnin-tō Tokutei Jikō - CCP Article 290-3):
Similar protections were extended to witnesses, expert witnesses, interpreters, translators, and even individuals whose statements are recorded in documents (deponents) through the 2016 amendments to the CCP.

• Purpose: The aim is to prevent harm, intimidation, or undue distress that might arise if their identities were publicly revealed, thereby encouraging their full and frank testimony.
• Applicable Situations: Such measures can be implemented if there is a recognized risk of harm (physical or property) or intimidation/harassment to the witness or their relatives, or if public disclosure would significantly harm the witness's honor or the peace of their social life.
• Procedure and Implementation: The witness or other relevant participant can request this protection directly from the court (though in practice, prosecutors often assist their witnesses with such applications). If granted, similar measures to those for victims apply: modified readings of documents, potential use of pseudonyms (Rules of Criminal Procedure Article 196-7), and restrictions on questioning that might reveal their identity (CCP Articles 291(3), 305(4), 295(4)).

Controlling Disclosure of Sensitive Information to the Defense (and Defendant)

Beyond public disclosure in court, a significant concern for victims and witnesses is that their personal information might become known to the defendant or their associates through pre-trial discovery processes, potentially leading to intimidation or retaliation. Japanese law has evolved to address this.

A. Earlier "Requests" for Discretion (Pre-2016 Amendments):
Prior to 2016, the CCP (in Articles 299-2 and 299-3) allowed prosecutors, when providing pre-trial discovery to the defense, to request defense counsel to exercise discretion in handling sensitive witness or victim information. For example, they could ask counsel not to reveal a witness's current address to the defendant if there was a safety concern, or not to disclose certain victim-identifying details if it could harm their reputation or social peace, unless strictly necessary for the defense. However, these were merely "requests" and were not legally binding on defense counsel regarding what they ultimately shared with their client, the defendant.

B. Enhanced Measures (Post-2016 CCP Amendments - Articles 299-4 to 299-7):
The 2016 amendments introduced more robust mechanisms to control the flow of sensitive information to the defendant, even if defense counsel is privy to it.

• (i) Conditional Disclosure by Prosecutor to Defense Counsel (CCP Article 299-4(1), (3)):
  When prosecutors are obligated to disclose witness/victim names and addresses, or documents containing such information, as part of pre-trial discovery, and they believe there is a risk of harm or intimidation to these individuals or their relatives, they can now:
  • Provide the full information to the defense counsel.
  • BUT, concurrently impose a legally binding condition that the defense counsel must not inform the defendant of the specific name or address.
  • Alternatively, the prosecutor can specify the timing or method by which defense counsel may (or may not) convey this information to the defendant.
    A critical safeguard exists: these restrictive conditions cannot be imposed if doing so would prevent the defense from properly assessing the witness's credibility (e.g., by obscuring potential conflicts of interest between the witness and the defendant or other related parties) or would otherwise cause substantial prejudice to the defendant's ability to prepare their defense. The prosecutor must promptly notify the court of any such measures taken, and the defense has the right to petition the court to revoke or modify these conditions if they are deemed unnecessary or overly prejudicial. The court itself also has the power to impose similar conditions even if it revokes a prosecutor-imposed one, should the risk of harm persist.
• (ii) Non-Disclosure of Name/Address Even to Defense Counsel (CCP Article 299-4(2), (4)):
  In exceptional circumstances, where the risk of harm is so severe that even providing the information to defense counsel (under condition not to tell the defendant) is deemed insufficient to prevent harm, the prosecutor has the authority not to disclose the actual name or address of a witness or victim even to the defense counsel. This is a significant measure reserved for high-risk situations, such as cases involving defendants with strong ties to organized crime where concerns about leaks or pressure on counsel might exist, or severe stalking cases where revealing a victim's new identity or location (after they have taken steps to protect themselves) would create an imminent and grave danger.
  When this extraordinary measure is taken, the prosecutor must provide the defense counsel (and the defendant) with:
  • An alternative designation (kawaru yobikata 代わる呼称 – e.g., a pseudonym) for the person's name.
  • An alternative contact point (kawaru renrakusaki 代わる連絡先) for their address, through which legitimate defense-related communication can be channeled without revealing their actual location. Finding a secure and workable alternative contact point (e.g., through a lawyer representing the witness, or in some cases, a carefully managed police or prosecutorial contact) is a practical challenge.
    Like conditional disclosure, these measures can be challenged by the defense before the court.
• (iii) Court-Imposed Restrictions on Defense Access to Other Records (CCP Article 299-6):
  The court also has powers to impose similar restrictions on defense counsel's access to information contained in court records or other documents they might be entitled to inspect or copy independently of the prosecutor's formal discovery obligations (e.g., under CCP Article 40(1)). Furthermore, the court can restrict the defendant's direct access to portions of the official trial record (kōhan chōsho 公判調書) that contain such protected identifying information.
• (iv) Consequences of Violation by Defense Counsel (CCP Article 299-7):
  If defense counsel violates any of these court-ordered or prosecutor-imposed conditions regarding the handling of sensitive information, the prosecutor or the court can report the matter to the relevant Bar Association, requesting that appropriate disciplinary action be taken. The actual imposition of disciplinary sanctions, however, remains within the purview of the Bar Association.

Using Alternative Notations for Victims in Indictments

A persistent challenge has been protecting a victim's identity when the indictment itself—a document served directly on the defendant—names them. To address this, particularly in sensitive cases like sexual offenses or stalking, a practice has emerged in Japan of using alternative methods to identify victims in the charging document, thereby shielding their actual name from the defendant at this initial, critical stage.

Examples of such alternative notations (drawn from legal commentary and observed case patterns) include:

• Using a phonetic Katakana spelling of the victim's first name combined with their date of birth or age at the time of the offense.
• If the victim has changed their surname (e.g., through marriage) and the defendant is unaware of the new name, using the victim's former surname known to the defendant.
• Identifying the victim through a parent's name and their relationship (e.g., "daughter of [Parent's Name], then aged X").
• Using descriptive phrases based on location or known identifiers if the defendant already possesses some identifying information (e.g., "the woman, then aged X, residing at [address known to defendant]," or "the woman known as 'Yuki' working at [company known to defendant]," or even "the woman whose mobile email address was [email known to defendant]").

The crucial legal test for such alternative notations is whether they still sufficiently specify the charge (so-in no tokutei 訴因の特定) as required by CCP Article 256(3), enabling the defendant to understand the accusation and prepare a defense. This is ultimately a case-by-case determination by the court. While this practice offers enhanced protection, victims cannot always be guaranteed it will be permitted or that a judgment will not later use their real name (though masking of judgment copies is sometimes employed).

Measures to Protect Witnesses Testifying in Court

If a victim or witness must testify in court, especially in a contested trial, several measures are available to mitigate their stress and protect their safety:

• General Duty of the Court (CCP Article 295(2)): The court is obligated to ensure that witnesses can testify with peace of mind and take appropriate measures to achieve this.
• Defendant's Temporary Removal from Courtroom (CCP Article 304-2): If a witness is likely to be unable to testify adequately due to overwhelming pressure or fear in the defendant's presence, the judge can order the defendant to be temporarily removed from the courtroom during that witness's testimony.
• Specific In-Court Protections (CCP Articles 157-2 to 157-6):
  • Accompaniment (Article 157-2): An appropriate individual (such as a family member, therapist, or support person) may be permitted to sit beside the witness while they are testifying. This is often used for child witnesses or victims of severe trauma.
  • Screening (Article 157-3): Screens or partitions can be set up to shield the witness from the direct view of the defendant and/or the public gallery. This helps reduce feelings of intimidation and psychological pressure.
  • Video Link Testimony from within the Courthouse (Article 157-4): Witnesses can testify from a separate room within the courthouse, connected to the courtroom via a live audio-video link. Their testimony is typically recorded.
  • Remote Video Link Testimony from Outside the Courthouse (Kōgai Bideo Rinku Hōshiki 構外ビデオリンク方式 - Article 157-6, introduced in 2016): This allows witnesses to testify from a location entirely outside the courthouse premises. It is available under specific conditions, such as:
    • When coming to the courthouse itself would cause the witness severe psychological distress (common for victims of serious sexual crimes or highly traumatized child witnesses).
    • When there is a credible risk of harm or intimidation to the witness during their travel to or from the courthouse.
    • When there is a risk that the witness's current residence or workplace could be identified by them being followed after their court appearance, leading to potential harm or harassment for them or their family (particularly relevant in organized crime or stalking cases).
    • When the witness resides in a remote location, and travel to the courthouse would be exceptionally difficult due to their age, health condition, or critical and irreplaceable work commitments.

Conclusion

Japan's legal system has made significant strides in developing a comprehensive suite of measures aimed at protecting victims and witnesses involved in criminal proceedings. These protections range from controlling the public disclosure of identifying information in court and managing its dissemination to the defense, to providing various forms of support and alternative methods for testimony. While an ongoing endeavor to balance the rights of victims and witnesses with the defendant's right to a fair trial, these provisions underscore a commitment to ensuring that those who come forward to assist in the pursuit of justice can do so with a greater degree of safety, privacy, and peace of mind. Awareness and appropriate utilization of these measures by investigators, prosecutors, and the courts are crucial for fostering cooperation and upholding the integrity of the justice system.