The Japanese Prosecutorial Justice and Its Limited Exclusionary Rule


THE JAPANESE "PROSECUTORIAL
JUSTICE" AND ITS LIMITED

EXCLUSIONARY RULE

KUK CHO*

I. INTRODUCTION

The basic structure of the Japanese criminal justice system is
modeled after the Continental criminal justice system emphasizing
substantial justice and truth-finding. It often draws admiring attention
from the West because of its lower crime rate and higher clearance rate.'
It is also viewed as "benevolent" due to the lenient disposition of trivial
crimes (bizai shobun) by police, routine suspension of prosecution,
suspended sentences and short sentences at trial 2 Japanese police have
been praised for the rarity of corruption and brutality and for the support
and cooperation received from the public.3 This phenomenon is often
explained as a result of the unique traditional Japanese legal culture which
emphasizes respect to authority and reintegration into the community.

* Seoul National University College of Law, Korea, LL.B. (1986); Seoul National

University Graduate School, Korea, LL.M.(1989); Law Professor (1992-1994), Universityof Ulsan,
Korea; University of California atBerkeley School of Law, LL.M. (1995); University of California
at Berkeley School of Law, J.S.D. (1997); Visiting Scholar, University of Leeds Centre for Criminal
Justice Studies, U.K. (1998); Visiting Research Fellow; University of Oxford, Centre for Soaio-
Legal Studies, U.K. (1998).

This article is based on the Part 5 of the author's J.S.D. dissertation (1997) at the
University of California at Berkeley School of Law. Japanese names in this article are given in the
Japanese name order, with the family name first. The names of the Japanese authors who have
published in English are given as they are in their publications. This article cites the Japanese courts'
cases in the U.S. style when the names of the parties are available. The names of the parties are not
used in the Japanese citations. The author would like to thank his Japanese friends, Shinomiya
Satoru, Esq., Harimoto Keiko and Yamato Megumi, who helped him to research the Japanese
citations.

1. See A. DIDRICKCASTBER?,JAPANESECRIMINALJUSTCE 10-11, Figure 1.1 & 1.2(1990).
2. Daniel H. Foote, The Benevolent Paternalism of Japanese Criminal Justice, 80 CALL.

REV. 317, 342-56 (1992); JOHN O\VEN HALEY, AUTHORITY WITHOUr POWER: LAW AND THE
JAPANESEPARADOX 125-29 (1991)

3. DAVID H. BAYLEY, FORCES OF ORDER: PoucE BEHAVIOR IN JAPAN AND THE UNITED
STATES 2-4 (1976).



COLUMBIA JOURNAL OF ASIAN L W

Despite the praise from the West, however, this "heaven for a cop 4

has recently been criticized from within the Japanese legal professional
community because of its harsh institutional and cultural treatment of
criminal suspects and defendants.5 A leading Japanese criminal law scholar
has criticized Japanese criminal trials as "regrettable" because of the
dominant role of investigators in the criminal process.6 A number of torture
and physical violence cases have been revealed.7 Public trust in the
Japanese criminal justice system has also been shaken by the disclosure of
a number of highly-publicized retrial cases in which individuals,
mistakenly convicted of murders and wrongly sentenced to death, were
acquitted after decades on death row.8 As a result, fundamental reform of
the system has been strongly recommended. 9

This article explores the cultural and legal-institutional basis of
Japanese criminal justice, popularly called "prosecutorial
justice"(kensatsukan shiho-), and examines how the Japanese Supreme
Court has cooperated with the system. First, it begins by reviewing the
traditional socio-cultural setting of the Japanese criminal justice system
which is alien to the West. Second, it briefly examines the postwar
constitutional change aimed at the de-inquisitorialization of the Japanese
criminal justice system; it then reviews two competing theoretical
understandings of its change. Third, it scrutinizes the main provisions of
the Japanese Code of Criminal Procedure and the Police Duty Law which
substantially restrict the constitutional attempt at strengthening
adversarialism and systematically guarantee prosecutor dominance over

4. Id. at 1.
5. See THE JAPAN CIVIL LIBERTIES UNION, CITIZEN'S HUMAN RIGHTS REPORTS No. 1-5

(1983-85), reprinted in 20 LAW IN JAPAN 1 (1987).
6. Hirano Rydiichi, Genk(5 Keiji Soshd No Shindan [Diagnosis of the Current Code of

Criminal Procedure], in 4 DANDO SHIGEMATSU SENSEI KOKI SHUKUGA RONBUNSHO [COLLECTION

OFLEARNED PAPERS FOR SEVENTIETH BIRTHDAY oFDANDO SHIGEMATSU] 407,413 (1985). English
summary of this article is Ryuichi Hirano, Diagnosis of the Current Code of Criminal Procedure,
22 LAW IN JAPAN 129 (Daniel H. Foote trans., 1989).

7. See Igarashi Futaba, Crime, Confession and Control in Contemporary Japan, 2 LAW IN
CONTEXT 1 (1984).

8. See NIHON BENGOSHI RENGOKAI HEN [JAPAN FEDERATION OF BAR ASSOCIATIONS, ED.],

ZOKU SAISHIN [RETRIALS-CONTINUED] (1986).
9. See Tokush&r Keiji Tetsuzuki no Kaikaku [Special Edition: Reform of Criminal

Procedure], 61 HORITSU JIHO (1989); ODANAKA TOSHIKI, GENDAI SHIHO TO KEIJI SOSHO NO

KAIKAKU KADAI (CONTEMPORARY JUSTICE SYSTEM AND REFORM TASK OF CRIMINAL PROCEDURE]

(1995).

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PROSECUTORIAL JUSTICE IN JAPAN

the individual at each step of the criminal process. Finally, it analyzes the
Japanese Supreme Court's adoption of exclusionary rules in principle and
its abstention from applying them in practice. This article will show that
the high efficiency of Japanese "prosecutorial justice" is made possible by
the grave sacrifice of the individual's constitutional rights, and that the
Japanese Supreme court has neglected its role in administering
prosecutorial justice.

Il. TRADITIONAL SOCIO-CULTURAL SETTING OF THE JAPANESE

CRIMINAL JUSTICE SYSTEM

During the Meiji Restoration period (1868-1912), Japan adopted the
Western civil law system to modernize its society. The basic Japanese
legal system, including the Penal Code of 1907 and the Code of Criminal
Procedure of 1922, was modeled after the Continental legal system and, in
particular, the Prussian system.10 Since the postwar reform propelled by
the Supreme Commander of the Allied Powers (SCAP), the influence of
American law has grown. In particular, the Constitution of 1947 and the
Code of Criminal Procedure of 1948 were strongly inspired by American
law." However, Japan has maintained its own unique legal concepts which
originated from nearly three centuries of Tokugawa Shogunate rule (1603-
1868). Here I will briefly review two traditional Japanese concepts of law
embraced and fostered by contemporary Japanese criminal justice.

10. Although the French influence was initially strong in the early period of the adoption. the
Prussian influence gradually replaced the French influence. "Familiarity with authoritarian forms
of government administration, the Confucian tendency for obligation to one's group and respect for
government authority, and the hierarchical nature ofiapanese society greatly influenced the decision
to adopt the European-style law codes and a German-style constitution with less emphasis on
individual rights" (Percy R. Luney, Jr., Introduction, in JAPANESE CONSTrUTIONALLAW ix (Percy
R. Luney, Jr. & Kazuyuki Takahashi eds., 1993). Although the modem Japanese law has some
French originated elements, the overall tone of the Japanese legal system has been very German.
Even French-based provisions are interpreted in the light of German doctrine. See HIROSHI ODA,
JAPANEsELAw 26-29 (1992); Aritsune Katsuta,Japan: A GreyLegal Culture, in STUDIES IN LEGAL
SYSTEMS: MXED AND MDxUNG 252 (Esin Or-ici, et al. eds., 1996).

11. See Kenzo Takayanagi, A Century of Innovation: The Development in Japanese LaI.
1869-1961, in LAW IN JAPAN: THE LEGAL ORDER IN AN CHANGING SOCIETY 12-15 (Arthur von
Mehren ed., 1963); Yasuhiro Okudaira, Forty Years of the Constitution and Its Various Influence:
Japanese, American, and European, in JAPANESE CONSTITUTIONAL LAW, supra note 10, at 6-13.

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COLUMBIA JOURNAL OF ASIAN LAW

A. Rights Subordinate to Group Primacy-Fragile and Unstable
Rights

It is widely accepted that the Japanese are subordinated to the
group.12 In contemporary Japanese society, the emphasis is put on the
group rather than the individual, on duties instead of rights. John O. Haley
states that " [t]he group and its welfare - from the family to the firm and the
nation as a whole - is accorded influence at the expense of the
individual."'1

3

The Japanese Constitution also acknowledges group primacy in the
"public welfare"(koky5 no fukushi) doctrine, which has "imprecise and
elastic terms open to a range of interpretation." 14 Articles 12 and 13 of the
Constitution provide that people "shall refrain from any abuse of [their]
freedoms and rights" and "shall always be responsible for utilizing them
for the public welfare" and that their right to life, liberty, and the pursuit
of happiness is considered to be supreme "to the extent that it does not
interfere with the public welfare."' 5 The doctrine has "imprecise and
elastic terms open to a range of interpretation" 16 including, for instance,
"abuse" and "public welfare," and, as Lawrence W. Beer states,
"[d]efinitions of the phrase have ranged from abstract references to public
order, the collective good, or state policy, to specific criteria related to one
category of court cases."'17

In these social and legal surroundings, the individual's rights become
fragile and unstable and it is very difficult to "take rights seriously." 8 The

12. See CHIE NAKANE, JAPANESE SocIETY (1970); Yosiyuki Noda, The Character of the
Japanese People and their Conception of Law, in THEJAPANESELEGALSYSTEM 299 (Hideo Tanaka
ed., 1976); EDWIN 0. REISCHAUER, THE JAPANESE (1977).

13. John 0. Haley, Introduction: Legal vs. Social Control, 17 LAW IN JAPAN 1, 3 (1984).
14. John M. Maki, The Constitution of Japan: Pacificism, Popular Sovereignty, and Human

Right, in JAPANESE CONSTITUTIONAL LAW, supra note 10, at 6. Lawrence W. Beer states,
"[djefinitions of the phrase have ranged from abstract references to public order, the collective good,
or state policy, to specific criteria related to one category of court cases"(Lawrence W. Beer,
Freedom of Expression: The Continuing Revolution, in JAPANESECONSTITUTIONALLAW, supra note
10, at 224).

15. KENPO [THE CONSTITUTION OF JAPAN] arts. 12,13.
16. John M. Maki, The Constitution of Japan: Pacificism, Popular Sovereignty, and Human

Right, in JAPANESE CONSTITUTIONAL LAW, supra note 10, at 6.
17. Lawrence W. Beer, Freedom of Expression: The Continuing Revolution, in JAPANESE

CONSTITUTIONAL LAW, supra note 10, at 224.
18. RONALD DWORKIN, TAKINGRIGHTS SERIOUSLY 149 (1977). Dworkin, a modern pillar of

rights-based jurisprudence, states that "[t]he institution of rights ... represents the majority's
promise to the minorities that their dignity and equality will be respected," thus rights against the
government are political trumps to "do something even when the majority thinks it would be wrong

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PROSECUTORIAL JUSTICE IN JAPAN

individual's rights are viewed in relation to his duties to the group or the
community, not "in terms of one individual's right vis-4-vis another
individual or state power."' 9 When the value of the group primacy
conflicts with individual rights, the latter is supposed to yield. 20 The
"predisposition to yield" is superior to the "predisposition to insist."2'

B. Indispensability of Confession for Restoring Harmony

The emphasis on group primacy and social harmony has developed
a strong mechanism for informal social control. Hiroshi Wagatsuma and
Arthur Rosett observed that "[iun a society that emphasizes group
membership as a basis for personal identity, it is important to maintain the
sense of 'insideness' after a rupturing conflict."23 Apology plays an
important role as "a ceremony of restoration to mark the reestablishment

to do it, and even when the majority would be worse off for having it done." Id. at 194, 205.
19. Lawrence W. Beer, Constitutionalism and Rights in Japan and Korea, in

CONSTMtUTIONALISMANDRIGHTS,supra note 14, at225, 227. RajendraRamlogan argued that'(t]he
Japanese are more comfortable with duties than rights" (Rajendra Ramlogan, The Human Rights
Revolution in Japan: A Story of New Wine in Old Wine Skins?, 8 EMORY INT'LL. REV. 127, 134
(1994)).

20. Dean J. Gibbons, Law and the Group Ethos in Japan, 3 INT'L LEGAL PEPs. 98, 123
(1990).

21. Hahn, supra note 14, at 194. In addition, it is necessary to note that "rights (are] not
perceived as rigidly as in the West; rather rights existed as vague and somewhat nebulous concepts"
(Ramlogan, supra note 19, at 133). Takeyoshi Kawashima states that "for Japanese, the right is
indeterminate, conceived as something situationally contingent" (TAKEYOSHI KAWASHI, IA,
NIHONJINNOHOISHIKI [LEGALCONSCIOUSNESSOFTHEJAPANESE] 138(1967)). KennethL Portalso
discussed that "[r]ather than being rigid, the Japanese perceive right and law as vague concepts
which gain meaning only in a given situation" (Kenneth L. Port, The Japanese International Law
"Revolution": International Human Rights and Its Impact in Japan, 28 STAN. J. INT'LL 139, 166
(1991)).

22. For instance, giri, which is a whole series of rules based on propriety and "a source of
shame," is emphasized over law (RENO DAVID & JOHN E.C. BRIERLEY, MAIJORLEGALSYSTMS IN
THE WORLD TODAY 454 (London, 1968)). Noda stated that "the idea of shame... will be the
keystone to the system of Japanese civilization"(YosIYUKINODA, INTRODUCrIONTOJAPANESELAW
160 (A. Angelo trans., 1976)). Giri is observed "not so much because it correspond[s] to a series of
moral values or strict duties but rather because social reprobation attach(es] to its non.observance."
Id.

23. Hiroshi WVagatsuma & Arthur Rosett, The Implications ofApology: Law and Culture in
Japan and the United States, 20 L. & SoC'Y REV. 461,466 (1986).

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COLUMBIA JOURNAL OFASIANLAW

of harmony" or as "explicit acknowledgment of commitment to future
behavior consonant with group values."24

Confession in the criminal process has the same role as apology has.
Confessions are always sought by law enforcement authorities in every
country. In Japan, however, it "go[es] beyond the establishment of
culpability and become[s] the vehicle for restoring the harmony that may
have been disrupted by the detainee. "25 John 0. Haley sharply points out
that:

Confession, repentance, and absolution provide the
underlying theme of the Japanese criminal process. At every
stage, from initial police investigation through formal
proceedings, an individual suspected of criminal conduct
gains by confessing, apologizing, and throwing himself upon
the mercy of the authorities.26

Unless the defendant confesses, the process of absolution and
reassimilation into society cannot begin; as a consequence, the criminal
justice system assumes that confessions must be gained at any cost.27 Then
the Japanese surrender to "psychological compulsion to confess"; 28 while

24. Id. at 466-67. Neither civil nor criminal defendants in the United States and Germany are
called upon to express personal apology to those whom they have injured or to the society whose
rules they have violated. Id. at 462, 464. They continued: "An apology in the Japanese cultural
context thus is an indication of an individual's wish to maintain or restore a positive relationship
with another person who has been harmed by the individual's acts.... The act of apologizing can
be significant for its own sake as an acknowledgment of the authority of the hierarchical structure
upon which social harmony is based.... [T]he apology is being offered and much greater emphasis
on the expression of commitment to positively harmonious relationship in the future in which the
mutual obligations of the social hierarchy will be observed." Id. at 478.

25. Ramlogan, supra note 20, at 137. Law enforcement authority roles are not limited to the
formal tasks of apprehending, prosecuting, and adjudicating. "Rather, once personally convinced
that a suspect is an offender, their concern for evidentiary proof of guilt shifts to a concern over the
suspect's attitude and prospects for rehabilitation and reintegration into society, including
acceptance of authority." John 0. Haley, Confession, Repentance and Absolution, in MEDIATION
AND CRIMINAL JUSTICE: VICTIMS, OFFENDERS AND COMMUNITY 202 (Martin Wright and Burt

Galaway eds., 1989).
26. John 0. Haley, Sheathing the Sword of Justice in Japan: An Essay in Law without

Sanctions, 8 J. JAPANESE STUD. 265, 269 (1982).
27. Port, supra note 21, at 162-63 (footnote omitted).
28. BAYLEY, supra note 3, at 152.
29. Id. at 154.

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PROSECUTORIAL JUSTICE IN JAPAN

law enforcement authorities enjoy "enormous moral authority"' 9 over
suspects and the accused. A suspect who refuses to confess is considered
unrepentant, less correctable, and hardly escapes conviction and
punishment;30 a defendant who confesses often receives a "suspension of
prosecution" (kiso y@o) or more lenient punishment'

Ill. POSTWAR CHANGE OF BASIC STRUCTURE OF THE JAPANESE
CRIMINAL JUSTICE AND TWO COMPETING UNDERSTANDINGS

A. Postwar Shift Toward De-inquisitorializing Criminal Justice

Pre-war criminal justice is often defined as "inquisitorial procurator
justice' 32 because of the procurator's leading role in the system.
Procurators had broad discretion of "suspension of prosecution"33 as well
as extensive powers of arrest, detention, interrogation of suspectsY4

30. Haley, supra note 26, at 203. Not surprisingly, police, prosecutors, andjudges are tempted
to induce or coerce acknowledgment of guilt. "The more convinced the authorities become that the
suspect is guilty, the more likely they are to resort to harsh and abusive measures." Id.

31. Under Article 248 of the CCP, Japanese prosecutors have discretionary power whether
or not to institute prosecution. The Article reads: "In case it is unnecessary to prosecute according
to the character, age and environment of an offender the weight and conditions of an offense as well
as the circumstances after the offense, the public prosecution may not be instituted." Regarding
discretionary prosecution in Japan, see Shigemitsu Dando, System of Discretionary Prosecution in
Japan, 18 AM. J. COMP. L. 518 (1970); B. J. George, Jr., Discretionary Authority of Public
Prosecutors in Japan, 17 LAW IN JAPAN 42 (1984); Marcia E. Goodman, The Exercise and Control
of Prosecutorial Discretion in Japan, 5 UCLA PAc. BASIN L. J 16 (1986).

32. Odanaka Toshiki, Sengo Kenji Shihd No Tenkai to Kenji Shih~ron [Development of
PostwarCriminalJustice and77eory ofCriminalJustice],in GENDAI HOSFM,.INAR [CON'TMIPORARY
LAW SauNrAR] 23-4 (1972. 8).

33. Id. art. 279. See Dando, supra note 31, at 518-521. Although the basic structure of the
Japanese criminal justice system was modeled after the German system, the German principle of
.compulsory prosecution" was not introduced. Because of the so-called "principle of legality"
(Legalitttsprinzip) in the German Code of Criminal Procedure (Strafprozessordung) § 152 (11),
German prosecutors (Staatsanwalt) are not given the discretion to decline to charge "felony"
(Verbrechen). See generally Hans-Heinrich Jescheck, The Discretionary Powers of the Prosecuting
Attorney in West Germany, 18 AM. J. CoMip. L. 508 (1970); John H. Leingbein, Controlling
Prosecutorial Discretion in Germany, 41 U.CHI.L.REV. 439 (1974);ThomasWeigcnd, Continental
CureforAmericanAilments: European Criminal Procedure asa ModelforLaw Reform. in2CRIE
AND JUSTICE: AN ANNuALREViEw OF RESEARCH 401 (1980).

34. Keisoh6 [The Code of Criminal Procedure], No. 75 of 1922, arts. 123,255.

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COLUMBIA JOURNAL OF ASIAN LA W

Japanese procurators were hierarchically equivalent to judges, though with
more political power and higher in status than defense lawyers.35

The status of the judiciary and defense lawyers was very weak.36 The
judiciary was under the general supervision of the Ministry of Justice 37 and
had no power to review the constitutionality of legislation passed by the
Diet. The private bar association was also under the close supervision and
control of the Ministry of Justice. 8

Criminal procedural rights were nominal. The restriction on the
"rights of the subject" was made constitutional by adopting a legal
technique of "reservation by law" ( hdritsu no ryi7ho),39 which meant that

35. Prosecutors sat on an elevated platform with judges in the courtroom, while the defense
counsel sat at the floor level with accused. Yasuhei Taniguchi, The Post-War Court System as
Instrument for Social Change, in INSTITUTIONS FOR CHANGE IN JAPANESE SOcIETY 22 (George
DeVos ed., 1984). B. J. George sketches the criminal procedure before 1946:

During the procedural phase of preliminary inquiry (yoshin), the public
procurator, sitting with the inquiring (examining) judge, examined the suspect
and any other witness and compiled a dossier that would be transmitted to the
court if a decision to institute formal prosecution were reached. Trial consisted
exclusively of a hearing on the charges confirmed by a public procurator, an
examination of the accused in the absence of other witnesses, a reading of the
protocols, and the taking of testimony of witnesses and expert witnesses whose
statements were not embodied in a protocol reflecting the preliminary inquiry.
No right of representation by counsel arose until a "suspect" had become an
"accused person," which meant that counsel's role was limited to impeaching
the data reviewed by the court during public trial proceedings and to making
closing submissions concerning guilt and sanctions.

B. J. George, Rights of the Criminally Accused, in JAPANESE CONSTITUTIONALLAW, supra note 10,
at 292.

36. Haruo Abe, Self-Incrimination-Japan and the United States, 46 J. CRIM. L., CRIMINOL
& POLICE Sc. 613, 618 (1956).

37. Percy R. Luney, Jr., The Judiciary: Its Organization and Status in the Parliamentary
System, in JAPANESE CONSTITUTIONAL LAW, supra note 10, at 125. The Ministry of Justice
controlled all budgetary and administrative matters of the judiciary, including the appointment,
promotion, transfer, supervision, and dismissal of judges and court officials . Id.

38. Id. at 127. "Given the limited jurisdiction of the judicial system, the private practice of
law consisted for the most part of representing small private clients in court by humbly submitting
their pleas to the dominant judges and public prosecutors." Id.

39. For instance, arrest, detention, trial or punishment had to be "according to law" (MEIJI
CONSTITUTION, art. 23); trial had to be conducted by judges, as determined by law. Id. art. 24; the
houses of Japanese could not be entered or searched without consent "except in cases provided for
by law." Id. art. 25; and secrecy of correspondence was to remain inviolate "except in instances
mentioned in the law." Id. art. 26.

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the rights could be enjoyed only "within the limits of the law." Since the
Constitution imposed no limitation on the content of the law, any
restriction of one's rights was allowed as long as it had a statutory basis.o
It is also reported that "constant use of third-degree methods and long
detentions, 41 by the police was usual, particularly against "political
offenders. 42

After World War H, Japan underwent radical change at the initiative
of SCAP. This change was embodied in the present Constitution of
Japan.43 First, the Constitution clearly denies the sovereignty of the
Emperor (tenno-) and declares that the "sovereign power resides with the
people."44 Second, the status of the judiciary and defense counsel is
elevated. The judiciary is an independent organ under the Supreme
Court's leadership 5 and has "the power to determine the constitutionality
of any law, order, regulation or official act."46 Defense counsel are brought
into a formal state of equality With public prosecutors4 7 Third, departing
from the idea of legal positivism, the Constitution provides extensively
fundamental human rights. To quote Matsuo K6ya, the Constitution
requests a shift from "weak liberty"(yowaijiyu-) reserved by statutory law
to "strong liberty"(tsuyoi jiyu) superior to statutory law4 The Bill of
Rights of the Japanese Constitution provides very detailed provisions

40. Noriho Urabe, Rule of Law and Due Process: A Comparative View of the United States
and Japan, in JAPANESE CONSTITUTIONAL LAW, supra note 10, at 175.

41. SUPREME COMMANDER FOR THE ALLIED POWERS, GOvERNMENT SECION, POLITICAL
REORIENTATION OFJAPAN, SEPT. 1945 TO SEPT. 1948, at 192.

42. Abe, supra note 36, at 618-20; Appleton, Richard B., Reforms in Japanese Criminal
Procedure UnderAllied Occupation,24NVASH.LREV.401,403.04 (1949); R.MITIELtTHoUGHT
CONTROL IN PRE-WAR JAPAN (1976).

43. See Robert E. Ward, The Origins of the Present Japanese Constitution, 50 AM.POL Scl.
REv. 980 (1956); KYOKO INOUYE, MACARTHER'S JAPANESE CONsTrTUmoN-A LINGuISTIc AND
CULTURAL STUDY OF ITS MAKING (1991); KOSEKI SHOICHI, THE BIRTH OF JAPAN'S POSTVAR
CONSTITUTION (Ray A. Moore ed. & trans. 1997). The process is called "Japan's American
revolution" (KENNETH B. PYLE, THE MAKING OF MODERN JAPAN 151(1978)).

44. KENPO [THE CONSTITUTION OF JAPAN], preamble. The political system under the Meiji
Constitution of 1890 was "a modernized version of an absolute monarchy." Okudaira. supra note
11, at 6. The godlike Emperor (tenno) was sovereign and the heart of the Meiji Constitution (See
DAT NIPPON TEIKOKU KENPO [THE CONSTITUTION OFTHE EMPIRE OF JAPAN], preamble).

45. See THE CONSTITUTION arts. 76-80.
46. Id art- 81.
47. B.J. George, Rights of the CriminallyAccused, in JAPANEsECoNsrTIONALLAW, supra

note 10, at 292.
48. Matsuo K6ya, Nin"i Sd a Ni Okeru Yi tkeiryoku No K&hi [Exercises of Physical Force in

VoluntaryInvestigation], in KEIIiSOSHOHOHANREIHYAKUSEN[SELECrED ONEHUNDREDDECISIONS
INCRIIIINALPROCEDURELAWV] 6 (Matsuo K6ya & Inouye Masahito eds., 6th ed. 1992) [hereinafter
HANRE HYAKUSEN].

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COLUMBIA JOURNAL OF ASIAN LA W

regarding criminal procedural rights similar to the American
counterparts. 49 They reflect the special concern of SCAP with the pre-war
and wartime criminal justice systems' treatment of human rights.

The Constitution established a blueprint for "the second
modernization of [criminal] procedure,"50 which was to de-inquisitorialize
the criminal justice system. Although it is true that the Constitution was
not adopted voluntarily, it must not be considered simply a foreign
transplantation. The values incorporated in the Constitution reflect the
Japanese people's desire to guarantee their human rights which had been
suppressed under the pre-war system.

B. Two Competing Standpoints of Japanese Criminal
Procedure: Dando vs. Hirano

Following the adoption of the new Constitution, the Code of Criminal
Procedure [hereinafter CCP]51 was enacted. It incorporated the cardinal
elements of Anglo-American criminal process such as the judicial warrant
requirement for compulsory measure and the restriction on the use of
evidence.52 However, the influence of Anglo-American law is limited.
The CCP was a product of compromise between the Japanese government
and the SCAP and it retains the traditional and inquisitorial features in
many respects. 3 This hybrid characteristic of the CCP is the basis of a
tense confrontation between two competing theories as to the nature of
Japanese criminal procedure.

The first is Dando Shigemitsu's theory which was influenced by
German criminal procedure theory. 4 He refuses to acknowledge that the

49. Article 31 of the Constitution is the general provision restricting penal legislation and
guaranteeing "due process" in criminal procedure. Articles 32 through 39 are specific provisions
that stipulate minimum constitutional requirements for due process in criminal procedure.

50. DANDO SHIGEMITSU, JAPANESECRIMINALPROCEDURE 17 (B.J. George, Jr. trans., 1965).
51. KEISOHO [THECODEOFCRIMINALPROCEDURE], Law No. 131 of 1948. With regard to the

historical background of the legislation of CCP, see MITSUI MAKOTO, I KEIJI SOSHOHO 180-83
(1997).

52. DANDO,supra note50, at 17. Regarding the influence ofAmerican Law on Japanese Law,
see Tamiya Hiroshi, Keiji Soshohu No Tenkai to Eibeih6 No Eiky6 [Development of Criminal
Procedure Law and Influence ofAnglo-American Law], in 551 JURIST 155 (1974); Mitsui Makoto,
Keiji Soshoh5 [Criminal Procedure Law], in 600 JURIST 256 (1975); Suzuki Yoshio, Gaikoku H0
No Eiky6 [Influence of Foreign Law], in 930 JURIST 40 (1989).

53. See infra chapter III.
54. Dando was a leading law scholar at the University of Tokyo, and was later involved in

leading criminal procedure cases as a Japanese Supreme Court Justice. His theory has provided a
conservative viewpoint for the majority opinion of the Japanese courts and law enforcement

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PROSECUTORIAL JUSTICE IN JAPAN

basic value system of Japanese criminal procedure changed following the
adoption of the new Constitution; although, he admits many elements of
adversarialism have been adopted in the CCP. He understands that the
nature of criminal procedure cannot help being inquisitorial or officially-
controlled because the "effectuation of the right to punish is rightly enough
a matter of the state,"55 so that the newly-introduced adversary party
system is simply one of "form," not "substance."5 6 Also, the prosecutor is
not an adversary party of the defendant but a neutral representative of the
whole state including the defendantY

Dando's rival is Hirano Ryfiichi who is much influenced by
American "constitutional criminal procedure."58 He emphasizes that the
shift from the Meiji Constitution and the old CCP to the Showa
Constitution and the new CCP implicates a fundamental change in the
objective and value of criminal procedure, from inquisitorialism to
adversarialism, from a "principle of trust" to a "principle of distrust" in the
state.59 For Hirano, adversarialism is not simply a technique for truth-
finding; rather, it is a perspective of a state regarding a sanction of
punishment.6 Adversarialism makes the defendant a "subject" in the
criminal process and under adversarialism, the prosecutor and defendant
are two equal "parts" .6' Thus he concludes the adversary party principle
is not merely a "form" of criminal procedure but is its "nature" or
"substance." 62 Furthermore he argues that the stage of investigation also
should be "judicialized" or "adversarialized" (sifsa no sihoka)."' 3

authorities. He argued that "the present-day need is for a law of criminal procedure, the chief

concern of which is not to protect human rights, but to protect society." DANDO, supra note, at 29.
55. DANDO, supra note 50, at 82. In this context, he argues that the Anglo-American

"arraignment" system, at least its ideal type, is against the nature of criminal procedure. Id. at 84.
56. Id. at 82.
57. Id. at 83. In this context, he argues the confrontation between prosecutor and defendant

is not between two "parts" but between the "whole" and a "part." Id. In his theory, therefore, the
Anglo-American concept of battle between state and individual in criminal process has no ground.

58. Hirano was a leading law scholar at the University of Tokyo and president of the
University. His theory is influential among scholars and defense attorneys.

59. HIRANoRYOiCHi,KEIiSOSHOHONOKISORIRON[BASICTHEORYOFCRIIINALPROCEDURE
LAw] 4-5 (1964). Although he admits the new CCP has traditional-inquisitorial elements, he argues
that their interpretation and application should be made under the adversary principle (HIRAt;O
RYCqcH, KEui SOSHOHO GAISErSU [OUTLINE OF CRIMINALPROCEDURE LAW] 11 (1968)).

60. HIRANO, KELU SOSHOHO GAISETSU, supra note 59, at 11.
61. Id.
62. Id.

63. Id. at 13-14.

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These two rival standpoints concern how to understand the postwar
constitutional change in the context of criminal procedure. Dando
maintains that, despite the constitutional change, there has been no
fundamental change in the nature of criminal procedure; whereas Hirano
argues that the fundamental principle of the Constitution has changed and
criminal procedure should change correspondingly. The competition
between these two theories is still tense in the Japanese criminal procedure
jurisprudence. Although Hirano's perspective gets more support from
scholars and defense attorneys, the Japanese Supreme Court and law
enforcement authorities have adhered to Dando's theory. Aside from
criminal procedure in theory, criminal procedure in practice has not
changed much.

IV. RESTRICTION ON THE CONSTITUTIONAL REQUESTS IN THE CODE OF

CRIMINAL PROCEDURE AND THE POLICY DUTY LAW

Chapter IV examines the main provisions of the CCP and the Police
Duty Act,64 which disturb the drastic turn in the Constitution and
overshadow constitutional procedural rights. It also reviews the Japanese
Supreme Court's lenient interpretation of them.

A. "Voluntary Accompaniment"(nin'i doko)

The Constitution provides a strict warrant requirement for arrest and
one exception of flagrant offenders. 65 The CCP provides two categories of
exceptions for the warrant requirements.6 In addition to the warrantless
arrest exceptions in the Constitution and the CCP, Japanese criminal

64. POLICE DUTY Acr, No. 163 (1954).
65. On this point, the Japanese arrest system is stricter than the American. The strictness

stemmed from the SCAP's concern on the abuse of arrest under the prewar and wartime criminal
justice system. Within the Anglo-American criminal justice system, arrest warrants are seldom used
and not constitutionally required. See U.S. v. Watson, 423 U.S. 411 (1976); Police and Criminal
Evidence Act of 1984 (U.K.) art. 25. A warrant is required only when a private home must be
entered to arrest a suspect. See Payton v. New York, 445 U.S. 573 (1980).

66. The exceptions are the: (1) "flagrant offenders"(genk6 hannin) exception in Article 212
of the CCP, which cover "(i) persons being pursued as an offender with hue and cry; (ii) persons
carrying criminally acquired goods, weapons, or other objects which apparently appear to have been
used for the offense; (iii) persons who bearing on their bodies or clothing conspicuous traces of the
offense; and (iv) persons who flee when challenged"; and (2) "emergency arrests" (kinkyO taiho)
exception in Article 210 of the CCP.

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justice provides a more convenient way to avoid the warrant requirement:
"Voluntary accompaniment" (nin'i doko). With Article 197 (1) and 198
(1) of CCP,67 the police may ask a suspect to accompany them
"voluntarily" for questioning. The Police Duty Act also provides the
police with the authority to stop and question a suspect and request a
detained individual to go "voluntarily" to a nearby police station.63

Since this "voluntary accompaniment" is not a formal arrest,
constitutional restrictions on arrest do not attach. The Japanese Supreme
Court has interpreted the system leniently enough "to allow police to put
considerable pressure on suspects to "consent" to rather extensive
questioning.

69

First, long periods of interrogation incident to "voluntary
accompaniment" are approved of. The Court has approved four half-day
interrogations and non-stop all-night interrogation without arrest, saying
it is "appropriate from the standpoint of socially accepted views."'70

Second, the Court has been lenient with respect to the use "physical force"
incident to "voluntary accompaniment." In Tanahashiv. Japan,7' a leading
case on the scope of "compulsory measure" (ky&eishobun), the Court held
that the use of physical force does not necessarily constitute compulsion.
Although the defendant was alleged to have "voluntarily" accompanied the
police in this case, he was not allowed to leave the police station and the
police exercised "physical force" to detain him.

67. Article 197 (1) of the CCP provides that "[investigators] may conduct questioning
necessary in order to attain the objectives of the investigation; provided, however, that compulsory
measures may not be taken except in situations where there are special provisions in this law."
Article 198 (1) of CCP provides that "[investigators] may, when it is necessary for conducting an
investigation of an offense, call upon the suspect to appear and examine him."

68. PoucEDuTYAcr, arts. 2 (1) & (2).
69. See Daniel H. Foote, Confessions and the Right to Silence in Japan, 21 GA. ]. INT'L &

COMP. L. 415, 445 (1991).
70. 38 KEtsHO 479,487 (Sup.Ct., Feb. 29, 1984). See also 43 KEISH0 581 (Sup.Ct., July 4,

1989). This issue will be reviewed in infra texts accompanying notes 162-166.
71. 30 KEISHO 187 (Sup.Ct., March 16, 1976). This case is called the "Gihu Breath

Examination Refusal Case." In this case, the suspect had been stopped by police, refused to take an
alcohol examination by breath, and "voluntarily accompanied" police to the station. Within the
police station, the suspect gave his license to the police, but continued to refuse the alcohol
examination. No arrest had been made. When he tried to leave the station during interrogation, the
police grabbed the suspect's wrist with both hands, followed by struggle between the two. The
suspect was then arrested and charged with obstructing an officer in performance of official duties.
See also 8 KEISHO 1137 (Sup.Ct., July 15, 1954); 8 KeishOi 2435 (Sup.Ct., Dec. 27, 1954). For
comment on the Tanahashi case, see Matsuo, supra note 48, at 6-7.

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Under this system, the difference between arrest and "voluntary
accompaniment" is blurry and law enforcement authorities can "shield
themselves from potential constitutional scrutiny for overreaching their
official powers. 7 2 In this context, "voluntary accompaniment" is another
example of the Japanese "consensual myth. 73 Although it is observed that
Japanese suspects cooperate "voluntarily" in their prosecution,74 it would
be more realistic to assume that individuals choose to cooperate taking into
consideration the disadvantage that non-cooperation would bring.

B. Warrantless Search and Seizure

Article 35(1) of the Constitution is equivalent to the U.S. Fourth
Amendment.75 Article 220 (1) of the CCP provides an exception to the
warrant requirement for searches, seizures and inspection incidental to a
valid arrest. If a person has been arrested pursuant to a validly issued
warrant, or if "emergency arrests" or "flagrant offender arrests" are made,
the police may engage in search, seizure and inspection without the prior
issue of a specific warrant.76

The Police Duty Law authorizes the police to stop and question
suspicious persons when the police suspect that criminal activity is in

72. David A. Suess, Paternalism Versus Pugnacity: The Right to Counsel in Japan and the
United States, 72 IND. L. J. 291, 303 (1996).

73. See J. Mark Ramseyer, The Costs of Consensual Myth: Antitrust Enforcement and
Institutional Barriers to Litigation in Japan, 94 YALE L.J. 604 (1985).

74. Foote, supra note 2, at 344-45. See also BAYLEY, supra note 3, at 146.
75. Article 35(1) reads: "The right of all persons to be secure in their homes, papers and

effects against entries, searches and seizures shall not be impaired except upon warrant issued for
adequate cause and particularly describing the place to be searched and things to be seized."

76. KEIsOHO art. 220 (1). The Japanese Supreme Court has expanded the scope of the "search
incident arrest" exception. For instance, in Arima v. Japan, 15 KEISHO 915, 920 (Sup.Ct., June 7,
1961)(translated in HIROSHI ITOH & LAWRENCE W. BEER, THE CONSTITUTIONAL CASE LAW OF

JAPAN: SELECTED SUPREME COURT DECISIONS: 1961-70 157-61 (1978)), the Court upheld the
warrantless search in the absence of the defendant, later followed by his arrest. In this case, based
on the statement of an arrestee that she purchased heroin from the defendant, four drug control
officers visited the defendant's home to arrest him. The defendant was not at his home, so in the
presence of the defendant's seventeen year old daughter, the officers searched his entire house
without a warrant and discovered narcotics. Upon his return home, the defendant was arrested. The
Court quashed the appeal court's decision and upheld the warrantless search. Id. at 159. Arima is
similar to Rawlings v. Kentucky, 448 U.S. 98, 110 (1980), in which the U.S. Supreme Court
approved a search incidental to arrest even though it occurred before the arrest.

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progress." Like Terry,78 the "stop-and-question" does not require a
warrant requirement. Unlike the "frisk" in Terry, however, the Japanese
search incident to the stop-and-question is not limited to the search for
weapons. The Act has no provision concerning the searches of "personal
effects" (shojihin), and it has been an important question as to whether the
search-and-seizure of personal effects incident to the stop-and-question are
permissible.79 In Sakai v. Japan,0 a leading case concerning the
warrantless search of personal effects outside a suspect's body,8' the
Japanese Supreme Court extended the scope of Article 2 of the Act to
include searches of personal effects. In the case, the police misconduct
was intentional and flagrant in that the suspects were in custody, 8 a search
warrant could have been obtained, and the actual search took place almost
two hours after a crime was reported. 3 However the Court held that the
search was not restrained by the constitutional warrant requirement "upon
considering the necessity and urgency of examining of thepersonal effects,
and balancing the infringement of the legal right of an individual with and

77. PoucEDUTYLAW, arLt.2 (1). See WATANABEOSAtIU,SHOKUMUSHrSUMONNO KENkYO
[A STUDY OF QUESTIONING IN DUTY] (1985). Under Article 2 (1) of the Police Act and Article of
2(1) of the Police Duty Law, the police may also stop vehicles to prevent or investigate crimes.

78. Terry v. Ohio, 392 U.S. 1 (1968).
79. See Watanabe Osamu, Shokumu Shitsumon Ni Tomonau Shojihin Kensa [Search of

PersonalEffects Incident to Stop-and-Question], in KEuiJSOSHOHONOSOTENsupra note 52, at 50-
51.

80. 32 KEISHO 670, 674-75 (Sup.Ct., June 20, 1978). This case is called the "Heiko Bank
Robbery Case." For comment on this case, see Ikeda Osamu, Shojihin Kensa [Search of Personal
Effects], in HANREI HYAKUSEN, supra note 48, at 10-11.

81. In cases where the personal effects searched and seized are attached to a suspect's body,
for instance inside pocket or shoes, the Supreme Court, while noting that the search is illegal,
admitted the illegal evidence relying on the so-called "theory of relative exclusion" See 32 KEISHO
1672 (Sup.Ct., Sept.7, 1978); 42 KEISHO 1051 (Sup.Ct., Sept. 16, 1988) (admitting the illegal
evidences in the both cases). See infra Chapter V. A.

82. The conclusion of Sakai regarding the search of personal effects incident to stop-and-
question seems to be similar to United States v. Place, 462 U.S. 696 (1983) where the U.S. Burger
Court extended Terry to the seizures of personal effects. Considering that Terry is not applicable to
the case under"custody" like Sakai, however, the conclusion of Sakai would not be approved by the
U.S. Court.

83. The police stopped and questioned two bank robbery suspects with abowlingball bag and
briefcase. When they refused to answer, the police strongly urged them to get out of the car and took
them to the police station. The suspects continued to remain silent and would not allow the bag to
be opened. An hour or so thereafter, a policeman lost his patience and, without their consent, opened
the bowling ball bag, and broke open the briefcase with a screwdriver. They discovered much
currency and some wrappers with the name of the bank in question. Then the police arrested them
and seized the evidences. The evidence was used against the defendants at trial. For comment on this
case, see Ikeda Osamu, Shojihin Kensa [Search of Personal Effects], in HANREI HYAlc.USEN, supra
note 48, at 10-11.

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the public interest which should be protected."84 In brief, Sakai provides
legitimacy to the police practice without any statutory basis and shows that
the Japanese Supreme Court does not seriously intend to deter police
misconduct.

C. Lengthy Pre-indictment Detention for Interrogation

1. Detention Up to 23 Days of Arrestee

In Japan, criminal suspects are subject to a very lengthy pre-
indictment detention and interrogation in contrast to other industrial
countries.85 In addition to the period secured by "voluntary
accompaniment," law enforcement authorities have up to 23 days to detain
a suspect before they must prosecute a valid arrest pursuant to a warrant
under the CCP. 86 It is also necessary to note that there is no provision in
Japanese law for release on bail during the pre-indictment stage of
detention.87

Police are entitled to detain a suspect for up to 48 hours before they
must refer him to a prosecutor or release him.'8 The prosecutor then has
24 additional hours either to release the suspect, file an indictment, or to
request from a judge an extension of the detention for 10 more days.8 9 At
the end of the ten days of detention, prosecutors may request an additional
10 days before they must either prosecute or release the suspect. 9° In
practice, the police refer over 90% of suspects they arrest for Penal Code

84. 32 KEISHO at 688.
85. In the United States, arrested suspects are entitled to post-arrest probable cause hearing

within forty-eight hours. See Gernstein v. Pugh, 420 U.S. 103 (1975); County of Riverside v.
McLaughlin, 500 U.S. 44 (1991). In England, under the Police and Criminal Evidence Act of 1984,
police can detain suspects for up to a maximum of ninety-six hours. Police And Criminal Evidence
Act, arts. 41(1), 42(1), 43(12). In Germany, arrested suspects must be released or brought before a
magistrate by the end of the day following the arrest. §128 (1) STPO.

86. See KEISOHO art. 199 (1).
87. Article 88 (1) of CCP provides for a request for bail to be made after formal indictment.

The rate of bail of the accused persons is not high. See Citizen's Human Rights Report No. 5:
Present Conditions of the Bail System in Japan Violate the International Covenant on Civil and
Political Rights, 20 LAW IN JAPAN 54, 67-68, tables 1 &2 (1987); Watanabe Yasuo, Hoshaku No
Seido No Uny6[Operation of Bail System], in KEII SOSHOHO NOSOTEN,supra note 51, at 159, tables
I & 2.

88. KEISOHO art. 203 (1).
89. Id. art. 205 (1).
90. Id. art. 208 (2). Regarding certain crimes, such as insurrection and riot, the judge may

further extend the period for an additional five days. Id. art. 208 (2).

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offenses to prosecutors and the prosecutors request detention for
approximately 85% of those suspects (with an additional ten days of
detention for about one-third of these).91 The courts grant prosecutors
requests for a detention warrant (whether for the initial ten days or the
extension) over 99.7% of the time.92

During this very lengthy period of detention, suspects are usually
held in a so-called "substitute confinement cell" (daiyd kangoku or
rychijo-),93 which is a holding cell within a police station. The detention
of suspects in the "substitute confinement cell" has long been criticized
because suspects are under the investigator's complete control and are
always available for questioning at any time during the period of
detention.94

2. Arrest on Separate Crimes" (bekken taiho)-Police
Tactic to Extend Detention

Besides the "voluntary accompaniment," the Japanese police have
contrived a "hidden trick ' 95 to extend the detention of the arrestee: "(a]rrest
on separate crimes" (bekken taiho).96 It is a technique in which the police
extend the period of detention for their initial investigation of a serious
crime by first obtaining an arrest warrant for relatively minor crimes.
During the period of interrogation given by the arrest warrant on the minor
crimes (bekken), the police may continue interrogating the suspect
regarding the initially pursued crime (honken). In a notorious case,
Murakami v. Japan,97 the suspect was arrested on a total of fourteen
different crimes and the total period of detention lasted nearly three years.
In brief, bekken taiho is "the simplest device for obtaining custody of a

91. Foote, supra note 2, at 335.
92. Id. at 336.
93. Literally "substitute prison." It is not officially a "prison" under the administration of the

Ministry ofJustice. It was authorized by the Prison Law of 1908 to alleviate overcrowding problems
in Japanese prisons. The use of the "substitute confinement cell" was challenged in the Japanese
Supreme Court; the Court held it was not illegal. 18 KEISHO 127 (Sup.Ct., April 9, 1964).

94. Takeo Ishimatsu, Are Criminal Defendants in Japan Truly Receiving Trials by Judges?,
22 LAw IN JAPAN 143, 148 (1989).

95. ld. at 147.
96. Literally "arrest for a separate incident." See Kawaide Toshihiro, Bekken TaiholK&ya

To Yozai Torshirabe [Arrest and Detention on Separate Crimes and Investigation on the Remaining
Crimes], in 111 HOKY6 (1994).

97. 17 KEISHO 1795 (Sup.Ct., Oct. 17, 1963). See Matsuoka, Shiratori Jiken [The Shiratori
Case], in KEIJI SAISHIN NO KENKYO [RESEARCH ON CRItINALRETRIALS] 357 (K. Karno ed. 1930).

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COLUMBIA JOURNAL OF ASIAN LAW

suspect-and eliciting the desired confession-when there is insufficient
evidence for arrest on the crime in chief' and "a key means of
circumventing the warrant requirement and the right to silence." 98

Although a number of inferior courts have held bekken taiho illegal, 99

the Supreme Court has legitimized this technique. In Hirasawa v.
Japan,'0° the first case regarding bekken taiho, the Supreme Court upheld
a suspect's confession elicited during bekken taiho. In this case, although
the suspect was indicted and detained for forgery of private documents and
fraud, he was consecutively interrogated fifty times for a separate robbery
murder case. The Court stated that it could not find that the prosecution
pursued the former forgery and fraud case for the latter robbery and murder
case.

Ishikawa v. Japan'0 is a more recent case. In this case, the suspect
was first arrested and detained for three crimes (bekken), attempted
extortion against a missing high school girl, battery against another and
theft of property of a third person. During the detention, the suspect was
interrogated for the robbery, rape and murder of the first victim (honken),
to which he continued to deny guilt. At the end of the detention period
allowed for by the three bekken, the suspect was indicted for the latter two
bekken and released on bail. The police then arrested him on the honken
charges and continued to interrogate him for the honken to which he finally
confessed. The Court provided the standard upon which to decide the
legality of bekken taiho; it concluded that bekken taiho is not allowed
when "it is aimed to, for the purpose of interrogation of honken lack of
evidence, make use of the detention of the person by borrowing the name
of bekken taiho equipped with evidences." "2 However, upon considering
the correlation between the honken and attempted extortion, the Court did
not find such an aim and upheld the suspect's confession.

98. Foote, supra note 69, at 440-42. Got6 Akira stated: "The typical process of mistrial of
serious crimes in Japan is as follows: Arrest and detention on separate crimes, detention in substitute
confinement cell, false confessions elicited from intense interrogation, and guilty verdict based on
the false confessions." Got6 Akira, Bekken Taiho, Bekken Ko-ryd[Arrest and Detention on Separate
Crimes], in KEIJI SOSHOHO NO SOTEN, supra note 5 1, at 60.

99. See id. at 61.
100. 9 KEISHO 663 (Sup.Ct., April 6, 1955). This case is popularly called "the Teigin Murder

Case."
101. 31 KEISHO 821 (Sup.Ct., August 9, 1977). This case is popularly called "the Sayama

Murder Case." See also 897 HANREI JIHO 114 (Sup.Ct., July 3, 1978).
102. Id.

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D. Restriction on Suspects' Rights in Interrogation

1. Serious Restriction of the Right to Silence

First of all, it is necessary to note that, in Japan, a warning of the right
to silence is given only once at the very beginning of questioning; it is not
repeated at the start of subsequent interrogation sessions during the
suspect's detention.103 Second, the right to silence is overshadowed by
Article 198 (1) of the CCP which is interpreted to impose on suspects
under arrest or in detention a "duty to submit to questioning" (torishirabe
junin gimu).t 4 To read Article 198 (1) literally, the suspect's rights to
refuse to appear for questioning and to leave apply only to those not under
arrest or in detention. In actual practice, therefore, if suspects under arrest
or in detention invoke their rights to silence, they are not allowed to leave
the interrogation room; rather, they must be present for and listen to
questioning. This is in striking contrast to Miranda which makes it clear
that suspects have an absolute right to silence and all questioning must
cease immediately when a suspect invokes his right to remain silent or
right to counsel. 05 The majority of academics have criticized that the
"duty to submit to questioning" substantially forces suspects to answer
despite the constitutional guarantee of the right to silence.0 Law
enforcement authorities have strongly adhered to the literal interpretation
and the Supreme Court has not made a decision on this issue.

103. Foote, supra note 69, at 436.
104. Article 198(1) provides that "except in cases where the suspect is under arrest or in

detention, the suspect may refuse to appear or, having appeared, may leave at any time" KEtSOH0
art. 198 (1). This article was a product of the "tug of war" in the postwar legislative process of the
CCP between the Japanese government and the SCAP; the Japanese government proposed granting
the investigative authority to summon and interrogate at any time without mentioning a right to
refuse. SCAP proposed to add a provision that the suspect "has the right to refuse to answer, and,
if not under arrest, may withdraw at any time." Then the present provision was made. See MATStUO
KOYA, 1 KEIJ SOSHOHO 62 (4th ed., 1996); Sakamaki Tadashi. Taiho/KCVY, Chzlo Higisha No
Torishirabe Junin Gimu [Suspects' Duty to Submit to Questioning underArrest or Detention], in
KEui SOSHOHO NO SOTEN, supra note 51, at 56).

105. Miranda v. State ofArizona, 384 U.S. 436,444-45 (1966).
106. Hirano Ryuichi argued that Article 198 (1) was intended "only to bring attention that

acknowledging that suspects may refuse to appear and leave did not deny the validity of the arrest
or detention itself." HIRANO RYO1CHI, KEUt SOSHOHO 84 (1958).

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2. Restrictions on the Right to Counsel: "Prosecutorial
Designation"

Under Article 34 of the Constitution and Article 203 of the CCP, at
the time of arrest, the police are required to inform the suspect of his or her
right to retain an attomey. °7 Article 39 (1) of CCP guarantees suspects the
right to retain and meet with counsel without a guard and to exchange
documents and things. °8 However, these guarantees are highly restricted
by other provisions of the CCP and police practice.

Compared to the right to counsel in Anglo-American countries, the
right in Japan is nominal, particularly at the pre-indictment stage. First,
like other Continental criminal justice systems,' 9 the Japanese criminal
justice system is not equipped with a public defender system. Court-
appointed counsel are available only for the accused (hikokunin) after
indictment; suspects (higisha) before the institution of prosecution, who
are financially poor or otherwise unable to retain counsel, are not entitled
to the right to counsel at public expense. Also, private counsel retained
upon a suspect's formal arrest are not permitted to attend interrogation
sessions." ° In addition, the right to counsel does not attach to the
interrogation incident to "voluntary accompaniment"; rather, it only
attaches after formal arrest. It is also reported that the defense attorney is
allowed to visit his client no more than three times during the pre-
indictment stage, and the duration of each visit is limited to between fifteen
and twenty minutes."'

107. KENPO art. 34; KEISOHO art. 203.
108. Article 39 (1) provides: "A defendant or criminal suspect in custody may, without any

official being present, meet with his attorney, or with a person who may become his attorney.. [and]
may receive things or written materials therefrom."

109. See § 141(1) STPO. See also KLEINKNECHT/MEYER-GOBNER, STRAFPROZESSORDNUNG
§ 163, no. 16. (43 ed. 1997); Richard S. Frase & Thomas Weigend, German Criminal Justice as a
Guide toAmerican Law Reform: SimilarProblems, BetterSolution?, 18 B. C. INT'L& COMP. L.REV.
317, 334 (1995).

110. In the course of preparing the Constitution and the CCP, SCAP's recommendation to
include the right to presence of counsel during interrogation as part of the right to counsel was not
adopted. See Mitsui Makoto, Sekken Kotsuken IBengonin Taichiaiken [Right to Communicate with
Counsel/Presence of Counsel], 155 HOGAKU KYUSHITSU 101, 106 (1993); Jean Choi Dcsombrc,
Comparing the Notions of the Japanese and the U.S. Criminal Justice System: An Examination of
Pretrial Rights of the Criminally Accused in Japan and the United States, 14 UCLA PAc. BASIN L.J.
103, 111-12 (1995).

111. BAYLEY, supra note 3, at 151-52 (1968); CITIZENS' HUMAN RIGHTS REPORT No. 4, supra
note 5, at 57-8; see Inouye Masahito, Higisha to bengonin no sekken ktsi [Meeting and
Communication Between Suspect and Counsel], in HANRE1 HYAKUSEN, supra note 47, at 45.

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Second, the CCP has a unique system that limits a suspect's right to
meet with counsel, even when the suspect is informed of the right to
counsel and retains counsel." 2 The "prosecutorial designation" system,
which is not available in other Continental law systems, is provided for in
Article 39 (3) of CCP:

Prosecutor, clerk to a prosecutor or police official may ...
designate the date, place and time of the interview [between the
suspect and his counsel] ... when necessary for the purpose of
the investigation and to the extent the suspect's right to prepare
his defense is not unjustifiably restricted." 3

The designation system prior to April 1988 was called "general
designation" (ippanteki shitei). According to the language of Article 39(3),
the designation should be an exception. However, it is reported that in
practice, the prohibition of visits is the general rule and the allowance of
visits is the exception." 4  The Japanese Bar Association adopted a

112. "Prosecutorial designation" is not applicable to the accused (hikokunin)'s right to meet
with his counsel. For distinction between suspects from accused persons in Japanese law, see supra
note 51.

113. The legitimacy of this power is supported by its legislative history. Under the Code of
Criminal Procedure of 1922, the right to meet with counsel was given only to accused persons and
the meeting was attended by a guard. SCAP insisted on guaranteeing the suspect the right to meet
with counsel. In response, the Japanese government proposed to grant the prosecutor the power to
designate the time, place and duration of the meeting. The two sides agreed on the final version as
Article 39 stands, which made the meetings confidential but retained the prosecutorial designation.
See Mitsui Makoto, Sekken KisiMondai No Tenkai (Development of the Issue of Communication
with Counsel], 54 HORrrsu ZIHO 8, 12-14 (1982); Desombre, supra note 110, at 113-14.

114. CrrzENs' HUMAN RIGHTS REPORT NO. 4, supra note 5, at 56-57. See also HlRANO, supra
note59,at 105. Under the "general designation" system, aprosecutor, if he recognized the necessity
for an attorney's visit with a criminal suspect, prepared a "general designation form (ippanteki
shiteisho), and then distributed certified copies to the suspect and the head of the facility where the
suspect was held. If counsel requested a visit with the suspect and the prosecutor decided to allow
the request, the prosecutor prepared a "specific designation form" (gutaiteki shitei sho)" or the
"interview ticket," which stipulated the date and time of visit. If counsel did not take the ticket to
the detention facilities, access was denied. This system has been strongly criticized that, under the
system, "the right to meet with his [suspect's] counsel (was] subject to a blanket restriction initially
and then to a discretionary approval by the prosecutor." Desombre, supra note 110, at 114. See also
Hiroshi Tamiya, On the Designation of Communication with Counsel, 4 LAW IN JAPAN 87 (1970);
Citizens' Human Rights Report No. 4: Concerning Unconstitutional Violations of the Rights of
Persons Accused of Crime to Contact and Communicate with Legal Counsel, 20 LAviN JAPAN 29,
57 (1987). Samples of the designation forms are available in Mitsui Makoto &Inouye Masahito eds.,
HANREI KYOZAI KEIJI SOSHOHO [CASEBOOK OF CRIMINAL PROCEDURE LAW] 199 (2d ed. 1996)
[hereinafter HANREI KYOZAI].

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resolution against the general designation' 5 and many lower courts have
ruled that the general designation practice cannot be justified under Article
39(3) of the Code; rather, only a specific designation based on justifiable
needs of investigation is legitimately enforceable." 6

In response to criticism and challenges, the Ministry of Justice
modified the system. Under the modified designation system, a prosecutor
sends a designation notice to the head of the detention facilities, but not to
either the suspect or defense counsel. "' The Ministry argues that the
designation practice is then simply an internal communication between law
enforcement authorities," 8 so it is free from interlocutory appeal (jun-
kokoku) by the suspect or counsel. However, as Jean Choi Desombre
observed, "except for the change in the legal name-calling of the general
designation, the essential mechanism of the designation remains the
same.""

9

The Japanese Supreme Court has repeatedly upheld the designation
system. In the recent case of Asai v. Japan,t20 the Court found that the
"method of designation [in this case] was apparently a lack of rationality
and illegal, and violated the duty of attention which the investigation
authority had to observe .... [T] he prosecutor was apparently negligent."' 2'

In this case, following the prosecutor's instruction, the police officer
rejected Asai's request to meet with his client because Asai did not have
the designation form. Although Asai explained that he could meet with his
client without the designation form since it took more than two hours to get
the form, considering the distance from the police station to the
prosecutor's office, and the client was not presently under interrogation, the
police officer did not accept his request. Although interrogation was
scheduled in the police station at that date, it was not under process at the
time of Asai's request, nor did it take place during the whole day. Asai

115. Yamanaka Toshio, Higisha To Bengonin No Sekken Katsd [Communication Between
Suspect and Counsel], in KEIJI SOSHOHO NO SOTEN, supra note 51, at 74.

116. The first case by lower court holding that the general designation is not lawful is 9 Kakyu
Keishii 375 (Tottori District Ct., March 7, 1967).

117. A sample is available in HANRE, KYOZAI, supra note 111, at 200.
118. TAMIYA HIROSHI, KEIJI SOSHOHO[CRIMINAL PROCEDURE LAW) 149 (1997); Yamanaka,

supra note 115, at 75-76. In Wakamatsu v. Japan, 1390 HANJI 33 (Sup.Ct., May 31, 1991), the

Supreme Court upheld the designation regarding it as "an internal communication document for
processing of cases between the investigation authorities which itself does not have any legal effect
to either suspect or the counsel." Id.

119. Desombre, supra note 110, at 117-18.
120. 45 MinshTi 919 (Sup.Ct., May 10, 1991). For comment on this case, see Inouye, supra

note 48, at 40-5.
121. Id.

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sued the government for civil damages on the ground that it illegally
prevented him from meeting with his client. The lower courts held in favor
of Asai. The Supreme Court quashed the lower court's decision, holding
that the phrase, "necessary for the purpose of investigation" in Article 39
(3) of the CCP included a situation in which an interrogation was
scheduled in the near future but not currently taking place and the
designation itself in the case was not illegal.'2

E. Conclusion

Chapter IV has shown that the new perspective in the Japanese
Constitution for de-inquisitorializing criminal justice system is
substantially restricted by the CCP; that the imbalance between the rights
of individuals and the power of the law enforcement authorities is
institutionalized heavily in favor of the latter, particularly with regard to
pre-indictment detention and interrogation; and that law enforcement
authorities entertain wide discretion which the judiciary is reluctant to
regulate.

Although it has been argued that this imbalance may be offset by
the "benevolence" of the system,'23 it is necessary to note that such a
"benevolence" is exercised within the context of this prosecutor-
dominating structure and only for those who completely submit themselves
to the criminal justice system. The benevolent discretion is not afforded
to those who "dare" to appeal and exercise their "rights". The
"benevolence" is limited and biased.

122. In this case, following prosecutor's instruction, police officer rejected Asai's request to
meet with his client because Asai did not have the designation form. Although Asai explained that
he could meet with his client without the designation form since it took more than two hours to get
the form, considering the distance from the police station to the prosecutor's office, and the client
was not presently under interrogation, the police officer did not accept his request. Although
interrogation was scheduled in the police station at that date, it was not under process at the time of
Asai's request, nor did it take place during the whole day. Asai sued the government for civil
damages on the ground thatit illegally prevented him from meeting with his client.The lowercourts
held in favor of Asai.

123. Foote, supra note 2, at 342-59.

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V. THE JAPANESE SUPREME COURT'S LIMITED EXCLUSIONARY RULES

A. Physical Evidences in Search and Seizure-"Theory of
Relative Exclusion"

1. Japan v. Hashimoto

It was not until 1978 that the Japanese Supreme Court accepted the
exclusionary rule in principle.' 24 After a majority of academics argued for
the adoption of an exclusionary rule' 5 and lower courts began to exclude
tainted evidence, 126 the Supreme Court made a "legislative" decision in
Japan v. Hashimoto27 to establish a Japanese exclusionary rule known as
the "theory of relative exclusion" (sitaiteki haijyo ron). In Hashimoto, a
police officer stopped the defendant's car and began to question the
defendant then suspected of soliciting prostitution. Based upon the
suspect's attitude and complexion, the police officer also suspected that the
defendant might be a drug addict. The officer asked him to get out of the
car and reveal his personal effects. Although the defendant at first refused,
he showed the officer the contents of his right pocket on the arrival of more
officers. An officer then frisked the defendant's jacket and trousers
pockets and felt that there was "something hard, but not dangerous ''l 28 in
the pocket. The defendant did not show the officer what was in his left
pocket. Then, without the defendant's consent, the officer thrust his hand

124. Until 1978, there was only one decision by the Supreme Court with regard to the exclusion
of illegally obtained evidence. 15 Keiji Saibanshii 349, 350 (Dec. 13, 1949). The Court stated the
rationale underlying the inclusion of illegally obtained evidence: "Even though the procedure of
seizure was illegal, the value as evidence does not change because the procedure did not affect the
quality and shape of the substance itself. Therefore it belongs to the court's exclusive discretion
whether the evidence should be admitted or excluded." Id.

125. For instance, see Hirano Ry6ichi, Shoo Haijo Niyoru Ssa No Yokusei [Deterrence of
Investigation by Exclusion of Evidences], in 7 KEIHO ZASSHI (1957).

126. The first case 3 KEISAI TOKUHO 631 (Osaka High Ct. June 19, 1956). In the Supreme
Court's review of the same case, the exclusionary rule was first recognized in minority opinion of
the Supreme Court

127. Judgment of Sept. 7, 1978, Saik6sai [Supreme Court], 32 Keishii 1672 (Sup.Ct., Sept. 7,
1978). This case is called the "Osaka Tenn6 Temple Drug Seizure Case. "Its English translation is
in LAWRENCE W. BEER & HIROSHI ITOH,THECONSTITtJTIONALCASELAWOFJAPAN, 1970THROUGH

1990 427-34 (1996). See generally INOUYE MASAHITO, KEIJi SOSHO NI OKERU SHOKO HAIJO
[EXCLUSION OF ILLEGALLY OBTAINED EVIDENCE IN CRIMINAL PROCEDURE] (1985), chapter 3.

128. Unlike Terry, stop-and-question in the Police Duty Law is not limited to search for
weapons. If this case took place in the United States, the evidence would be excluded. See
Minnesota v. Dickerson, 113 S. Ct. 2130 (1993).

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into the inside pocket of the defendant, found an illegal drug in a plastic
bag, and arrested him. The district and appeals courts excluded the
narcotics as illegally obtained evidence and acquitted the defendant. But
the Court rejected the lower courts' decision to exclude the evidence. The
Court submitted the two rationales of exclusionary rule:

Since neither the Constitution nor the Code of Criminal
Procedure provides any regulations concerning illegally seized
objects it would be proper to solve the above problem by
interpreting the Code of Criminal Procedure.... Even if the
material for evidence were obtained through an illegal
procedure, the substance itself would not change its shape or
quality, nor would its value as evidence per se or its shape
change. It would not inappropriate for the Court to reject
immediately material as evidence simply because it was seized
illegally. On other hand, the factfinding should be carried out
under adequate procedures that secure the individual's human
rights.... [W]hen serious violations of the law have taken
place in the process of seizing evidence, the principle of the
warrant which embraces the principles of Article 35 of the
Constitution and Article 218, paragraph 1 of the Code of
Criminal Procedure could be jeopardized. Using illegally
seized material as evidence would be harmful from the
standpoint of controlling illegal searches in the future, and
should be rejected as evidence for the case.19

Hashimoto made it clear that the exclusionary rule in search and
seizure is a principle in the CCP, not in the Constitution, because, unlike
the exclusion of illegally obtained confessions, the exclusion has no
specific provision in the Constitution.13 ) It also submitted two rationales

129. BEER & ITOH, supra note 127, at 433 (The author translated the original text himself
considering Beer and Itoh's translation).Hashimoto clearly rejected the mandatory exclusionary rule
for which Hirano Ryuichi had argued. HIRANO, supra note 106. at 240. He also adopted Dando's
discretionary exclusionary rule based on the individual balancing test between two interests of
collecting evidence and guaranteeing human rights "in light of the objective of preventing the
improper gathering of evidence," which Dando Shigemitsu advocated. DANDO, supra note 50, at
195. Dando was then Supreme Court Justice and belonged to the panel of Hashitomo.

130. Critics have argued, however, that, despite the absence ofspecific provision regarding the
exclusionary rule, the rule is constitutionally required upon considering the historical meaning of
the legislation of Article 35 of the Constitution and the warrant requirement in CCP, that, like Article
38 (1) of guaranteeing the privilege against self-incrimination is accompanied with Article 38 (2)
of exclusion of illegally obtained confessions, Article 35 of the Constitution also needs to be

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for the exclusion of illegal obtained evidence: the gravity of police
illegality and deterrence of future police misconduct. 3'

Hashimoto found that the officer's conduct "seriously violated the
privacy of the individual" and that he "exceeded the limit allowed for
examining personal effects incidental to an official interrogation."'132

However, Hashimoto concluded that the evidence should be admitted,
suggesting a basis for the admission of the illegally obtained evidence:

In a situation in which the requisites for an official
interrogation existed, and the necessity and the urgent
conditions for examining the personal effects were recognized,
and the defendant did not make a clear response as to whether
or not he would comply with the officer's request, the officer
exceeded only a little bit the limits of law, within which the
officer would be allowed to act in examining the personal
effects. From the beginning, the officer had no intention to
neglect any law or regulation connected with principles
requiring the warrant, nor was there any evidence of use of
physical force by the officer. 33

Hashimoto established a basic system of a Japanese exclusionary rule
and its rationales. Despite its rhetoric, however, Hashimoto shows that the
Court does not seriously intend to deter police misconduct and it is ready
to "relativize" the exclusionary rule. First, Hashimoto demands a very high
level of gravity of police misconduct for the exclusion of illegally obtained
evidence. Even a "serious violation of the privacy of the individual"'134

interpreted to have the same rule to secure Article 35. Mitsui Makoto, Shojihin Kensa No Genkai
To Ihishifshd Shawco No Haijo [Limit of Search of Personal Effects and Exclusion of Illegally

Obtained Evidences], in 680 JuRIST 107, 108 (1978); Tamiya Hiroshi, Ihshish0Shko No Haijo
H5soku [Exclusionary Rule of Illegally Obtained Evidences), in 3 LAW SCHOOL 40, 44 (1978);
TAMIYA, supra note 118, at 401-02.

131. Hashimoto' rationales come from the U.S. Burger Court's understanding of the Fourth
Amendment exclusionary rule. Different from the Warren Court, the Burger Court clearly dismissed
the idea that a defendant had a constitutional right to the exclusion, and mainly relied on the
"deterrence" rationale for the exclusionary rules. See United States v. Calandra, 414 U.S. 338,347-
48 (1974); Alderman v. United States, 394 U.S. 165, 174 (1969); United States v. Janis, 428 U.S.
433, 446 (1976). The German exclusionary rule does not rely on the "deterrence" rationale. See
Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law
Reform: Similar Problems, Better Solution?, 18 B. C. INT'L & COMP. L. REV. 317, 336 (1995).

132. BEER & ITOH, supra note 126, at 432.
133. Id. at 432.
134. Id. at 432.

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could not pass the "gravity of illegality" test. Second, the Court was very
lenient in deciding whether the police misconduct was necessary and
urgent. Although the defendant was surrounded by police officers and did
not attempt to flee, the Court recognized the necessity and urgency of the
search. The officer's good intention was also readily assumed. Third, if
the right to silence was taken seriously, the fact that the defendant did not
respond to the officer's request cannot be relevant to the issue.

2. Development of the Theory of Relative Exclusion

After Hashimoto, a few Japanese lower courts held that the dual test
of the "relative exclusion" was met and the evidence was accordingly
excluded.1 35 However a majority of the lower courts have reached the
Hashimoto conclusion:136 the police misconduct is illegal, but the illegality
is neither grave nor inappropriate for deterrence and the evidence should
therefore not be excluded.

Of the four Supreme Court cases concerning the exclusion of
evidence after Hashimoto, none excluded evidence illegally obtained. In
Yoshikawa v. Japan,37 a police officer entered the suspect's bedroom
without the suspect's consent, urged the suspect to accompany him
"voluntarily" to the police station, detained him in the station ignoring his
request to leave, and with his consent, drew a urine sample. The Court
found that this procedure was illegal and exceeded the limits of a
"voluntary investigation." Reiterating Hashimoto's rationale for admission
of the illegally obtained evidence, 38 however, the Court reached the same
conclusion as Hashimoto. In Kuroki v. Japan,'39 police officers forcefully
searched, without the suspect's consent, the upper clothes and the shoes of

135. See, e.g., 998 HANJI 126 (Osaka High CL, Jan. 23, 1981); 1104 HANI 152 (Sapporo High
Ct., Dec. 16, 1982); 1189 HA~n 153 (Osaka High Ct., Nov. 26, 1985); 1219 HANJI 143 (Osaka
District CL, May 8, 1986); 1261 HANJi 138 (Tokyo District CL., Nov. 25, 1987).

136. See Nagaoka Tetsuji, Ihrni shishishita sh-ko (Illegally Obtained Evidences], in KE1nt
SOSHOHONOSOTEN,supra note 52, at 222,224. Most of the evidence at issue in these lower courts'
cases were illegal drugs and the searches and seizures took place incident to stop-and-question or
voluntary accompaniment.

137. 40 KEISHO 215 (Sup.CL, Apr. 25, 1986).
138. See supra text accompanying note 149.
139. 42 KEiSHG 1051 (Sup.CL, Sept. 16, 1988). This case is popularly called the "Asakusa

RoadDrug SeizureCase." Regarding the commenton this case, see Mitsui Makoto, Ih&h ish o
nosh-konfyoku [Evidentiary Qualification of lllegally Obtained Evidence], in HANtEIHYAKUSEN,
supra note 48, at 128.

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a drug suspect who ran away after stop-and-question, and, with his consent,
drew a urine sample. Although the Court found that this procedure was
illegal, based on Hashimoto, it again rejected the defendant's argument to
exclude the evidence.

In Kobayashi v. Japan,'4° police officers stopped a drug suspect's
automobile and asked him to "voluntarily" accompany them to the police
station. The suspect rejected the request and insisted on driving his car.
Then the police removed the suspect's car key and detained him in his car
for six and a half hours. After getting a warrant to extract a urine sample,
they searched his car and body, brought him to a hospital and ordered a
doctor to take a urine sample. Although the Court found the detention of
the suspect illegal, it rejected the defendant's argument to exclude the
urine sample.

In Sekita v. Japan,14 ' a police officer stopped the suspect's
automobile and questioned him as to whether or not he was driving whilst
asleep or drunk. After the officer checked the suspect's criminal records
for possession of illegal narcotics by radio, he attempted to persuade the
suspect into allowing him to searching both the suspect's personal effects
and the inside of his car.. Though the suspect refused, the officer searched
the inside of the car and seized an illegal drug; he examined the suspect's
urine and arrested him. The Court found that the search within the car
exceeded the limits of a search of personal effects incident to questioning
and was thus illegal; however, it admitted the urine test based on the
"relative exclusion" theory.

This series of decisions show that the Japanese Supreme Court is not
ready to activate the exclusionary rule. They show that either the Court's
recognition of the illegality of police misconduct is on an abstract level, or
the Court demands a very high level of gravity of police misconduct for the
exclusion of illegally obtained evidence. Even intrusion into an
individual's bedroom without his consent could not pass its "gravity of
illegality" test. 42 The "deterrence" rationale of the relative exclusion also
does not have its own gauge. Although the deterrence rationale is
mentioned in all of the decisions, as Mitsui Makoto criticizes, it is merely

140. 48 KEiSHO 420 (Sup.Ct., Sept. 16, 1994). This case is popularly called the "Aizu-
Wakamatsu Extraction of Urine Case."

141. 49 KEISHO 703 (Sup.Ct., May 30,1995). This case is popularly called the "DaiichiKeihin
Road Questioning Case."

142. In Payton v. New York, the U.S. Burger Court held that, if there are no exigent
circumstances, the police may not enter a private home to make a warrantless arrest. 445 U.S. 573,
575 (1980).

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"trite and rhetoric" and overshadowed by the "gravity of illegality"
rationale.1 43 As a result, it is very unlikely for the Court to disapprove of
an illegal police investigation.

B. Confessions Obtained Illegally in Interrogation

Unlike the exclusionary rule in search and seizure situations, the
Constitution and the CCP provide explicit legal provisions regarding the
exclusion of an "involuntary confession." Article 38 (2) of the Constitution
provides for the exclusion of "confessions made under compulsion, torture
or threat, or after prolonged arrest or detention." Article 319 (1) of the
CCP excludes "confessions whose voluntariness is doubtful."'144

There are three competing theories in Japan that explain the grounds
for the exclusion of confessions. 145 The first is the exclusion of falsity
theory (kyogi haiyo), which emphasizes the precision of truth-finding and
decides on the exclusion of involuntary confessions according to the falsity
or reliability of the confession. This has been the Japanese Supreme
Court's traditional theory. The second is called "theory of the protection
of human rights" (jinken yigo), which goes beyond the "reliability" test by
relying on the defendant's right to silence. The theory argues that the
exclusion of an illegally obtained confession, even though voluntary, is
necessary to protect the defendant's human rights in interrogation. The
third is the "theory of the exclusion of illegality" (ihhaijyo) which is now
supported by a majority of academics. This theory highlights the law
enforcement authority's misconduct and argues that the exclusion of
illegally obtained confessions is necessary to secure due process in every
aspect of criminal procedure. According to this theory, confessions
enumerated in Article 38 (2) of the Constitution are examples of illegally
obtained confessions and their scope is not confined to the "voluntary test,"
so illegal detention or the violation of the right to counsel may also be
grounds for exclusion. 146

143. Mitsui, supra note 151, at 131.
144. Before the advent of the "theory of exclusion of illegality," it was generally accepted that

the scope of the two Articles is identical, and confessions in Article 38 (2) of the Constitution are
typical examples of the "involuntary confession" in Article 319 (1) of the CCP. See 24 KESHO
1670 (Sup.Ct., Nov. 25, 1970).

145. Tada Tatsuya, Jihaku no nin'ijsei to sono risshd [Voluntariness of Confession and Its
Establishment], in KEIn SOSHO NOS6TEN,supra note 52, at 198-99; TAMIYA, supra note 130, at347-
50.

146. MATSUO, supra note 103, at 42.

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The Japanese Supreme Court has not accepted the "theory of
exclusion of illegality," nor has it applied the "voluntariness test"
actively, so the Article 38 (2) of the Constitution and Article 319 (1) of
the CCP does not have a strong bite.

1. Limited Exclusion of "Involuntary" Confessions

The Japanese Supreme Court has excluded confessions "made
under compulsion, torture or threat."'147 Exclusion of such confessions is
a minimum requirement of criminal procedure in a democratic society.
However, in other cases of "involuntary" confessions made after prolonged
arrest or detention, or confessions made upon promise and inducement, the
Court has demonstrated an inconsistent position.

First, the Supreme Court has inconsistently excluded the confession
obtained "after prolonged arrest or detention." The Court has excluded the
confession of a larceny suspect obtained after 109 days of detention where
the validity of the grounds for the detention was doubtful and the suspect
denied committing the crime from the beginning. 48 It excluded a
confession of extortion where the suspect was a girl under 16 years old and
her confession was obtained after seven months in detention. 49 However,
the Court also upheld a confession obtained after a detention of more than
six months where the detention was based on valid reasons and the suspect
confessed in the beginning of the interrogation. 50  The Court also
admitted a confession obtained after a 160 day detention where many
witnesses adverse to the defendants existed and the defendants tried to hide
their relationship each other.'5'

Second, the Japanese Supreme Court has not consistently excluded
other "involuntary" confessions made from promise or inducement. In
Ogura v. Japan,52 the Court admitted confessions made by a suspect who
was handcuffed during an interrogation by a prosecutor for violating the
Election Law. Although the Court stated that handcuffing the suspect
would pressure the suspect in some degree and would then raise doubts as
to the voluntariness of the confession, it admitted the voluntariness of the
confession, noting that the questioning took place in a "calm atmosphere

147. 11 KEISHO 1882 (Sup.Ct., July 19, 1957).
148. 2 KEISHO 944 (Sup.Ct., July 19, 1948).
149. 6 KISHO 769 (Sup.Ct., May 14, 1952).
150. 2 KEISHO 17 (Sup.Ct., Feb. 6, 1948).
151. 4 KEIsHO 1562 (Sup.Ct., Aug. 9, 1950).
152. 17 KEISHO 1703 (Sup.Ct., Sept. 13, 1963).

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from the beginning to the end."'53 In Okayama v. Japan,"s however, the
Court quashed the Appeal Court's decision and excluded a confession as
involuntary obtained through deceit. In this case, the suspect and his wife
were interrogated for illegally possessing a handgun. Although the
defendant's wife confessed that she was the sole culprit in the crime, the
prosecutor deliberately deceived the defendant by telling that the
defendant's wife had confessed that he was also involved and obtained the
defendant's self-incriminating statement.

This inconsistency of the Court's position results from the Court's
adherence to the reliability of the confessions without serious caution of
obtaining confessions by prolonged arrest, detention, promises or
inducement. As a result, the line between voluntary and involunatry
confessions is blurry and a clear direction cannot be given to the police
practice. Hirano Ryuichi states:

[O]n occasion, especially in cases that have been remanded for
errors in the factfinding, courts suddenly angrily declare that
the confession was "not voluntary." Yet the manner of
questioning in such cases is not markedly different from that in
cases of "voluntary" confessions. When the contents of the
confession comport with other evidence and are accurate,
questioning is not called into question. When the contents of
the confessions do not comport with other evidences, however,
questioning of the very same sort suddenly becomes improper.
... In any event,., reliance is placed on the contents of the
confession alone. This tends to lead to the view that, so long as
the results are appropriate, anything goes. Under those
circumstance investigation methods will not improve.55

Although the Japanese Supreme Court has maintained the
"voluntariness" test to exclude confession, it has not consistently excluded
"involuntary" confessions. As a consequence, the rule does not have a
strong bite. 15 6

153. Id.
154. 24 KEISHO 1670 (Sup.Ct., Nov. 25, 1970).
155. Hirano, supra note 6, at 417.
156. See McNabb v. U.S., 318 U.S. 332,341(1943) (preventing the federal use of confessions

obtained during lengthy custody); Mallory v. U.S., 354 U.S. 449,455 (1957) (same as McNabb);
Rogers v. Richmond, 365 U.S. 534 (1961) (excluding a confession obtained by pretending to arrest
the defendant's sick wife); Spano v. New York, 360 U.S. 315 (1959) (excluding a confession
obtained after an uninterrupted overnight eight hours of questioning, on the ground that it was

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2. Inclusion of Confessions Obtained in Another Illegal
Procedure

The reluctance in excluding an "involuntary" confession also expands
into other areas. In two early cases, Shirogane v. Japan57 and Ishiguro v.
Japan,'58 the Japanese Supreme Court held that the failure to inform a
suspect of his right to silence before interrogation is not illegal. It held that
the Article 38 did not stipulate the duty to warn a suspect of the right to
silence before interrogation; a failure to warn of such a right itself could
not make confessions involuntary. Although a District Court recently
excluded a confession given in the absence of a warning of the right to
counsel and to silence, 59 it is doubtful that the Supreme Court would
follow this decision.

The Court has also admitted confessions given under restriction of
the right to counsel. In Hongo v. Japan,6 ° the Court upheld the suspect's
confession as voluntary although the period of his meeting with his counsel
was "designated" for only two or three minutes. In a more recent case,
limura v. Japan, the Court upheld a confession as voluntary, rejecting the
suspect's argument that his right to counsel was violated because the
prosecutor had not once allowed the suspect to meet with his counsel
pursuant to his prosecutorial designation power. 161

The Court has also upheld confessions made after illegal detention.
Confessions obtained incident to a "voluntary accompaniment" have been
an important issue. Haibara v. Japan is a leading case. 62 In this case, the
police asked Haibara, a suspect in the murder of a bar hostess, to
"voluntarily" accompany them to the police station with them. After the
police interrogated Haibara for four and a half days, moving him in several
places, and prohibiting him from contacting anyone other than the police,
they obtained a confession. No arrest had been made until that time. The
police could not find any other corroborating evidence sufficient for

involuntary).
157. 4 KEISHO 2359 (Sup.Ct., Nov. 21, 1950).
158. 7 KEISHO 841 (Sup.Ct., Ap. 14, 1953).
159. 760 HANREI TIMES 261 (Urawa District Ct., Mar. 25, 1991).
160. 7 KEISHO 1474 (Sup.Ct., July 10, 1953).
161. See Judgment of July 10, 1978, supra note 136.
162. 38 KEasHO 479 (Sup.Ct., Feb. 29, 1984). This case is popularly called the "Takanawa

Green Mansion Hostess Murder Case." Regarding comment on this case, see Asada Kazushige,
Shukuhaku Wo Tomonau Torishirabe [Investigation Accompanying with Lodging], in HANREI
HYAKUSEN, supra note 48, at 16-7.

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arrest, 163 so Haibara was released. But two and a half months later, the
police eventually arrested him. Haibara confessed after three more days
of questioning and was indicted after another seventeen days of
interrogation. Finally the defendant was convicted. The issue in Haibara
was whether the defendant's confession in the original questioning should
be excluded. The Court upheld the conviction stating that the first
interrogation was "appropriate from the standpoint of socially accepted
views upon considering the concrete circumstances."'1t In a more recent
case, Miyauchi v. Japan,t65 the Supreme Court upheld the defendant's
conviction, stating that the elicitation of a confession during a non-stop all
night interrogation incident to the "voluntary accompaniment" did not
deviate from the scope of a "socially accepted voluntary investigation."

As Justices Kinoshita and Ohashi stated in Haibara's minority
opinions, however, it is quite difficult to imagine that the defendants
determined their own will freely because strong visible or invisible
pressure from the investigators was put on the suspect.1t The Court's
interpretation of "socially accepted view" is quite biased in favor of law
enforcement authorities.

C. Conclusion - Judicial "Cooperation," Not Judicial "Control"

As shown in its interpretation of the CCP and its application of the
exclusionary rules, the Japanese Supreme Court has not actively protected
the constitutional procedural rights of suspects and accused persons.
Though it acknowledges the exclusionary rule in principle, it has been
extremely reluctant to take it seriously in practice, referring to the
"appropriateness under concrete circumstances"1 67 or a "balancing with
public interest." 168 For this reason, it is said that "today is not the age of

163. Article 38 (3) ofthe Constitution and Article 199 of the CCP provide that "no person shall
be convicted or punished in cases where the only proof against him is his own confession."

164. 38 KEISHO 479,487 (Sup.Ct., Feb. 29, 1984).
165. 43 KEISHO581 (Sup.Ct.,July4,1989).This caseis called the "Hiratsuka Waitress Murder

Case." Regarding the comment on this case, see Tada Tatsuya, Chjjikan no torishirabe [Long time
Investigation], in HANnEi HYAKuSEN, supra note 48, at 18-9.

166. 38 KEisH0 479,492-93 (Sup.Ct., Feb. 29, 1984).
167. Id at 487.
168. 32 Keishii 670,688 (Sup.Ct., June 20, 1978).

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COLUMBIA JOURNAL OF ASIAN LAW

judicial control but that ofjudicial cooperation.' ' 69 Nathaniel Nathanson's
observation made thirty two years ago is still valid:

[I]t is obvious that the Supreme Court has not been in the
forefront of the fight for the realization of civil liberties in
Japan. While it has generally paid lip service to the principles
of Chapter III (Rights and Duties of the People) of the
Constitution, it has not struck any resounding blows for their
effective implementation. 1 0

VI. CONCLUSION - UNFINISHED "REVOLUTION" UNDER

"PROSECUTORIAL JUSTICE"

The imbalance between the powers of individuals and those of law
enforcement authorities weighs heavily in favor of the latter. Matsuo
Kbya, a leading Japanese criminal law scholar, argues that, although the
"outer layer" of postwar Japanese criminal justice was formed after
American law, its "base layer" has maintained its own "magnetic structure"
which has slenderized the "outer layer."'171 Within the "base layer" there
is located the "minute justice" (seimitsu shihoJ, which is a "pseudo-
adversarial system" characterized by a "(i) thorough investigation by both
prosecutors and police officers and (ii) minute grasping of truth of the
cases." 72 According to Matsuo, the "minute justice" is a product of the
Japanese legal culture itself.

It is controversial whether the "minute justice" is a product of the
Japanese "legal culture" originating from the Japanese national mentality
or a product of the systematic policy pursued by police, prosecutors and

169. Shimomura K6'o, KeUi Saiban Ha Kono Mama I'inoka [Is Criminal Trial like this All
Right?], KEIJISAIBANNOGENDAITEKITENKAI [CONTEMPORARYDEVELOPMENTOFCRIMINALTRIAL

79 (1988) (emphasis added).
170. Nathaniel L. Nathanson, Human Rights in Japan Through the Looking Glass of the

Supreme Court Opinion, 11 HOw. L.J. 316, 323 (1965).
171. Matsuo K6ya, Keiji sosho-h5no kiso riron [Basic Theory of Criminal Procedure Law], in

3 KOKKA TO SIMIN [STATE AND CTZEN] 446-47 (1989); Matsuo K6ya, Keiji soshdno kadai [Task
of Criminal Procedure], in KEIJ SOSHOHO NO SOTEN, supra note 52, at 8-9. Can't find original
citation to the supra note.

172. Id.



PROSECUTORIAL JUSTICE IN JAPAN

courts to weaken the defendants' rights and defense attorneys' power.173
However it is generally accepted that the phenomenon of the "minute
justice" itself has been stabilized and institutionalized.

With the cultural and legal settings favoring law enforcement
authorities, the Japanese criminal justice system is often characterized as
"prosecutorial justice" (kensatsukan shiho) because of the dominating role
of the prosecutor in the criminal process. 74 The Japanese prosecutor not
only assumes a "quasi-judicial authority" like that of a German
prosecutor,'75 but also enjoys the broad discretionary power of a U.S.
district attorney. 76 More than 40% of the suspects handled by prosecutors
are disposed of by prosecutors, not by judges. Among those prosecuted,
almost 30% are disposed of by summary decision based solely on the
dossier made by investigators.T I The summary decision results in a 100%
guilty rate.178 About 60% of the accused are disposed of without ever
seeing a judge in court. 17 9

In contrast, the roles of judge and defense attorney are limited.
Observing that "criminal trials and in particular the fact finding that lies at
the heart of trials are conducted in closed rooms by investigators," a former
Japanese judge identified the Japanese criminal trial as a "trial by

173. Odanaka Toshiki, Keiso kaikaku rongi no kisoteki shiten [Basic Viewpoint of Debate for
the Criminal Procedure Reform], in 2 HIRANO RYOCHI SENSE! KOKI SHUKUGA RONBUNSHO
[COLLECTION OF LEARNED PAPERS FOR SEVENTIETH BIRTHDAY OF HIRANO RYOCHI] 250 (199 1).

174. Hirano, supra note 6, at409. Odanaka prefers the description of "policejustice" (keisatsu
shiho), observing the recent weakening of the prosecutors' power in comparison with the police
power. Odanaka, supra note 32, at 251.

175. German criminal procedurejurisprudence does not considers the prosecutor"an adversary
party of the defendant but a neutral representative of the state" (Thomas Vleigend, Continental Cure
forAmerican Ailments: European Criminal Procedure as a Model for Lawv Reform, in 2 CRIMEAND
JUSTICE: AN ANNUAL REVIEW OF RESEARCH 395 (1980). See also ROXIN, supra note 125. at 50;
Thomas Volkmann-Schluck, Continental European Criminal Procedures: True orlilusive Model?,
9 Am. J. CRim. L. 1, 12 (1981)). The German prosecutor is also considered "guardian of the law"
or "the most objective public official in the world" (Hans-Heinrich Jescheck, The Discretionary
Powers of the Prosecuting Attorney in West Germany, 18 AM. J. COMP. L. 510 (1970)).

176. A. Didrick Castberg commented: Their [Japanese prosecutors'] clearly constituted
authority to indict or to suspend prosecution and to control access of the defendant to his attorney,
and their ability to control virtually all aspects of the investigation of the offense, amounts to quasi-
judicial authority, and in fact prosecution in Japan are considered equal to judges in most respects.
Their discretion is rarely challenged and even more rarely curtailed, while their authority is generally
accepted by Japanese society. CASTERG, supra note 1, at 72-73

177. Masayuki Murayamna, Post War Trends in the Administration of Japanese Criminal
Justice: Lenient but Intolerant or Something Else?, in INT'L CENTER FOR COMPARATIVE LAW AND
POLrncs, THE UNIVERSITY OF TOKYO, DuTcH AND JAPANESE LAWS COMPARED 225, 245 (1993).

178. Id. at 246.
179. Id

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COLUMBIA JOURNAL OF ASIAN LAW

investigators" (sisa saiban).180 In these surroundings, defense attorneys
play the role of "suggesting to the defendant how best to make restitution
and to show remorse" and "persuading the judge to impose a lenient
sentence" largely outside the guilt-determination phase." They are
observed to arrive at the perception that "contesting cases, rather than
simply confessing and showing remorse, can result in harsher penalties." 182

The high efficiency of the Japanese "prosecutorial justice" or "minute
justice" system is made possible by the grave sacrifice of the individual's
constitutional rights. The post-war Constitution's new vision has been
overshadowed by a number of traditional-inquisitorial elements in the CCP
and harsh and cunning police practice. The Supreme Court has interpreted
the provisions and practices in favor of law enforcement authorities.
Although the Court has accepted an exclusionary rule in principle, the rule
has been given a very limited role.

The "criminal procedure revolution" is undoubtedly not finished in
Japan. Although the 1947 Constitution provided a vision for the "criminal
procedure revolution" to de-inquisitorialize the Japanese criminal justice
system, the socio-political force which propels the "revolution" has not
developed to a level which could replace the traditional view. At least in
the field of criminal procedure, as Ren6 David and John E. C. Brierley
point out, "the question is still very much open whether behind this facade
of westernisation Japan really has undergone any kind of significant
transformation and whether it has accepted the idea ofjustice and law such
as understood in the West."'183

180. Ishimatsu, supra note 94, at 143, 145
181. CASTBERG, supra note 1, at 79.
182. Foote, supra note 2, at 338.
183. RENA DAVID &JOHN E. C. BRIERLEY, MAJOR LEGALSYSTEMS IN THE WORLD TODAY 456

(London, 1968).

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