Outline Of Criminal Justice In JAPAN - Courts

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Outline of Criminal Justicein JAPAN2021Supreme Court of Japan

CONTENTSI. HISTORY OF MODERN CRIMINALJUSTICE IN JAPAN ······ 4II. OUTLINE OF CRIMINAL JUSTICE IN2. Disclosure of evidence ······················ 183. Principle of the adversary system ········ 184. Exclusion of hearsay evidence ··········· 18JAPAN ······················ 65. Designation of a trial date ·················· 18A. Three-tier Court System ······················· 66. Bail ······················ 19B. Court of First Instance ·· 67. Bail requests before first trial date1. Summary court ········ 62. District court ············ 7C. Court of Appellate ························· 20E. Appointment of Saiban-in (Lay Judges)················· �····················· 20··················· 8F. Trial ························ 212. Final appellate instance ······················ 91. Opening proceedings ························· 231. Court of second instanceIII. PROCEEDINGS FROM INVESTIGATIONTO JUDGMENT IN THE FIRST INSTANCE 122. Examination of evidence ····················· 243. Examination of witnesses ·················· 25A. Introduction ·············· 124. Questioning the accused ··················· 26B. Investigation ············ 125. Confession ············ 271. Offense and opening of investigation ····· 126. Demonstration of circumstances2. Arrest ··················· 13(The One-Phase System of Criminal3. Referral to the public prosecutor ········· 14Proceedings) ··········· 274. Detention of the suspect ··················· 147. Closing Arguments ·· 28C. Institution of Prosecution ···················· 168. Deliberations ········· 29D. Trial Preparation (including requests for9. Judgment ··············· 30bail) ······················· 171. Pretrial conference procedure ·············· 18

Ⅰ. HISTORY OFMODERN CRIMINALJUSTICE IN JAPANThe development of the criminal justice system in a modern sense was undertakenafter 1867.In 1880, the government promulgated Chizaiho, the Criminal Procedure Law, modeledafter the Napoleonic criminal code from France. In 1890, the Criminal Procedure Lawwas revised to become the Code of Criminal Procedure, the first western stylecomprehensive criminal justice system adopted in Japan.In 1922, a new Code of Criminal Procedure was promulgated, influenced by GermanLaw. Thus, the Code of Criminal Procedure from the Meiji era onward can be said to befully based on the Continental European system.The current Code of Criminal Procedure was promulgated in accordance with theprinciples of the new postwar Constitution in 1948 to fully protect fundamental humanrights.Under this code, the Continental European system is maintained to a much greaterdegree, while at the same time, the best characteristics of Anglo-American law havebeen adopted.The most notable points are the stringent requirements on judicial warrants forcompulsory investigations, restrictions on the admissibility of evidence, such as thehearsay rule, and adoption of the adversary system in the court procedure. Therefore,the current Code of Criminal Procedure can be considered a hybrid of the ContinentalEuropean and Anglo-American legal systems.As a result of various systemic reforms since the end of the 20th century, the role ofthe judiciary has become more important. Thus, the judicial system has been reformedto afford swifter, more familiar and reliable justice for the general public. In terms ofcriminal justice, criminal procedures have also been amended to enhance and speed upthe process, and to expand the public defense system.Additionally, a Saiban-in system has been in place since May 21, 2009, in which thegeneral public participates in the trial and judgment of criminal cases. As described, thecriminal justice system in Japan has evolved and improved in order to better suit the21st century.4HISTORY OF MODERN CRIMINAL JUSTICE IN JAPAN

OUTLINE OF CRIMINAL JUSTICE IN JAPANThe Courthouse of Fukui District Court5HISTORY OF MODERN CRMINAL JUSTICE IN JAPAN

Ⅱ. OUTLINE OFCRIMINAL JusticeIN JAPANwith the suspect that there is no objection to theA. Three-tier Court Systemapplication of the summary proceeding prior toA three-tier court system is adopted for Japanesecriminal cases. One of two types of courts (either ainitiating the procedure.A Summary court examines documentary anddistrict or summary court) is used as the court ofmaterialfirst instance depending on the severity of theprosecutor without holding a court hearing, and maystatutory penalty for the charged offense asimpose a fine of not more than 1,000,000 yen on thedescribed in the charging sheet for criminal cases.accused. If any party objects to the summary orderThe high court is then the court of second instance,and requests a formal trial, the case is transferred towhile the Supreme Court is the final appellate courta trial procedure in a court of first instance.of appeal.evidencesubmittedbythepublicRefer to Graph 1 for statistics on summaryproceedings and formal prosecutions.Graph 1. Comparison of Applications for Summary Ordersand Formal Prosecutions; Cases Brought to High Courts, toDistrict Courts and to Summary Courts for FormalProsecutions (2019)B. Court of First Instance1. Summary courta. JurisdictionA summary court generally only has jurisdictionover criminal cases where the penalty is a fine orApplications for summary orders201,658 (71.3%)lighter. It is vested with the power to imposeimprisonment with work with regard to a certainscope of offenses that are punishable by 0.0%)andembezzlement, only with a term of sentence aslimited by law.b. Composition of the courtA single judge handles each case in summaryFormal Prosecution81,186 (28.7%)court.High Courtsc. Summary proceedingsSummary proceedings that do not require a courthearing can be used for simple punishment of1Summary Courts5,255(6.5%)minor crimes where the facts are not in dispute at asummary court. Summary proceedings are initiatedby the public prosecutor requesting a summaryTotal81,186(100.0%)order at the same time as the institution ofprosecution. The public prosecutor must confirm6OUTLINE OF CRIMINAL JUSTICE IN JAPANDistrict Courts75,930 (93.5%)(Note) Source: Annual Report of Statistic on Prosecutionfor 2019, Ministry of Justice(Note)"Prosecution" includes a request for alternation ofcounts.

OUTLINE OF CRIMINAL JUSTICE IN JAPANObligatory2. District courtDiscretionary2,291 (4.7%)622 (1.3%)a. JurisdictionThe district court has jurisdiction as the court offirst instance over criminal cases other than thoseThree-judge panel cases2,913 (6.0%)liable for fines or lesser punishment. There are nosummary proceedings for cases sent to a districtTotal48,751(100.0%)court, for which court hearings are always held.b. Composition of the courtIn the district court, a single judge handles eachSingle-judge casescase except for certain crimes with heavy statutory45,838 (94.0%)penalties, which are handled by a panel of threejudges.Certain types of serious crimes in which thegeneral public has a strong interest are designatedGraph 2. Number of Cases Handled by Single-Judgeand by Three-Judge Panel (Ordinary District CourtCases in the First Instance) (2019)to be handled under the Saiban-in system.The courts can also handle other cases with athree-judge panel at their own discretion. Refer toGraph 2 for the number of cases handled by asingle judge and a three-judge panel, respectively.Fact-finding and sentencing are conducted by apanel comprised of six Saiban-in chosen from thegeneral public together with three judges for certaintypes of serious crimes in which there is strongpublic interest, such as homicide, robbery causingdeath or injury, arson of inhabited buildings, andThe Saiban-in system is the same as the citizenparticipation system adopted in Germany andFrance, etc. in that the panel is comprised of bothwith judges, and determine the sentence as well asdifferent from other jury systems.As described above, the Saiban-in system isunique to Japan, differing from both the citizenparticipation and jury systems.d. Expedited trial proceedingsAmong cases handled by a single judge at districtcan be tried via expedited trial proceedings.In expedited trial proceedings, the court sets a trialdate as early as possible, applies a less rigorousexamination of the evidence, and renders aSaiban-in and judges.However, Saiban-in find facts and determine thesentence with the judges, while issues of legalinterpretation are handled entirely by the judges,which differs from the citizen participation system injudgment within one day insofar as possible. Whena court renders a judgment of imprisonment inexpeditedtrialproceedings,executionofthesentence shall be suspended.In order to conduct expedited trial proceedings,Germany, France, etc.On the other hand, the Saiban-in are appointedselectionHowever, Saiban-in conduct deliberations togetherand summary courts, those deemed clear and minorkidnapping for ransom.randomStates and elsewhere.whether the accused is guilty or not, which isc. Saiban-in systembyis much like the jury system adopted in the Unitedfromamongpersonsregistered in the list of voters for each case, whichwhen the public prosecutor deems it appropriate,the public prosecutor must secure the consent of thesuspect, and then make a petition in writing for7OUTLINE OF CRIMINAL JUSTICE IN JAPAN

OUTLINE OF CRIMINAL JUSTICE IN JAPANexpedited trial proceedings at the time of institutingprosecution.Therefore, proceedings in the court of secondinstance are mostly restricted to oral argumentsThen, if the defense counsel for the suspect alsomade by the public prosecutors and defenseagrees to the case being tried by expedited trialcounsels, and in contrast to the first instance, theproceedings and the accused states that he/she ishigh court does not examine witnesses or otherguilty at the opening proceedings of the ordinaryevidence.trial of first instance, the court will decide to applythe expedited trial ionally examines evidence that was notThis is different from an arraignment in the Unitedassessed in the first instance when they considerStates and other jurisdictions, in which thethat it is necessary to investigate facts that remainevidence is examined even though the accusedunclear after examining the records of the firsthas admitted guilt.instance.Once the court of second instance has reviewedC. Court of Appellate Instancethe records of the first instance and confirms that1. Court of second instancethere was no error in the judgment through the trialIf either party is dissatisfied with the judgment inprocedure, the court then dismisses the appeal.the first instance, said party can appeal to a courtOn the other hand, if the court admits that an errorof second instance with a demand to reverse thewas made and the judgment in the first instancejudgment by alleging that errors were committed. Itshould be revised, the court must reverse theis noteworthy that the public prosecutor also hasjudgment.the right of appeal in the same way as theaccused.If the court of second instance admits that the courtof first instance should reexamine the evidence orAll appeals for criminal cases are handled by highrevise its judgment, it will reverse the judgment andcourts, with such appeal cases being tried by aremand the case to the court of first instance, and athree-judge panel. An appeal can be made to theretrial will be held at the court of first instance.court of second instance on the following grounds:However, the high court can also immediately(1) Non-compliance with procedural law in the trialprocedure(2) An error in the interpretation or application oflaw in the judgment(3) Excessive severity or leniency of a sentence ;orrender a new judgment based on the case recordsand evidence examined by the court of the first andsecond instance if appropriate.In any of these cases, if only the accusedappealed, any sentence determined will not beheavier than that rendered by the court of first(4) An error in fact-findinginstance.The procedure for the court of second instance isNeedless to say, any judgment by the high court isto review the court proceedings and judgment inbinding on the court of first instance when the casethe first instance through the records, rather thanis remanded to the court.holding a new trial to conduct fact-finding again.8OUTLINE OF CRIMINAL JUSTICE IN JAPAN

OUTLINE OF CRIMINAL JUSTICE IN JAPANTable 1. Reasons for Reversals by Courts of Second InstanceClassificationYearNumberofthe accused(A)Numberofreversals(B)Due to inappropriate sentencingTotal(C)RemandedortransjudgmentferredDue to errors in fact )(C/A)Due to errors in application of 4(Note) Cases for which judgments were reversed based on multiple grounds are recorded in multiple appropriate columns.2. Final appellate instanceof the final appeal system; therefore, the procedureEither party can make a final appeal to reverseof the final appellate instance is different from that ofthe judgment of the court of second instance.the first and second instances in that there is noThe Supreme Court handles all final appeals.examination of witnesses.At the Supreme Court, cases are generallyHowever, the Supreme Court is the court of lasthandled by a Petty Bench comprised of fiveresort in Japan, so it has the discretionary power tojustices,importantreverse any judgment in the second instance if itconstitutional issues and the like are handled bydetermines that leaving the judgment intact clearlythe Grand Bench comprised of all fifteen justices.constitutes an injustice.butcasesinvolvingFinal appeals can only be filed on the followinggrounds:are almost the same as those in the court of second(1) A violation of the Constitution or an error in theinterpretation of the Constitution; orSupreme Court or high courtsjudgment in the first or second instance underspecial circumstances if it deems that not doing sowould clearly be contrary to justice.Court is the court of last instance, with the authorityto determine whether or not all laws, orders,complythe case will be remitted to the lower court if thejudgment is reversed by the Supreme Court.However, the Supreme Court may also remit acase to the court of first instance rather than to theAs a guardian of the Constitution, the Suprememeasuresthere was no error in the judgment of secondinstance, the final appeal will be dismissed, whereasHowever, the final appellate court may reverse theandinstance.In other words, if the Supreme Court admits that(2) An alleged conflict with precedents of theregulationsThe types of judgment of the final appellate courtwiththeConstitution.Therefore, ensuring appropriate interpretation ofcourt of second instance when reversing thejudgment of second instance.The Supreme Court can also render its ownjudgment immediately when it deems that it ispossible to do so based on case records andevidence.the Constitution and the law is the primary purpose9OUTLINE OF CRIMINAL JUSTICE IN JAPAN

Table 2. Dispositions by the Supreme CourtClassificationDismissal of appealNumber ofthe rsedOwn judgmentNot walDismissalofof prosecutionappealand others(C/A)judicial ,09151,7371,74283.333---0.13388(Note) Special appeals to the court of the last resort and extraordinary appeals to the court of the last resort are not included.10OUTLINE OF CRIMINAL JUSTICE IN JAPAN

OUTLINE OF CRIMINAL JUSTICE IN JAPAN11OUTLINE OF CRIMINAL JUSTICE IN JAPAN

Ⅲ. PROCEEDINGS FROMINVESTIGATION TOJUDGMENT IN THEFIRST INSTANCEA. IntroductionBased on a procedure for cases heard by Saiban-in, this chapter explains the criminal justice procedure,from the investigation following a crime and institution of prosecution through to the preparations for acriminal trial, appointment of Saiban-in, and the trial from within the criminal justice procedure at courts inJapan based on the overview in Chapter 2, with certain casebook examples presented in the frames.B. InvestigationOn June 3, 2020, a homicide was committed at a tavern in Minato-ku, Tokyo.Although police officers rushed to the scene as soon as it was reported, the assailant escaped.According to a witness, the victim was Akiko Mori (Ms.), who was an employee of the tavern, and theassailant was Taro Yamada (Mr.), who suddenly stabbed her in the chest with a knife after she refused hisentreaties to reconcile with him.The police officers noted the witness’ explanation and requested from a judge an arrest warrant for Taro onthe charge of homicide.The judge reviewed the documents submitted by the police officer and duly issued an arrest warrant.investigation results before considering whether the1. Offense and opening of investigationcase will withstand the rigors of the institution ofa. Investigative authoritiesprosecution, or when he/she deems it necessary,The criminal justice procedure starts with aninvestigation by the authorities.and conducts additional investigations. The publicprosecutor is a legal expert from an administrativeThere are various triggers for an investigation,department of the government, and his/her status issuch as reports and notifications from victims orguaranteed in the same way as judges forwitnessesquasi-judicial interviewsandaccusations,Police officers and public prosecutors are mutuallydepending on the type and nature of the case andindependent authorities, unrelated hierarchically,offense.who handle such investigations cooperatively.The main investigative authorities consist of policeofficers and public prosecutors.However, public prosecutors may advise or instructpolice officers when necessary (Article 193 of theThe task of police officers is to maintain socialsecurity, but in the case of an investigation, theyCode of Criminal Procedure).b. Requirement for judicial warrantsare the primary investigative authority as judicialArticles 33 and 35 of the Constitution state that nopolice officers, and thus represent the main power.person shall be apprehended, searched, or seizedThe public prosecutor receives cases referred bypoliceandtakesoverthepoliceofficers’except upon order of a warrant issued by a judge,unless he/she is committing or has just committed12PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE

OUTLINE OF CRIMINAL JUSTICE IN JAPANan offense.This system is known as the warrant principle, andits aim is to ensure that compulsory investigationsare not left to the sole discretion of the investigativeauthorities, but that a judge who takes a fair Compulsory investigations can be implementedexceptionally only as stipulated under the law(Article 197 of the Code of Criminal Procedure.Legal principles for compulso

Ⅱ. OUTLINE OF CRIMINAL Justice IN JAPAN 6 OUTLINE OF CRIMINAL JUSTICE IN JAPAN (Note) Source: Annual Report of Statistic on Prosecution for 2019, Ministry of Justice (Note)"Prosecution" includes a request for alternation of counts. A. Three-tier Court System A three-

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