含羞草社区

The authors have been receiving more frequent inquiries from clients about criminal trials in Japan. One reason could be that there are fewer articles on this topic compared to civil trials and transactions in Japan for foreign readers. This article gives an overview of the Japanese criminal system, followed by a discussion on the issues often pointed out in criminal trials, such as hostage justice and the plea bargaining system.

Criminal trial overview

In Japanese criminal trials, jury trials are conducted only for certain serious crimes, while the majority of cases are judge-only.

A criminal trial begins with the prosecution of a person whom the prosecutor determines to be guilty based on evidence. Prior to prosecution, an investigating agency often arrests and detains a suspect with the permission of a judge in order to collect evidence necessary to uncover the full picture of the case. The maximum period of arrest and detention as a suspect is 23 days for each alleged crime. If a suspect under detention is prosecuted, the defendant will be able to apply for bail.

Investigation to judgment

If a suspect is arrested or detained, they will be interrogated by the police and prosecutors (investigating agencies). When the suspect’s detention period is approved by the judge, the investigating agencies will interview witnesses and collect evidence, and the prosecutor will consider whether there is reasonable doubt that the suspect has committed the crime, taking into account whether the suspect admits to the content of the evidence collected. If the prosecutor determines there is no reasonable doubt, the suspect will be prosecuted.

If a prosecution is filed, the first trial date is usually held one to two months after filing. First, the defendant is arraigned on the charges and the defendant’s lawyer states their plea (guilty or not guilty). The prosecutor then explains the outline of the case in the opening statement and submits the evidence to the court. The court conducts the evidentiary hearing procedure, taking into account the plea of the defendant and their lawyer.

In case the defendant admits the facts of the prosecution, the examination of evidence is usually completed with documents only, followed by questioning of the defendant (to hear the defendant’s story). The opinions of both parties are stated, and the trial is concluded. The number of trial dates depends on the amount of evidence presented by the defendant, but the trial is usually concluded in several sessions before the judgment.

In contrast, a case in which the defendant disputes the facts of the prosecution proceeds differently in a number of ways. After the prosecution is filed and before the arraignment date, the defendant and their lawyer must thoroughly review the evidence in the prosecutor’s possession.

In order to set a proper defence strategy, it is necessary to know what evidence the investigating agencies have collected, the credibility of their content, and whether there are any illegalities in the collection procedures. For this purpose, pre-trial proceedings (a procedure for the disclosure of evidence) are available.

Pre-trial proceedings allow for a broad review of the evidence, including obtaining a list of evidence in the prosecutor’s possession, and receiving disclosure of evidence that meets the statutory requirements. Once the defendant’s rebuttal strategy is determined, a date for arraignment is set, and the defendant and their lawyer may make their own arguments in their opening statements.

The court will then begin the evidentiary hearing, and if the defence does not agree with the evidence, the prosecutor will prove the content of the evidence by examining witnesses. During the examination of witnesses, the defendant and their lawyer will dispute the credibility of the evidence and testimony by exercising the right to cross-examination.

After witness examination, the defendant is questioned, the opinions of both parties are stated, and the trial is concluded. In denial cases, there may be many evidence examination dates, and the trial may last for several years.

Application to residents abroad

The scope of application of Japan’s criminal law is based on a principle of territoriality, which applies its own criminal law to all crimes committed within its territory, regardless of the criminal’s nationality.

In general, unless foreign residents come to Japan and commit a crime in the country, Japanese criminal law does not apply, and they will not be punished under the law.

However, in certain cases, the law applies even to acts committed abroad. One such type of case is that involving Japanese nationals who have committed certain serious crimes (e.g. murder, injury and arson) abroad, and another type is that involving anyone who has committed certain crimes (e.g. murder, rape and human trafficking) abroad in which a Japanese national is the victim.

Another type is a crime that harms the interests of Japan. For example, bribery related to Japanese financial instruments business operators is subject to Japanese criminal law, even if the act itself is committed abroad and the suspect is not Japanese.

For crimes under the principle of territoriality, depending on the act, the law may be applied even while abroad. For example, if a person abroad learns of an undisclosed material fact concerning a Japanese listed company, then orders a Japanese securities company to buy or sell shares of such listed company, and buys or sells them in the Japanese securities market, the contract itself regarding buying or selling is considered to be made in Japan, so it can be subject to insider trading regulations under the Japanese Financial Instruments and Exchange Act.

Even if the conspiracy, inducement or assistance of an accomplice is committed outside Japan, the accomplice is also subject to punishment if the principal criminal commits the crime in Japan. It should be noted that, depending on the type and manner of the crime, Japanese criminal law may be applied even if the act was committed outside of Japan.

Hostage justice

One of the well-known problems in Japanese criminal trials is known as hostage justice, because suspects and defendants are kept in custody for a long period of time. Investigating agencies investigate suspects at home only for certain minor crimes, and arrest and detention of suspects are implemented in many cases.

The decision of whether or not to detain a suspect is made by a judge, but detention tends to be imposed when guilt is disputed. If the suspect/defendant denies the crime, and is likely to conspire with others to conceal the crime, the judge may issue a no-contact order, a measure that prohibits the suspect/defendant from meeting or exchanging documents with any person other than their lawyer, in addition to detention.

After prosecution, the defendant can apply for bail, but while bail is relatively easily granted in cases where the defendant admits to the crime, it is not easily granted in cases where the defendant denies the crime. Thus, if a suspect or defendant denies the crime, they are unlikely to be granted bail.

Plea bargaining

Japan’s plea bargaining system is relatively new, introduced in 2018 to address organised and corporate crimes. Instead of the self-incrimination type, in which a person can enjoy the benefit of admitting their crimes, the system employs the investigation and trial co-operation type, in which a person’s own sentence is reduced if they provide an explanation for the crimes committed by others.

Specifically, it is a system whereby a suspect or defendant of a specific crime can agree not to be prosecuted, or to have their sentence reduced in return for making a truthful statement about the specific crime involving another person, such as during witness examination.

Crimes covered by Japan’s plea bargaining system are limited to certain fiscal and economic crimes, such as bribes that are systematically carried out, crimes involving drugs and firearms, and judicial obstruction of the system.

Cases where Japan’s plea bargaining system have been executed are still limited, but it is important to consider how to take advantage of this system in the near future.