When Witnesses Don't Cooperate: Dealing with Uncooperative Witnesses and False Statements in Japan

In any criminal investigation, the information provided by witnesses and other third parties—referred to in Japan as sankōnin (参考人)—can be indispensable for piecing together the truth. While many individuals willingly cooperate with investigators, challenges inevitably arise when key witnesses are reluctant to speak, refuse to appear, or, in some instances, provide false or misleading information. The Japanese legal system has developed specific procedures to address uncooperative witnesses and also defines criminal liability for certain types of false statements and collusive behavior designed to obstruct justice. This article explores how Japanese investigators approach the interrogation of sankōnin and the legal tools available when cooperation is not forthcoming or when truthfulness is compromised.

Interrogating Witnesses/Persons of Interest (Sankōnin) in Japan: Foundational Points

The authority for Japanese investigators (police officers, prosecutors, and their assistants) to request the appearance of and interrogate persons other than the primary suspect is grounded in Article 223, paragraph 1, of the Code of Criminal Procedure (CCP). The objectives are multifaceted: to gather firsthand accounts of the alleged crime, corroborate or challenge other evidence, identify potential offenders or further leads, and generally clarify the circumstances surrounding an incident.

When interrogating a sankōnin, investigators focus on several key aspects:

• Understanding the Witness's Context: It's crucial to ascertain the witness's relationship to the case—are they a direct victim, an eyewitness to the event, an associate of the suspect or victim, or someone with indirect but relevant information? This context shapes the nature of the questioning.
• Distinguishing Fact from Inference: Investigators guide witnesses to differentiate between what they directly saw, heard, or otherwise experienced, and what they might have subsequently inferred, assumed, or heard from others. While directly perceived facts are paramount, courts have sometimes recognized that a witness's reasoned inferences drawn from their own observations (for example, regarding another person's apparent emotional state or a logical causal link based on what they saw) can hold evidential value. This was acknowledged, for instance, in a Supreme Court decision on March 2, 1954, concerning an obscenity case where a witness’s impression of a performance was deemed part of their experienced fact. However, mere speculation or an opinion without a concrete factual basis is generally inadmissible as evidence, as illustrated by a Supreme Court ruling on March 30, 1951, which rejected an investigator's "impression" about a suspect's motive as mere opinion.
• Clarity of Recollection: Witnesses are encouraged to be clear about the certainty of their memories, distinguishing between vivid recollections, vague impressions, and matters they cannot recall.
• Comprehensive Corroboration: Statements provided by any sankōnin are, ideally, subjected to thorough corroboration efforts, cross-referenced with other evidence and testimonies to build a reliable factual matrix.

Addressing Non-Cooperation: Pre-Indictment Judicial Examination Procedures

When a crucial witness is uncooperative (e.g., refuses to appear for voluntary questioning or refuses to make statements) or when there's a significant risk their testimony might be lost or altered before trial, Japanese law provides for a judicial process to secure their testimony under oath, even before an indictment is filed. This is primarily achieved through two distinct articles in the CCP:

A. Compelling Testimony from Reluctant Witnesses (CCP Article 226):
This provision allows public prosecutors to request a judge to formally examine a person as a witness if that person:

1. Clearly possesses knowledge that is "indispensable" for the investigation of a specific offense; and
2. Has refused to appear for voluntary questioning (as requested under CCP Article 223(1)) or has refused to make necessary statements during such questioning.

This request must be made before the first public trial date for the related case.

• Scope of "Indispensable Knowledge": The term "indispensable" has been interpreted by courts (e.g., Tokyo High Court, November 7, 1973; Osaka High Court, August 26, 1965) to mean knowledge crucial for the investigation, even if the investigators might have other avenues to the same information or if other individuals also possess similar knowledge.
• Compelling Appearance: If a judge grants the Article 226 request, the witness is summoned. Failure to appear without a valid reason can lead to the witness being physically compelled to attend (kōin 勾引). Notably, 2016 amendments to the CCP strengthened these coercive powers, allowing for compulsion not only upon actual failure to appear but also if there is a demonstrable "risk of not appearing." Furthermore, the penalties for unjustified non-appearance were increased, now including potential imprisonment (up to one year) in addition to fines (CCP Article 151).
• Application to Co-Accomplices or De Facto Suspects: Individuals who might be co-accomplices or effectively suspects in relation to one aspect of a criminal enterprise can still be compelled under Article 226 to testify as witnesses regarding another person's alleged criminal acts. However, they retain their constitutional right against self-incrimination (CCP Article 146) and can refuse to provide testimony that might incriminate themselves in their own potential criminal liability.
• Refusal to Sign a Statement (Chōsho): While Article 226 speaks of refusal to "make statements," an interesting question arises if a witness provides oral information but then refuses to sign the written record (chōsho) prepared by the investigator. Some legal commentators argue that such a refusal can be tantamount to a refusal to make an effective statement, as an unsigned chōsho has significantly limited evidentiary value, thereby hindering the prosecution and justifying the use of Article 226.

B. Preserving Testimony of Potentially Unreliable or Unavailable Witnesses (CCP Article 227):
This article provides a mechanism for preserving the testimony of a witness who has already given a voluntary statement to investigators but where there is a legitimate concern that:

1. They might provide a different, contradictory, or significantly altered statement if called to testify at a later trial; OR
2. They might become unavailable to testify at trial (e.g., due to severe illness, impending departure from the country, or risk of intimidation).
   AND, in either case, their testimony is considered "indispensable" for proving the crime.

Under these conditions, the public prosecutor can, before the first trial date, request a judge to examine the person as a witness. The prosecutor must provide a prima facie showing (sōmei 疎明) of the necessity for such an examination and the indispensability of the testimony.

• Evidentiary Advantage: The primary benefit of an Article 227 examination is that the record of this judicial questioning (a formal deposition taken before a judge) has greater evidentiary weight than a statement merely taken by an investigator. Specifically, if the witness later testifies differently at trial or becomes unavailable, this judicial record can be admitted as evidence under CCP Article 321(1)(i) without needing to meet the additional stringent requirement of "especially credible circumstances" (tokubetsu shiyōすべきjōkyō 特別信用すべき情況, often abbreviated as tokushin jōkyō 特信情況) that typically applies to an investigator-taken statement under similar circumstances.
• Common Scenarios for Use: This procedure is particularly valuable when:
  • Witnesses express fear of retaliation, for example, in cases involving organized crime groups.
  • The witness is a close relative of the suspect and might be pressured to recant or alter their testimony.
  • The witness is a foreign national whose continued presence in Japan is uncertain (e.g., facing deportation).
• Attendance of Defense Counsel: CCP Article 228(2) grants the judge discretion to allow the defendant, suspect, or their defense counsel to be present during an Article 227 examination, provided it is not deemed detrimental to the ongoing investigation. In practice, especially when witness safety or the integrity of future testimony is a concern (e.g., risk of intimidation or coaching if the defense is present), these examinations can, and often do, proceed without the presence of the defense.
• Strategic Value: Securing testimony through Article 227 at an early stage helps preserve the witness's fresh memory, minimizes opportunities for witness tampering or intimidation, and creates a robust piece of evidence. In some instances, the existence of such judicially preserved, sworn testimony, when disclosed to a denying suspect during pre-trial discovery, might even induce them to reconsider their plea and confess.

Criminal Liability for False Statements and Collusion by Witnesses

Witnesses who intentionally mislead investigators or collude with offenders face potential criminal sanctions under Japanese law, though the specifics depend on the nature of their actions.

A. False Statements Made During Investigative Interviews:

• False Oral Statements to Investigators: The prevailing legal view in Japan, consistently upheld by case law (e.g., Osaka District Court, March 18, 1968), is that a witness simply making false oral statements to an unsworn investigator does not typically constitute the crime of "forgery of evidence" under Penal Code Article 104. This offense is generally understood to apply to the fabrication or alteration of physical or documentary evidence, not to unsworn oral declarations. This is distinct from perjury, which specifically applies to false testimony given under oath in formal judicial proceedings.
• Signing a Written Statement (Chōsho) Containing One's Own False Oral Statements: Similarly, most court precedents (e.g., Chiba District Court, June 2, 1995) have concluded that if the underlying false oral statement itself does not amount to evidence forgery, the act of having it recorded by an investigator and then signing that document does not elevate it to that crime for the witness. The rationale is that the Penal Code specifically criminalizes false statements only under defined categories like perjury, false expert testimony, false accusation, or harboring a fugitive, and unsworn false statements to investigators generally fall outside these.
• Witness Personally Creating and Submitting a False Written Statement (Kyōjutsusho): The situation changes if a witness takes the active step of personally drafting and submitting a written statement that they know contains false information. In such cases, Japanese courts (e.g., Tokyo High Court, March 29, 1965) have been inclined to find that this can constitute the crime of forgery of evidence under Penal Code Article 104. Here, the witness is not merely misspeaking orally but is actively creating and tendering a piece of false documentary evidence for use in a criminal case.

B. Collusion with Offenders and Harboring an Offender (Hannin Inpizai - Penal Code Article 103):
A more common scenario for criminal liability arises when a witness colludes with a criminal suspect to mislead investigators.

• The Scope of "Harboring or Enabling Escape": Penal Code Article 103 criminalizes acts that harbor an offender or enable their escape. This is not limited to physically hiding a suspect but can also include actions that actively obstruct their discovery, apprehension, or prosecution.
• Collusive False Statements as Harboring: If a witness engages in kuchi-ura-awase (口裏合わせ – aligning stories or colluding) with an offender and, based on this agreement, provides false statements to investigators with the intent to mislead the investigation and shield the offender from justice, such conduct can constitute the crime of harboring an offender.
• Key Supreme Court Precedent (March 27, 2017, Keishū Vol. 71, No. 3, p. 183): In this significant decision, the Supreme Court of Japan affirmed the conviction for harboring an offender of an individual who, after colluding with the perpetrator of a fatal hit-and-run to create a false alibi (claiming the perpetrator's vehicle had been stolen), then relayed this fabricated story to the police when questioned as a witness. The Court found that such actions, designed to cast doubt on the perpetrator's involvement and continued detention, fell within the scope of "harboring."
• Implications for Interrogation: When investigators have credible reasons to suspect that a witness is providing false information as a result of collusion with the main suspect, they should inform the witness of their potential criminal liability for harboring an offender. In such circumstances, the witness might even be questioned as a suspect for the harboring offense, which would include notification of their right to silence. The critical elements for establishing harboring through false statements are the underlying collusion or agreement with the offender and the provision of the false information with the specific intent to protect the offender from the processes of criminal justice. Merely providing an unprompted false statement out of personal loyalty, without evidence of such collusion, might not always reach the threshold for this offense, though it would severely damage the witness's credibility.

Conclusion

The testimony of witnesses and other third parties is a vital component of the truth-seeking process in Japanese criminal investigations. While most individuals cooperate, the legal system provides robust mechanisms, such as pre-indictment judicial examinations, to address situations involving uncooperative key witnesses. Furthermore, those who deliberately attempt to obstruct justice by providing self-authored false written statements or by colluding with offenders to give misleading testimony face the prospect of criminal charges, including evidence forgery or harboring an offender. These provisions underscore the serious view taken by Japanese law towards actions that undermine the integrity of criminal investigations and the pursuit of justice. Investigators must be adept at not only eliciting truthful information but also at recognizing and appropriately addressing instances of non-cooperation or deliberate deception.