The Japanese Adversary System in Context: Controversies and Comparisons (review)

An American criminal defense attorney reading the Japanese constitution could be forgiven a sense of familiarity with the expansive series of rights afforded to the criminal defendant. These rights, along with other aspects of the American adversarial system, were introduced in Japan after World War II. However, the procedural protections contemplated by the American drafters of the Japanese constitution operate in a very different manner in Japan, in large part because of institutional legacies of the prewar inquisitorial system. This gap between the intentions of the constitutional drafters and the law as it operates in action provides a fruitful opportunity for comparative research.

This volume of essays, the results of a conference sponsored by the Sho Sato Fund at Boalt Hall Law School, collects a range of contributions from Japanese and American scholars exploring these issues and other aspects of Japan's criminal justice system. It focuses, appropriately enough, on the operation of the adversary system in Japan. As Miyazawa puts it in his introduction (p. 10), the formal adoption of adversarial principles makes it worthwhile to ask how well the Japanese system is achieving its stated objectives. His answer, and those of most of the other authors, is not very well.

Under the adversary system, the judge serves as a kind of neutral referee in the criminal justice process, relying on the prosecution and defense attorneys to present evidence at trial. The judge is also charged with ensuring that the suspect is not subject to undue pressure during the investigation stage. The parties are formally equal, with no special deference given to the state and no special relationship between judge and prosecutor. Indeed, because of an implicit recognition of the very real advantages possessed by the state, the adversary system provides a number of procedural protections to the defendant. These features stand in contrast to the inquisitorial system, particularly as it existed in prewar Japan, in which all legal actors are viewed as engaging in a common search for the truth.

The prewar Japanese criminal justice system featured a special investigating judge, did not provide for a right to counsel before indictment, and generally did not allow counsel to be present during interrogation of the defendant or witnesses (p. 43). While these institutional features have been reduced or eliminated, certain legacies persist today. Perhaps the foremost legacy of the inquisitorial system is the close relationship between the prosecutor and judge. Prosecutors and judges are trained together and share a common orientation, and the prosecutor's role can be seen as similar to that of the prewar investigating judge (p. 45). Both prosecutors and judges operate within institutional structures in which they have strong disincentives to acquit defendants (p. 3.)

Notwithstanding the nominal equality of the parties in the adversarial system, the Japanese prosecutor has a number of practical advantages. The prosecutor is not required to give up exculpatory evidence to the defendant, an adversarial-type rule that is singularly favorable to prosecutors. Hearsay evidence is allowed, and there is no practical counterpart to the exclusionary rule by which American judges automatically exclude evidence that is obtained illegally. Although Article 35 (1) of the Constitution of Japan, like the American Fourth Amendment, requires a warrant for a search or seizure, the police in Japan seem to have much more leeway regarding admittance of evidence in violation of this rule.

The widespread practice of inducing confessions, typically drafted by detectives or prosecutors, also suggests that the Japanese system operates under different institutional structures than the American system. The frequency of confession is no doubt tied to interrogation practices. Accused persons are regularly detained for up to 23 days before indictment. During the 23-day preindictment detention phase, the prosecution and police have asserted that there is a "duty to submit to questioning" (p. 29) and the Supreme Court has never held otherwise (p. 42). Suspects cannot leave the room during interrogation and have no right...