Understanding Your Right to Remain Silent During Interrogations in Japan

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

The right to remain silent is a cornerstone of many modern legal systems, designed to protect individuals from compelled self-incrimination. In Japan, this fundamental right is enshrined in both the Constitution and the Code of Criminal Procedure, playing a critical role during criminal investigations, particularly during the interrogation process known as torishirabe (取調べ). This article explores the legal basis, scope, notification procedures, and related considerations surrounding a suspect's right to remain silent in Japan.

Constitutional and Statutory Foundations

The right against self-incrimination and the subsequent right to remain silent during interrogation are firmly rooted in Japan's highest laws.

Article 38(1) of the Constitution of Japan:
The bedrock of this protection is Article 38, paragraph 1, of the Constitution, which unequivocally states: "No person shall be compelled to testify against himself." This constitutional mandate ensures that individuals cannot be forced by state authorities to provide statements or information that could be detrimental to their own legal standing in a criminal context. It serves as the ultimate safeguard against coerced confessions and protects individual autonomy during investigations.

Article 198(2) of the Code of Criminal Procedure (CCP):
Building directly upon this constitutional principle, Article 198, paragraph 2, of the Code of Criminal Procedure (刑事訴訟法 - Keiji Soshō Hō) translates this right into a concrete procedural obligation for investigators. It mandates: "Prior to the interrogation, the suspect shall be notified that he/she is not required to make statements against his/her will." This provision ensures that suspects are made aware of their right before any questioning begins.

Purpose of the Notification:
The requirement to inform suspects of their right to remain silent serves multiple purposes within the Japanese criminal justice system:

  1. Alleviating Psychological Pressure: The interrogation environment can be inherently intimidating. The notification aims to reduce psychological pressure on the suspect, empowering them to make a free and considered choice about whether or not to speak.
  2. Ensuring Voluntariness: A core tenet of admissible evidence is that statements, particularly confessions, must be voluntary. Informing suspects of their right to silence is a key step in ensuring that any subsequent statements are indeed made of their own free will and not as a result of ignorance or misunderstanding of their rights.
  3. Providing an Opportunity for Reflection: Some legal interpretations in Japan also suggest that this notification provides the suspect with an opportunity to reflect on their situation, consider their actions, and potentially even begin a process of repentance (kaishin no kikai 改心の機会), should they choose to speak truthfully.

It is important to note the parallel protections afforded to defendants in court. Article 291, paragraph 4, of the CCP requires the presiding judge, after the indictment is read, to inform the defendant of their right to remain silent throughout the trial or to refuse to answer individual questions. Article 311, paragraph 1, further solidifies this by stating that a defendant may remain silent at all times or refuse to answer particular questions.

Scope and Nuances of the Right to Remain Silent (Mokuhiken)

The right to remain silent, often referred to as mokuhiken (黙秘権) in Japanese, encompasses several important aspects:

  • What it Covers: The right allows a suspect to refuse to answer any and all questions posed by investigators, or to make any statements whatsoever, particularly if they believe such statements could be self-incriminating. This applies to the entirety of the interrogation.
  • "Statements Against His/Her Will" (Jiko no Ishi ni Hanshite Kyōjutsu Suru): This key phrase from CCP Article 198(2) underscores that the protection is against compelled speech. The choice to speak or remain silent rests with the suspect.
  • The Right to Lie: The right to remain silent is a right to refuse to provide information; it is not an affirmative right to lie. While a suspect's false statements made during an interrogation are generally not prosecuted as a separate offense (unless they constitute a distinct crime like perjury, which is not applicable to suspect interrogations, or active obstruction of an investigation), the act of lying can significantly damage their credibility if discovered. The core right is the protection from being forced to speak, not a license for deception.
  • Basic Identifying Information (e.g., Name): A nuanced issue arises with whether basic identifying information, such as one's name, falls under the protection against self-incriminating statements. A significant Supreme Court decision on February 20, 1957 (Shōwa 32, Keishū Vol. 11, No. 2, p. 802) addressed this, generally concluding that a person's name does not typically constitute a "disadvantageous statement" (furieki na kyōjutsu) in the context of Article 38(1) of the Constitution.
    Practically, investigators may encounter suspects who refuse to provide their name. While asserting that providing a name is not protected by the right to silence might be legally correct, forcing a verbal answer is problematic. In such situations, especially when a suspect is lawfully detained, investigators have other means to ascertain identity. For instance, CCP Article 218, paragraph 3, allows for the collection of fingerprints from a detained suspect without a warrant specifically for that purpose.

The Procedure of Notifying the Right

The manner and timing of the notification of the right to remain silent are crucial for its effectiveness.

  • Timing of Notification: The notification under CCP Article 198(2) must be given before the interrogation of the suspect commences. This ensures the suspect is aware of their rights from the very outset of questioning.
  • Repeated Notifications: A question often arises whether this notification must be repeated for each subsequent interrogation session or when questioning shifts to different alleged facts. The general interpretation, supported by a Supreme Court decision on April 14, 1953 (Shōwa 28, Keishū Vol. 7, No. 4, p. 841), is that if the suspect has been properly informed at the beginning of the first interrogation and demonstrably understands this right, repeated formal notifications for every session or for each new alleged offense are not strictly legally mandated. However, investigators might still provide reminders as a matter of good practice or to preempt any later claims of misunderstanding.
  • Distinction Between Suspects and Witnesses (Sankōnin): The formal notification requirement of CCP Article 198(2) is specifically for individuals classified as "suspects" (higisha 被疑者). When investigators question "persons other than the suspect," such as witnesses or persons of interest (sankōnin 参考人), under CCP Article 223(1), the provision that incorporates parts of Article 198 (namely, Article 223(2)) explicitly excludes the application of Article 198(2). Therefore, there is no legal obligation to formally notify a sankōnin of a right to remain silent. However, it is considered advisable that if, during the course of questioning a sankōnin, their status begins to shift and they effectively become a suspect (e.g., if their statements start to incriminate them or if evidence emerges pointing to their involvement), the investigators should then provide the notification.
  • "Opportunity for Explanation" (Benkai no Kikai): When a suspect is arrested, the CCP (Articles 203-205) provides for an "opportunity to make an explanation" (benkai no kikai). This is distinct from a formal interrogation initiated by investigators; it is a chance for the suspect to offer their side of the story. Legally, the notification of the right to remain silent might not be strictly required for this specific procedure, as it's not an active "interrogation" by the authorities in the same sense. However, in common practice, investigators often provide the notification even in this context to ensure all interactions are covered and to avoid any ambiguity regarding the suspect's rights.

The "Duty to Tolerate Interrogation" (Torishirabe Junin Gimu) for Detained Suspects

A significant and sometimes contentious concept in Japanese criminal procedure is the "duty to tolerate interrogation" (torishirabe junin gimu 取調べ受忍義務), which applies to suspects who are under arrest or detention.

The Proviso in CCP Article 198(1):
This concept largely stems from an "adverse interpretation" (hantai kaishaku 反対解釈) of the proviso in CCP Article 198(1). The proviso states: "...except in cases where the suspect is under arrest or detention, the suspect may refuse to appear or, after appearing, may leave at any time."

The "Adverse Interpretation" and its Implications:
The prevailing view among practitioners and many legal scholars is that this proviso, by explicitly granting these freedoms to non-detained suspects, implies their absence for detained suspects. Therefore, it is argued that an arrested or detained suspect does not have the right to refuse to appear for an interrogation session when summoned by investigators within the detention facility, nor do they have the right to unilaterally decide to leave the interrogation room and return to their cell. This is interpreted as a duty to be physically present for the interrogation process, a duty to "tolerate" or "endure" the interrogation setting itself (shuttō・tairyū gimu 出頭・滞留義務 — duty to appear and remain).

Distinction from the Right to Remain Silent:
It is absolutely crucial to understand that this "duty to tolerate the interrogation setting" is distinct from, and does not diminish, the suspect's fundamental right to remain silent as guaranteed by the Constitution and CCP Article 198(2). The duty pertains to the suspect's physical presence and obligation to attend the interrogation; it does not compel them to speak or answer questions. They can fulfill their duty to be present while still exercising their right to say nothing.

Differing Legal Perspectives:
While the above interpretation is dominant in practice, an alternative "accusatorial view" exists. Proponents of this view argue that even detained suspects should have greater freedom to refuse the interrogation setting itself, aligning more closely with a party-driven adversarial process. However, this remains a minority viewpoint in the actual application of Japanese criminal procedure.

Interrogation on "Other Crimes" (Yozai Shirabe):
A related question is whether this duty to tolerate interrogation extends to questioning about offenses other than the specific one for which the suspect is currently detained (yozai shirabe 余罪調べ – investigation of other crimes). A strict textual interpretation of the CCP might suggest that the duty applies generally once a suspect is lawfully detained. However, in practice, particularly for interrogations concerning unrelated past offenses, investigators often seek the suspect's understanding or some form of consent, proceeding with a degree of caution to avoid challenges to the voluntariness of any statements made.

While the focus of this article is on the right to remain silent itself, it's important to briefly note the role of legal counsel. Suspects in Japan have the right to retain and consult with an attorney. A lawyer can provide crucial advice to the suspect regarding their right to remain silent, how to exercise it, and the potential implications of speaking or not speaking with investigators. The presence and advice of counsel are significant factors in ensuring a suspect's rights are fully understood and protected during the interrogation process. The specifics of attorney access and involvement during torishirabe are complex and warrant their own detailed discussion.

Conclusion

The right to remain silent is a fundamental safeguard for individuals facing criminal interrogation in Japan, constitutionally guaranteed and procedurally implemented through the Code of Criminal Procedure. Investigators are obliged to inform suspects of this right before questioning begins, ensuring that any decision to speak is voluntary. This right to silence is comprehensive, allowing a suspect to refuse to answer any or all questions.

Concurrently, for suspects under arrest or detention, Japanese law and practice generally recognize a "duty to tolerate the interrogation setting," meaning they must appear for and remain present during interrogation sessions. However, this duty is strictly limited to physical presence and does not impinge upon their absolute right to refuse to make any statements. Navigating the nuances of these rights and obligations is critical for anyone involved in the Japanese criminal justice system, and legal counsel plays an indispensable role in advising suspects accordingly.