Wednesday, September 05, 2007

Criminal procedure and Trial in Japan

Just as civil litigation in Japan is not noticeably slower than its U.S. analogue, so too, with criminal litigation. If anything, Japanese criminal litigation may be a bit quicker than at least federal criminal litigation. In U.S. federal courts in 1995, the median time from prosecution to final disposition for the total 54980 cases was 5.7 months. If a defendant pleaded guilty(as he did in the vast majority of cases), it was 5.4 millions; if he demanded a jury trial , it was 9.6 months. Japan is a bit quicker. 1994 Japanese courts disposed of most of their cases in two to six months, with the median time in the two -to three-month range.
page 172

Japanese court convict defendants. As most reader have heard, they convict with a vengeance. In district court criminal cases (excluding those in summary court), they convict 99.9 percent (in 1994, 49598 out of 4643) of the defendants. In murder cases, they convict 99.7 percent(587 our of 589) In the United States, federal courts convicts only murder cases, only 85.1 percent(for 1995, 46773 out of 549800) of the defendants and in murder cases only 83.3 percent 265 our of 318). page 178"Japanese Law J. Mark Ramseyer & Minoru Nakazato

Prosecutors have broad discretionary powers to decide whether to prosecute or not. ....
In 1997, while 68040 people were indicted for offence provided the Criminal Code, 39072 were eventually not prosecuted. ....Public prosecutors claim that from a criminological point of view, this discretionary power to the prosecutors contributes to the rehabilitation of the offender and facilitates his correction by liberating him fro the procedure at at early stated. 426 Japanese Law second edition Hiroshi Oda.

Conviction rates in Japanese trials have been running at around 99.9% in recent years(Horiuchi 1995), but prosecutors and Ministry of Justice officals are quick to point out that there are sound reasons for this astonishingly high conviction rate and that it does not reflect weak legal defense. Tsuchiya(1980) has claimed that only when the evidence is strong are cases prosecuted. Furthermore he and other Ministry of Justice officials argue that many offenders are diverted from the criminal justice system at various stages.
Another factor influencing both the low crime rate and high conviction rate is that many crimes that are still "on the books" in Western nations, including the United States, are not treated as crimes in Japan. As examples, Tsuchiya offered vagrancy, homosexuality, and public drunkenness, which have never been considered crimes in Japan. Without the worries caused
by these prevalent but victimless offenses, law enforcement authorities have been freer to pursue the solution of what most people would consider more serious crimes. As noted, earlier, Japanese prosecutors actively consider the rehabilitation prospects of offenders in deciding whether to prosecute or not. This factor is also taken into account at the sentencing stage, should the defendant be convicted.(The Japanese Police System Today: A Comparative View L. Craig Parker page 140

Some claims that the high conviction rate is due to the fact that "if the prosecutor is to prosecute he has to be fully convinced that the offender is actually guilty. therefore, once a person is prosecuted, there is a high probability that he will in fact be found guilty."

Others argue
When a judge issues a accquital , the faces of his superiors and the displeased faces of prosecutors with whom he's become friendly will appear in his mind. Those sorts of psychological pressure exist at the subconscious level,, and there is a psychological brake at work that leads judges to issue as few acquittals as possible.

Setsuo Miyazawa is among the more radicals; "forces confessions to false charge are endemic to Japanese police tactics.
page 178

I have no statistics to prove which view is correct. Do you have any?

While I agree that Japanese system of criminal procedures and trials has problems such as 代用監獄 and numerous other things, I would like people to argue based on the facts.

It seems some of the arguments are either radical, or unfamiliar with Japanese laws, and/or hasty generalizations from a paricular case.
It often happens when what you read happen to be a translation of what a Japanese radical says but you don't read Japanese books to see how it is located among Japanese intellectuals. But when there is a controversy in Japan, that means there is a controversy among Japanese , I am sure you can find several pros and cons articles and book on the issue. Let's not be lazy about searching them. Otherwise that will just add up to another stereotype.
( There are tens of books on the issue in Japanese, and the books from which I cited are the most common books on Japanese law in English;It is not even for a specialist. )

Why Is the Japanese Conviction Rate So High?
Some have argued that it is offensive that Japanese newspaper list the criminal rate based on race---which I agree to some extent---but FYI, notice the U.S. crimanal
reports also cites the data based on races.
For instance,
Japan......Murder rate 0.49 %
U.S. white Murder rate 1.01 %
U.S. total Murder rate 1.34 %
(the data about Japan is based on Japanese police, of course)
(page 177 Japanese law J.Mark Ramseyer & Minoru Nakazoto)


nigelboy said
Saturday, September 26, 2009 at 3:11 am

“Take Japan’s 99% conviction rate. I think it’s shocking and bad for Japan, but it has been like that for donkeys years, shows little sign of changing soon (despite the jury changes), and most crucially has no impact on the lives of people overseas. Like it or not, it isn’t news. Ergo, it’s little reported.”

If you did a little research on your own, the reason for high % can be attributed to the following:

1) # of prosecutors are very low per capita compared to, let’s say U.S.

2) Low % of people/cases actually going through criminal trial versus # of people/cases prosecution receives. According to the MOJ material, roughly 6% of those who are indicted actually go to a trial while a whopping 55% gets dismissed.

In other words, the prosecution will go to court on slam dunk cases.

But my question to you Tony is why is 99% shocking and bad? Are you implying that the lower the %, it’s “good”? How about 5%? Is that good?

nigelboy said
Tuesday, September 29, 2009 at 12:37 am

Thank you Ampontan for allowing my post to go through even though I failed to address the relevance to your story.

Looking at the statistics from the Ministry of Justice, it seems to be that the high conviction rates is completely justified and that decreasing the % would mean the prosecutors will go ahead with a trial on cases which they would deemed in the past would be “dismissed”. To me, that’s more scary.

And I don’t expect Tony to answer my question because he probably has the fixed mindset that conviction rate should equal to that of his own country and that anything higher or lower to that fixed amount would be construed “shocking and bad”. In other words, anything that deviates from his country’s perspective is in fact deviating from a “global standard” and therefore, should be condemned.


Why Is the Japanese Conviction Rate so High?, by J. Mark Ramseyer and Eric B. Rasmusen © 2001 The University of Chicago.
Conviction rates in Japan exceed 99 percent. Because Japanese judges can be penalized by a personnel office if they rule in ways the office dislikes, perhaps they face biased incentives to convict. Using data on the careers and opinions of 321 Japanese judges, we find that judges who acquit do have worse careers following the acquittal. On closer examination, though, we find that the punished judges are not those who acquit on the ground that the prosecutors charged the wrong person. Rather, they acquit for reasons of statutory or constitutional interpretation, often in politically charged cases. Thus, the apparent punishment seems unrelated to any pro-conviction bias at the judicial administrative offices. We suggest an alternative explanation: the high conviction rates reflect case selection and low prosecutorial budgets; understaffed prosecutors present judges with only the most obviously guilty defendants.

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