The Japanese Way of Justice: Prosecuting Crime in Japan
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"Where does a District Attorney go when he dies, grandpa?
He goes to Japan, Max.
Because Japan is prosecutors' heaven, Max."
David T Johnson's 'The Japanese Way of Justice' is the first systemic examination of the Japanese prosecutorial system, the most powerful governmental institution in Japan. The book, written in a prose mercifully free of academic aridity, has been virtually deemed a classic in sociolegal scholarship. So variegated in detail and close in analysis, it warrants treatment beyond the summary reach of a book review. Every prosecutor in the USA should read it. Every American intent on crime in Japan should keep a copy under his pillow. He will not find there the cat and mouse game of our failed criminal justice system. There, plea bargaining and immunity grants are forbidden, 92% confess, acquittals are 1 in 800, and razzle-dazzle lawyers are not seen running down courthouse steps with their laughing clients.
A suspect drawn by arrest or invitation to meet with a Japanese prosecutor must be prepared to be questioned for the 23 days that he may be lawfully detained without the filing of a charge. The nicety of arraignment is unknown to Japanese law. He will not be assigned counsel until he is formally charged, and in any event his attorney will not have the right to be present during his interrogation. As for bail, there is no right to it during the detention period, which may be lengthened by the creative filing of another charge and the tacking to it of another 23 days, an illegality, but nevertheless usually effective. He has the right to be silent and may even declare his unwillingness to talk, but he has the duty to endure the interrogation that may extend for many hours, day after day. He may meet with counsel, but only when, for so long, and at the places determined by the prosecutor.
The reader may be tempted to think this impairment of counsel a grave loss. Not at all. Those who may be said with some hilarity to practice defense law in Japan are elderly men in their seventies languishing at the end of the feed line. They advise their clients to cooperate with the prosecutor as they themselves do, for they believe it their duty to disclose the facts to the prosecutor and the court. As one ungrateful defendant said of his counsel, he was "as useless as tits on a bull", a mixed metaphor perhaps but precisely correct, for that old lawyer, like the hedgehog, knew one over-arching truth: he and his client are standing in what is the appearance of an adversarial judicial process that in fact does not exist. The suspect is the target of an inquisition. He has no right to pre-trial discovery, the interrogation is actually the trial, the trial is a ritual, the judge is present to conduct the ritual by receiving evidence, and the evidence is the dossier, compiled and written by the prosecutor, signed by the suspect, and received by a compliant court under numerous hearsay exceptions. Indeed, the dossier will contain not only police reports and the statement of witnesses but the defendant's confession as well, a confession reported not verbatim but in the form of the prosecutor's statement of what he believes the defendant in reality confessed. The prosecutor is not required to disclose exculpatory evidence. The judge takes the dossier to his chambers there to ponder it and render a decision very close, some may say too close, to that had in mind by the prosecutor when he made his recommendation. If there is that rare derangement, an acquittal or sentence that does not satisfy the prosecutor, the prosecutor may appeal.
Where was the jury? There is none in Japan, nor are there grand juries or preliminary hearings. The media? They are the prosecutor's lapdog. "Writing critical investigative articles is not a press custom", said a reporter of Japan's largest daily. "Prosecutors", he said, "are our superiors and we are their supplicants." In Japan's media, prosecutors are virtually anonymous; no ecstatics for publicity are among them. They are appointed, may not be fired, do not play whore to political powers, and very rarely leave for elective office.
The iron-willed purpose of the Japanese prosecutor is the suspect's confession which, if he is wise, he will accompany with genuine remorse, repentance, and a property settlement with his victim, in the absence of any of which he will be given a cell unheated throughout the year. Anyone familiar with Hiroshige woodcuts knows that in winter Japan looks like Vermont.
After six years of research, including 33 months in the field, and after discovering that investigations are sometimes coercive, that truth is fabricated, corrupted and concealed, that prosecutors are unaccountable, that defense lawyers are all but impotent, and that the system is hostile to external scrutiny, Johnson concludes that "it is worth considering that American criminal justice works worse than criminal justice in Japan". He gives higher marks to Japanese prosecutors for refraining from charging in the absence of a belief in the defendant's guilt, for being markedly more respectful of defendants, for obsessively learning the facts, for taking into account the needs and circumstances of individuals, and for promoting healing and not just punishment. He finds Japanese prosecutors actively involved with rehabilitation and reintegration, and fearfully preoccupied with error, notwithstanding that their decisions are made after two or three levels of thorough reviews with superiors. He points to their substantial rate of suspending prosecutions, contrary to American practice, and he cites the fact that Japanese sanctions are less severe than our own. Johnson may have reservations about the Japanese system, but they are insufficient "to change the bottom line: the Japanese way of justice is uncommonly just."
In 'The Best Defense' (xv, 1982), Alan Dershowitz wrote: "I have only one agenda: I want to win... It is the job of the defense attorney - especially when representing the guilty - to prevent, by all lawful means, the 'whole truth' from coming out". An American lawyer who made that statement in a Japanese interrogation room would probably be last seen, so to speak, in a Japanese memorial urn.
For myself, if I were poor and innocent, give me that Japanese obsessive prosecutorial fact seeker and let the Charlie Chaplin defense counsel tag along, but if I were poor and guilty, give me that harried, underpaid American prosecutor and, though I cannot have the original, find me a Legal Aid Alan Dershowitz look-alike.