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The Reality of the “Right to Counsel” in Japan and the Lawyers' Campaign to Change It
Published online by Cambridge University Press: 14 March 2025
Abstract
The arrest and detention of Carlos Ghosn attracted global attention to Japan's treatment of criminal suspects, often described as “hostage justice.” Police and prosecutors easily obtain lengthy detentions of criminal suspects prior to filing formal charges during which time attorneys are prohibited from attending interrogations of their clients. Most suspects confess during these interrogations.
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- Copyright © The Authors 2020
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Notes
1 See “Call to Eliminate Japan's ‘Hostage Justice’ System by Japanese Legal Professionals,” an English translation.
2 Nishi Nihon Shimbun, Nov. 8, 2019. 「判断、もっと慎重に」取り調べの身体拘束NO、九州で拡大 弁護士会が運動展開、全国でも上位に
3 Tokyo Shimbun, May 19, 2019.
4 The relevant language in Article 37 reads “…At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.”
5 2017 White Paper on Attorneys (bengoshi hakusho), page 41. Readers will notice that the chart shows a decline in the number of arrests over the past 15-year period. Study of the reasons for this decline is beyond the scope of this paper. Makoto Ibusuki recommends the following two articles for fruitful discussion of this issue: Koichi Hamada, “Why is the Number of Crimes Decreasing?”「なぜ犯罪は減少しているのか, 」浜井 浩一, 犯罪社会学 研究 第38号 2013年; and and Taisuke Kanayama, “The Declining Number of Crimes in Recent Years and the Metamorphosis in Crime”「近年の刑法犯の減少と犯罪の転移,」金山泰介, 早稲田大学社会安全政策研究所紀要 (8), 17-37, 2015
6 This scheme was modeled on a Duty Solicitor scheme created in the United Kingdom in the 1980s.
7 “2017 White Paper on Attorneys,” p. 38.
8 Japanese attorneys (bengoshi) are required to register in both a local bar association and the national Japan Federation of Bar Associations (JFBA). Mandatory bar associations are established for each prefecture.
9 The Japan Legal Aid Association (法律扶助協会) was founded by the JFBA in 1952 to provide funding for legal services. It was disbanded in March 2007. This program was called the Criminal Suspect Defense Aid (CSDA) (被疑者弁護援助制).
10 Emergency Fund for Duty Attorney System (当番弁護士等緊急財政基金)
11 少年・刑事財政基金
12 The JFBA is still collecting the fee from the members every year. The monthly fee was 1,900 yen until it was reduced in May 2020 to 1,600 yen per month.
13 Mark Levin and Adam Mackie have published an exhaustive listing of English language material that discuss the Council and subsequent reforms. See Levin and Mackie, “Truth or Consequences of the Justice System Reform Council: An English Language Bibliography from Japan's Millennial Legal Reforms,” Asian-Pacific Law & Policy Journal, Vol. 14, No. 3 (2013). For a brief overview, see Daniel H. Foote, “Introduction and Overview,” in Foote (ed) Law in Japan – A Turning Point (University of Washington Press, 2007).
14 JLSC 2018 White Paper.
15 Regarding the launch of lay judge trials, see Kaori Kano & Stacey Leanne Steele, Japan's Lay Judge System (Saiban-in Seido) and Legislative Developments: Annotated Translation of the Act Amending the Act on Criminal Trials with Participation of Saiban-in, and Makoto Ibusuki, “Quo Vadis?”⁑ First Year Inspection to Japanese Mixed Jury Trial (2011)
16 Criminal Procedure Code Article 289: “When a case is punishable by the death penalty, life imprisonment, life imprisonment without work, or imprisonment or imprisonment without work whose maximum term is more than three years, the trial may not be convened without the attendance of defense counsel.”
17 Summary; Bill; Outline
18 Code of Criminal Procedure Article 39 (3): “A public prosecutor, public prosecutor's assistant officer or judicial police official (”judicial police official“ means both a judicial police officer and a judicial constable; the same shall apply hereinafter) may, when it is necessary for investigation, designate the date, place and time of the interview or sending or receiving of documents or articles prescribed in paragraph (1) only prior to the institution of prosecution; provided, however, that such designation shall not unduly restrict the rights of the suspect to prepare for defense.”
19 Daniel Foote discusses the general designation system and notes that in 1988 the Ministry of Justice revised internal guidelines in order to relax the use of the designation system in “Policymaking by the Japanese Judiciary in the Criminal Justice Field,” Hōshakaigaku, vol. 72, p.6, at 15-16. (2010)
20 Judgment of the Supreme Court Grand Bench, March 24, 1999. Minshu Vol. 53, No. 3, page 514. (最高裁大法廷平成１１年３月２４日民集５３巻３号５１４頁)
21 Repeta interview with Masatoshi Uchida, July 2019. (Repeta translation of Uchida comment.)
22 A list of these cases is available on the JFBA website.
23 E.g., Supreme Court (3rd P.B.), Judgment of June 13, 2000, 54 Minshū 1635, and Supreme Court (3rd P.B.), Judgment of April 19, 2005, 59 Minshū 563. Daniel Foote discusses these cases in “Policymaking by the Japanese Judiciary in the Criminal Justice Field,” Hoshakaigaku, vol. 72, p.6, at p. 38.
24 See “Call to Eliminate Japan's ‘Hostage Justice’ System by Japanese Legal Professionals,” an English translation.
25 Nishi Nihon Shimbun, Nov. 8, 2019. 「判断、もっと慎重に」取り調べの身体拘束NO、九州で拡大 弁護士会が運動展開、全国でも上位に
26 2019 White Paper on Attorneys, (JFBA, 2019), p. 91, Figure 2-1-1-9.
27 Ibid., p. 93, Figure 2-1-1-14.
28 Ibid., p. 93, Figure 2-1-1-15.
29 Professor Hiroyuki Kuzuno of Hitotsubashi University was one of the first to make this connection. Hiroyuki Kuzuno, “Keiji Shihō Kaikaku to Keiji Bengo (Judicial System Reform and Criminal Defense)” (2016), p 333-335.
30 Asahi Shimbun Digital, Aug. 22, 2019; Kanagawa Shimbun, Dec. 11, 2017.
31 Makoto Ibusuki is skeptical regarding the effect of civil judgments on police behavior. He addressed this issue in an expert opinion submitted to the court in the infamous Shibushi case. The case was reported by The New York Times. See Norimitsu Onishi, “Pressed by Police, Even Innocent Confess in Japan,” (May 11, 2007). See also the Japan Federation of Bar Associations comment.
32 Judgment of the Supreme Court Grand Bench, March 24, 1999, supra note 20.
33 Many members of Japan's legal community are aware of principles laid down by the U.S. Supreme Court in cases such as Miranda, Escobedo, and Gideon, but these U.S. developments seem to have had no impact on the Supreme Court.
34 Nishi Nihon Shimbun, Nov. 8, 2019. 「判断、もっと慎重に」取り調べの身体拘束NO、九州で拡大 弁護士会が運動展開、全国でも上位に
35 Asahi Shimbun Digital, Aug. 22, 2019.
36 For background on the 2016 reforms, see S. Umeda, “Japan: 2016 Criminal Justice System Reform,” The Law Library of Congress.
37 “Japanese police and prosecutors now required to record some interrogation”, Japan Times, June 1st, 2019. The U.S. Supreme Court has not ruled that criminal suspects hold a right to have interrogations video recorded. However, at least since the Miranda decision in 1966, American suspects have had the right to presence of counsel during interrogations, which is still denied in Japan.
Video recording employed by U.S. states is usually based on a law passed by each state legislature. There are only two states where court decisions mandate recording of suspect interrogations. See, Alaska: Stephan v. State, 711 P. 2d 1156 (1985), Minnesota: State v. Scales, 518 N. W. 2d 587 (1994). On the other hand, some states have court rules requiring the video recording of interrogation (New Jersey, Indiana and Arkansas).
38 For the Muraki case, see articles below from Japan Times, Nippon.com and The Asia-Pacific Jounal: Japan Focus.
39 Japan Federation of Bar Associations, “Declaration Demanding Establishment of the Right to Receive the Assistance of Counsel – Attendance During Interrogations Will Change Criminal Justice”, October 4, 2019. (弁護人の援助を受ける権利の確立を求める宣言 -- 取 調べへの立会いが刑事司法を変える) ２０１９年（令和元年）１０月４日 日本弁護士連合会