The Asia-Pacific Journal | Japan Focus Volume 9 | Issue 10 | Number 1 | Article ID 3496 | Mar 07, 2011

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Justice on Trial: Japanese Prosecutors Under Fire　　裁かれる司法ーー日本の検察への攻撃

Jeff Kingston

J u s t i c e o n T r i a l : J a p a n e s eProsecutors Under Fire

Jeff Kingston

Japanese prosecutors find themselves in thedock for abuses of power involving a number ofhigh profile cases that have drawn considerablemedia attention in recent years. More thanever, the Japanese public is aware of the extentof prosecutors’ power and how this jeopardizesjustice. Until recently, prosecutors’ post-WWIIpublic reputation was relatively positive, andthey were widely viewed as paragons of trustand propriety who had largely overcome thenegative images stemming from their wartimerole as tools of state oppression against criticsand dissidents. This does not mean that Japan’sprocuracy has lacked critics both at home andabroad, but only recently has the positivepublic image come under sustained fire. Themedia is drawing unprecedented publicattention to the ways and means of prosecutorsand detailing their resort to unscrupulousmethods in order to maintain their chilling 99%conviction rate.

The 2010 case of Muraki Atsuko, a senior civilservant in the Ministry of Health, Labor andWelfare, put the prosecution in the limelightwhen an “ace” prosecutor acknowledged hetampered with evidence in an ill-fated effort tosecure her conviction. Moreover, it is allegedthat his supervisors in the Osaka prosecutor’soffice were aware of his evidence tamperingand engaged in a cover-up. In the past, suchtransgressions were explained in terms ofrogue prosecutors, but this recent casesuggests the problem is more systemic. Too

much unaccountable, unchecked discretionarypower facilitates abuses that are more commonthan is generally acknowledged or tolerable inthe eyes of the Japanese media and public. Thissituation arises from prosecutors’ arbitrarysuppression of citizens’ constitutional rights,and protections in the Criminal Code ofProcedure (CCP), aided and abetted by acompliant judiciary.1

Muraki Atsuko in 2009 prior to her arrest

(Kyodo News photo)

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There have long been allegations and evidenceof prosecutorial abuses, and here and theresome cases come to light, with most criticalattention focused on prosecutors’ heavyreliance on “confessions” and the highconviction rate. Japan’s 99% conviction rate issometimes misleadingly depicted as cut anddried evidence of injustice. Experts, however,point out that this high batting average reflectscareful screening by prosecutors who avoidtrying cases that they are not certain ofwinning. The flip-side of this is that someoffenders walk because the prosecutors can’tbuild a convincing case and are unable tosecure a confession. In the absence of aconfession, the so-called “king of evidence”,prosecution is rare. According to DavidJohnson, confessions are the cornerstone ofJapanese justice and prosecutors rely on thembecause they can and because they increaseinvestigators’ “efficiency”.2 In addition,confessions are a way of nudging criminalstowards expressing remorse and “uncoveringand clarifying” the truth. Confessions are alsoseen as c ruc ia l t o the emphas i s onrehabilitation of criminals in Japan, uncoveringthe truth, understanding the motive andoffering leniency in exchange for genuinecontrition; and hating the crime not thecriminal. Wilson notes, however, that, “…otherfactors fuel the incessant prosecutorial questfor a confession including, among others, theneed to prevail, fear of professional demotionor career failure, media pressure, and thepublic's desire to quickly solves crimes.”3 Healso reminds us that, “…it is difficult toadequately explain a conviction rate that nearsperfection in any criminal system. In fact, itbegs the question of whether such perfectioncan be justified, or whether due process anddefendants' rights are being sacrificed in thename of perfection.”4 As discussed below, theemphasis on securing confessions is animportant factor in the prolonged detention ofsuspects, intensive grilling and infliction ofabuses. More than 90% of suspects do confess,suggesting the efficacy of the interrogation

methods while also raising questions aboutrespect for their constitutional and humanrights.

Daniel Foote draws attention to the centralproblem of judicial policymaking and howjudges have played a key role in empoweringprosecutors and not exercising their powers ofoversight to restrain them. He argues thatjudges have been, “… granting broad authorityto the prosecution and limiting rights andprotections for suspects and defendants, oftenin the face of rather explicit language in theConstitution.”5 Foote, among others, finds thatjudges’ systematic deference to prosecutorshas been a key factor in the accumulation ofprosecutors’ unchecked powers that havestacked the deck against the accused. Hecontends that the narrow interpretation of theConstitution embraced by the judiciaryconstitutes judicial policymaking that hasresulted in the constitutional rights of theaccused being routinely disregarded. Thejudiciary has acquiesced in strict limits set byprosecutors on the constitutional right toimmediate legal counsel for the accused,allowing prosecutors broad discretion to denyand determine such access. Judges alsovirtually always grant prosecutors’ requests tocontinue interrogations of suspects for up to 23days of detention. Moreover, suspects may bekept in detention purgatory for unlimitedsubsequent periods of 23 days provided theprosecutors fi le new charges for eachdetention.6 In practice, it is extremely rare for ajudge not to grant the prosecutors’ requests fordetention, and extensions before suspects areindicted.

In order to uncover the truth, judges assumethat prosecutors will act responsibly and needtime to conduct thorough interrogations. AsWeber argues, “Japanese judges exercise theirwarrant-granting authority and interpret theConstitution in ways that render proceduralprotections moot.”7 This lax oversight by judgeshas given prosecutors a powerful weapon

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–endless detention – to extract confessions bycoercion and intimidation, essentially makingdetainees’ release contingent on the accusedsigning a confession drawn up by theprosecutor. The fact that confessions obtainedunder such dubious circumstances have beenroutinely accepted as credible evidence byjudges indicates the extent to which the systemis biased in favor of prosecutors.

This tilting of the playing field and extensivereliance on confessions, more correctlysummary statements drawn up by prosecutorsostensibly based on interrogations, or affidavitsdrawn up by prosecutors that are signed bywitnesses, also runs counter to the CriminalCode of Procedure (CCP) that stipulates trialscentered on oral testimony in open court andcross-examination in order to verify thereliability and credibility of testimony.Moreover, like the Fifth Amendment to the USConstitution, Article 38 of the JapaneseConstitution provides that, ‘No person shall becompelled to testify against himself’. Inpractice, Foote notes that judges have beenoverly deferential to prosecutors, allowingthem to exploit loopholes to evade thisconstitutional protection to the extent that self-incriminating confessions are central and vitalto prosecutions. Soldwedell concurs, notingthat, “The Japanese constitution provides broadprotections for those accused of crimes.Unfortunately, the most striking aspect of theseprovisions is that they are routinely ignored.”8

Unlike the Miranda rule in the US, requiringpolice to immediately inform suspects that theyhave the right to remain silent and that anystatement they make can be used against themin court, the Japanese court has taken a narrowview of the right to silence enshrined in theJapanese constitution. In 1950 it ruled, “thatfailure to notify a suspect of this right to silenceis not a constitutional violation and does notrender a subsequent confession eitherinvoluntary or inadmissible.”9 Moreover, courtshave adopted loose standards for judging

whether confessions are voluntary and reliable,rarely challenging prosecutors even when thereare serious doubts about the validity of aconfession.

Defendants are also disadvantaged by courtdecisions that have curtailed “discovery”,meaning that prosecutors have been under noobligation to disclose all relevant evidence todefense counsel before the trial begins; recentimprovements in discovery rules and practicesare thus welcome. Weber attributes thisimprovement to the introduction of the layjudge system, arguing that, “As part of thecurrent judicial reform movement, prosecutorsmust now disclose all the information theyuncovered during their investigation if theyplan to present it at trial, even if it wasexcluded from the official dossier. This changewas necessary for the purpose of saiban-in (layjudge) trials. In bench trials, hearings relied onwritten documents and were staggered overseveral months. Lay participation requiresshort trial periods and live testimony. As aresult, defense attorneys need to be asthoroughly prepared on the first day of the trialas prosecutors.”10 In order to expedite thehearings to minimize the disruption of layjudges’ lives, the CCP was amended to requirepretrial consultation between defense counseland the prosecution. Wilson explains, “Amongother things, the pretrial arrangementproceedings are intended to clarify the chargesand applicable law, define the allegations andcontested issues, disclose disputed facts andevidence, establish objections related toevidence, address the use of experts, andestablish hearing and trial dates.”11 But he isconcerned that, “…the government seems moreconcerned with shortening the trial processthan the defendant's right to a fair andcomplete trial.“12

The post-WWII emergence of a judicial systemthat is systematically biased in favor ofprosecutors and against defendants is clearly atodds with American reformist intentions during

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the US Occupation (1945-52). Grafting USjudicial principles onto the Japanese judiciaryhas not been effective in establishing a robustadversarial system because, as Foote argues,the courts have allowed prosecutors to bypassthe reforms. As a result, the rights of suspectshave been sacrificed in favor of prosecutorialpowers. Why this has happened is a matter forspeculation, but in Foote’s view, the judiciarybears ultimate responsibility for this turn ofevents because it has stood aside or sided withprosecutors in allowing contravention ofrelatively explicit constitutional and statutoryprovisions.13 This has created a judicial systemvulnerable to the prosecutorial abusesdiscussed below. While most specialistsemphasize that overall the Japanese judicialsystem delivers a high quality of justice, manyalso voice deep reservations about aninquisitorial investigative process and trialswhere there is scant scope for defense.14 AsWeber points out, “More than any other actorin the Japanese justice system, prosecutorsdetermine the fates of reported suspects.Japanese prosecutors exercise a near perfectmonopoly on prosecutorial power. In sum,prosecutors do not merely prosecute cases;they determine outcomes. It is for this reasonJapanese justice is often called "prosecutorialjustice."15

There is an adage in Japan that a prosecutor’scareer can survive one acquittal, but a secondmay have detrimental consequences.16 Ofcourse this is not a hard and fast rule, but suchscuttlebutt is suggestive of the pressures thatprosecutors face to get a confession or notindict.17 In general, prosecutors are reluctant totry any but “slam dunk” cases. Takai Yasuyuki,a former prosecutor notes, "When Japaneseprosecutors have even a little anxiety oversecuring guilty verdicts, they do not indictsuspects."18 But once indicted, the pressure toconvict is high, so much so that in the Murakicase discussed below, the prosecutor doctoredthe evidence to frame the suspect.

While there is a gap between the low acquittalrate in Japan and the US, Johnson finds that itis not quite the yawning chasm it seems if onecontrols for differences in procedures such asthe high rate of guilty pleas in the US thatbypass trials and influence trial convictionrates. Nonetheless, Japan remains whatJohnson terms a “paradise for a prosecutor”because they have carte blanche to ‘make’cases and obtain information.19 He qualifies thisstatement by pointing out that this paradiseapplies only to ordinary crimes, but not “forcorruption and other white-collar offenses,{where} the law disables prosecutor interestsby forbidding or restricting practices thatprosecutors in other countries…consideressential.”20 For example, grants of immunity,subpoenas and undercover operations areprohibited and wiretapping was not authorizeduntil 2000.21 Johnson is pessimistic about theprospects for reform of the prosecutorialsystem, writing, “…the current system placesso much power in the procuracy’s hands thatonly a colossal abrogation of those prerogativesseems likely to produce significant change inthe balance of advantage.”22

Developments over the past two decades interms o f publ ic support for greatertransparency, enabling legislation forinformation disclosure and a spate of judicialreforms has raised public expectations andstimulated media interest, creating a climatethat is making it increasingly difficult tomaintain this prosecutor’s paradise. Certainly,Japan does seem to have a far less quiescentand supportive political context than Johnsondescribes, and there has been an erosion ofdeferential attitudes among Japanese towardsauthorities, one that has been accelerated bythe prosecutorial abuses described below.23

The Muraki case is especially damning as thismild-mannered bureaucrat won considerablepublic sympathy following her acquittal in 2010and revelations by witnesses that they wereforced to implicate her and, above all, the

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stunning admission by the prosecutor that hehad doctored the evidence against her. Hersteadfast refusal to sign a confession despite163 days o f de ten t i on and g r i l l i ngdemonstrated just how much hardship asuspect faces once in the maws of the justicesystem. Not many can hold out so long despitebeing innocent against interrogators who don’ttake no for an answer.

We now turn to examine some other prominentcases that demonstrate the dangers of anabsence of checks and balances, beforereturning to the Muraki case.

Trail of Crime

In June 2009, Sugaya Toshikazu was releasedfrom prison after serving 17 years of a lifesentence when more accurate DNA testingconfirmed his innocence in the 1990 murder ofa 4-year-old girl. As in many cases that havebeen overturned in the US in recent years,Sugaya had been convicted on the strength ofdubious DNA testing that matched his semen tothat found on the v ict im’s body. Theprosecutors used this false test result tobrowbeat Sugaya into signing a confessionafter a thirteen- hour interrogation. After hewas released, Sugaya told reporters that, “Iconfessed out of despair. The detective seemedto think I’d done it because I cried...But in factI cried because I was upset they wouldn’t listenno matter how many times I told them I didn’tdo it.” Prosecutors and police refused toapologize at the subsequent retrial where hewas exonerated for his wrongful conviction,appearing arrogant and unremorseful abouttrampling Sugaya’s rights and unjustlyincarcerating him for nearly two decades.

Sugaya Toshikazu on release

There have been other celebrated cases ofjudicial misconduct such as that involvingYanagihara Hiroshi, a Toyama man sentencedto three years for rape and attempted rape in2002. His conviction was overturned in 2007only after the real perpetrator confessed, buthe had already served his sentence. He hadbeen found guilty even though he had an alibiand his footprints didn’t match those found atthe crime scene. After three days of intensequestioning, however, he admitted to thecrime, later claiming that his confession wascoerced.

In the wake of these cases and other acquittalson the ground of inappropriate policequestioning, new guidelines were drawn up tosupervise and monitor interrogations. Theguidelines include prohibiting interrogatorsfrom making physical contact with suspects,using words and actions that make suspectsfeel anxious or compromise their dignity, andmaking promises for some kind of favor. Thenew guidelines reflect concerns that suchactions in the past led to forced confessions bydefendants, but these guidelines may provelittle more than ornamental due to laxenforcement, oversight and the absence of fullrecording of interrogations.

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The problem of railroading suspects is exploredin Box Hakamada Jiken (2010), a film thatdramatizes the saga of Hakamada Iwao, aformer pro boxer, who was found guilty ofstabbing a family of four to death in 1966. Hehas been on death row since 1968, and twoappeals have failed while petitions for retrialhave been rejected three times, most recentlyin 2008. The film focuses on the intimidatingand relentless interrogations by the police inextracting a confession and also exposes flawsin the physical evidence. This was a case full ofholes: the bloody clothes prosecutors claim hewore during the murder didn’t fit, the knife theprosecutors said he used was too small toinflict the wounds and showed no signs of anydamage that would normally occur if actuallyused in multiple stabbings; there were fortystab wounds on the four victims. In addition,the film alleges that police planted evidence tosalvage the conviction after one of the judgesraised questions about the veracity andvoluntariness of the confession. Hakamadarecanted his confession during his trial,claiming innocence and accusing the police ofcoercion. Hakamada said he never read theconfession, but, “I wanted silence and had aheadache so just wrote down my name and putmy head down on the table.”

Hakamada in his boxing days

In 2007, one of the three judges involved in thecase, Kumamoto Norimichi, went public withhis doubts about Hakamada’s guilt assertingthat he was persuaded by Hakamada’stestimony and had even prepared a lengthy“not guilty” ruling, but the other two judgesordered him to rewrite the ruling and convictHakamada. The film depicts the judge’sgrowing skepticism as the case dragged on,especially after he examined logs of theinterrogations and learned how often and atwhat length the defendant had beeninterrogated. It also became apparent that theprosecution was concocting various scenariosof the crime for Hakamada to confess to duringhis 22 days of detention in a police cell. In fact,he was interrogated for 264 hours over 23days, the longest session lasting 16 hours and

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20 minutes, and was denied water or bathroomvisits during the interrogations.

Pursuing his own forensic investigation at thetime of the trial, the judge discovered that theprosecution had railroaded Hakamada basedsolely on a confession made under duress.While held in the police detention center hewas clubbed and beaten repeatedly until hesigned the confession.

The Hakamada case, and the unprecedentedadmission by Judge Kumamoto, has drawn backthe veil of the justice system and exposedinhumane aspec t s o f J apanese l awenforcement. The reliance on ruthless andlengthy interrogations casts a long shadow overthe confessions that are frequently the basis forconvictions.

"I wanted someone in the Supreme Court tohear me just once at the end of my life," theretired Kumamoto said. "I'm glad I spoke up. Iwish I had said it earlier, and maybe somethingmight have changed. " He added,

”I knew right away that somethingwas wrong with the confession...Ihave always regretted that Icouldn’t persuade the chief judgeto acquit. He was older than me,and I thought because he hadexper ienced the era whenfreedoms were taken or oppressedthat he would understand whathad happened to Hakamada.”24

Only four death-row inmates have wonacquittal on retrial since World War II, the lastin 1989. One waited 33 years and four monthsbefore being exonerated in 1983. Such retrialsand acquittals are very rare precisely becausethey entail admitting a mistake was made. Thisraises uncomfortable questions about the deathpenalty that the Justice Ministry wants to avoidas potentially putting wind in the sails of

abolitionists. Hakamada’s prospects thus do notseem good. Back in 1983 Hakamada wrote aletter to his son, stating that, "I will prove toyou that your dad never killed anybody, and itis the police who know it best and it is thejudges who feel sorry. I will break this ironchain and return to you."

Taking Down the Poster Boys: Ezoe andHorie

The Recruit scandal of the late 1980s broughtdown a government, tarnished the reputationsof the powerful, and left the public convincedthat government was rotten to the core. Bysome counts it was a misunderstanding, blownout of proportion by a rabid media. EzoeHiromasa, 74, contends that his actions werelegal and the case against him was based onmoral outrage rather than the law. He lays outhis case in his recent book, offering acompelling, if often self-serving, story thatshifts blame to the media and detai lsprosecutorial abuses.25 However, after athirteen-year trial he was found guilty. Thesuspended sentence, and his summary of thejudge’s ruling, lends credence to Ezoe’scontention that the prosecution failed to proveits case; the gui lty verdict saved theprosecution’s face while suspending thesentence was a nod towards justice.

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Ezoe Hiromasa

Recruit, a Tokyo-based human resources andemployment company, distributed pre-flotationshares in a real estate subsidiary, Cosmos, tolawmakers and prominent figures in thebusiness world in the mid-1980s. When Cosmossubsequently went public, its share-pricerocketed, enriching those in on the scheme —allegedly including then Prime MinisterTakeshita Noboru, former Prime MinisterNakasone Yasuhiro and future prime ministersMiyazawa Kiichi and Mori Yoshiro amongseveral other politicians from across thepolitical spectrum. In many cases, it was thepolitical secretaries who received the shares,providing a barely plausible cover.26

The Yokohama bureau of the Asahi newspaperbroke the story in June 1988. At the timenobody, least of all Ezoe, imagined that theoriginal story about a deputy mayor ofKawasaki receiving shares in exchange for

favors would snowball into such a massivescandal reverberating throughout the corridorsof power, toppling the Takeshita cabinet anddominating the news through the end of the1980s. One of the lingering mysteries is wholeaked the list of recipients of the pre-flotationshares handled by Daiwa Securities. Questionsabout who and why still gnaw at Ezoe. Hecontends that the scandal might have beenavoided if not for Tanaka Tatsumi, a seniormanager who came up with the idea of bribingDiet member Narazaki Yanosuke to buy hissilence. Given that Tanaka touted himself as aspecialist in risk management, his advice wastaken. The bribe offer was covertly videotapedand aired on TV, providing unambiguousevidence that Recruit was involved in a cover-up and guilty of trying to suborn a lawmaker.This was the smoking gun that convincedeveryone that Ezoe was guilty, but he maintainsthat he was not involved with the bribe schemeand blames Tanaka.

He states, “Mr. Narazaki, a member of Shakai-Minshu-Rengo (Social ist DemocraticFederation), a very minor party, had noinfluence at all in the Diet. Recruit did notapproach him. Rather, he came to Recruit overand over again to request the list of individualswho had purchased shares of Recruit Cosmos,and finally the executive secretary decided tooffer some money. In addition, this incidenthappened when I resigned from Recruit andwas in the hospital, which was the only place Icould find to hide from media attacks. So, I hadnothing to do with this incident.”27 Instead ofbribing this nobody, Ezoe suggests it was acase of being shaken down.

Ezoe indicts the media and prosecutors forwrongfully prosecuting him and subjecting himto a lengthy and excruciating ordeal. He isespecially critical of how the media convictedhim through innuendo and faulty assumptions,jumping to conclusions not merited by theevidence and failing to distinguish betweenlegal and moral wrongdoing.

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Ezoe explains, “I was an example of theproverbial nail sticking up ready to behammered. I think I appeared in various mediatoo often – even in daytime tabloid TV shows. Inaddition, although I was brought up in a poorfamily, Recruit, the information company Ifounded, performed far better than other mediacompanies including major newspapercompanies and TV stations in terms of salesand profits. I think that is why I became atarget of their attacks. In Japanese society, it isa tradition that those who were brought up in afamily of pedigree are more respected thanthose who are not.”

Ezoe is unrepentant, but confesses, “As for myspreading pre-flotation shares in RecruitCosmos to influential people, I think it wasmoral wrongdoing, and I regret it now. Isupported politicians too much and was tooeager to cultivate friends. I was wrong to do so.That is my moral wrongdoing. I crossed the lineof what is acceptable and my actions werejudged not on the law, but on moral norms...thecommonsense of Japanese could not accept myactions and at the time I failed to understandtha t . So i n tha t sense I bear mora lresponsibility.” He argues, however, “I did notthink that I was “buying” the way to the core ofthe power but believed that I was onlysupporting talented politicians’ activities. Inretrospect, as the power of media is farstronger than that of politicians after all, I thinkthat what I did had little value, and I regret it. “Despite claims of supporting “talented”politicians, the list of recipients, includingmany powerbrokers and fixers, beliesassertions of pure motives.

Ezoe claims, “Many people think that when Idistributed the shares that I expectedsomething in return...that it was to buyinfluence and get favorable policy decisions.But that was not my intention. I had noexpectation of a reward, but this was notunderstood by the public and the mediasensationalized it.” The public, the media, and

the courts will draw their own conclusions.

Ezoe says he decided to fight the prosecutorsbecause he was angry at being coerced to signinaccurate statements that unjustly implicatedhim and others. In seeking vindication, hedefied social expectations. He points out that, “Since old t imes in Japan there is anexpectation that the accused will apologize andshow remorse for his actions and then will beforgiven. But instead I chose to fight and thus Iwas never forgiven.” Although he could haveavoided judicial purgatory if he had plead guiltyand apologized, Ezoe insists it was worthfighting the charges because he was innocentand had to defend himself at all costs.

Understandably, Ezoe has a largely negativeopinion of the legal system and the reliance oncoerced confessions. Curiously, in light of histravails, Ezoe does not oppose the deathpenalty. Rather than focus on wrongfullyconvicted people being put to death, Ezoe saysit is imperative to abolish the investigativepractices and coerced confessions that lead towrongful convictions. To this end he favorscomplete videotaping of interrogations, butholds out little hope that this will happenbecause the Ministry of Justice opposes thisreform and does not want to tie the hands ofinvestigators. Ezoe believes that the obsessionwith maintaining the 99% conviction rateencourages abuses and coerced confessions.

Ezoe blames the media for his legal troubles,but does not see any prospects for reformbecause social norms support the press and thepubl ic is not aware of how the mediasystematically colludes on how to present thenews, abuses its power and otherwise actsirresponsibly.

But is Ezoe innocent? Even though thedistribution of stock may not have been illegaland did not involve an explicit quid pro quo, inJapan one can hardly ignore implicitexpectations and obligations. The moraloutrage targeting him was apparently triggered

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by jea lous envy over h is weal th , h ispersonification of excessive materialism duringthe Bubble and what appeared to be too cleverexploitation of grey areas in the law. Hisact ions offended social mores, as hemanipulated the system and blatantly doled outfavors, anticipating that powerful recipientswould find themselves in a position toreciprocate in some way and would do so. Ezoeinsists this is untrue, but doubts linger. In theend, Ezoe ruefully recognizes that he has notpu t t o res t the b roader doubts andrecriminations about rigging the system andabout his conduct, lawful or not. Indeed, themedia struck back. In the Bungei Shunjumagazine, journalist Sakagami Ryo cites a listdetailing Recruit’s cash payments to politiciansapproved by Ezoe.28

Perhaps the greatest impact of Ezoe’s book isthe detailed account of interrogations,browbeating and the insistence that heimplicate others in scenarios prepared by theprosecutors that draws on a diary he kept indetention. One can understand how a detainedperson would eventually admit guilt and signanything in order to win release.

Hor ie Taka fumi was ano ther brashentrepreneur who challenged social andbusiness norms with his flamboyant lifestyleand aggressive methods. He was the poster boyfor the dot.com boom at the turn of the century,launching Livedoor, a popular Internet portal.Livedoor stock skyrocketed, buoyed by frothyoptimism and, it turns out, inflated profitreports. Horie gained notoriety when helaunched a hostile takeover bid against FujiTelevision, an established media conglomerate.In the media, the hostile takeover bid wasportrayed as a battle between fusty, scleroticJapan and youthful dynamism, betweenJapanese and western-style business practices.To many Japanese he was a hero, representingwhat Japan needed more of to regain its mojo.His celebrity lifestyle with flashy cars,expensive residences and reports of wild

partying convinced others that he representedwhat Japan needed to avoid. In 2005 his worldfell apart as prosecutors arrested him overaccounting violations and manipulation of stockprices, keeping him in detention for ninety-fivedays. Like Ezoe, Horie was the proverbial nailwaiting to get hammered. In the end he wasconvicted of securities fraud in 2007 and losthis appeal. In one of Japan’s biggest white-collar crime cases, he was sentenced to twoand one-half years in prison, an unusually longterm given that most white-collar criminalsreceive suspended sentences.29 Also like Ezoe,Horie maintained his innocence, remainedunapologetic and came out with a defiant book,in which he maintains he was unaware of theaccounting violations and was mistreated byprosecutors.30 Ambitious prosecutors found hima tempting target because, as with Ezoe, hewas a high profile culprit who had committedmoral wrongs by violating the norms ofJapanese corporate culture and conductinghimself in a manner deemed unseemly and ostentatious. Horie may have been guilty ofwrongdoing, his denials are barely plausible,but since such financial shenanigans werehardly rare, it does seem that making anexample of him was the point.

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Horie in 2005

Horie maintains, "Ezoe was targeted when herose to the highest point of his career. So was I.The prosecutors like to do such a thing (toshow off their power)."31

Ezoe and Horie did not conform to the implicitcode of conduct for business leaders and weretoo much in the limelight for their own good.They were crass newcomers who brazenlychallenged established ways and came tosymbolize excessive materialism in theirrespective eras. For these transgressions, andthen not demonstrating the requisite contrition,prosecutors hounded them. Whether or notthey broke laws, they were targeted becausethey trampled on conventions and propriety ina society where both are esteemed highly.Prosecutors no doubt contend that they weremerely enforcing the law, but in selecting theseindividuals, and not others, it seems they werealso responding to implicit expectations and themore explicit pressures generated by themedia.

Muraki Affair

Muraki Atsuko was arrested in mid-2009 onsuspicion of ordering a subordinate to forge adocument in 2004 that enabled an unqualifiedorganization to take advantage of a specialpostage discount system for the disabled. Ascorruption cases go, this alleged instance ofpostal fraud was small fry, but prosecutorswere trying to link her with a Democratic Partyof Japan (DPJ) politician and arrested her in therun up to the 2009 Diet elections. At the time,the DPJ was claiming to be the party of reform,promising to hit the reset button on politics asusual, meaning it stood against corruption. TheDPJ was also running against the bureaucrats,blaming them for what ailed Japan. Thuslinking the DPJ to a corruption case involving ahigh level bureaucrat might have influencedthe elections. There is no evidence thatprosecutors were politically motivated or weretrying to influence the outcome of the electionsin favor of the ruling Liberal Democratic Party(LDP), and bagging a powerful bureaucrat mayhave been enough of a temptation, one thatwould play well in the court of public opiniongiven the prevailing anti-bureaucrat discourse.But craving kudos, and desperate forconviction, the prosecutor tampered withevidence and manipulated testimony. Whenthese transgressions came to light amid signsof a concerted cover-up, suddenly theprocuracy found itself in the dock, accused ofmalfeasance and betraying the public trust.Muraki may have been a convenient target, butshe was an even better victim, the picture ofrectitude, a mother and dedicated civil servantwho refused to wilt under the third degree.

Muraki’s trial began in January 2010 and theprosecution’s case unraveled immediately afterthe star witness, Kamimura Tsutomu, hersubordinate at the ministry, retracted hisstatement implicating her. He went on tocharge that he had been pressured by theprosecutor to implicate her. Under thesecircumstances, the judge refused to accept his

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statement as evidence and rejected many otherincriminating depositions, stating that therewas a high probability that witnesses had beencoerced. And, since the prosecution had failedto get Muraki to confess even after detainingfor 163 days, on September 10, 2010, the courtacquitted Muraki and left the prosecutors witha very visible black eye.

The evidence tampering came to light whenMaeda Tsunehiko, the “ace” prosecutor in thecase, admitted to a colleague in early 2010 onthe eve of the trial that he had altered acomputer floppy disk that had been confiscatedas evidence. He changed the dates on adocument saved on the disk in order to fit theprosecution’s scenario regarding allegationsthat Muraki had illegally extended discountpostal benefits to an organization ineligible forsuch benefits.

The falsification of data and attempts to cover-up this egregious misconduct first came to lightin the Asahi Shimbun on September 21st, 2010,prompting Maeda’s arrest by the SupremePublic Prosecutor's Office. Subsequently hissupervisors were also arrested on suspicion ofconspiring to cover up the tampering. Maeda’sattempt to frame Muraki alarmed the publicand raised questions about the essentialfairness of the justice system. Prosecutormisconduct is not only a problem in Japan, butdeferential attitudes towards authority draw ona faith in public servants that has been shakento the core.32 The arrest of his supervisors andallegations that they pressured him to convictMuraki and then covered-up his misdeeds,reinforce negative public attitudes towards theprosecutors.

Reap What You Sow

At the end of 2010 the Supreme PublicProsecutor’s Office (SPPO) tried to draw a lineunder the case, issuing a report chastisingoverzealous prosecutors, calling for greateroversight of “special units” implicated in thecase, and apologizing for the abuses.

Responding to the growing clamor for fullvideotaping of all interrogations of suspectsand witnesses, SPPO promised to issueguidelines for recording interrogationsconducted by the special units, and said thatthey will be placed under tighter supervision.Special units are teams of prosecutors chargedwith investigating major crimes who do notregularly rotate their duties as is commonpractice among other prosecutors. Such unitshave become a hotbed of misconduct. WhyMuraki’s alleged postal fraud was considered amajor crime remains unexplained. SPPO alsoasserts lamely that it will try to reeducateprosecutors and try to change the institutionalculture that prevents them from retreating incases like Muraki’s where it becomes clear thatthe suspect is innocent. Gohara Nobuo, aformer public prosecutor who is now aprofessor at Meijo University in Nagoya, saysthat once the special investigation unit takes ona case, and,"… where an arrest has made a bigimpact on society — especially when theinvestigations go on to cover high-rankingfigures, such as the incumbent bureau chief ofthe welfare ministry like this time — it is almostinconceivable for prosecutors to retreat."33

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This culture of conviction among prosecutors ispowerfully satirized in I Just Didn’t Do it (SoreDemo Boku Wa Yatenai, 2007), a nightmarishfilm directed by Suo Masayuki about a youngman falsely accused of groping a high schoolgirl on a commuter train. Based on a true story,the film highlights how high the odds arestacked against the accused and howdefendants who insist on their innocence andvindicating themselves pay a high price. Unlikein real life, however, where the protagonist wasacquitted after a five-year legal battle, in thefilm he is convicted. The film explores the greatlengths the prosecution goes to ignore,disqualify or discredit exonerating evidenceand testimony, and even manages to replacethe judge after he shows signs of doubting theprosecution’s case and the defendant’s guilt. Inthe end, viewers learn that the judicial systemis choreographed by prosecutors who neverback down or admit a mistake while securing aconviction trumps serving justice.

The 2010 SPPO internal probe did not quellpublic concerns and drew a swift rebuke fromthe media for not go ing far enough.Specifically, there is growing media support forrecording all interrogations of suspects in theirentirety. As the Japan Times pointed out, “Ifonly partial recordings are allowed, it is verylikely that prosecutors will record only thoseparts of interrogations that are advantageoust o t h e i r v e r s i o n o f t h e c r i m escenario.”34 Countering bizarre prosecutionclaims that recording interrogations willprevent them from developing a trustfulrelationship with suspects— not much seems atrisk here-—the Japan Times went on to arguethat prosecutors should introduce a pleabargaining system and accept recording of theentire interrogation process, proposals that areanathema to the Justice Ministry. While theSPPO tried to engage in damage control, themedia has called for much more drasticreforms.

At the end of January 2011, Muraki slammedthe December SPPO report, saying,

"I'm extremely dissatisfied. I wast e r r i f i e d b y t h e f a c t t h a tprosecutors as a team created anumber of deposit ions thatconflicted with objective facts. Iwas even led to wonder if I was theonly person suffering from a loss ofmemory. Two questions came up inmy mind after my trial was over --why were depositions that falselyshowed my involvement in the casecreated, and why did they make upa story that I masterminded thepostal abuse case and uphold thestoryline in the trial."35

She also blasted the SPPO for not interviewingher and called for full recording of allinterrogations to restore faith in the systemand to prevent similar abuses: "Transparency of

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questioning is necessary to secure thelegitimacy of depositions. When I was beingquestioned, I felt as if I was fighting a boxingmatch between an amateur (Muraki) and aprofessional (prosecutor) in a ring in theabsence of a referee or a corner man. “ Callingfor the presence o f l awyers dur inginterrogations, she adds, “It's hard to win sucha match without the help of lawyers."

One would like to imagine that things could notget much worse for prosecutors, but in January,2011 the media reported a case of a mentallyimpaired man who was held for ten months andinduced to confess to committing arson. In thisdeplorable breach of ethics it turns out thateven partial recording of the interrogationmade it clear that prosecutors asked leadingquestions and stooped to prompting thesuspect into admitting the crime. The thirty-minute recording prepared for presentation toa lay judge panel inadvertently highlightedprosecutors’ dubious interrogation methods.The case was dropped and the man released forlack of evidence. Shamelessly taking advantageof a mentally impaired person and coachinghim to confess provided further proof of needfor systemic reforms, greater oversight andunedited recording of interrogations in theirentirety in order to protect citizens fromprosecutors run amok. Without a hint ofcontrition, the prosecutor admitted theinterrogation was flawed, but defended theindictment.

The Unfinished Business of JudicialReform

There is no overstating the damage that theMuraki case, in the context of so many otherexamples of prosecutorial excess, has done tothe reputation and standing of prosecutors, andthe Japanese justice system overall. The AsahiShimbun described the SPPO report of Dec. 24,2010 as,

“ … a c h i l l i n g g l i m p s e o f a

prosecutor setting aside hisprofession’s most sacred duty,which is to get at the truth, andputting higher priority on hissuperiors’ evaluation of hisperformance, his relations withcolleagues, and his reputationwithin the organization. This casec a n n o t b e b l a m e d o n t h eprosecutors’ personal qualities andabilities. It must be viewed as amanifestation of ills within theorganizations traditions andculture.”36

The editorial went on to assert that, “theprosecution authorities are grossly mistaken ifthey think the proposed partial video-recordingof interrogations, which could be implementedin a way convenient for prosecutors, willrestore public trust in their profession.”

In February 2011 the SPPO issued newguidelines, announcing that audio and videorecording of interrogations conducted byprosecutors in special investigative units willcommence on March 18 , 2011 on anexperimental basis. This bid to respond to callsfor greater transparency falls well short ofMuraki’s demands because what gets recordedis left to the discretion of the prosecutorsinvolved in the interrogations. According to theMainichi Shimbun, “The Supreme PublicProsecutors Office says that interrogations willnot be taped if suspects object to recording, orif prosecutors determine that making arecording would undermine their ability touncover the truth or protect the privacy ofthose involved.”37 Doubts about depositionsprepared from interrogations will lingerbecause there are no objective criteriaconcerning what might constitute underminingprosecutors’ ability to uncover the truth.Moreover, the extent of recording is entirely upto prosecutors’ judgment, an intangible qualitythe public has lost faith in for the very good

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reasons discussed in this paper. According tothe Mainichi, the SPPO proposal on limitedrecording is also inadequate because it onlycovers suspects, not witnesses. This isproblematic because, “It is not uncommon foraggressive witness interrogation to become anissue in special investigative cases.”

The Mainichi editorial also warns,

“… fair criminal procedures cannotbe real ized merely throughtransparency. It is crucial to collectobjective evidence that does notdepend on testimony. The ethicscode that prohibits prosecutorsfrom suppressing evidence thatmay benefit defendants is ofutmost importance…. What weseek first and foremost from thistr ial process is a change inmentality among prosecutors. TheSupreme Public Prosecutors Officehas promised to advise prosecutorst o p r o a c t i v e l y r e c o r di n t e r r o g a t i o n s , b u t i t i smeaningless if those on the job donot comply.”

The introduction of a lay judge system in 2009has implications for the prevailing “prosecutionby confession” system in that non-professionaljudicial actors do not share the same trainingand common experience as do judges,prosecutors and lawyers that helps explain whyjudges and lawyers have been overlydeferential attitudes to prosecutors. Lay judgesmay not be as likely to accept prosecutorsassurances at face value and perhaps morelikely to entertain doubts raised by defenselawyers concerning whether confessions havebeen voluntary and/or are reliable in theabsence of corroborating evidence such as fullvideo recordings.38 They have the right todirectly question defendants and can initiateexamination of evidence. Legal professionals

expect that there is likely to be more rejectionsof confessions, and depositions by otherwitnesses, because of doubts concerningvoluntariness.39 In addition, a Supreme Courtdecision in 2007 upheld the Tokyo High Courtruling that the prosecution must disclose allpertinent information, including police reports,to ascertain whether a confession isvoluntary.40 This move towards greatertransparency supportive of “discovery” and dueprocess is in line with larger changes in Japaninvolving information disclosure andtransparency.41 The logic of the lay judgesystem also suggests having witnesses testify incourt rather than relying on affidavits thatcannot be cross-examined.

Yet as revolutionary as the introduction of thenew lay judge system has been, experts believethat further reforms are crucial to overcome itsflaws. Wilson argues,

“If the new lay judge system isgoing to achieve the pronouncedobjectives of transparency, publiceducation, enhanced credibility ofthe criminal justice system, andreliability with respect to thepreservation of rights, then Japanneeds to turn its attention toseveral additional reforms.Namely, the lay judge systemwould benefit from (1) increasedtransparency by eliminatingpunitive measures against citizenjudges desiring to freely speakabout the trial proceedings ordeliberation process once the trialis complete; (2) improved access tothe interrogation of detainedsuspects and defendants; and (3)limited victim participation in trialsuntil a post-verdict phase in theproceedings.”42

Wilson goes on to warn,

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“Unless these steps are taken, notonly will the lay judge system failto attain its full potential, butJapanese criminal justice willremain shrouded in secretivedoubt and the rights of the accusedwill continue to be endangered.Japan should take these specificmeasures in tandem with itsscheduled review of the lay judgesystem in 2012, if not before.”43

The immense resources expended to introducethis new system are justified in terms ofpromoting public understanding of the judicialsystem and enhancing public trust. Theconsequent media scrutiny has in some wayshelped achieve these goals, but opening thedoor to such a significant reform has alsogenerated interest in other problems in thejudicial system.

The lay judge system is a step towards anadversarial system that is inconsistent, in keyrespects, with the existing inquisitorial system.For example, defense counsel now has greaterincentive to advise clients to not cooperate withprosecutors, a standard procedure in anadversarial system that will make it morediff icult for interrogators to extractconfessions.

More than 90% of suspects in Japan confess,making it possible to rely on them to makeprosecutors’ cases, but if there is an increase inthe number of accused who refuse to confess,the prosecution is in trouble.44 The solution liesnot in tougher interrogations, but in fairerinvestigations.

The problems of interrogation are tied up withthe right of police to detain and grill suspectsfor periods of 23 days with no restrictions onlength of interrogation. As Wilson points out,“Interrogators take full advantage of the lack ofrestrictions.”45 In addition, during detentionsuspects’ access to counsel is limited, at the

discretion of prosecutors and in practice, state-appointed counsel is not provided to indigentdetainees. To the extent that confessions aredethroned as the “king of evidence”,prosecutors and police will need to reconsidertheir methods and investigative techniques inline with changing norms and values.

Charting the reform agenda remains a hugechallenge and suggests the need for politicalparties to play a leadership role. To a limitedextent they have. Responding to publicpressures, and seeking electoral support,politicians have acted resolutely on victim’srights, passing the Crime Victim Act of 2004and amending the CCP in 2007 to allow victimsand/or relatives to participate in criminal trials.The court has broad discretion about howvictims participate in the proceedings andexperts are concerned that their presence maybias proceedings. As Wilson argues, the courtcan,

“permit the victim to sit nearby theprosecution at trial, questionwitnesses to chal lenge thecredibility of statements related tomitigating circumstances, questionthe defendant, and state opinionsabout matters of fact or law afterthe prosecutor's closing statement.I n e s s e n c e , t h e v i c t i m ' sparticipation does not relate tofact-finding or evidence, but ratherit relates to personal opinions andmitigating circumstances. Notably,this active participation occursbefore the tribunal reaches itsd e t e r m i n a t i o n o f g u i l t o rinnocence.” 4 6

Wilson suggests that the verdict andsentencing phases should be separated andthat victims should only be allowed toparticipate in the sentencing phase of the trialto avoid prejudicing verdicts. In his view,

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“…victims should maintain theability to ask questions or expressopinions if these activities aredirected at convicted defendants,and not the accused, during thepost-verdict phase of the trial. It isimpor tant that sub jec t ivestatements by victims do notinterfere with the objectivedetermination of innocence orgu i l t . The presumpt ion o finnocence and rights afforded tothe accused shou ld not besacr i f i ced . Rather , v ic t imparticipation should focus on aconvicted defendant, and not onthe accused.”47

The victims’ movement gained momentum inthe 1990s due to public concerns about risinglevels of crime and media coverage of someespecially heinous crimes. Victims’ desire toconfront perpetrators, receive compensationand exact more punitive sentencing resonatedin the halls of power.48 Politicians from the LDPand DPJ jumped on this bandwagon of penalpopulism, joining counterparts in other nationswho find that acting tough on crime plays wellat the polls. This penal populism, driven bypublic anxiety about public security, constitutesa powerful countervailing wind to advocates ofgreater transparency and protection ofdefendants’ rights. In this climate of fear,stoked by the police and sensationalist mediareporting, people might wonder why police andprosecutors have to fight crime with one-armedtied behind their back.

This countervailing wind may explain whypoliticians have not acted to promote fullrecording of interrogations or presence ofdefense counsel during interrogations despitestrong public and media support. Whilecampaigning during the Lower House electionsin 2009, the DPJ pledged to implement fullrecording of interrogations, but as with many

of its promises, this one has dropped by thewayside. Enhancing transparency by mandatingfull recording of interrogations would removedoubts about interrogation procedures andwhether a confession is accurate and voluntary,restoring faith in the “king of evidence”. Fullrecording of interrogations also enjoysconsiderable public support. The JapanFederation of Bar Associations submittedpetitions with 1.1 million signatures to the Dietin 2009 in support of this reform.49 Especially intrials where defendants recant theirconfessions, a full recording would make itrelatively easy to determine if they have beencoerced. Requiring the presence of defensecounsel during interrogations would furthererase doubts about interrogation methods andcoercion that have tarnished the reputation ofJapan’s procuracy. Given Japan’s politicalgridlock, and the absence of political will oncriminal justice reform in the Diet, however,prospects for progress currently seem limited.

Since penal populism and transparency areboth popular with the public, one can speculatethat the lack of support for the latter in judicialand police circles may explain the differentoutcomes. In addition, the crime victims’movement was well organized, assertive inpolicymaking and effectively mobilized supportby drawing on sympathy for bereavedfamilies. 5 0

As Miyazawa notes, police reports and mediacoverage have increased the public’s sense thatsecurity has worsened in recent years.51 Hereports a 2004 survey showing that 62% ofrespondents believed public security haddeteriorated even though crime had actuallydeclined in that year. Other surveys he citesalso show growing public anxiety about publicsecurity that are similarly out of sync withactual crime. He attributes this cognitivedissonance to the concept of public security(taikan chian), “...which was invented by policeto seek better performance internally and toseek more resources externally, [which] has

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been adopted by the public and incorporatedinto general views about social reality.“52 In thismanufactured climate of fear, constraints onthe police can be depicted as part of theproblem.

Curiously, given the central role of police in thedetention and interrogation process wheresuspects are vulnerable to the abusesdescribed above, this institution has remainedoff the judicial reform radar screen. The publicmay be worried about defendant’s rights, andsupport transparency, but such concerns mightconceivably be trumped by anxieties regardingpersonal safety and the menace that crimeposes to society. In Japan’s aging society, theelderly are anxious about many issues, butcertainly threats to personal safety must rankhigh. The media is not above sensationalcoverage of crimes targeting the elderly andpoliticians, knowing that voting rates of seniorcitizens are double those of younger voters,calculate that cracking down on crime is awinning proposition. Meanwhile, the policekeep citizens scared by hyping threats to publicsecurity, but also reassured that criminals aregetting their due.

Until the police are also influenced by the trendtowards grea ter t ransparency andaccountability central to the judicial reformprocess, however, it will be difficult to improveprotection of defendant’s rights. As Johnsonargues,

“In Japan, criminal justice is evenmore a matter of `justice withouttrial` than it is in the UnitedStates. Indeed, the vast majority oftrials in Japan are little more than`rituals` for `ratifying` police andprosecutor decisions. The `realsubstance of criminal procedure`and the ` t ru ly d i s t inc t i vecharacter` of Japan`s criminalprocess lie in the inquisitorialinvestigative stages that are

dominated by the police.”53

Johnson also notes that police performance hasbeen suspect and points to declining and lowclearance rates, pervasive corruption, andfrequent resort to brutality and deception ininterrogation of suspects. Since police play acrucial role in confessions, and confessions arekey to Japan’s high conviction rate, this latterassertion is particularly germane to theproblems detailed here. He states, “Much ofthe most disturbing police behavior stems fromtwo connec ted f ac t s : the sys tem`soverwhelming dependence on admissions ofguilt, and the absence of checks on policepower in the interrogation room.”54 It wouldseem obvious that reducing the reliance onconfessions would mitigate the problems, butJohnson makes a convincing case that this iseasier said than done. Johnson suggests thatthe so lu t ion i s fu l l record ing o f a l linterrogations, pointing out with eloquentbrevity that, “There is no good reason tooppose taping.”55

The police, however, are unaccountable andseldom penalized for wrongdoing even inegregious cases much less in day-to-daytransgressions. Rather than restraining thepolice, judicial authorities are inclined tolegitimize their behavior such that they are,practically speaking, above the law to aremarkab le ex ten t . Wh i le a l ack o ftransparency is a general problem affecting thepublic image of the judicial system, the policeremain a black box, a power unto themselveslargely free from scrutiny. The “success” of thepolice in terms of judicial reform has been theability to slip under the radar screen of judicialreform discourse. Ramping up public fear hasbeen an effective tactic to remain untetheredand shift attention away from imposingconstraints on police behavior that wouldimprove t ransparency and enhanceaccountability. One need not be a fan of the TVseries CSI to understand the value of

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establishing state of the art forensiclaboratories with real independence frominvestigating authorities. Moreover, continuedreliance on blunt methods will not be effectivein dealing with the proliferation of cybercrimeand increasingly sophisticated financial scams,often involving organized crime. The policeneed to move on from the 3rd degree and jointhe 21st century.

The cascade of appalling revelations aboutprosecutorial abuses serve as a poignantreminder that in far too many cases the balancebetween serving justice and respectingsuspects’ human and constitutional rights hasgone awry. Greater transparency andaccountability are key to restoring the Japaneseprosecutors’ tarnished reputation andimproving the judicial system.

As in other countries, Japanese prosecutors arelargely immune from accountability. To regainpublic trust the judiciary no longer has theluxury of remaining heedless to systemicbreaches of trust as in the Muraki case. TheSPPO seems to lack a sense of urgency,proposing fine-tuning the system rather thancontemplating, much less implementing,significant reforms. This grudging, minimalistapproach has not passed muster with the mediaor indeed Ms. Muraki, ensuring continuedcriticism and further erosion of public trust inthe workings of the courts. In the court ofpublic opinion, the procuracy will remain guiltyand undeserving of trust until it goes wellbeyond damage control.

Restoring faith in confessions can be achievedby instituting video recording of entireinterrogations. This would “solve” the problemof determining whether confessions areaccurate and if they have been coerced, butthis is not seen as a viable solution byprosecutors because their powers and methodswould be subject to constraints and oversightthat would, in their view, jeopardize theeffectiveness of their investigations. Instead,

the Ministry of Justice has introduced partialvideotaping that does nothing to addressdoubts about interrogation methods. The onlytaping currently allowed is at the time theaccused signs the confessions drawn up by theprosecut ion when they are g iven anopportunity to confirm that their confession isvoluntary and accurate. This inadequategesture does little to dispel concerns that theprosecutors indeed have something to hide.The lack of transparency has sullied thecredibility of prosecutors and undermined trustin them.

Safeguarding the constitutional rights of theaccused and adhering to the CCP is trumped bythe imperative of securing confessions andmaintaining the 99% conviction rate. Thisconviction rate has become a talismanic symbolin Japan that crime does not pay and those whostep out of line will get what’s coming to them.

Conclusion

In some ways the outer moat of the judicialsystem has been breached by the lay judgesystem, but the inner moats and rampartsremain heavily defended and shrouded insecrecy. The resistance to full recording ofinterrogations is emblematic of judicialresistance to transparency and inadequateconcern for defendants’ rights. For many legalexperts and other observers, fastidious concernover defendants’ rights constitutes a frontierfence between fair and unfair, and in some keyrespects Japan’s justice system lies on the otherside. But it is well to recall Daniel Foote’s pointthat the abuses detailed above result fromignoring various protections and rightsenshrined in Japan’s Constitution and CriminalCode of Procedure, a consequence of judges’abnegation of robust supervision overprosecutors. The SPPO has proposedreeducating prosecutors and partial recordingof interrogations. This is inadequate. Inrecalibrating the scales of justice in Japan, andregaining public trust in the judicial system,

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judges also must vigorously embrace theiroversight role and be held accountable forfailing to do so. It is equally crucial that policebecome more accountable while institutingcomprehensive videotaping of interrogations inthe presence of defense counsel and ending thesystem of endless detention. This ambitiousreform agenda will remain elusive, however, aslong as politicians remain AWOL. Alas there arefew signs of hope in the Diet where debate wasrecently dismissed by the media as little morethan flatulent outbursts.

Jeff Kingston is Director of Asian Studies,Temple University (Japan Campus) and a JapanFocus associate. He is the author of Japan’sQuiet Transformation: Social Change and CivilSociety in the 21st Century and ContemporaryJapan: History, Politics, and Social Changesince the 1980s.

Recommended citation: Jeff Kingston, Justiceon Trial: Japanese Prosecutors Under Fire, TheAsia-Pacific Journal Vol 9, Issue 10 No 1, March7, 2011.

Notes

1 These points are made by Daniel Foote,“Policymaking by the Japanese Judiciary in theCriminal Justice Field”, Paper presented at theGeneral Symposium: Who is the Leading Actorin Criminal Justice? Judges, Prosecutors orParticipating Citizens. 2010.

2 David Johnson, The Japanese Way of Justice(Oxford, 2002),

3 Matthew Wilson, “Japan’s New Criminal JuryTrial System: In Need of More Transparency,More Access, and More Time”, FordhamInternational Law Journal, 33: 487 (2010), p. 7.Retrieved from LexisNexis Feb. 28, 2011.

4 Ibid., 6.

5 Ibid., p. 16.

6 This 23 day detention breaks down as follows:within twenty-four hours of detentionprosecutors must ask a judge to approve up toten days of additional detention beyond theinitial seventy-two hours that any suspect maybe detained at the police or prosecutor’sdiscretion, and this detention may be extendedfor an additional ten days.

7 Ingram Weber, “The New Japanese JurySystem: Empowering the Public, PreservingContinental Justice,” East Asia Law Review(125) 2009. p. 6. Retrieved from LexisNexis2/28/11.

8 Arne Soldwedel l , “Test ing Japan'sConvictions: The Lay Judge System and theRights of Criminal Defendants,” VanderbiltJournal of Transnational Law, 41, 1417,(November, 2008), p. 4. Retrieved fromLexisNexis 2/28/11.

9 Foote, op.cit., 24.

10 Weber, op.cit., p.8. The lay judge system thatincludes citizen judges and professional judgeswas introduced in Japan in 2009, chiefly as away for the judiciary to regain public trust andrespond to social changes in Japan. It isimportant to bear in mind that lay judgesparticipate only in the first, lower-court trialsinvolving crimes for which the penalty uponconviction is death, life imprisonment orimprisonment for a fixed term, or crimes inwhich the perpetrators' deliberate acts causesomeone's death, including murder, acts ofarson and dangerous driving. For a discussionof goals and consequences of the lay judgesystem see, Zachary Corey and Valerie Hans, “Japan’s New Lay Judge System: DeliberativeDemocracy in Action.” Asian-Pacific Law andPolicy, 12:72, (2010) 1-21.

11 Wilson, op.cit., p. 10.

12 ibid., p. 10.

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13 Foote, op.cit., p.16.

14 Johnson, op.cit., p 7.

15 Weber, op.cit., p. 6.

16 Judges also face pressure to convict. Weber,op.cit., p 6.

17 Ibid., p. 7.

18 “Prosecutor offices flawed: experts,” JapanTimes, Oct. 2, 2010. Link.

19 Johnson, op.cit., chp 1, pp. 21-49.

20 ibid., p. 48.

21 According to media reports, the use ofwiretapping has expanded considerably sincethen. In 2010, 47 people were arrested basedon evidence gathered from eavesdropping andthe number of warrants issued by courts, 34,was the highest since the law came into effect.Cases in 2010 included drug smuggling, agangland murder and gun possession. Underthe law, wiretapping is limited to illegal guns,gun possession, human smuggling and gang-related murder, not typical white collar crimes.

22 ibid., 49.

2 3 See Je f f K ings ton , J apan ’ s Qu ie tTransformation (Routlege, 2004), pp. 56-65.

24 Quotes regarding the Hakamada case aredrawn from here and here.

25 Ezoe Hiromasa, Where is the Justice? MediaAttacks, Prosecutorial Abuse, and My 13 Yearsin Japanese Court. Kodansha International:Tokyo, 2010.

26 For discussion of why corruption cases aredifficult to prosecute with reference to theRecruit case see, David T. Johnson Why theWicked Sleep: The Prosecution of PoliticalCorruption in Postwar Japan, JPRI WorkingPaper No. 34: June 1997.

27 This and subsequent Ezoe quotes draw onauthor interview with Ezoe August 27,2010.

28 Sakagami Ryo, Bungei Shunju, October 2010,pp. 346-61.

29 Takai Yasayuki, Horie’s lawyer and a formerprosecutor, argued that Horie was framed andthat the evidence was weak. According to himtraditional customs and expectations often defytrue justice. Japan Times, Sept., 8, 2006.

3 0 Takafumi Horie, Tetei Kosen (TotalResistance) Shueisha, 2009.

31 Online Gendai Business (8/19/2010) TaharaSoichiro’s interview of Horie. Tahara, aprominent journalist, wrote a book on Ezoe'sRecruit scandal (Seigino Wana, Justice Trap:Shogakukan, 2007), in which he argues Ezoewas unjustly prosecuted.

32 David Johnson, “US is No Role Model forProsecutor Reform”, Japan Times, 10/20/10.

33 Japan Times 10/2/2010. Link.

34 Editorial, Japan Times, 1/3/2011, p.12.

35 “Official acquitted over postal scandal callsfor greater investigation transparency”Mainichi Daily News, January 28, 2011. Link.

36 Editorial, Asahi Shimbun, 12/25/2010.

37 “Prosecutors' move toward interrogationtransparency a small first step”, link.

38 In general, six lay judges adjudicate casesand determine sentences working with threeprofessional judges. For details on the lay judgesystem see David Johnson, "Early Returns fromJapan's New Criminal Trials," The Asia-PacificJournal, Vol 36-3-09. September 7, 2009.

39 See Weber, op.cit., 12-16; Foote, op.cit., p.35.

40 Foote, p. 36.

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41 On transparency see Kingston, op. cit., 42-69and 85-94. On due process see, Noriho Urabe,“Rule of Law and Due Process: A ComparativeView of the United States and Japan”, Law andContemporary Problems, vol. 53, no. 1 (Winter1990), 61-72.

42 Wilson, op.cit., 2.

43 ibid., 2.

44 On confession rate see Weber, op.cit., p.7.

45 Ibid. p.6.

46 ibid., 11.

47 ibid., 25.

48 Setsuo Miyazawa, The Politics of IncreasingPunitiveness and the Rising Populism inJapanese Criminal Justice Policy”, Punishment

and Society, vol. 10, (1) 2008, 47-77.

49 ibid., p.20. See pp.18-23 for a lengthydiscussion of the various merits of fullelectronic recording of interrogations and thepositive experience of other countries.

50 Ibid., pp. 67-68.

51 Ibid., p. 70.

52 ibid., p.70.

53 David Johnson, Justice System Reform:Where are the Police and Why Does it Matter?,p.4. Visited March 1, 2011.

54 ibid., p.8.

55 ibid., p.8.

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