Unveiling Prior Statements in Court: How are investigator-prepared documents (chosho) strategically presented and read during cross-examination in Japan to impeach a witness?

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

One of the most decisive moments in a cross-examination occurs when a witness is confronted with their own prior words that contradict their current testimony. In Japan, where detailed investigator-prepared statements, known as chosho (調書) or kōjutsu rokuwasho (供述録取書), often form a significant part of the evidentiary landscape in criminal trials, the ability to effectively present these documents to impeach a witness is a critical skill. This process involves not just a keen understanding of human psychology but also a firm grasp of Japanese procedural rules and strategic best practices.

The primary aim of using a prior inconsistent statement (jiko mujun kyōjutsu - 自己矛盾供述) during cross-examination is impeachment (dangai - 弾劾) – that is, to diminish the witness's credibility in the eyes of the fact-finders (professional judges and, in many serious cases, lay judges or saiban-in). It's crucial to distinguish this from the process of refreshing a witness's recollection, which is governed by different rules and serves a different purpose.

  1. Refreshing Recollection vs. Impeachment:
    • Refreshing Recollection: Governed by Rule 199-11 of the Japanese Rules of Criminal Procedure, this typically occurs during direct examination if a party's own witness has a memory lapse. Importantly, this rule generally restricts the use of the witness's own prior narrative statements (like chosho) for this purpose. The rationale is to prevent the circumvention of hearsay rules by essentially allowing the prior statement's contents to be improperly introduced as if it were live testimony.
    • Impeachment: This occurs during cross-examination. The goal is not to help the witness remember, but to demonstrate that they have previously said something different, thereby casting doubt on their current testimony. Rule 199-11 does not prohibit showing a prior statement during cross-examination for this distinct purpose of impeachment.
  2. The Key Procedural Rule for Showing Documents (Rule 199-10):
    • Rule 199-10 of the Rules of Criminal Procedure is central here. It states that a party "may, when it is necessary, show the document or object to the witness" when questioning them about "the establishment (authenticity), identity, or other similar matters concerning the document or object."
    • Crucially, this rule does not stipulate that the document must have already been formally admitted into evidence. In fact, paragraph 2 of Rule 199-10 anticipates the use of unadmitted documents by requiring that "if the document or object... has not yet been examined as evidence, the person must give the opponent an opportunity to inspect it in advance."
    • Presenting a prior statement to confirm its existence, the witness's signature, and the specific inconsistent assertion contained within it falls squarely under "similar matters" and is deemed "necessary" for effective impeachment.
    • Unlike procedures for refreshing recollection (Rule 199-11) or using diagrams for clarification (Rule 199-12), showing a document for impeachment under Rule 199-10 does not explicitly require the presiding judge's prior permission, though maintaining courtroom decorum and clearly stating one's intention is always advisable.

Common Objections and Strategic Responses

When attempting to use a chosho for impeachment, a cross-examining lawyer might face objections from the prosecution. Understanding how to respond is key:

  • Objection 1: "The document is not in evidence (e.g., the defense has not consented to its admission as substantive evidence)."
    • Response: Rule 199-10 does not limit the presentation of documents for questioning to those already admitted as evidence. The rule itself, particularly its second paragraph, clearly contemplates showing documents that have not yet undergone formal examination as evidence. The immediate purpose is to question the witness about the document in the context of their prior statement, not necessarily to offer the document itself as substantive evidence at that moment through this act.
  • Objection 2: "Rule 199-11 prohibits showing the witness their prior statement."
    • Response: This is a frequent misapplication of Rule 199-11. That rule is specifically designed to prevent the improper introduction of hearsay by using a prior narrative statement to "refresh memory" during direct examination. The current purpose is impeachment during cross-examination by highlighting a contradiction to challenge credibility. This distinct use is governed by the general principles of cross-examination and the allowance provided under Rule 199-10. The aim is to confirm the existence and content of a prior inconsistent assertion made by the witness.

The Strategic Presentation: A Step-by-Step Guide

Effectively confronting a witness with their prior inconsistent statement in a chosho involves a methodical approach:

  1. Laying the Foundation (The "Credit" Phase):
    Before directly unveiling the contradiction, it's crucial to "credit" the prior statement. This means establishing the circumstances under which it was made to make it difficult for the witness to later dismiss it as unimportant, misunderstood, or inaccurately recorded. This involves questions confirming:
    • When, where, and to whom the statement was given.
    • The witness's understanding at the time that they should be truthful.
    • The process: that the investigator recorded what they said, that they had an opportunity to review or have it read to them, and that they signed or affixed their personal seal, affirming its accuracy at that specific time.
  2. Authenticating the Document with the Witness (Leveraging Rule 199-10):
    • The lawyer should first show the witness the signature or seal on the chosho.
    • Example Question: "I am showing you a document dated [Date], which appears to be a statement you provided to [Investigator's Name/Rank]. Is this your signature [or seal] at the end of this document?"
  3. Directing the Witness to the Specific Contradictory Passage:
    • Once the document's general authenticity (or at least the witness's formal connection to it via signature) is established, the lawyer directs the witness to the precise part containing the inconsistency.
    • Example Question: "Now, I would like to draw your attention to page [X], line [Y] of this statement that you have just identified."
  4. The Crucial Question: Who Reads the Inconsistent Passage Aloud?
    • The Advocate Reads, Not the Witness: This is a key strategic recommendation found in Japanese advocacy training. To maintain absolute control over the examination, ensure clarity for the fact-finders, and prevent the witness from misreading, skipping parts, reading out of context, or launching into an immediate explanation or evasion, the cross-examining lawyer should be the one to read the exact contradictory passage from the chosho.
    • After reading the passage, the lawyer then asks the witness to confirm that this is indeed what their prior statement says.
      • Example Question (after reading the passage): "Is that what your statement says at page [X], line [Y]?" or "I have read that passage correctly, have I not?" The objective is to get the witness to confirm the recorded content of their prior inconsistent statement.

Why the Advocate Should Read: Maintaining Control and Maximizing Impact

Allowing the witness to read the passage themselves introduces unnecessary risks:

  • Loss of Control: The witness might read in a tone that diminishes the inconsistency, stumble over words (genuinely or feigned), or try to interject explanations.
  • Lack of Clarity: The fact-finders might not grasp the exact wording of the inconsistency if the witness reads poorly or unclearly.
  • Focus Shift: The focus can shift from the content of the contradiction to the act of the witness reading.

By reading the passage themselves, the lawyer ensures the inconsistency is presented crisply, accurately, and with the intended emphasis, keeping the witness on the defensive and the court focused on the contradiction.

Handling Unfavorable Rulings: The "Next Best Strategy" (Jizen no Saku)

Despite the rules, a presiding judge might occasionally, perhaps from an unfamiliarity with these specific nuances or a misinterpretation, restrict the lawyer from physically showing the document to the witness for impeachment. If such an unfavorable ruling occurs:

  • The "Next Best Strategy" is to Read Aloud: The lawyer can still achieve a significant impact by reading the contradictory passage from the chosho aloud to the witness and the court.
    • Example Approach: "Mr./Ms. [Witness], you recall giving a signed statement to [Investigator] on [Date], do you not? In that statement, on page [X], line [Y], did you not state the following, and I quote: '[Read the exact inconsistent wording]'? Is that what you stated on that occasion?"
  • Breaking Down Long Passages: When reading aloud from a potentially lengthy or complex chosho, it is vital to break the inconsistent portion into shorter, easily digestible segments. The lawyer should read one segment, ask for the witness's confirmation ("Is that what you stated?"), and then proceed to the next segment. This method maintains clarity and impact, preventing the witness and the fact-finders from getting lost in a long recitation.
  • Involving Opposing Counsel (Optionally): A lawyer might preemptively say to the prosecutor, "Prosecutor, I will be reading from page X, line Y of the witness's statement of [date]; please follow along in your copy to ensure the accuracy of my reading." This can add a layer of perceived validation to the reading.

The Importance of "Necessity" and Precision in Presentation

The ability to show or read from a document under Rule 199-10 hinges on it being "necessary" (hitsuyō ga aru toki) for questioning about its establishment, identity, or similar matters. Confronting a witness with a clear, documented prior inconsistent statement to challenge their current sworn testimony is a prime example of such necessity for effective impeachment.

Precision is also paramount. The lawyer must identify the exact contradictory passage. Vague references to "something different you said before" are entirely ineffective. The specific words of the prior statement must be juxtaposed with the specific words of the current testimony.

Conclusion

The strategic presentation and reading of prior inconsistent statements from investigator-prepared documents (chosho) is a cornerstone of effective impeachment in Japanese criminal cross-examination. A thorough understanding of the Rules of Criminal Procedure, particularly the distinction between using documents for impeachment versus refreshing recollection, is essential for advocates to confidently assert their right to use these materials and overcome unfounded objections.

By meticulously laying the foundation, authenticating the document, and then—crucially—maintaining control by reading the contradictory passage themselves, lawyers can powerfully highlight inconsistencies. This disciplined approach ensures that the witness's prior words are clearly laid before the court, allowing fact-finders to accurately assess the witness's credibility. Even if direct physical presentation is unduly hindered, skillful and segmented reading aloud can achieve a similar, potent impact.