Running Head: JAPANESE PROSECUTORS’ INFLUENCE

The Mechanisms and Ramifications of Outsize Prosecutorial Influence in Japan

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JAPANESE PROSECUTORS’ INFLUENCE

Abstract
This paper argues that Japanese prosecutors possess an outsize influence within the criminal
justice system. Based on an analysis of the justice system, it concludes that prosecutors’
powers are highly systemic because they are based on laws approved by the legislature.
Prosecutors wield their power through three distinct phases within criminal justice: theinvestigations, charging and trials of suspects. Furthermore, the paper also addresses theconsequences of large prosecutorial influence including wrongful conviction cases.
Keywords: prosecutors, criminal justice, Japan

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The Mechanisms and Ramifications of Outsize Prosecutorial Influence in Japan
Japan is world-renown for its safety and low crime rates. This feat is achieved in part
because of the deterrence effect of the criminal justice system. Specifically, Japan'snotoriously high conviction rates, exceeding 99 percent, act as a powerful deterrent against
crime. Supporters of the Japanese system point to these attributes as praise-worthy. However,critics argue that such high conviction rates are the epitome of the powerful influence
wielded by prosecutors. A close examination of the Japanese legal system suggests thatprosecutors have an outsize influence within the Japanese legal system.
The English literature on Japanese prosecutors is fairly limited. First, Castberg(1997) gives a thorough overview of Japanese prosecutors, highlighting their independence.
Johnson (2012) also provides an in-depth analysis of the entire prosecution system in Japan,
focusing on how prosecutors are organized within the bureaucracy. In addition, Dando (1970)
focuses exclusively on the absolute indicting powers of prosecutors. Conversely, West (1992)
focuses on how the Japanese system attempts to curb prosecutorial power. These are the four
major English language papers concerning Japanese prosecutors.
Prosecutors exercise their substantial influence throughout three phases of criminal
justice: the investigation, charging, and trial of criminal defendants. This paper will first

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examine each of these phases in detail and then discuss the ramifications of extreme
prosecutorial power.
Mechanisms of Outsize Prosecutorial Influence
InvestigationsFirst, prosecutors have considerable sway over the investigation of suspects. While
many factors enable prosecutors to hold sway over investigations, perhaps the largest reason
is because they are allowed to detain suspects for relatively long periods of time before
charges are filed. According to the Keijisoshouhou, or Code of Criminal Procedure (CCP),
the police must transfer the suspect to prosecutors within 48 hours after arrest (Article 203).
Once they have custody of the suspect, prosecutors have 24 hours to decide whether or not toindict (CCP, Article 205). This 24-hour period, however, can be extended. Under Japaneselaw, prosecutors can file a formal request to detain suspects for an additional ten days inorder to further question the suspect and build their case (CCP, Articles 206 & 208). In
addition, judges are allowed to extend this detention period for a further ten days, bringing
the total maximum detention period to 23 days (CCP, Article 208). This is quite significant
because prosecutors are allowed unfettered access to suspects for over three weeks, which
they take full advantage of. According to Johnson (2012), “interrogations are long, thorough,and intense” (p.43), with sessions lasting for “several hours each time” (p.43). Prosecutors

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also have one final trick up their sleeve to further extend this detention period, a practicecalled bekken taiho. Bekken taiho is when prosecutors arrest suspects for a different crime
once the initial detention period has expired, which theoretically doubles the detention
period. Ishimatsu (1989) provides a good example of this practice, through a case where thesuspect was indicted for three counts of kyokatsu (threatening). Prosecutors initially arrested
the suspect on July 14th, but he was arrested a second time for the second count on August
19th, and a third time on October 7th (Ishimatsu, 1989). The end result was that the suspectremained in the custody of prosecutors for “a total of about three and a half months”(Ishimatsu, 1989, p.148). This is a prime example of how the original 24 hour detention
period can stretch out much longer, giving prosecutors an upper hand in the investigation
with unfettered access to suspects during this period.
Charging
The second phase of the criminal justice system where prosecutors exercise theirsubstantial authority is the charging of defendants. Like most civil law jurisdictions,prosecutors in Japan hold absolute power over charging decisions (CCP, Article 247). One
distinctly Japanese feature, however, is the system of kiso-yuyo, or suspension of prosecution.
Prosecutors have explicit, codified powers that allow them to drop charges even though they
can prove a defendant’s guilt beyond a reasonable doubt, as per Article 248 of the CCP. ThisJAPANESE PROSECUTORS’ INFLUENCE

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is because prosecutors can take into account mitigating circumstances such as “the character,age and environment” of the offender, as well as the “circumstances and gravity” of theoffense (Dando, 1970, p.522). Such broad powers where prosecutors can drop cases based on
non-evidentiary grounds are rare in other countries. In Germany, for example, prosecutors arelegally compelled to “prosecute all charges for which there is sufficient evidence to justify aconviction” (Hermann, 1974, p.468) Furthermore, prosecutors exercise the power of kisoyuyo frequently. According to statistics provided by the Portal Site of Official Statistics ofJapan (2018), over 90 percent of cases in 2017 where charges were dropped was because of
kiso-yuyo (606,256 people out of 671,698 total cases dropped). What is more stunning is that
49 percent of all cases prosecutors handle, including cases brought to trial, result in kiso-yuyo(Portal Site of Official Statistics of Japan, 2018). This means that around half of the cases are
not pursued further solely based on the discretion of prosecutors, which makes them
immensely influential. We can therefore conclude that Japanese prosecutors hold broad,
unique powers, which make them incredibly influential.
Trials
The third part of the judicial process where prosecutors hold sway is the trial.
Prosecutorial influence during trials stem from their power over evidence handling and is
exercised in two distinct ways. First, prosecutors have an advantage because of preferential

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rules regarding discovery. Unlike the United States for example, Japanese prosecutors are notlegally obliged to disclose evidence favorable to defendants, commonly referred to as
exculpatory evidence, to the defense. In other words, even if prosecutors were in possessionof evidence that could acquit the defendant, they are not required to present this evidence tothe defense. Castberg (1997) makes this point by writing that the Japanese prosecutor “neednot disclose evidence favorable to the defendant” (p.68). In contrast, strict pretrial discovery
rules in the US dictate that prosecutors must share all exculpatory evidence with the defense.
This doctrine was established following the US Supreme Court decision in Brady v.
Maryland (1963), in which the Court decided that “the suppression by the prosecution ofevidence favorable to an accused upon request violates due process” (1963, p.87). A good
example of the incredible power Japanese prosecutors hold in regards to evidence is the
Matsubase case. In 1985, Koki Miyata was sentenced to 13 years in prison for “crimes
including a murder” (The Mainichi, 2018). However, in 2012, after repeated requests by the
defense for evidence disclosure, lawyers for Miyata discovered exculpatory evidence in thepossession of prosecutors. Based on this newly-discovered evidence, the Kumamoto district
court ordered a retrial in 2016, a decision which was later affirmed by the Supreme Court(The Mainichi, 2018). In the Matsubase case, if lawyers for the defense had not found theexculpatory evidence, an innocent man’s name would have been tarnished for his entire life.

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8The Matsubase case is a prime example of how prosecutors hold extreme influence that could
alter the course of trials.
Second, prosecutors have an edge over the defense at trial because the bulk of theevidence presented is in dossiers (chosho) prepared by prosecutors, instead of witness
testimony. According to Castberg (1997), the evidence presented by prosecutors “consists
primarily, if not exclusively in most cases, of documents. The documents are usually in theform of a dossier” (p.70). These dossiers differ from simple documents such as emailtranscripts because they are often hearsay evidence. This is because these dossiers are draftedby prosecutors based on the interrogation of suspects. Even though prosecutors did notactually witness the crime, they are allowed to submit their version of events as evidence,
which qualifies the dossiers as hearsay evidence. This is beneficial to prosecutors because thedefense cannot cross-examine these dossiers, or question the prosecutors who drafted thedossiers. While many countries have strict hearsay rules which bar such documents frombeing introduced as evidence, the hearsay rules are relaxed considerably in Japan. Indeed,
Johnson (2012) argues that “liberally interpreted exceptions to hearsay rules also allow many
dossiers to be entered as evidence” (p.53). This means there is little the defense can do toundermine a prosecutor’s case because the dossiers cannot be cross-examined.

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9Both rules regarding evidence give prosecutors the upper hand because they canconstruct a narrative that fits their version of events. Johnson (2012) concurs, arguing that,“the truth that prevails at trial—and the truth that judges authoritatively pronounce—tends tobe the version that prosecutors have uncovered and constructed” (p.53). A lack of evidence
discovery means that prosecutors can effectively ignore any exculpatory evidence to make astrong case. Prosecutors can also create a compelling narrative of a defendant's guilt because
the bulk of the evidence is in the dossiers, which are drafted by the prosecutors themselves.
Ramifications of Outsize Prosecutorial Influence
The largest negative effect of outsize prosecutorial power is a disregard for the truth,
which can lead to tragic consequences. The purpose of a trial should be to uncover the true
version of events surrounding a crime. In Japan, however, this basic principle of justice iseroding because of the substantial influence of prosecutors. As discussed in the previous
section, prosecutors are free to create a narrative that persuades judges of a defendant’s guilt
regardless of the actual truth. In fact, prosecutors will even go as far as fabricating evidence
to secure a conviction. There have been several high-profile cases in which prosecutors
presented fabricated evidence at trial. The Hakamada case is a good example. Iwao
Hakamada was arrested in 1966 for the murder of four people and was subsequently
sentenced to death. Hakamada maintained his innocence throughout trial, claiming that heJAPANESE PROSECUTORS’ INFLUENCE

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was forced to sign a confession under extreme duress. Regardless of this claim, the courts
still condemned him to death. In 2014, however, the Shizuoka District Court granted the
Hakamada’s motion for a retrial because the court recognized that prosecutors had most
likely fabricated key evidence. McCurry (2014), citing the court’s opinion, reported that,“There is a possibility that [key pieces of] evidence have been fabricated by investigative
bodies”. The Hakamada case is not a lone example, as most wrongful convictions are also a
result of bloated prosecutorial power. Indeed, Johnson (2012) analyzes that, “miscarriages ofjustice stems from [...] the absence of checks on official power in the interrogation room”(p.62). A prosecutor's large influence, coupled with a lack of checks on their authority makes
Japan a hotbed for wrongful conviction cases.
Conclusion
Prosecutors in Japan have overwhelming powers based on explicit statutory
approval, which they exercise during the investigation, charging, and trial of defendants.
Prosecutors benefit from a relatively long detention period of suspects during investigations.
The system of kiso-yuyo gives prosecutors absolute authority over charging decisions.
Finally, prosecutors hold sway over trials because of a lack of evidence discovery and relaxedhearsay rules. All of these powers face little third-party oversight, which can lead to tragic
wrongful conviction cases.

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It is undeniable that the Japanese criminal system is highly effective as a means todeter crime. Yet if this effect is achieved at the expense of individual defense rights, the very
independence and strength of the justice system, one of the primary institutions in a
democracy, will come under question. While the state must have a strong authority tomaintain the rule of law, individuals should have robust legal protections to prevent rampant
abuse of state power. Perhaps the time is ripe to revise the balance between the power of thestate and the rights of individuals in Japan.

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12References
Brady v. Maryland, 373 U.S. 83 (1963). Retrieved on November 30, 2018, fromhttp://cdn.loc.gov/service/ll/usrep/usrep373/usrep373083/usrep373083.pdf
Castberg, A.D. (1997). Prosecutorial Independence in Japan. Pacific Basin Law Journal,
16(1), 38-87. Retrieved on November 30, 2018, fromhttps://escholarship.org/uc/item/63r6g7zh
Dando, S. (1970). System of Discretionary Prosecution in Japan. The American Journal ofComparative Law, 18(3), 518-531. doi: 10.2307/839343
Hermann, J. (1974). The Rule of Compulsory Prosecution and the Scope of Prosecutorial
Discretion in Germany. University of Chicago Law Review, 41(3), 468-505. doi:
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Ishimatsu, T. (1989). Are Criminal Defendants in Japan Truly Receiving Trials by Judges?
Law in Japan, 22, 143-153. Retrieved on November 30, 2018, fromhttps://heinonline.org/HOL/LandingPage?handle=hein.journals/lij22&div=12&id=&page=Johnson, D. (2012). Japan's Prosecution System. Crime and Justice, 41(1), 35-74. doi:
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Keijisoshouhou [Code of Criminal Procedure]. (2018). Retrieved on November 30, 2018,from http://elaws.egov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=323AC0000000131
The Mainichi. (2018, October 13). Top court paves way for retrial of man who served timefor 1985 Kumamoto murder. Retrieved on January 13, 2019, fromhttps://mainichi.jp/english/articles/20181013/p2a/00m/0na/028000c
McCurry, J. (2014, March 27). Japanese man freed after 45 years on death row as court
orders retrial. The Guardian. Retrieved on November 30, 2018, fromhttps://www.theguardian.com/world/2014/mar/27/japanese-man-freed-death-row-retrial
Portal Site of Official Statistics of Japan (2018). Kennsatsu-toukei [Prosecution Statistics].
Retrieved on November 28, 2018, from https://www.e-stat.go.jp/statsearch/files?page=1&layout=datalist&toukei=00250003&tstat=000001012929&cycle=
7&year=20170&month=0&stat_infid=000031745349

West, M.D. (1992). Prosecution Review Commissions: Japan’s Answer to the Problem ofProsecutorial Discretion. Columbia Law Review, 92(3), 684-723. doi: 10.2307/1122957