What is the "Principle of Directness" and How Does It Apply to Witness Re-examination in Japanese Appeals?

In civil litigation, the assessment of witness testimony is often pivotal. The way a witness delivers their account—their demeanor, confidence, hesitations, and responses under cross-examination—can be as crucial as the words themselves. The "Principle of Directness" (直接主義 - chokusetsu shugi) in Japanese civil procedure embodies the ideal that judges should base their decisions on evidence directly perceived by them, particularly when it comes to witness testimony. However, the application of this principle at the appellate stage, especially concerning the re-examination of witnesses already heard by the first-instance court, presents a complex and debated issue in Japanese jurisprudence.

The Principle of Directness (直接主義): A Foundational Ideal

The Principle of Directness, at its core, mandates that the court should directly engage with the sources of evidence. For witness testimony (人証 - ninshō), this means the judges deciding the case should ideally be the ones who see and hear the witness testify. This direct perception allows judges to observe not only the content of the testimony but also the witness's non-verbal cues—demeanor (供述態度 - kyōjutsu taido), facial expressions (表情 - hyōjō), gestures (身振り - miburi), tone, and speed of speech. These elements are often considered vital for a comprehensive assessment of credibility and the overall reliability of the testimony. Relying solely on a written transcript (証言調書 - shōgen chōsho) is seen as an indirect and potentially incomplete way to evaluate such evidence, likening it to assessing documentary evidence rather than live testimony.

This principle is closely linked to the ideal of oral proceedings (口頭主義 - kōtō shugi), where arguments and evidence are presented orally in court.

The Challenge of Directness in Appeals: New Judges, Old Testimony

When a case moves to a civil appeal (控訴 - kōso) in Japan, the appellate court is typically composed of different judges than those who presided over the first-instance trial. This immediately creates a challenge to the Principle of Directness if the appellate judges are to rely on witness testimony from the first trial without directly observing those witnesses themselves.

The question then arises: if the appellate court is considering a different evaluation of facts based on witness testimony, or if it intends to assess a witness's credibility differently from the first-instance court, should it re-examine (再尋問 - sai-jinmon) those witnesses?

Witness Re-examination (再尋問) in Appeals: The Core Debate

The necessity and propriety of re-examining witnesses at the appellate stage is a central point of discussion.

Arguments for Re-examination When Credibility or Factual Assessment Differs:
A strong argument, often supported by legal scholars, posits that if an appellate court is inclined to depart from the first-instance court's assessment of a witness's testimony or credibility, re-examination of that witness is indispensable. The rationale is twofold:

1. Reliable Evaluation: Written records, such as trial transcripts, often fail to capture the nuanced, non-verbal aspects of testimony that can significantly influence a judge's assessment of credibility. Without directly observing the witness, the appellate judges may lack a complete basis for making a different assessment from the trial judges who did have that direct exposure.
2. Procedural Fairness (公正な手続): If a party benefited from a favorable assessment of a witness's credibility at the first instance, and the appellate court is considering overturning that assessment, procedural fairness dictates that this party should have the opportunity to have the witness testify again before the new panel of judges. This ensures the party can present the witness directly to the decision-makers who are contemplating a divergent view and allows the appellate judges to form their own impressions. It also allows the party whose favored witness is being re-evaluated negatively to participate in the process of that re-evaluation.

This is particularly crucial in cases where the first-instance court affirmed the defendant's lack of negligence, but the appellate court is leaning towards finding negligence based on a re-interpretation of testimony. In such scenarios, affording the appellee (the original defendant) an opportunity to present their views fully, potentially through re-examination if witness credibility is key, is considered essential.

The Supreme Court's Stance: Article 249(3) CCP and its Non-Application to Appeals
A significant legal provision in this context is Article 249, Paragraph 3 of the Code of Civil Procedure (民事訴訟法249条3項 - Minji Soshō Hō nihyaku yonjūkyū-jō san-kō). This article addresses situations where, within the same instance of proceedings, a majority of judges in a panel changes. It stipulates that if a party requests the re-examination of a witness previously examined, the court must conduct such re-examination.

However, in a landmark decision on December 25, 1952 (Showa 27-12-25), the Supreme Court of Japan ruled that Article 249, Paragraph 3 does not apply to the transition of a case from a first-instance court to an appellate court. The Court reasoned that an appeal inherently involves a new set of judges by design, and this systemic change is different from an incidental change of judges within the same trial level that Article 249(3) is intended to address. The Court pointed to provisions like Article 187, Paragraph 2 of the old Code (related to renewal of arguments upon judge change) and Article 377, Paragraph 2 of the old Code (now Article 296, Paragraph 2, concerning renewal of first-instance oral arguments in the appeal court) to support its interpretation that the legislative framework already accounts for the change in judges at the appellate level.

Critiques of the Supreme Court's Formalistic Approach
The Supreme Court's 1952 interpretation has been heavily criticized by many legal scholars as being overly formalistic. Critics argue that while an appeal indeed leads to a new panel of judges by institutional design rather than by incidental replacement, the fundamental issue concerning the Principle of Directness remains: the appellate judges have not directly heard or seen the witnesses whose testimony might be critical to their decision.

The argument is that the rationale behind Article 249(3)—ensuring that the deciding judges have direct exposure to witness testimony when credibility is in play—is equally, if not more, pertinent when an entirely new set of judges at the appellate level is tasked with reviewing and potentially overturning factual findings based on that testimony. To ignore this, critics contend, is to prioritize formal procedural distinctions over the substantive goals of ensuring accurate fact-finding and fair hearings. The fact that an appeal is a continuation of the first-instance proceedings (弁論一体の原則 - principle of unity of oral arguments) further supports the idea that a change in the judicial panel, whether within the same instance or upon appeal, should trigger similar considerations regarding direct evidence perception.

The Argument for Re-examination Based on the Spirit of Directness and Procedural Fairness
Proponents of broader re-examination rights in appeals emphasize that if the appellate court is to fulfill its role as a fact-finding court (事実審 - jijitsushin) effectively, especially when re-evaluating testimony, direct engagement with witnesses is often irreplaceable.

• Inadequacy of Transcripts: As mentioned, transcripts cannot convey the full spectrum of communication. Witness demeanor, hesitations, confidence, tone of voice, eye contact, and reactions to questioning are lost in a purely written record. These non-verbal cues can be critical in assessing truthfulness or reliability.
• Fairness to Parties: When an appellate court considers differing from the first instance court's evaluation of witness testimony, particularly in a way that is detrimental to a party who relied on that testimony, procedural fairness demands an opportunity for that witness to be heard anew by the judges who will be making the revised assessment. This also ensures that the opposing party has the chance to cross-examine the witness before the appellate panel.
• Ensuring Thorough Deliberation: Re-examination can aid the appellate judges in their own deliberation process, allowing them to probe areas of uncertainty or directly test the witness's account in light of the appellate arguments.

There is a view that unless the witness testimony is purely objective and straightforward (e.g., a bookkeeper testifying solely to entries in a ledger where credibility is not a major issue), re-examination becomes necessary if the appellate court is to accurately assess testimony that relies on the interplay between verbal content and non-verbal presentation.

The Impact of "Post-hoc Review Management" (事後審的運営) on Witness Re-examination

The practical trend towards "post-hoc review management" (事後審的運営) in Japanese High Courts adds another layer of complexity. This approach, which often leads to the conclusion of oral arguments on the first day, can significantly reduce the inclination of appellate courts to conduct re-examinations of witnesses. If the court aims for a swift review based predominantly on the written record and the initial appeal submissions, ordering a re-examination, which would necessitate further hearings, runs counter to this expedited operational model.

Critics argue that refusing re-examination in appropriate cases, particularly under the guise of such expedited management, could amount to an infringement of a party's right to present proof (証明権の侵害 - shōmeiken no shingai). The concern is that the emphasis on speed might overshadow the need for a thorough and fair re-evaluation of crucial evidence, especially when the credibility of witnesses is a central point of contention.

Navigating the System: When Might Re-examination Be Granted?

Despite the Supreme Court's restrictive interpretation of Article 249(3) for appeals and the practical tendencies of "post-hoc review," re-examination is not entirely precluded. It remains a discretionary matter for the appellate court. Factors that might influence a court to grant re-examination could include:

• A very strong showing by the appellant that the first-instance court's assessment of a key witness was clearly erroneous and that direct observation by the appellate court is essential.
• Situations where the witness's testimony is virtually the sole basis for a critical factual finding.
• If there are significant inconsistencies in the written record of testimony that can only be resolved through direct questioning.
• If the appellate court itself explicitly indicates that it finds it difficult to assess credibility or reconcile conflicting testimonies based solely on the record.

However, appellants should not assume re-examination will be readily granted. A compelling case must be made for its necessity. Some scholars argue that even if the appellate court affirms the first-instance court's finding on credibility, re-examination might still be necessary if the opposing party disputes that credibility and the Principle of Directness is to be upheld.

Conclusion: A Tension Between Formal Rules, Procedural Ideals, and Practical Court Management

The application of the Principle of Directness to witness re-examination in Japanese civil appeals highlights a significant tension. On one hand, the Supreme Court's long-standing position formally limits the mandatory requirement for re-examination found in Article 249(3) CCP to changes of judges within the same instance. On the other hand, the spirit of directness, the demands of procedural fairness, and the need for reliable fact-finding argue strongly for re-examination when appellate judges contemplate a different assessment of witness testimony or credibility from their first-instance colleagues.

The practicalities of the "post-hoc review management" prevalent in many appellate courts further complicate the matter, often leading to a reluctance to engage in extensive evidentiary proceedings like witness re-examination. For litigants, this means that while the door to re-examination is not entirely closed, persuading an appellate court to re-open live testimony requires a strong justification focusing on the unreliability of the written record for the specific issue at hand and the critical importance of direct judicial observation for a fair and accurate appellate decision. The debate underscores the ongoing challenge of balancing procedural ideals with the practical demands of appellate adjudication.