The Significance of Written Statements (Kyojutsu Chōsho) in Japanese Investigations and Their Admissibility in Court

In the Japanese criminal justice system, the creation of detailed written statements, known as kyojutsu chōsho (供述調書), is a cornerstone of the investigative process. These documents, meticulously prepared by police officers or public prosecutors, record the oral declarations of suspects, victims, and witnesses. They serve not only as an internal record for investigators but also hold the potential to become crucial pieces of evidence in court. Understanding the procedures for creating these statements and the stringent rules governing their admissibility is essential for comprehending how cases are built and adjudicated in Japan.

What is a Kyojutsu Chōsho? Types and Creation

A kyojutsu chōsho is, in essence, a formal, written deposition. It is a document drafted by an investigating official that purports to accurately capture the oral statement provided by an individual during an interrogation or interview. The legal basis for creating these statements for suspects is found in Article 198, paragraph 3, of the Code of Criminal Procedure (CCP), and this provision is applied mutatis mutandis to witnesses and other relevant parties (sankōnin 参考人) via Article 223, paragraph 2.

While the term kyojutsu chōsho broadly covers statements taken by investigators, it's also useful to distinguish them from kyōjutsusho (供述書), which are statements written by the deponent themselves. Examples of self-authored kyōjutsusho include voluntary written reports submitted to the police (jōshinsho 上申書), formal victim impact statements, initial crime reports filed by victims (higai todoke 被害届), criminal complaints (kokuso-jō 告訴状), and even personal documents like diaries or letters if they contain relevant declarations.

The Process of Creating a Kyojutsu Chōsho – Key Procedural Safeguards:
The creation of an investigator-drafted kyojutsu chōsho involves several procedural steps designed to ensure accuracy and confirm the deponent's assent to its contents:

1. Accurate Recording: The primary duty of the investigator is to listen to the deponent's oral statement and transcribe its meaning accurately into written form. This often involves structuring a narrative from what might be a less organized oral account.
2. Reading Aloud and Opportunity for Review: Once drafted, the investigator is obligated to read the completed chōsho aloud to the deponent. The deponent must also be given the opportunity to read the document themselves. This crucial step allows the deponent to verify that the written content accurately reflects what they intended to say. In practice, for lengthy statements, noting the start and end times of this review process is advisable, as challenges to whether this step was properly performed can arise in court.
3. Corrections, Additions, and Deletions: After the reading and review, the deponent has the right to request any inaccuracies be corrected, to add further information, or to request deletions. If such requests are made, the investigator must accommodate them. These changes are typically noted in the document itself, often by an addendum at the end for substantive alterations or by carefully marked in-text changes for minor typographical errors, all done in the deponent's presence. The act of a deponent requesting and an investigator making such changes is considered important evidence of the statement’s voluntariness and the deponent's active engagement with its contents, often bolstering its credibility.
4. Signature and/or Seal: Finally, to attest that the written statement is a correct representation of their declaration, the deponent is asked to affix their signature and/or seal (inkan 印鑑 or hanko 判子) to the document. A fingerprint often suffices in place of a formal seal, especially for individuals who may not possess one. While the CCP technically requires signature "or" seal, standard practice, particularly for important statements, is to obtain both, providing a stronger attestation. This final act signifies the deponent's confirmation of the statement's accuracy.

The Hearsay Rule and the Admissibility of Chōsho in Court

In court proceedings, kyojutsu chōsho, being out-of-court statements offered to prove the truth of the matters asserted within them, generally fall under the definition of hearsay evidence.

General Inadmissibility (CCP Article 320(1)):
The fundamental principle in Japanese evidence law, as in many common law jurisdictions, is that hearsay is inadmissible. The primary rationale for this rule is the inability of the opposing party (usually the defendant) to contemporaneously cross-examine the declarant at the time the statement was made, which is considered a cornerstone of a fair trial and reliable fact-finding.

The Need for Exceptions:
However, a rigid application of the hearsay rule would lead to the exclusion of much valuable and often essential evidence, particularly if a witness becomes unavailable (e.g., due to death, illness, or departure from the jurisdiction) or if their memory fades by the time of trial. To prevent such outcomes and to aid in the pursuit of substantive truth, the CCP provides specific, carefully defined exceptions to the hearsay rule, allowing certain types of kyojutsu chōsho and other out-of-court statements to be admitted as evidence under prescribed conditions. These are primarily detailed in CCP Article 321(1) for statements made by persons other than the defendant, and Article 322 for the defendant's own statements.

Exceptions to the Hearsay Rule for Written Statements (CCP Article 321(1))

CCP Article 321(1) outlines the conditions under which written statements made by individuals other than the defendant can be admitted. The stringency of these conditions varies depending on the authority before whom the statement was made, reflecting a presumed hierarchy of reliability.

A. Statements Taken Before a Judge or Judicial Commissioner (Saibankan Menszen Chōsho - Article 321(1)(i)):
These are statements recorded by a judge or a judicial commissioner (e.g., during pre-indictment witness examination, as discussed in a previous article).

• Conditions for Admissibility: They are generally admissible if:
  1. The deponent is unavailable to testify at trial due to reasons such as death, physical or mental illness, their whereabouts being unknown, or being outside Japan. (The Supreme Court, in a decision on April 9, 1952, indicated that a witness's refusal to testify can also be treated as a form of unavailability).
  2. OR, the deponent testifies at trial but gives a statement that is different from (not necessarily contradictory to) their prior statement made before the judge.
• Rationale for Easier Admissibility: Statements made under the supervision of a judicial officer are presumed to carry a high degree of reliability and procedural propriety.

B. Statements Taken Before a Public Prosecutor (Kensatsukan Menszen Chōsho or Ken-chō - Article 321(1)(ii)):
These are statements recorded by a public prosecutor.

• Unavailability: Admissible if the deponent is unavailable under the same conditions as for judge-taken statements.
• Contradictory Trial Testimony: If the deponent testifies at trial and their testimony is "contradictory to or substantially different from" their prior statement to the prosecutor, the ken-chō may be admitted. However, this is subject to a crucial additional condition: "only when the prior statement is found to have been made under circumstances that make it more credible than the testimony given at the public trial." This requirement for "especially credible circumstances" (tokushin jōkyō 特信情況), often referred to as demonstrating "relative superior credibility" (sōtai-teki yūetsu shinninsei 相対的優越信用性), is vital. The tokushin jōkyō are seen as providing a circumstantial guarantee of trustworthiness that can substitute for the lack of contemporaneous cross-examination of the original statement.

C. Statements Taken by Police Officers or Other Non-Judicial/Non-Prosecutorial Personnel, and Self-Authored Statements (Kei-chō 警面調, etc. - Article 321(1)(iii)):
This category includes statements recorded by police officers (shihō keisatsu-in menzen chōsho 司法警察員面前調書, commonly kei-chō), as well as self-authored statements like affidavits (kyōjutsusho).

• Unavailability: Admissible under similar conditions of deponent unavailability.
• Contradictory Trial Testimony: If the deponent testifies at trial and their testimony is "contradictory to or substantially different from" the prior statement, the prior statement may be admitted if it was made under "especially credible circumstances" (tokushin jōkyō). The wording here implies that the statement itself must have been made under conditions ensuring its trustworthiness (sometimes referred to as "absolute superior credibility" - zettai-teki yūetsu shinninsei 絶対的優越信用性), as there isn't necessarily a prior formal statement to compare its creation circumstances against.
• Additional "Indispensability" Requirement: For these types of statements, there is a further hurdle: they are admissible "only when the statement is indispensable for proving the existence or non-existence of facts constituting the crime." This "indispensability" is generally interpreted to mean that the statement is of substantial necessity for the court's fact-finding and that its admission or exclusion could lead to a significant difference in the outcome (as per a Tokyo High Court decision, July 24, 1954).

Crafting Credible Statements: Ensuring Tokushin Jōkyō (Especially Credible Circumstances)

Given the importance of tokushin jōkyō for the admissibility of prosecutor-taken and police-taken statements when a witness's trial testimony diverges, investigators are mindful of creating chōsho that inherently possess attributes of credibility.

What Lends Credibility to a Chōsho?:

• Clarity, Vividness, and Internal Coherence: The statement should be readily understandable, allowing the reader to almost visualize the events being described. The narrative should be logical, internally consistent, and free from inexplicable contradictions. This applies not only to the core criminal act but also to the events leading up to it and its aftermath.
• Inclusion of Specific, Verifiable Details: The presence of concrete details that are unique to the deponent's experience significantly enhances credibility. The inclusion of "secrets of the crime" (himitsu no bakuro)—details unknown to investigators and verifiable only through the perpetrator's knowledge—is particularly powerful. Even seemingly minor, unique observations or sensory details can lend an air of authenticity.
• Reflection of the Deponent's Authentic Voice: The statement should, as much as possible, capture the deponent's own manner of speaking, including their vocabulary, expressions, and even dialect (with appropriate explanations provided in the chōsho if the dialect might be unfamiliar to a court in a different region). Imposing overly formal or legalistic language that is unnatural to the deponent can detract from its perceived genuineness. Investigators are advised against making leading substitutions of Kanji (Chinese characters) that might alter the nuance of a deponent’s spoken words (e.g., substituting a neutral word for "take" with a Kanji implying "steal"). It's better to record the spoken word accurately (e.g., in phonetic Hiragana) and then add an explanatory note from the deponent about their intended meaning.
• Adherence to the "8 Ws and 1H" Principle (Hachika no Gensoku 八何の原則): While not a rigid formula, good practice encourages ensuring that statements cover the essential journalistic questions where relevant: Who, With Whom (accomplices), Why (motive), When, Where, To Whom/What (victim/object), How (method), and What was done (the act and result). This helps ensure a comprehensive account.
• Focus and Self-Containment: While detailed, statements should remain focused on relevant matters. Ideally, each chōsho should be largely self-contained and understandable on its own, as not all statements in a series may be presented to the court.

An Illustrative Case:
A compelling example of establishing tokushin jōkyō for a police-taken statement (Art. 321(1)(iii)) arose in a Fukushima District Court (Aizu-Wakamatsu Branch) decision on April 11, 2016. A victim of sexual assault, who had suffered a severe brain injury affecting her memory and speech, gave clear and detailed statements to the police shortly after the incident, including participating in a crime scene reconstruction. Her condition deteriorated rapidly; a week later, when police formalized her statement into a chōsho, her memory was already fading, though she could still confirm details. By the time the prosecutor attempted an interview another week later, she could no longer recall the events and became severely distressed. The prosecution successfully sought admission of the police-taken chōsho. The "especially credible circumstances" were meticulously established through the testimony of nurses, a therapist, and the victim's mother (who witnessed the reconstruction), all of whom attested to the victim's clarity, coherence, and the absence of any leading by police immediately after the incident. Medical testimony confirmed her subsequent inability to testify at trial due to her deteriorating neurological condition.

The Defendant's Own Statements (CCP Article 322)

It is also important to note that a defendant's own out-of-court statements, such as confessions or admissions of facts unfavorable to them, are governed by CCP Article 322. The primary condition for their admissibility is voluntariness, as discussed extensively in previous articles in this series.

Conclusion

Written statements, or kyojutsu chōsho, are a fundamental and pervasive tool in Japanese criminal investigations. They form the backbone of the evidentiary record compiled by police and prosecutors. However, their journey from the interrogation room to admissible evidence in court is carefully regulated by Japan's hearsay rules and their exceptions. The credibility of these statements, often hinging on the establishment of "especially credible circumstances" (tokushin jōkyō) surrounding their creation, is paramount. This requires investigators to be not only skilled interviewers but also meticulous drafters, ensuring accuracy, reflecting the deponent's true voice, securing voluntariness, and capturing verifiable, deponent-specific details that can withstand the rigorous scrutiny of the judicial process.