Understanding Criminal Defense in Japan: What are the Fundamental Principles and Procedures from Investigation to Appeal?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

The Japanese criminal justice system, often characterized by its high conviction rates and unique procedural aspects, can appear opaque to those unfamiliar with its workings. For individuals, including foreign nationals, who find themselves accused of a crime in Japan, or for businesses whose employees may face such situations, understanding the fundamental principles of criminal defense and the procedural roadmap from investigation to appeal is of paramount importance. This article aims to shed light on these key elements within the Japanese criminal justice framework.

I. Fundamental Principles of Criminal Defense in Japan

Several core principles underpin the rights of the accused and the role of defense counsel in Japan.

A. The Role of Defense Counsel (弁護人 - Bengonin)

The primary mission of a defense counsel (bengonin) in Japan is to protect the rights and interests of the suspect (被疑者 - higisha, before indictment) and the defendant (被告人 - hikokunin, after indictment).

  • Right to Counsel: The Constitution of Japan guarantees the right of an accused person to have the assistance of competent counsel at all stages of criminal proceedings.
  • Confidential Communication (接見交通権 - Sekken Kōtsū Ken): A crucial right for detained suspects/defendants is the right to meet with their defense counsel without the presence of law enforcement officers and to send and receive documents or articles without censorship. This right to confidential attorney-client communication is vital for preparing a defense. The frequency and duration of such meetings are generally unrestricted, though practical limitations exist.

B. Presumption of Innocence (無罪推定の原則 - Muzai Suitei no Gensoku) and Burden of Proof

Although not explicitly stated in the Constitution in the same way as in some other jurisdictions, the principle of presumption of innocence is a fundamental tenet of Japanese criminal procedure. The public prosecutor bears the burden of proving the defendant's guilt beyond a reasonable doubt. The defendant is not required to prove their innocence.

C. Right to Remain Silent (黙秘権 - Mokuhiken)

Article 38, Paragraph 1 of the Constitution guarantees the right against self-incrimination, stating that "No person shall be compelled to testify against himself." This translates to the right to remain silent during interrogations and at trial. Suspects and defendants must be informed of this right before any questioning.

D. Disclosure of Evidence (証拠開示 - Shōko Kaiji)

While historically limited compared to systems like that in the U.S., Japan has expanded its evidence disclosure rules, particularly with the introduction of the lay judge (Saiban-in) system and pre-trial preparatory procedures. Prosecutors are obligated to disclose certain categories of evidence to the defense to enable them to prepare effectively.

II. The Investigation Stage (捜査段階 - Sōsa Dankai)

The investigation stage commences when law enforcement agencies (police or prosecutors) begin to investigate a crime and identify a suspect.

A. Initial Contact with Defense Counsel

Access to legal counsel early in the investigation is critical.

  1. Duty Lawyer System (当番弁護士制度 - Tōban Bengoshi Seido):
    • This system allows a suspect who has been arrested to have one free initial consultation with a lawyer dispatched by the local bar association. The primary aim is to provide immediate legal advice at the crucial early stage of detention, covering rights such as the right to remain silent and how to respond to interrogations.
    • The duty lawyer will explain the criminal process and discuss options for further legal representation, which may include retaining the duty lawyer privately or applying for court-appointed counsel if the suspect meets certain criteria.
  2. Court-Appointed Counsel for Suspects (被疑者国選弁護制度 - Higisha Kokusen Bengo Seido):
    • For certain more serious offenses (those punishable by death, or imprisonment with or without labor for a maximum period exceeding three years), indigent suspects who are detained and against whom a detention order has been sought or issued are entitled to court-appointed counsel at public expense. This system is managed through the Japan Legal Support Center (known as Hōterasu - 法テラス).
    • Counsel is typically appointed after a detention hearing. Defense counsel appointed under this system are expected to meet with the suspect promptly, generally within 48 hours of appointment. In particularly serious cases, such as those designated for lay judge trials, the court may appoint more than one defense counsel.

B. Key Defense Activities During Investigation

  • Jail Visits (接見 - Sekken): Frequent and regular meetings with the detained suspect are essential to provide legal advice, gather information, understand the suspect's version of events, and offer psychological support.
  • Advising on Interrogations (取調べ - Torishirabe): Defense counsel will advise the suspect on their right to remain silent, the potential consequences of making statements, and how to conduct themselves during interrogations by police or prosecutors. In Japan, defense counsel are not permitted to be present during interrogations.
  • Negotiating with Prosecutors: Counsel may engage with the prosecutor regarding the necessity of continued detention, the nature of the charges, and the possibility of a non-prosecution disposition (e.g., suspension of prosecution - 起訴猶予 kiso yūyo) or a summary indictment for a fine in less serious cases.
  • Gathering Evidence: Although formal discovery is limited at this stage, counsel will endeavor to gather favorable evidence, interview potential witnesses, and assess the prosecution's likely case.
  • Challenging Detention: If detention is deemed unlawful or unnecessary, counsel can file a quasi-appeal (準抗告 - junkōkoku) against the detention order with the court.
  • Strategic Advice on Statements: Particularly in serious cases like those potentially subject to lay judge trials, a defense strategy might involve advising the suspect not to create or sign any written statements (供述調書 - kyōjutsu chōsho) based on interrogations, to preserve the ability to present their testimony freshly at trial.

III. The Trial Stage (公判段階 - Kōhan Dankai)

If the prosecutor decides to indict (起訴 - kiso) the suspect, the case moves to the trial stage, and the suspect becomes a defendant.

A. Commencement of Trial Proceedings

  • Upon indictment, the defense counsel (often the same lawyer who represented the suspect during the investigation stage) will receive a copy of the indictment (kisōjō) and review its contents carefully.

B. Pre-Trial Preparatory Procedure (公判前整理手続 - Kōhanzen Seiri Tetsuzuki)

This procedure is mandatory for cases to be tried under the lay judge (Saiban-in) system and can be ordered at the court's discretion for other complex cases.

  • Purpose: Its main goal is to clarify the issues in dispute and organize the evidence before the trial hearings commence, to ensure continuous, planned, and speedy trial proceedings (Code of Criminal Procedure [CCP], Art. 316-2, Para. 1).
  • Key Features and Defense Advantages:
    • Extensive Evidence Disclosure: This procedure mandates broader evidence disclosure by the prosecutor than in ordinary cases. This includes not only the evidence the prosecutor intends to use at trial but also potentially other categories of evidence relevant to the defense, subject to court orders if disputed.
    • Clarification of Prosecution's Case: The prosecutor must clarify the facts they intend to prove.
    • Bail: Bail applications are often viewed more favorably once a case enters this structured preparatory phase.
  • Defense Obligations and Potential Drawbacks:
    • The defense must also disclose, to some extent, its intended line of argument and evidence.
    • There are restrictions on introducing evidence at trial that was not processed through this preparatory procedure without good cause (CCP, Art. 316-32).
    • Concerns exist that this procedure might lead to a de facto erosion of the "indictment-only principle" (起訴状一本主義 - kisōjō ippon shugi), which aims to prevent judges from being prejudiced by information outside the indictment before the trial begins.
  • Consultation Meetings (打合せ期日 - Uchiawase Kijitsu): Informal meetings between the judges, prosecutor, and defense counsel are often held to facilitate the process, manage schedules, and assign "homework" (tasks to be completed by the next session).
  • Defendant's Attendance: The defendant has the right, but not the obligation, to attend these pre-trial preparatory sessions (CCP, Art. 316-9).

C. Trial Hearings

  1. Ordinary Cases (一般事件 - Ippan Jiken):
    • Opening Procedures: Identification of the defendant, reading of the indictment by the prosecutor, notification of the right to remain silent, and an opportunity for the defendant and defense counsel to make an initial statement regarding the charges.
    • Examination of Evidence: The prosecutor presents their evidence (甲号証 - kōgōshō, including objective evidence and witness statements; 乙号証 - otsugōshō, including the defendant's own statements and character evidence). The defense then presents its evidence. The defense states its opinion on the admissibility and relevance of the prosecution's evidence (同意・不同意 - dōi / fudōi).
    • Witness Examination: Involves direct examination, cross-examination, and re-direct/re-cross. Judges can also ask questions.
    • Defendant Questioning: The defendant may be questioned by the prosecutor, defense counsel, and the judge(s).
    • Closing Arguments: The prosecutor makes a closing argument (論告 - ronkoku), followed by the defense counsel's closing argument (弁論 - benron). The defendant is given a final opportunity to make a statement.
  2. Lay Judge (Saiban-in) Cases (裁判員裁判対象事件 - Saiban'in Saiban Taishō Jiken):
    These trials involve citizen lay judges sitting alongside professional judges to decide guilt and sentence in serious criminal cases.
    • Continuous Trial Days: Trials are generally held on consecutive days (CCP, Art. 281-6).
    • Opening Statement by Defense: An opening statement by the defense outlining their case is mandatory if they intend to present evidence or make specific arguments.
    • Focus on Clarity for Lay Judges: Proceedings are designed to be understandable to laypersons, avoiding overly technical legal jargon. Evidence presentation is often more visual and direct.
    • Focused Examination: Questioning of witnesses and the defendant must be concise and to the point to maintain the lay judges' comprehension and engagement.
    • Sentencing Database: A sentencing database providing information on similar past cases is available to assist in sentencing discussions, though the final decision rests with the trial panel.
  3. Expedited Trial Procedure (即決裁判手続 - Sokketsu Saiban Tetsuzuki):
    • This procedure is for relatively minor, undisputed cases where a fine or a suspended sentence is anticipated (CCP, Art. 350-2, Para. 1). It requires the suspect's consent and is initiated by the prosecutor at the time of indictment.
    • Key Features: Judgment is typically rendered within 14 days of indictment in a single, brief hearing (20-30 minutes). If a prison sentence is sought by the prosecutor, it must be accompanied by a request for suspension of execution.
    • Advantages: Speed, simplicity (some rules of evidence, like the hearsay rule, are relaxed), and predictability of outcome.
    • Disadvantages: Significant limitations on appeal rights (e.g., an appeal cannot be based on an alleged misfinding of fact), limited opportunity to review investigation records, and a potential risk of wrongful conviction if consent is given without full understanding or due to pressure.
    • This is a mandatory counsel case.

IV. Appeals (上訴 - Jōso)

A party dissatisfied with a court judgment can appeal to a higher court.

A. Appeal to the High Court (控訴 - Kōso)

  1. Grounds for Appeal (控訴理由 - Kōso Riyū): The grounds for appeal from a District Court or Summary Court judgment to a High Court are limited by statute (CCP, Art. 384). They generally fall into:
    • Absolute Grounds (絶対的控訴理由 - Zettaiteki Kōso Riyū): Serious procedural violations that automatically warrant reversal (CCP, Arts. 377, 378).
    • Relative Grounds (相対的控訴理由 - Sōtaiteki Kōso Riyū): Errors that require reversal only if they affected the judgment, such as insufficient deliberation, errors in the application of law, unreasonable sentencing, or significant misfindings of fact (CCP, Arts. 379-383).
  2. Procedure:
    • An appeal must be filed within 14 days of the judgment.
    • The appellant must then submit a statement of appellate reasons (控訴趣意書 - kōso shuisho), detailing the alleged errors in the first-instance judgment.
    • The High Court's review is generally based on the record of the first-instance trial (事後審 - jigoshin). New evidence or witness examination is permitted only in limited circumstances.
    • Prohibition against Disadvantageous Modification (不利益変更禁止の原則 - Furieki Henkō Kinshi no Gensoku): If only the defendant appeals, the High Court cannot impose a sentence more severe than the one imposed by the lower court (CCP, Art. 402).

B. Final Appeal to the Supreme Court (上告 - Jōkoku)

  1. Grounds for Appeal (上告理由 - Jōkoku Riyū): Appeals to the Supreme Court from High Court judgments are extremely limited (CCP, Art. 405):
    • Violation of the Constitution or an error in its interpretation.
    • A judgment inconsistent with precedents of the Supreme Court.
    • (In the absence of Supreme Court precedent) A judgment inconsistent with precedents of High Courts (as former courts of last resort, i.e., the pre-war Daishin'in, or High Courts acting as second instance courts).
  2. Procedure:
    • An appeal must be filed within 14 days. A statement of appellate reasons must be submitted.
    • The Supreme Court primarily reviews questions of law. Oral arguments are rare, typically held only in cases where a lower court judgment might be overturned or in death penalty cases.
    • The Supreme Court also has the power to reverse a judgment on its own initiative if it finds certain serious errors, such as a clear violation of law that affected the judgment, unreasonable sentencing, or a significant misfinding of fact that would result in manifest injustice if uncorrected (CCP, Art. 411).

V. Special Considerations for Foreign Nationals Accused in Japan

Foreign nationals facing criminal charges in Japan encounter particular challenges and have specific rights:

  • Right to an Interpreter: The Constitution and procedural laws guarantee the right to a competent interpreter if the accused does not understand Japanese. The quality and availability of interpreters can sometimes be an issue.
  • Procedural Differences: The Japanese criminal justice system, particularly regarding pre-trial detention (which can be lengthy) and interrogation practices, may differ significantly from that in the accused's home country. Understanding these differences is crucial.
  • Consular Assistance: Foreign nationals have the right to have their consulate notified of their arrest and detention, and to communicate with consular officials, as per international treaties like the Vienna Convention on Consular Relations. Consular officers can provide various forms of assistance, such as helping to find legal representation, facilitating communication with family, and monitoring the conditions of detention.
  • Implications of a Criminal Record: A criminal conviction in Japan can have serious consequences for a foreign national's visa status, potentially leading to deportation or denial of future entry into Japan.

Conclusion

The Japanese criminal defense system is a multifaceted process with distinct stages, each presenting unique challenges and requiring specialized legal strategies. From the critical early interventions during police investigation through the structured proceedings of trial and the limited avenues of appeal, the role of defense counsel in safeguarding the rights of the accused is paramount. For anyone, particularly foreign nationals, navigating this system, securing competent legal representation at the earliest possible moment is the most critical step towards ensuring a fair process and the best possible outcome.