Outline Of Criminal Justice In JAPAN - WordPress
Outline of Criminal Justicein JAPAN2016Supreme Court of Japan
CONTENTSI. HISTORY OF CRIMINAL JUSTICE IN �····················· 4II. OUTLINE OF CRIMINAL JUSTICE IN2. Disclosure of evidence ·················· 183. Principle of the adversary system ····· 194. Exclusion of hearsay evidence ········ 19JAPAN ·················· 65. Designation of a trial date ·············· 19A. Three-tier Court System ·················· 66. Bail ················· 20B. Court of First Instance ······················ 67. Bail requests before the first trial date1. Summary court ···· 62. District court ······· �················ 20E. Appointment of Saiban-in (Lay Judges)C. Court of Appellate Instance············· �················· 201. Court of second instance·············· 8F. Trial ··················· 212. Final appellate instance ·················· 91. Opening proceedings ····················· 23III. PROCEEDINGS FROM INVESTIGATION TO2. Examination of evidence ················· 24JUDGMENT IN THE FIRST INSTANCE ···· 123. Examination of witnesses ·············· 25A. Introduction ········· 124. Questioning the accused ··············· 26B. Investigation ········ 125. Confession ······· 261. Offense and opening of investigation · 126. Demonstration of circumstances2. Arrest ·············· 13(The One-Phase System of Criminal3. Referral to 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 arrangement proceedings ······ 18
Ⅰ. HISTORY OFCRIMINAL JUSTICEIN JAPANIn Japan, a judicial system is reputed to have been in place since the 4th century,when the nation was unified. Legal proceedings at that time involved a form ofguilt discrimination based on fire or hot water that may have been adopted fromancient Asia or Europe.The first lex scripta (codified legal system) known as “ Ritsuryo”wasestablished in the 7th century during the reign of the emperor.Judgments were rendered by referring to an article in the Ritsuryo, and could beappealed against, but the Ritsuryo system gradually changed from the 9th century,before eventually being abolished.According to historical records, there was no death penalty in Japan for the 346years from 810 to 1156. The absence of the death penalty for such a long periodduring those ancient times is worth noting in the context of world history.In the first half of the feudal era (from the late 12th century to the 16th century),the imperial court, lords, or bakufu (feudal government) which was comprised ofsamurai warriors, investigated and dealt with crimes committed in areas under theircontrol in accordance with their respective laws. As the Edobakufu (Shogunate),which was established in 1603, grew more powerful, they began to adopt criminalprocedures in accordance with Shogunate laws, and it is reported that someconfessions were extracted by torture.By 1868, the Shogunate had collapsed, and imperial rule was restored. The Meijigovernment promoted the modernization of Japan, so there was a revolutionarychange in criminal justice proceedings.The procedure of rendering a judgment purely on the basis of confession wasabolished, and torture was prohibited. The judicial system generally shifted closerto the western style.In 1880, the government established Chizaiho, the Criminal Procedure Law,modeled after the Napoleonic criminal code from France. In 1890, the CriminalProcedure Law was revised and became the Code of Criminal Procedure, the firstwestern style comprehensive criminal justice system adopted in Japan.In 1922, a new Code of Criminal Procedure was established influenced byGerman Law. Thus, the Code of Criminal Procedure from the Meiji era onward canbe said to be fully based on the Continental European system.The current Code of Criminal Procedure was established in accordance with the4HISTORY OF CRIMINAL JUSTICE IN JAPAN
OUTLINE OF CRIMINAL JUSTICE IN JAPANprinciples of the new postwar Constitution in 1948 to fully protect fundamentalhuman rights.Under this code, the Continental European system is maintained to a muchgreater degree, while at the same time, the best characteristics of Anglo-Americanlaw have been adopted.The most notable points are the stringent requirements on judicial warrants forcompulsory investigations, restrictions on the admissibility of evidence, such asthe hearsay rule, and the adoption of the adversary system in the court procedure.Therefore, the current Code of Criminal Procedure can be considered a hybrid ofthe Continental European and the Anglo-American legal systems.As a result of various systemic reforms since the end of the 20th century, the roleof the judiciary has become more important. Thus, the judicial system has beenreformed to afford swifter, more familiar and reliable justice for the general public.In terms of criminal justice, criminal procedures have also been amended toenhance and speed up the process, and to expand the public defense system.Additionally, a saiban-in system has been in place since May 21, 2009, in whichthe general public participates in the trial and judgment of criminal cases. Asdescribed, the criminal justice system in Japan has evolved and improved in orderto better suit the 21st century.The Courthouse of Fukui District CourtHISTORY OF CRMINAL JUSTICE IN JAPAN5
Ⅱ. OUTLINE OFCRIMINAL JusticeIN JAPANthe summary proceeding prior to initiating theA. Three-tier Court Systemprocedure.A three-tier court system is adopted forA summary court examines documentary andJapanese criminal cases. One of two types ofmaterialcourts (either a district or summary court) isprosecutor without holding a court hearing, andused as the court of first instance depending onmay impose on the accused a fine of not morethe severity of the statutory penalty for thethan 1,000,000 yen. If any party has an objectioncharged offense as described in the chargingto the summary order and requests a formal trial,sheet for criminal cases. The high court is thenthe case is transferred to a trial procedure in athecourt of first instance.courtofsecondinstance,whiletheSupreme Court is the final appellate court ofevidencesubmittedbythepublicAbout 80% of all criminal cases are handled asappeal.summary proceedings. Refer to Graph 1 forB. Court of First Instancestatistics on summary proceedings and formal1. Summary courtprosecutions.a. JurisdictionGraph 1. Comparison of Applications for Summary Orders andA summary court generally only has jurisdictionFormal Prosecutions and Cases Brought to District Courts andover criminal cases where the penalty is a fineto Summary Courts for Formal Prosecutions (2014)or lighter. It is vested with the power to imposeimprisonment with work with regard to a certainscope of offenses that are punishable by , only with a term of sentence aslimited by law.b. Composition of the courtA single judge handles each case in summarycourt.c. Summary proceedingsSummary proceedings that do not require acourthearingcanbeusedforsimplepunishment of minor crimes where the facts arenot in dispute at a summary court. r requesting a summary order at thesame time as the institution of prosecution. Thepublic prosecutor must confirm with the suspectthat there is no objection to the application of6OUTLINE OF CRIMINAL JUSTICE IN JAPAN(Note) Source: Annual Report of Statistic on Prosecutionfor 2014, Ministry of Justice
OUTLINE OF CRIMINAL JUSTICE IN JAPANGraph 2. Number of Cases Handled by Single-Judge and by2. District courtThree-Judge Panel (Ordinary District Court Casesa. JurisdictionIn the First Instance) (2014)The district court has jurisdiction as the courtObligatory2,510 (4.8%)of first instance over criminal cases other thanDiscretionary585 (1.1%)those liable to fines or lesser punishment.Three-judge panelcasesThere are no summary proceedings for casessent to a district court, for which court hearings3,095 (5.9%)Total52,502(100.0%)are always held.b. Composition of the courtIn the district court, a single judge handlesSingle - judge cases49,407 (94.1%)each case except for certain crimes with heavystatutory penalties, which are handled by apanel of three judges.Certain types of serious crimes in which thegeneralpublichasastronginterestaredesignated to be handled under the saiban-inlegal interpretation are handled entirely by thejudges,whichdiffersfromthecitizenparticipation system in Germany, France etc.On the other hand, the saiban-in are appointedsystem.The courts can also handle other cases with abyrandomselectionfromamongpersonsthree-judge panel at their own discretion. Referregistered in the list of voters for each case,to Graph 2 for the number of cases handled bywhich is much like the jury system adopted in theaUnited States and espectively.saiban-intogetherFact-finding and sentencing are conducted bysentence, as well as whether the accused isa panel comprised of six saiban-in chosen fromguilty or not, which is different from other jurythe general public together with three judges bery causing death or injury, arson ofinhabited buildings, and kidnapping for ransom.judges,anddeliberationsc. Saiban-in systemcertain types of serious crimes in which there iswithconductdeterminetheAs described above, the saiban-in system isunique to Japan, differing from both the citizenparticipation and jury systems.d. Speedy trial procedureThe saiban-in system is the same as theAmong cases handled by a single judge atcitizen participation system adopted in Germanydistrict and summary courts, those deemed clearand France, etc. in that the panel is comprisedand minor can be tried by a speedy trialof both saiban-in and judges.procedure.However, saiban-in find facts and determinethe sentence with the judges, while issues ofIn a speedy trial procedure, the court sets a trialdate as early as possible, applies a less rigorousexamination of the evidence, and renders a7OUTLINE OF CRIMINAL JUSTICE IN JAPAN
judgment, insofar as possible, within one veor leniencyoftheimprisonment in a speedy trial procedure, the(4)execution of sentence shall be suspended.The procedure for the court of second instanceIn order to conduct a speedy trial procedure,whenthepublicprosecutordeemsAn error in fact-findingis to review the court proceedings and judgmentitin the first instance through the records, ratherappropriate, the public prosecutor must securethan holding a new trial to conduct fact-findingthe consent of the suspect, and then make aagain.petition in writing for a speedy trial procedure atthe time of instituting prosecution.Therefore, proceedings in the court of secondinstance are mostly restricted to oral argumentsThen, if the defense counsel for the suspectmade by the public prosecutors and defensealso agrees to the case being tried by a speedycounsels, and in contrast to the first instance,trial procedure and the accused states thatthe high court does not examine witnesses orhe/she is guilty at the opening proceedings ofother evidence.the ordinary trial of first instance, the court willdecide to apply the speedy trial nally examines evidence that was notThis is different from an arraignment in theassessed in the first instance when they considerUnited States and other jurisdictions, as theit is necessary to investigate facts that remainevidence is examined even though the accusedunclear after examining the records of the firsthas admitted guilt.instance.OncethecourtofsecondinstancehasC. Court of Appellate Instancereviewed the records of the first instance, and it1. Court of second instanceconfirms that there was no error in the judgmentIf either party is dissatisfied with the judgmentthrough the trial procedure, the court thenin the first instance, said party can appeal to adismisses the appeal.court of second instance with a demand toOn the other hand, when the court admits thatreverse the judgment by alleging errors. It isthere is an error and the judgment in the firstnoteworthy that the public prosecutor also hasinstance should be revised, the court mustthe right of appeal in the same way as thereverse the judgment.accused.8severityIf the court of second instance admits the courtAll appeals for criminal cases are handled byof first instance should reexamine the evidence,the high court, with such cases being tried by aor its judgment should be revised, it will reversethree-judge panel. An appeal can be made tothe judgment and remand the case to the courtthe court of second instance on the followingof first instance, and a retrial will be held at thegrounds:court of first instance. However, the high court(1) Non-compliance with procedural law in thecan also immediately render a new judgmenttrial procedurebased on the case records and the evidence(2) An error in the interpretation or applicationexamined by the court of the first and secondof law in the judgmentinstance if appropriate.OUTLINE OF CRIMINAL JUSTICE IN JAPAN
OUTLINE OF CRIMINAL JUSTICE IN JAPANIn any of these cases, if only the accused appealed, any sentence will not be heavier than thatrendered by the court of first instance.Needless to say, any judgment by the high court is binding on the court of first instance, when thecase is remanded to the court.Table 1. Reasons for Reversals by Courts of Second Instance2. Final appellate instancespecial circumstances when it deems that notEither party can make a final appeal to reversedoing so would be contrary to justice.the judgment of the court of second instance.As guardian of the Constitution, the SupremeThe Supreme Court handles all final appeals.Court is the court of last instance having theAt the Supreme Court, cases are generallyauthority to determine whether or not all laws,handled by a Petty Bench comprised of fiveorders, regulations and measures comply withjustices,the nal issues and suchlike are handledTherefore, ensuring appropriate interpretation ofby the Grand Bench comprised of all fifteenthe Constitution and the law is the primaryjustices.purpose of the final appeal system, so theFinal appeals can only be filed on the followinggrounds:procedure of the final appellate instance isdifferent from that of the first and second(1) A violation of the Constitution or an error ininstances in that there is no examination ofthe interpretation of the Constitutionwitnesses.(2) An alleged conflict with precedents of theSupreme Court or high courtsHowever, the final appellate court may reversethe judgment in the second instance under9OUTLINE OF CRIMINAL JUSTICE IN JAPAN
However, the Supreme Court is the court of last resort in Japan, so it has the discretionary power toreverse any judgment in the second instance if it determines that leaving the judgment intact clearlyconstitutes an injustice.The types of judgment of the final appellate court are almost the same as those in the court ofsecond instance.In other words, when the Supreme Court admits that there has been no error in the judgment ofsecond instance, the final appeal will be dismissed, whereas the case is remitted to the lower courtwhen the judgment is reversed in the Supreme Court.However, the Supreme Court may also remit a case to the court of first instance instead of to thecourt of second instance when reversing the judgment of second instance.The Supreme Court can also render its own judgment immediately when appropriate based on thecase records and evidence.Table 2. Dispositions by the Supreme Court10OUTLINE OF CRIMINAL JUSTICE IN JAPAN
OUTLINE OF CRIMINAL JUSTICE IN JAPANJurisdiction and Procedure of Criminal CacesAppellate Jurisdiction onlySUPREME COURT Petty Benches (3) : Five-Justice PANELSAll cases (Some are referred to the GrandBench.)Appellate JurisdictionHIGH COURTGrand Bench (Court en banc)Cases referred by the Petty BenchesOriginal Jurisdictionby a FIVE-JUDGE PANELby a THREE-JUDGE PANELExclusive jurisdiction in crimesconcerning insurrectionOriginal JurisdictionOriginal JurisdictionDISTRICT COURT by a SAIBAN-IN PANEL (※),by a THREE-JUDGE PANEL orby a SINGLE-JUDGEMajor trial courtdepending on the nature andexercising generalimportance of the case involved for alljurisdictioncriminal cases not specifically comingunder other courtsSUMMARYCOURTby a SINGLE-JUDGEMinor crimes;The punishment is limited to aLimited Jurisdiction fine or a lighter punishment※ A fof 33 judgesjudges※and 6 Saiban-ins.and 6 saiban-in.Note:A direct appeal may be filed to the Supreme Court against a judgment of the district court or thesummary court in which the court decided unconstitutionality of law, ordinance, etc.11OUTLINE OF CRIMINAL JUSTICE IN JAPAN
Ⅲ. PROCEEDINGS FROMINVESTIGATION TOJUDGMENT IN THEFIRST INSTANCEA. IntroductionBased on a procedure regarding cases heard by saiban-in, this chapter explains the criminal justiceprocedure from the investigation following a crime and institution of prosecution, through thepreparations for a criminal trial, appointment of saiban-in, and the trial from within the criminal justiceprocedure at courts in Japan with regard to the overview in Chapter 2, with certain casebook examplespresented in the frames.B. InvestigationOn June 3, 2013, 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 a judge for 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.1. Offense and opening of investigationreceives cases referred from the police, anda. Investigative authoritiestakes over the police officers’The criminal justice procedure starts with aninvestigation by the authorities.results before considering whether the case willwithstandtherigorsoftheinstitutionofThere are various triggers for an investigation,prosecution, or when he/she deems it necessary,such as reports and notifications from victims orhe/she conducts additional investigations. Thewitnesses of crimes, police interviews andpublic prosecutor is a legal expert from anquestioning,accusations,administrative department of the government,depending on the type and nature of the caseand his/her status is guaranteed in the same wayand offense.as judges for quasi-judicial services.complaints,andThe main investigative authorities are policeofficers and public prosecutors.The task of police officers is to maintain socialPolice officers and public prosecutors ities,whohandlenotsuchsecurity, but in the case of an investigation,investigations in cooperation. However, publicthey are the primary investigative authority asprosecutors may advise or instruct to policejudicial police officers, and are the main power.officersOn the other hand, the pu
OUTLINE OF CRIMINAL JUSTICE IN JAPAN for 2014, Ministry of Justice A. Three-tier Court System A three-tier court system is adopted for Japanese criminal cases. One of two types of courts (either a district or summary court) is used as the court of first instance depen
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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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