Outline of Criminal Justice

in JAPAN
2023

Supreme Court of Japan

 CONTENTS

I. HISTORY OF MODERN CRIMINAL 2. Disclosure of evidence ······················ 18

JUSTICE IN JAPAN ······························· 4 3. Principle of the adversary system ········ 18
II. OUTLINE OF CRIMINAL JUSTICE IN 4. Exclusion of hearsay evidence ··········· 18
JAPAN ··············································· 6 5. Designation of a trial date ·················· 18
A. Three-tier Court System ······················· 6 6. Bail ··············································· 19
B. Court of First Instance ··························· 6 7. Bail requests before first trial date
1. Summary court ································· 6 ·············································· 20
2. District court ····································· 7 E. Appointment of Saiban-in (Lay Judges)
C. Court of Appellate Instance ················· 8 ·············································· 20
1. Court of second instance ··················· 8 F. Trial ················································· 21
2. Final appellate instance ······················ 9 1. Opening proceedings ························· 23
III. PROCEEDINGS FROM INVESTIGATION 2. Examination of evidence ····················· 24
TO JUDGMENT IN THE FIRST INSTANCE 12 3. Examination of witnesses ·················· 25
A. Introduction ······································· 12 4. Questioning the accused ··················· 26
B. Investigation ····································· 12 5. Confession ····································· 27
1. Offense and opening of investigation ····· 12 6. Demonstration of circumstances
2. Arrest ············································ 13 (The One-Phase System of Criminal
3. Referral to the public prosecutor ········· 14 Proceedings) ···································· 27
4. Detention of the suspect ··················· 14 7. Closing Arguments ··························· 28
C. Institution of Prosecution ···················· 16 8. Deliberations ·································· 29
D. Trial Preparation (including requests for 9. Judgment ········································ 30
bail) ················································ 17
1. Pretrial conference procedure ·············· 18
Ⅰ. HISTORY OF
MODERN CRIMINAL
JUSTICE IN JAPAN

The development of the criminal justice system in a modern sense was undertaken
after 1867.
In 1880, the government promulgated Chizaiho, the Criminal Procedure Law, modeled
after the Napoleonic criminal code from France. In 1890, the Criminal Procedure Law
was revised to become the Code of Criminal Procedure, the first western style
comprehensive criminal justice system adopted in Japan.
In 1922, a new Code of Criminal Procedure was promulgated, influenced by German
Law. Thus, the Code of Criminal Procedure from the Meiji era onward can be said to be
fully based on the Continental European system.
The current Code of Criminal Procedure was promulgated in accordance with the
principles of the new postwar Constitution in 1948 to fully protect fundamental human
rights.
Under this code, the Continental European system is maintained to a much greater
degree, while at the same time, the best characteristics of Anglo-American law have
been adopted.
The most notable points are the stringent requirements on judicial warrants for
compulsory investigations, restrictions on the admissibility of evidence, such as the
hearsay rule, and adoption of the adversary system in the court procedure. Therefore,
the current Code of Criminal Procedure can be considered a hybrid of the Continental
European and Anglo-American legal systems.
As a result of various systemic reforms since the end of the 20th century, the role of
the judiciary has become more important. Thus, the judicial system has been reformed
to afford swifter, more familiar and reliable justice for the general public. In terms of
criminal justice, criminal procedures have also been amended to enhance and speed up
the process, and to expand the public defense system.
Additionally, a Saiban-in system has been in place since May 21, 2009, in which the
general public participates in the trial and judgment of criminal cases. As described, the
criminal justice system in Japan has evolved and improved in order to better suit the
21st century.

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HISTORY OF MODERN CRIMINAL JUSTICE IN JAPAN
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

The Courthouse of Fukui District Court

5
HISTORY OF MODERN CRMINAL JUSTICE IN JAPAN
Ⅱ. OUTLINE OF
CRIMINAL Justice
IN JAPAN

with the suspect that there is no objection to the

A. Three-tier Court System application of the summary proceeding prior to
A three-tier court system is adopted for Japanese initiating the procedure.
criminal cases. One of two types of courts (either a A Summary court examines documentary and
district or summary court) is used as the court of material evidence submitted by the public
first instance depending on the severity of the prosecutor without holding a court hearing, and may
statutory penalty for the charged offense as impose a fine of not more than 1,000,000 yen on the
described in the charging sheet for criminal cases. accused. If any party objects to the summary order
The high court is then the court of second instance, and requests a formal trial, the case is transferred to
while the Supreme Court is the final appellate court a trial procedure in a court of first instance.
of appeal. Refer to Graph 1 for statistics on summary
proceedings and formal prosecutions.
B. Court of First Instance Graph 1. Comparison of Applications for Summary Orders
and Formal Prosecutions; Cases Brought to High Courts, to
1. Summary court District Courts and to Summary Courts for Formal
Prosecutions (2021)
a. Jurisdiction
A summary court generally only has jurisdiction
over criminal cases where the penalty is a fine or
lighter. It is vested with the power to impose
imprisonment with work with regard to a certain
scope of offenses that are punishable by light
statutory penalties, such as theft and
embezzlement, only with a term of sentence as
limited by law.
b. Composition of the court
A single judge handles each case in summary
court.
c. Summary proceedings
Summary proceedings that do not require a court
hearing can be used for simple punishment of
minor crimes where the facts are not in dispute at a
summary court. Summary proceedings are initiated
by the public prosecutor requesting a summary
order at the same time as the institution of
prosecution. The public prosecutor must confirm

(Note) Source: Annual Report of Statistic on Prosecution

6 for 2021, Ministry of Justice
OUTLINE OF CRIMINAL JUSTICE IN JAPAN (Note)"Prosecution" includes a request for alternation of
counts.
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

2. District court
a. Jurisdiction
The district court has jurisdiction as the court of
first instance over criminal cases other than those
liable for fines or lesser punishment. There are no
summary proceedings for cases sent to a district
court, for which court hearings are always held.
b. Composition of the court
In the district court, a single judge handles each
case except for certain crimes with heavy statutory
penalties, which are handled by a panel of three
judges.
Graph 2. Number of Cases Handled by Single-Judge
Certain types of serious crimes in which the and by Three-Judge Panel (Ordinary District Court
Cases in the First Instance) (2021)
general public has a strong interest are designated
to be handled under the Saiban-in system.
is much like the jury system adopted in the United
The courts can also handle other cases with a
States and elsewhere.
three-judge panel at their own discretion. Refer to
However, Saiban-in conduct deliberations together
Graph 2 for the number of cases handled by a
with judges, and determine the sentence as well as
single judge and a three-judge panel, respectively.
whether the accused is guilty or not, which is
c. Saiban-in system
different from other jury systems.
Fact-finding and sentencing are conducted by a
As described above, the Saiban-in system is
panel comprised of six Saiban-in chosen from the
unique to Japan, differing from both the citizen
general public together with three judges for certain
participation and jury systems.
types of serious crimes in which there is strong
d. Expedited trial proceedings
public interest, such as homicide, robbery causing
Among cases handled by a single judge at district
death or injury, arson of inhabited buildings, and
and summary courts, those deemed clear and minor
kidnapping for ransom.
can be tried via expedited trial proceedings.
The Saiban-in system is the same as the citizen
In expedited trial proceedings, the court sets a trial
participation system adopted in Germany and
date as early as possible, applies a less rigorous
France, etc. in that the panel is comprised of both
examination of the evidence, and renders a
Saiban-in and judges.
judgment within one day insofar as possible. When
However, Saiban-in find facts and determine the
a court renders a judgment of imprisonment in
sentence with the judges, while issues of legal
expedited trial proceedings, execution of the
interpretation are handled entirely by the judges,
sentence shall be suspended.
which differs from the citizen participation system in
In order to conduct expedited trial proceedings,
Germany, France, etc.
when the public prosecutor deems it appropriate,
On the other hand, the Saiban-in are appointed
the public prosecutor must secure the consent of the
by random selection from among persons
suspect, and then make a petition in writing for
registered in the list of voters for each case, which

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OUTLINE OF CRIMINAL JUSTICE IN JAPAN
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

expedited trial proceedings at the time of instituting Therefore, proceedings in the court of second
prosecution. instance are mostly restricted to oral arguments
Then, if the defense counsel for the suspect also made by the public prosecutors and defense
agrees to the case being tried by expedited trial counsels, and in contrast to the first instance, the
proceedings and the accused states that he/she is high court does not examine witnesses or other
guilty at the opening proceedings of the ordinary evidence.
trial of first instance, the court will decide to apply However, the court of second instance
the expedited trial proceedings. exceptionally examines evidence that was not
This is different from an arraignment in the United assessed in the first instance when they consider
States and other jurisdictions, in which the that it is necessary to investigate facts that remain
evidence is examined even though the accused unclear after examining the records of the first
has admitted guilt. instance.
Once the court of second instance has reviewed
C. Court of Appellate Instance the records of the first instance and confirms that
1. Court of second instance there was no error in the judgment through the trial
If either party is dissatisfied with the judgment in procedure, the court then dismisses the appeal.
the first instance, said party can appeal to a court On the other hand, if the court admits that an error
of second instance with a demand to reverse the was made and the judgment in the first instance
judgment by alleging that errors were committed. It should be revised, the court must reverse the
is noteworthy that the public prosecutor also has judgment.
the right of appeal in the same way as the If the court of second instance admits that the court
accused. of first instance should reexamine the evidence or
All appeals for criminal cases are handled by high revise its judgment, it will reverse the judgment and
courts, with such appeal cases being tried by a remand the case to the court of first instance, and a
three-judge panel. An appeal can be made to the retrial will be held at the court of first instance.
court of second instance on the following grounds: However, the high court can also immediately
(1) Non-compliance with procedural law in the trial render a new judgment based on the case records
procedure and evidence examined by the court of the first and
(2) An error in the interpretation or application of second instance if appropriate.
law in the judgment In any of these cases, if only the accused
(3) Excessive severity or leniency of a sentence ; appealed, any sentence determined will not be
or heavier than that rendered by the court of first
(4) An error in fact-finding instance.
The procedure for the court of second instance is Needless to say, any judgment by the high court is
to review the court proceedings and judgment in binding on the court of first instance when the case
the first instance through the records, rather than is remanded to the court.
holding a new trial to conduct fact-finding again.

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OUTLINE OF CRIMINAL JUSTICE IN JAPAN
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

Table 1. Reasons for Reversals by Courts of Second Instance

Classifi-
Due to inappropriate sentencing Due to errors in fact finding Due to errors in application of law Others
cation Number Number
of of
Remanded Remanded Remanded
the accused reversals Total Own Total Own Total Own Total
or or or
% % % % % % number % %
trans- trans- trans-
judgment judgment judgment
ferred ferred ferred
Year (A) (B) (C) (C/B) (C/A) (D) (D/B) (D/A) (E) (E/B) (E/A) (F) (F/B) (F/A)

2017 6,098 587 111 111 - 18.9 1.8 79 76 3 13.5 1.3 54 43 11 9.2 0.9 361 61.5 5.9

2018 5,710 576 95 95 - 16.5 1.7 98 81 17 17.0 1.7 56 45 11 9.7 1.0 352 61.1 6.2

2019 5,828 530 70 69 1 13.2 1.2 66 58 8 12.5 1.1 40 35 5 7.5 0.7 372 70.2 6.4

2020 5,332 507 65 65 - 12.8 1.2 74 61 13 14.6 1.4 33 22 11 6.5 0.6 352 69.4 6.6

2021 5,331 513 58 58 - 11.3 1.1 71 65 6 13.8 1.3 38 30 8 7.4 0.7 358 69.8 6.7

(Note) Cases for which judgments were reversed based on multiple grounds are recorded in multiple appropriate columns.

2. Final appellate instance of the final appeal system; therefore, the procedure
Either party can make a final appeal to reverse of the final appellate instance is different from that of
the judgment of the court of second instance. the first and second instances in that there is no
The Supreme Court handles all final appeals. examination of witnesses.
At the Supreme Court, cases are generally However, the Supreme Court is the court of last
handled by a Petty Bench comprised of five resort in Japan, so it has the discretionary power to
justices, but cases involving important reverse any judgment in the second instance if it
constitutional issues and the like are handled by determines that leaving the judgment intact clearly
the Grand Bench comprised of all fifteen justices. constitutes an injustice.
Final appeals can only be filed on the following The types of judgment of the final appellate court
grounds: are almost the same as those in the court of second
(1) A violation of the Constitution or an error in the instance.
interpretation of the Constitution; or In other words, if the Supreme Court admits that
(2) An alleged conflict with precedents of the there was no error in the judgment of second
Supreme Court or high courts instance, the final appeal will be dismissed, whereas
However, the final appellate court may reverse the the case will be remitted to the lower court if the
judgment in the first or second instance under judgment is reversed by the Supreme Court.
special circumstances if it deems that not doing so However, the Supreme Court may also remit a
would clearly be contrary to justice. case to the court of first instance rather than to the
As a guardian of the Constitution, the Supreme court of second instance when reversing the
Court is the court of last instance, with the authority judgment of second instance.
to determine whether or not all laws, orders, The Supreme Court can also render its own
regulations and measures comply with the judgment immediately when it deems that it is
Constitution. possible to do so based on case records and
Therefore, ensuring appropriate interpretation of evidence.
the Constitution and the law is the primary purpose

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OUTLINE OF CRIMINAL JUSTICE IN JAPAN
 Table 2. Dispositions by the Supreme Court
Classifi-
Dismissal of appeal Reversal
cation Number of Percentage Percentage Withdrawal Dismissal
the accused dismissed reversed of of
Own judgment
Total Remanded appeal prosecution
by by
% Total Dismissal or % and others
judgment decision Guilty Not guilty for Transferred
Year (A) (B) (B/A) (C) judicial bar (C/A)

2017 2,106 5 1,771 1,776 84.3 1 - 1 - - 0.0 327 2

2018 1,993 2 1,700 1,702 85.4 6 4 1 - 1 0.3 280 5

2019 2,091 5 1,737 1,742 83.3 3 3 - - - 0.1 338 8

2020 1,881 5 1,513 1,518 80.7 3 - - - 3 0.2 354 6

2021 1,852 2 1,576 1,578 85.2 3 1 - - 2 0.2 263 8

(Note) Special appeals to the court of the last resort and extraordinary appeals to the court of the last resort are not included.

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OUTLINE OF CRIMINAL JUSTICE IN JAPAN
OUTLINE OF CRIMINAL JUSTICE IN JAPAN

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OUTLINE OF CRIMINAL JUSTICE IN JAPAN
Ⅲ. PROCEEDINGS FROM
INVESTIGATION TO
JUDGMENT IN THE
FIRST INSTANCE
A. Introduction
Based on a procedure for cases heard by Saiban-in, this chapter explains the criminal justice procedure,
from the investigation following a crime and institution of prosecution through to the preparations for a
criminal trial, appointment of Saiban-in, and the trial from within the criminal justice procedure at courts in
Japan based on the overview in Chapter 2, with certain casebook examples presented in the frames.

B. Investigation

On June 4, 2022, a homicide was committed at a tavern in Minato-ku, Tokyo.

Although police officers rushed to the scene as soon as it was reported, the assailant escaped.
According to a witness, the victim was Akiko ●● (Ms.), who was an employee of the tavern, and the
assailant was Taro □□ (Mr.), who suddenly stabbed her in the chest with a knife after she refused his
entreaties to reconcile with him.
The police officers noted the witness’ explanation and requested from a judge an arrest warrant for Taro on
the charge of homicide.
The judge reviewed the documents submitted by the police officer and duly issued an arrest warrant.

investigation results before considering whether the

1. Offense and opening of investigation case will withstand the rigors of the institution of
a. Investigative authorities prosecution, or when he/she deems it necessary,
The criminal justice procedure starts with an and conducts additional investigations. The public
investigation by the authorities. prosecutor is a legal expert from an administrative
There are various triggers for an investigation, department of the government, and his/her status is
such as reports and notifications from victims or guaranteed in the same way as judges for
witnesses of crimes, police interviews and quasi-judicial services.
questioning, complaints, and accusations, Police officers and public prosecutors are mutually
depending on the type and nature of the case and independent authorities, unrelated hierarchically,
offense. who handle such investigations cooperatively.
The main investigative authorities consist of police However, public prosecutors may advise or instruct
officers and public prosecutors. police officers when necessary (Article 193 of the
The task of police officers is to maintain social Code of Criminal Procedure).
security, but in the case of an investigation, they b. Requirement for judicial warrants
are the primary investigative authority as judicial Articles 33 and 35 of the Constitution state that no
police officers, and thus represent the main power. person shall be apprehended, searched, or seized
The public prosecutor receives cases referred by except upon order of a warrant issued by a judge,
police and takes over the police officers’ unless he/she is committing or has just committed

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

an offense.
This system is known as the warrant principle, and
its aim is to ensure that compulsory investigations
are not left to the sole discretion of the investigative
authorities, but that a judge who takes a fair and
neutral stance determines their necessity in
advance.
Compulsory investigations can be implemented
exceptionally only as stipulated under the law
(Article 197 of the Code of Criminal Procedure.
Legal principles for compulsory investigations).
The inappropriate exercising of authority during an (1) Ordinary arrest based on a warrant issued by a
investigation while crimes are being investigated judge in advance
and evidence collected and preserved may (2) Emergency arrest to physically restrain a
constitute serious abuse of an individual’s suspect for a serious crime when a warrant from a
fundamental rights and freedoms as a citizen. judge cannot be obtained in advance due to the
Therefore, how to balance the demand to swiftly urgency of the situation, with the request for a
and appropriately achieve the purpose of an warrant submitted to a judge immediately after the
investigation and reveal the truth with the need to arrest; and
prevent abuse of the fundamental rights and (3) On-the-spot arrest without an arrest warrant to
freedoms of citizens is an important perspective in physically restrain a suspect when the person is
any investigation. apprehended in the act of committing or having just
committed an offense, and there is no doubt about
2. Arrest his/her identity
In the case of an ordinary arrest, the police officer
On June 6, Taro was arrested by a police officer
must show the arrest warrant to the suspect (Article
on the basis of the arrest warrant. Taro was
201 of the Code of Criminal Procedure), and
detained after being informed of the facts
immediately advise him/her of the essential facts of
concerning the crime as described in the warrant
the suspected crime and of the fact that the suspect
and his right to appoint a defense counsel, and
may appoint a defense counsel, after which he/she
was given an opportunity to provide an
is given an opportunity to explain (Article 203,
explanation.
paragraph (1) of the Code of Criminal Procedure).
a. Arrest
An arrest is a compulsory measure to physically b. The right to remain silent and its notification
restrain a suspect, limiting his/her physical freedom procedure
for a certain period to prevent the concealment or When investigating the suspect, the police officer
destruction of evidence as well as his/her escape. must notify the suspect that he/she has the right to
Three types of arrest are defined under the Code remain silent.
of Criminal Procedure as follows. Article 38, paragraph (1) of the Constitution states,

13
PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 “No person shall be compelled to testify against (2) and (4) of the Code of Criminal Procedure).
himself.” 4. Detention of the suspect
This constitutional right is extended, and Article
198, paragraph (2) of the Code of Criminal The judge examined the documents, and after
Procedure states that the suspect must be notified questioning Taro and offering him an opportunity
of his/her right to remain silent: “In the case of an to provide an explanation, issued a detention
interrogation… the suspect shall, in advance, be warrant on the same day.
notified that he/she is not required to make any On June 17, the public prosecutor requested
statement against his/her will. an extension of the detention period from a
judge because their investigation was not
3. Referral to the public prosecutor complete. The judge decided that this was
unavoidable and extended the detention period
for 10 days.
The police officer referred Taro to the public
prosecutor with the documents and articles of
a. Definition and requirements for detention of
evidence at 10:00 a.m. on June 8.
the suspect
The public prosecutor considered that further
Detention of a suspect is a compulsory measure
physical restraint was needed, after providing Taro
applied following an arrest and is restricted to
with an opportunity to provide an explanation
arrested suspects only; only a public prosecutor
regarding the suspected facts of the crime and
can request a detention.
assessing the documents and articles of evidence.
Detention of a suspect is permitted when there is
Consequently, the public prosecutor requested
probable cause to suspect he/she committed a
to detain the suspect at 4:00 p.m. on the same
crime, and if any of the following apply (Article 207,
day.
paragraph (1) and Article 60, paragraph (1) of the
Code of Criminal Procedure);
Since the fundamental rights and freedoms of a
(1) The suspect has no fixed residence
suspect are restricted to a large degree, the period
(2) There is probable cause to suspect that the
of physical restraint is strictly stipulated under the
suspect may conceal or destroy evidence; or
law. When a suspect is arrested by a police officer,
(3) The suspect fled or there is probable cause to
the police officer must refer the suspect to a public
suspect that he/she may flee
prosecutor together with the documents and articles
The judge receives the request and reviews the
of evidence within 48 hours of his/her arrest (Article
documents and other supporting evidence, and if
203, paragraph (1) of the Code of Criminal
he/she determines that the requirements for
Procedure).
detention have been fulfilled after notifying the
The public prosecutor who receives such a referral
suspect of his/her right to remain silent and right to
must determine whether to release the suspect or
appoint defense counsel and directly listening to the
request a judge to detain the suspect for further
suspect’s explanation, the judge may then issue a
physical restraint within 24 hours of receiving the
detention warrant.
suspect, with the period of physical restraint not
exceeding 72 hours (Articles 205, paragraphs (1),

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

b. Period of detention prior to the institution of stipulates, “At all times, the accused shall have the
prosecution assistance of competent counsel who shall, if the
The detention period prior to the institution of accused is unable to secure the same by his own
prosecution is limited to 10 days from the day on efforts, be assigned for his/her use by the State.”
which the detention is requested (Article 208, Accordingly, the Code of Criminal Procedure
paragraph (1) of the Code of Criminal Procedure). stipulates a system for the court to appoint defense
However, a judge is permitted to extend this counsel (Article 36, Article 37, and Article 289 of the
period by up to a further 10 days upon request from Code of Criminal Procedure).
the public prosecutor if unavoidable circumstances Previously, suspects did not have the right to
exist, such as when further investigation is request a court-appointed defense counsel, but
necessary (Article 208, paragraph (2) of the Code currently, when detention is required or a detention
of Criminal Procedure). Although it is extremely warrant is issued, if the suspect cannot appoint
rare, detention can be extended for five additional defense counsel privately due to indigence or other
days for certain crimes, such as insurrection (Article reasons, the suspect can request a court-appointed
208-2 of the Code of Criminal Procedure). defense counsel from a judge (Article 37-2 of the
Code of Criminal Procedure).
c. Written statement taken by a public Even if the suspect did not request
prosecutor court-appointed defense counsel when the
Such interrogation as deemed necessary to detention warrant was issued, in the event there is
achieve the purpose is permitted in an any doubt that the suspect may not be able to
investigation, and the public prosecutor may determine whether or not defense counsel is
interrogate both suspects and witnesses during the needed due to diminished mental capacity or any
investigation stage and is authorized to prepare a other reason, a judge can appoint defense counsel
written transcript of their oral statements in the ex-officio (Article 37-4 of the Code of Criminal
public prosecutor’s presence (Article 197 and Procedure).
Article 198, paragraphs (1) and (3) of the Code of
Criminal Procedure). e. Right to interview with defense counsel
There are rules excluding hearsay evidence in the Article 39, paragraph (1) of the Code of Criminal
Code of Criminal Procedure (described later). Procedure stipulates, “The accused or the suspect
However, according to Article 321, paragraph (1), in custody may, without any official being present,
item (ii) of the Code of Criminal Procedure, under have an interview with, or send or receive
exceptional circumstances, and provided that all documents or articles from counsel or prospective
legal requirements are satisfied, the court may counsel upon the request of any person entitled to
adopt a document that contains a statement given appoint counsel.” As described, arrested suspects
before a public prosecutor created at the or suspects under detention have the right to
investigation stage as evidence. receive advice from defense counsel by means of
an interview without any official being present,
d. Court-appointed defense counsel system which is known as the right to interview with
Article 37, paragraph (3) of the Constitution defense counsel.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 C. Institution of Prosecution appropriate, based on claims by the victim or a
party concerned in criminal cases, or under its own
On June 27, the date on which his detention would
authority.
expire prior to the institution of prosecution, the public
The Committee for Inquest of Prosecution is
prosecutor submitted a charging sheet to the Tokyo
comprised of 11 members selected by lottery from
District Court, charging Taro with homicide.
among Japanese nationals aged 18 or older with
the right to vote in elections of the House of
In Japan, there is no allowance for criminal
Representatives.
prosecutions to be instituted by victims or any
The purpose of this system is to reflect public
persons other than the state (state prosecution
opinion in the appropriate exercising of
policy), and among state institutions, the right to
prosecutorial authority.
prosecute is only vested in public prosecutors
From May 21, 2009, a system was adopted
under Article 247 of the Code of Criminal
whereby suspects could be prosecuted when the
Procedure; this is known as the monopolization of
Committee for Inquest of Prosecution resolved to
prosecution.
pass an institution of prosecution under certain
At the same time, public prosecutors can decline
conditions for cases previously dismissed by a
to prosecute at their own discretion as stipulated
public prosecutor.
under Article 248 of the Code of Criminal
Another system is a quasi-prosecution procedure
Procedure, even if well-grounded suspicion exists
(Article 262 and later of the Code of Criminal
and they believe the suspect is guilty.
Procedure).
A prosecution need not be instituted if it is not
The person who filed the criminal complaint or
deemed necessary considering the criminal’s
character, age, environment, gravity of the offense, Graph 3. Case Dispositions by Public Prosecutors (2021)

situation when the crime was committed, and the

circumstances after the offense was committed,
etc. This is called the principle of discretionary
Juvenile
prosecution. delinquency cases
referred to
Refer to Graph 3 for statistics on the ratio of the Family Court
38,001
public prosecutors’ final disposition. (4.9%)
Prosecution
244,425
Public prosecutors have wide-ranging (31.6%)

prosecutorial discretion in Japan, and there are two Total

Non-prosecution 774,522 Prosecution
juristic systems in place to remedy any abuse or 492,096 (100.0%) 244,425
(63.5%)
illegal exercising of that discretion by public
prosecutors.
The first is an examination by the Committee for
Inquest of Prosecution.
The Committee for Inquest of Prosecution
investigates whether or not a public prosecutor’s
decision not to institute prosecution was (Note) Source: Annual Report of Statistic on Prosecution for 2021, Ministry of Justice
（Note）"Prosecution" includes a request for alternation of counts.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

accusation may demand that a trial be held in a

Taro claimed that Akiko suddenly approached
district court if they are dissatisfied with a public
him. Therefore, the defense counsel also
prosecutor’s decision not to institute prosecution
demanded from the public prosecutor disclosure
where the crime involves a public officer.
of other written transcripts of Mr. △△'s oral
If it is judged that the demand has sufficient
statements that were not planned to be submitted
grounds, the court will adjudge that the case should
for examination, which were then provided.
be committed to the competent district court. In this
The defense counsel clarified during the pretrial
case, it is considered that the prosecution regarding
conference procedure that the allegation
the case deemed to have been instituted and an
described on the charging sheet that the accused
attorney appointed by the court exercise the same
had intended to kill Akiko would be disputed.
function as a public prosecutor.
The defense counsel consented to examination
D. Trial Preparation (including requests for
of all items of documentary evidence requested by
bail)
the public prosecutor, except for the written
The case for Taro was assigned to the Third transcript of Mr. △△'s oral statement taken by the
Criminal Division, which is one of the three-judge prosecutor.
panels at the Tokyo District Court. Also, the defense counsel expressed no
Taro was charged with the crime of homicide, and objection to examination of the knife used in the
the case is to be tried and judged under the crime.
Saiban-in system. The public prosecutor demanded to examine
Pretrial conference procedure for the Taro case the witness, Mr. △△, since consent for
are to be held first, and the points at issue and examination of the written transcript of Mr. △△'s
evidence will be organized prior to the first trial date. oral statement taken by the prosecutor was not
At the same time as the pretrial conference given, and the defense counsel expressed no
procedure , the defense counsel, Mr. ▼▼, who was objection to such an examination.
requested by Taro, questioned his family about the It was then decided that Mr. △△ would be
background details. examined as a witness on the first trial date. It was
Also, a few days after the institution of prosecution, also decided that Ms. Maki □□, the mother of the
the defense counsel was notified by the public accused, would be examined as a defense
prosecutor that evidence which the public prosecutor witness, and the accused would be questioned,
was planning to examine in the trial can be inspected etc.
and copied. Once a rough trial plan was decided, the
The defense counsel visited the Public schedule for the Taro case was set. The first trial
Prosecutor’s Office to assess the evidence. date would be held on September 28, with the trial
The defense counsel thought that the written scheduled to finish on September 30, and thus the
transcript of Mr. Yoshinobu △△'s oral statement final trial plan was drawn up after arranging issues
taken by a public prosecutor was rather questionable. and evidence through the pretrial conference
According to this written statement, Mr. △△ said procedure.
that Taro pursued Akiko, who stepped back when she
saw the knife just before the stabbing, but this
contradicted the explanation provided by Taro.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 3. Principle of the adversary system
1. Pretrial conference procedure
The principle of the adversary system is adopted
The court may, upon the request of the public
in the current legislation. Under this principle, the
prosecutor, the accused or defense counsel or ex
court is able to examine evidence if needed, but the
officio, hold a pretrial conference procedure prior to
parties concerned have the initiative regarding the
the first trial date in order to arrange the issues and
collection and provision of evidence.
evidence of the case and establish a trial plan.
Through this procedure, a trial plan is established
4. Exclusion of hearsay evidence
after identifying the allegations, requesting
Article 37, paragraph (2) of the Constitution
examination of the evidence by both parties
guarantees the right of examination by stipulating:
concerned, and rendering a ruling to examine the
“The accused shall be permitted full opportunity to
evidence or dismiss the request for examination of
examine all witnesses, and shall have the right of
evidence, etc. Pretrial conference procedure must
compulsory process for obtaining witnesses on
be held in cases that adopt the Saiban-in system.
his/her behalf at public expense.”
Hearsay evidence cannot be used as evidence as
2. Disclosure of evidence
per Article 320 of the Code of Criminal Procedure.
When the public prosecutor requests examination
However, the Code of Criminal Procedure allows
of the documentary or material evidence, an
for some exceptions, such as when the accused
opportunity to inspect it must be provided to the
consents, or when the written statement is made
defense counsel in advance as promptly as
under special circumstances that lend credibility
possible after the institution of prosecution (Article
and are necessary to prove the facts of a crime.
299, paragraph (1), main clause of the Code of
Criminal Procedure, Article 178-6, paragraph (1),
5. Designation of a trial date
item (i) of the Rules of Criminal Procedure).
The court shall, insofar as possible, hold the trial
For cases involving pretrial conference
on successive days in cases which require several
procedure, the public prosecutor must disclose
days for the proceedings. Refer to Table 3 for the
evidence for which examination is demanded in the
average number of days expended for trials held
pretrial conference procedure to the defense
under the Saiban-in system.
counsel (Article 316-14 of the Code of Criminal
Procedure). Additionally, the public prosecutor
must, upon the request of the defense counsel,
disclose evidence belonging to a certain evidential
category that is deemed to be important to judge
the credibility of specific evidence for examination
requested by the public prosecutor (Article 316-15
of the Code of Criminal Procedure) and which is
deemed to be connected to the allegation of the
defense counsel (Article 316-20 of the Code of
Criminal Procedure), when he/she deems it
appropriate.

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 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

Table 3. Distribution of the number of the accused per actual trial period (from the first to the final trial date)
under the saiban-in system and average actual trial period（per guilty or not guilty plea）

Actual trial period

Average actual
Number of Within Within Within Within Over trial period
the accused 2 days 3 days 4 days 5 days 10 20 30 40 40 (days)
days days days days days

Total 966 1 58 92 98 367 281 47 11 11 10.6

2017 Pleaded guilty 449 1 53 84 63 184 58 5 1 - 7.2

Pleaded not guilty 517 - 5 8 35 183 223 42 10 11 13.5

Total 1,027 3 66 101 76 440 272 46 11 12 10.8

2018 Pleaded guilty 496 3 59 87 53 236 51 4 1 2 7.3

Pleaded not guilty 531 - 7 14 23 204 221 42 10 10 14.0

Total 1,001 - 96 104 79 370 281 50 12 9 10.5

2019 Pleaded guilty 491 - 91 86 59 188 59 8 - - 6.8

Pleaded not guilty 510 - 5 18 20 182 222 42 12 9 14.1

Total 905 1 56 68 70 351 276 54 12 17 12.1

2020 Pleaded guilty 432 1 54 54 45 196 69 9 - 4 8.3

Pleaded not guilty 473 - 2 14 25 155 207 45 12 13 15.6

Total 904 - 19 57 60 337 281 96 29 25 13.8

2021 Pleaded guilty 419 - 19 55 46 203 78 8 6 4 9.4

Pleaded not guilty 485 - - 2 14 134 203 88 23 21 17.6

(Note) The actual trial period for proceedings refers to the period from the first trial date to the final judgment (pronouncement
of judgment) and includes days when trials and other proceedings are not conducted as well as Saturdays, Sundays, and
public holidays.
(Note)Source: Fig. 42 of "Data for implementation status of trials examined by Saiban-in " published by the General
Secretariat of the Supreme Court of Japan (in Japanese only)

Meanwhile, the defense counsel requested bail. accused committed a serious crime and there is

This request was assigned to a judge in a different probable cause to suspect that the accused may

criminal division (the Warrant Division). conceal or destroy evidence.

When the public prosecutor opposed the granting of Use of the Saiban-in system is normally reserved

bail, the judge examined the case records, and for those charged with serious crimes.

interviewed the defense counsel upon his request. Article 90 of the Code of Criminal Procedure

After considering the nature of the crime and the further stipulates that even in the exceptional cases

degree of the risk that the accused might flee or specified in Article 89 of the same Code, the court

conceal or destroy evidence, the judge dismissed the may grant bail by its own authority if it deems it

bail request. appropriate in consideration of circumstances such

6. Bail as the degree of disadvantage that the accused

Bail is a system used to release the accused on would suffer in terms of his/her health, economic

the condition of payment of bail money. situation, social life or preparation for defense due

Under current legislation, bail is not available to to being placed under physical restraint

suspects before they are prosecuted. continuously, in addition to the degree of the risk

Article 89 of the Code of Criminal Procedure that the accused might flee or conceal or destroy

stipulates that when bail is requested, it must be evidence if he/she is released on bail.

granted except for certain cases, such as when the

PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE 19

 7. Bail requests before first trial date case to be heard by Saiban-in is fixed, each district
A judge other than the one scheduled to hear the court selects candidates as Saiban-in for each case
trial normally handles matters concerning detention from the list of Saiban-in candidates by lottery, and
before the first trial date (Refer to Article 280, sends out a notification for them to attend court on
paragraph (1) of the Code of Criminal Procedure,). the day of the proceedings to appoint Saiban-in.
This derives from the principal of eliminating the On the day of appointing Saiban-in, the presiding
risk of prejudice. judge asks the candidates about whether there are
any circumstances that would prevent them from
E. Appointment of Saiban-in (Lay Judges) acting as Saiban-in or any causes due to which
Saiban-in who will participate in the trial are they may file a motion for refusal.
appointed before the trial starts. Six Saiban-in are then appointed by lottery from
among the candidates, excluding those who are

Saiban-in are selected at random by lottery from unable to act as Saiban-in or are excused from

among Japanese nationals aged 18 or older with performing Saiban-in duties.

the right to vote in elecitons of the House of Alternate Saiban-in may be appointed to prepare

Representatives. for the case when appointed Saiban-in are unable

The actual process is as follows. Each district to attend.

court drafts a list of Saiban-in candidates by

around the fall of each year to be used the
following year.
In the following year, when the first trial date of a

2
2

Model view of a Saiban-in courtroom

1 Judges 2 Saiban-in 3 Court Clerk 4 Court Secretary 5 Public Prosecutor 6 Defense Counsel 7 Accused
(Note) Sometimes a court stenographer is seated next to a court clerk.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

F. Trial

Taro’s trial began in Courtroom 411 on the fourth floor of the Tokyo District Court at 10:00 a.m. on
September 28.
The trial procedure is as follows.
In cases that are not subject to being heard by Saiban-in, basically the same trial procedure is conducted,
with some differences including the following:, the trial is conducted by a single judge or a panel of judges:,
pretrial conference procedure are not necessarily required:, and at trials for which no pretrial conference
procedure were held, an opening statement by the defense counsel is not always presented, and a
statement of the results of the pretrial conference procedure is also not presented. Additionally, the public
prosecutor and defense counsel request to examine the evidence in open court, and the court decides
whether or not the evidence will be adopted after hearing the other party’s opinions, and examines the
evidence thus adopted.

21
PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 Criminal Case Proceedings

Opening Examination of Closing arguments Judgment Execution of

proceedings evidence sentence

Questioning on the Opening statement by Closing arguments by Acquittal Appeal to the

identity of the accused the public prosecutor the public prosecutor court of second
and defense counsel instance
(*)

Reading out the Disclosure of the Closing arguments by Conviction Final appeal
charging sheet by results of the pretrial defense counsel
public prosecutor conference procedure

Notification of the Examination of Final statement by the

accused of his/her evidence requested by accused
right to remain silent the prosecution

Opportunity for the Examination of * Defense

* Defensecounsel hasdiscretion
counsel has discretion
as toas to
accused and his/her evidence requested by whether
whether to makeopening
to make opening statements
statements
defense counsel to the defense except
except in caseswhich
in cases whichhavehave
gone gone through
through
make any statement pretrial
pretrialconference procedure
conference procedure suchsuch
as as
concerning the case saiban-in
saiban-in cases.
cases.

Questioning of the
accused

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

1. Opening proceedings

Presiding judge: This court is hereby in session.

[To the accused] Please step forward.

The accused stepped up before the witness stand. The presiding judge asked the accused to confirm his
name, registered domicile, residence, occupation, and date of birth for identification.

Presiding judge: The trial is now being held regarding the charge against you of homicide.
Please listen as the public prosecutor reads the charging sheet.
[To the public prosecutor] Will you please read the charging sheet?

The public prosecutor read aloud the charged facts and the applicable penal statutes as recorded on the
charging sheet.

Presiding judge: The court is now going to hear this case based on the charge against you that has been
read by the public prosecutor. Listen carefully to what I am about to tell you.
You have the right to remain silent.You may refuse to answer some of the questions, or
you may remain silent throughout the trial.
However, any statement made by you in this court may be used as evidence either for or
against you.
Therefore, answer any questions bearing these points in mind. Do you understand?

Accused: Yes, I do.

Presiding judge: Do you have anything you wish to say in response to the statement just read by the
public prosecutor?

Accused: Yes. Although she was stabbed with a knife, I never meant to kill her.

Presiding judge: I see. What is your opinion, Defense Counsel?

Defense counsel: I concur with the accused. He had no intention of homicide in this case.
Therefore, he is not guilty as charged.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 2. Examination of evidence

Presiding judge: Now, we shall commence with examination of the evidence. Please make your
opening statement.

The public prosecutor presented his opening statement, explaining the background of the crime, the
crime itself, and other circumstances.
Regarding the intention to kill (intention of homicide) that is disputed by the accused, the public
prosecutor stated to the court that the accused went to the scene with a knife bought in advance, with the
intent to stab Akiko to death.
In response to this allegation, the defense counsel stated that the accused had bought the knife for
cooking, not with the intent to stab Akiko to death, and that on the day of the incident, he only intended to
threaten her with the knife.
After the opening statements had been presented, the presiding judge disclosed the results of the
pretrial conference procedure, stating that the point at issue in this case was whether or not the accused
had intended to kill Akiko, and that the court was going to examine the evidence requested by the public
prosecutor, including documentary evidence, such as the on-site inspection report and investigation
report, and then examine Mr. △△ as a witness.

a. Opening statement preparation for trials in which Saiban-in are not

In criminal cases, the principle of “innocent until involved, so clarifying the results in the trial after the
proven guilty” is upheld, so the public prosecutor opening statement enables clear identification of
must prove the fact pertaining to the charges disputed points as they pertain to the examination of
beyond a reasonable doubt based on the evidence. evidence, types of evidence and the order in which
Therefore, the public prosecutor makes an evidence is examined.
opening statement at the start of the examination
of evidence and clarifies the specific facts to be
proved. Also, in the case of trials held under the
Saiban-in system, after the public prosecutor’s
presentation, the defense counsel also makes an
opening statement if he/she has any facts to prove
or other allegations to make on factual or legal
issues.

b. Statement of the pretrial conference

procedure results
Points of issue and evidence are organized
through the pretrial conference procedure in

24
PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

Presiding judge: Now the evidence will be examined. Public prosecutor, please explain the evidence in
detail.

The public prosecutor read out the documentary evidence, such as the on-site inspection record, which
indicated the circumstances at the scene of the crime, and exhibited the knife, which was then submitted to
and retained by the court.
c. Examination of evidence
There are three types of evidence, namely witnesses, documentary evidence, and articles of evidence.
Examination takes the form of questioning for witnesses or exhibiting for articles of evidence.
In examining documentary evidence, the presiding judge instructs the person who requested examination to
read the document aloud (Article 305 of the Code of Criminal Procedure).
However, when the presiding judge finds it to be appropriate after listening to the opinions of the parties
concerned in the case, he/she may instruct that the document be summarized rather than read out in its
entirety (Article 203-2 of the Rules of Criminal Procedure).

3. Examination of witnesses

Presiding judge: Next, we will examine Mr. △△ as a witness. Please step up to the witness stand, Mr. △△.

The presiding judge questioned Mr. △△ to confirm his identity, ordered him to swear an oath to tell the
truth, and advised him of the punishment for perjury if false testimony were to be offered, and of his right to
refuse to answer questions that could incriminate him or his relatives. The public prosecutor then began his
questioning.
The public prosecutor, after briefly questioning about Mr. △△'s occupation, the time of his arrival at the
tavern, and so on, examined him in detail regarding the offense he had witnessed.
Mr. △△’s testimony in court matched the details in the written transcript of his oral statement taken by the
public prosecutor.
Following examination by the public prosecutor, the defense counsel began its examination.
Mr. △△ was questioned about how much alcohol he had consumed that evening, what sort of conversation
had taken place between the accused and the victim, and how clearly he was able to observe the incident
from where he was sitting, etc.
After the cross-examination, the Saiban-in, associate judges, and presiding judge asked some
supplementary questions.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 In accordance with Article 304 of the Code of
Criminal Procedure, witnesses are first examined
by the presiding judge or associate judges.
Following this, the public prosecutor, the accused,
or the defense counsel examines the witness. The
court can determine the order of examination.
However, in practice, the witness is first
questioned by the party that called him/her to the
stand, followed by the other party, and finally, the
Saiban-in and judges conduct their examination.
This reflects the principles of the adversary
system, whereby witnesses are first examined by
the parties.

4. Questioning the accused

Presiding judge: Next, the accused will be questioned.

[To the accused] Step up to the stand.

The accused stepped up to the stand.

Presiding judge: [To the defense counsel] You may proceed.

In answering the defense counsel's questions, the accused made the following assertions:
He bought the knife on that day not to stab Akiko but to use for cooking.
On that evening, he talked with her for over thirty minutes, but finally he was told not to come back to the
tavern again.
When he recalled the knife he had bought, he impulsively thought that she might change her mind if he
threatened her.
“Reconsider, otherwise we’ll die together,” said the accused.
When he pointed the knife towards her, she unexpectedly lunged at him as if to take it from him.
Then, while fighting for the knife, the accused realized the knife was stuck in her chest. The accused
deeply regrets the incident.
Thereafter, the public prosecutor, Saiban-in, presiding and associate judges posed more questions to
the accused.

Under Anglo-American law, the accused can swearing an oath. This means that the accused can

choose to stand as a witness, but in Japan, the legally refuse to answer any questions, but can

accused is not allowed to give testimony after make a voluntary statement, which is admissible as

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 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

evidence. stipulates that any confession made under

compulsion, torture, threats, or after prolonged
5. Confession arrest or detention, or for which doubt concerning
When the accused makes a confession to a police its voluntarily exists, may not be used as evidence.
officer or public prosecutor after admitting having Regarding the evidentiary value of a confession,
committed a crime during the investigation stage, Article 38, paragraph (3) of the Constitution
the confession details will be recorded as evidence stipulates that no person shall be convicted or
in a written statement of the accused, and may be punished in cases where the only proof against the
requested as evidence and examined. person is his/her own confession.
In terms of the timing to request examination of This is also reinforced by Article 319, paragraph
the confession, the law stipulates that such (2) of the Code of Criminal Procedure, which
examination shall not be made until after all other stipulates that the accused shall not be convicted if
evidence pertaining to proving facts constituting the his/her confession, whether or not it was made in
offense are examined (Article 301 of the Code of open court, is the only piece of incriminating
Criminal Procedure). evidence.
This rule is so that the Saiban-in and judges do The arraignment system is not adopted under
not prejudge a case based on the presence of a current legislation, so even if the accused admits
confession. guilt in court, the fact-finding proceedings cannot be
Regarding the admissibility of evidence, Article 38, omitted. (Refer to Article 319, paragraph (3) of the
paragraph (2) of the Constitution stipulates that any Code of Criminal Procedure).
confession made under compulsion, torture, However, some of such cases can be transferred
threats, or after prolonged arrest or detention shall to a summary criminal trial (Article 291-2, Article
not be admitted into evidence. 307-2, and Article 320, paragraph (2) of the Code of
This is reinforced by Article 319, paragraph (1) of Criminal Procedure).
the Code of Criminal Procedure, which also

6. Demonstration of circumstances (The One-Phase System of Criminal Proceedings)

Presiding judge: Now, moving on to demonstrating circumstances. Public prosecutor – please read the
summary of the report on the accused’s criminal record and the written answers to the
inquiries regarding his personal background.

The public prosecutor read the summary of these documents, which revealed that the accused had a
previous conviction of causing injury through negligence while driving a car five months prior.

Presiding judge: Next, we will question Ms. Maki □□, the accused’s mother, as a witness regarding any
mitigating circumstances. Ms. □□, please step up to the witness stand.

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 The presiding judge asked Ms. Maki □□ to confirm her identity, ordered her to swear an oath to tell the truth
and advised her of the punishment for perjury. The defense counsel questioned her about the accused’s
routine behavior, relationships with women, and efforts to compensate the victim’s family and so on. The
public prosecutor confirmed during cross-examination that the family of the victim had refused his offer of
compensation. Finally, the presiding judge asked a further question about the accused’s relationships with
women, and then the questioning ended.

The court must find the facts

and determine the sentence in
the event that the accused is
found guilty, so the proceedings
for fact-finding and sentencing
are merged into a single phase.
Thus, evidence both for
fact-finding and for
mitigating/aggravating
circumstances is submitted
during the same procedure. The
characteristics of this single-step
system are adopted until the stage of rendering a judgment.
If convicted, the sentence is rendered without separately declaring a guilty verdict.
However, efforts shall be made to conduct the examination of evidence based on circumstances that are
clearly unrelated to the facts of the crime as separately as possible from the examination of evidence that is
related to the facts of the crime. (Article 198-3 of the Rules of Criminal Procedure)

7. Closing Arguments

Presiding judge: The examination of the evidence is complete.

[To the public prosecutor] Public prosecutor, please present your closing arguments.

The public prosecutor made his closing arguments. He emphasized the argument about the intention to
commit homicide to reaffirm his claim that this was a premeditated homicide. Finally, the public prosecutor
expressed an opinion concerning the sentence to be imposed.

Public prosecutor: The public prosecutor considers a sentence of 16 years imprisonment with work to be
appropriate for the accused.

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 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

Presiding judge: [To the defense counsel] Your closing arguments, please.
The defense counsel pointed out that the accused had purchased the knife with other kitchen utensils, and
that the witness, Mr. △△, had been drinking too much to be able to observe the incident accurately. He
concluded that it was clear that the accused did not have the intention to kill the victim.

The presiding judge then ordered the accused to step up to the witness stand.

Presiding judge: Before we conclude these trial proceedings, do you have anything you would like to say to
the court?

Accused: I can do nothing but apologize to Akiko. Please be merciful in your judgment.

The presiding judge then declared the date for rendering the judgment, and concluded the trial.

8. Deliberations

After concluding the trial, the judges and Saiban-in conducted their deliberations. First, they discussed
whether or not the accused had the intention to kill based on the evidence examined in court. As a result,
they agreed that the accused had such intention.
Then, deliberations were held on the sentencing, and the circumstances of the accused were also
discussed with reference to sentencing trends for similar cases in the past. It was finally concluded that
imprisonment with work for 14 years would be appropriate.

The judges and Saiban-in hold their deliberations (Article 66, paragraph (1) of the Act on Criminal Trials
with Participation of Saiban-in).
In order to organize a unified opinion as a panel, the judges and Saiban-in on the panel must state their
own opinions (Article 66, paragraph (2) of the Act on Criminal Trials with Participation of Saiban-in, etc.).

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PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 However, the Saiban-in must also understand the interpretation of requirements for what constitutes a
crime as a prerequisite for reaching a judgment as to whether or not a crime was committed.
Therefore, the presiding judge must carefully explain the applicable laws and regulations to the Saiban-in
for such deliberations, organize the deliberations so that Saiban-in can easily understand them, and provide
sufficient opportunities for Saiban-in to express themselves (Article 66, paragraph (5) of the Act on Criminal
Trials with Participation of Saiban-in).
The judgment (verdict) rendered by the panel comprised of judges and Saiban-in is determined based on
the majority opinions of all of the panel members, including the opinions of both the Saiban-in and judges
(Article 67, paragraph (1) of the Act on Criminal Trials with Participation of Saiban-in).
Accordingly, a judgment cannot be rendered based on the majority of opinions reached only by the
Saiban-in or only by the judges. This rule is adopted with the intention of making good use of the objective of
the Saiban-in system—wherein Saiban-in and judges share responsibility and work in collaboration to make
a judicial decision—, and in consideration of the constitutional requirement of guaranteeing the right to have a
fair trial in a court of law.

9. Judgment

The court rendered its judgment at 4:30 p.m. on September 30 in the same courtroom.

Presiding judge: The court hereby renders its judgment. The accused is sentenced to 14 years
imprisonment with work. The 10 days held under pre-sentencing detention shall be
included in said period of imprisonment. The knife currently kept in custody at the
Tokyo District Public Prosecutors Office shall be confiscated . Court costs shall be
borne by the accused.

The court judged that the accused had the intention of homicide when he pulled out the knife in front
of Akiko in the tavern and declared him guilty of homicide. At the end, the presiding judge advised the
accused of his right to appeal.

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 OUTLINE OF CRIMINAL JUSTICE IN JAPAN

a. Rate of acquittal
Table 4 shows the ratio and number of accused acquitted in courts of first instance.

Table 4. Annual Comparison of Number and Rate of the Accused Found Not Guilty or Partially Not Guilty

Classification Rate of
Judgment of Judgment of
Judgment(1) Rate of not guilty
not guilty partially not guilty
not guilty judgment in
judgment cases of
Total Total Total C/A (%) not guilty
Pleaded not Pleaded not Pleaded not
(A) (C) plead
guilty(2)(B) guilty(D) guilty(E)
Court Year (D+E)/B (%)
2017 49,446 4,971 111 (1) 111 62 60 0.22 3.44

2018 48,612 4,577 105 104 63 63 0.22 3.65

District
2019 47,549 4,595 104 104 71 (1) 69 0.22 3.76
Courts
2020 45,758 4,054 72 (1) 72 62 58 0.16 3.21

2021 45,226 4,293 88 86 67 67 0.19 3.56

2017 5,216 217 8 (2) 8 1 1 0.15 4.15

2018 4,774 182 6 (2) 6 - - 0.13 3.30

Summary
2019 4,239 168 9 (3) 8 1 1 0.21 5.36
Courts
2020 3,625 125 3 (2) 3 - - 0.08 2.40

2021 3,040 108 3 (1) 3 - - 0.10 2.78

* Total of guilty and not guilty judgments.

** "Pleaded not guilty" refers to cases where the accused did not admit all charged facts or argued a reason to preclude
establishment of the crime with regard to Article 335, paragraph(2) of the Code of Criminal Procedure.
(Notes) Figures in parentheses indicate the number of retrial cases included in the total.

b. Sentencing (1) By integrating numerous previous decisions, the

Please refer to Table 5 for statistics on the terms courts have created implicit sentencing standards
of imprisonment with work based on type of offense based on subjective and objective circumstances,
(ordinary cases in courts of first instance). such as the severity of the offense, conditions
One of the characteristics of the Japanese Penal under which the offense was committed, the
Code is the extremely wide range of penalties circumstances of the offender, and so forth. During
prescribed by law. deliberations on sentencing in Saiban-in
The court chooses the form of punishment and proceedings, the Saiban-in are shown graphs and
determines its terms or amount with broad other data that indicate the trends in sentencing in
discretion. precedent cases for the same type of offense.
Theoretically, the court’s broad discretion over (2) Both the accused and public prosecutor can
sentencing could cause some disparity in appeal to the high court on the grounds of
sentencing. inappropriate sentencing by the court of first
However, such differences are not very instance.
substantive in practice for the following reasons:

31
PROCEEDINGS FROM INVESTIGATION TO JUDGMENT IN THE FIRST INSTANCE
 Table 5. Comparison of Terms of Imprisonment with Work When Sentenced by Type of Crime
(All District and Summary Court Cases, 2021)

Term
Not Not Not Not

For more more more more

Total 3 years Not less than Not less than Not less than Less than
2 years a year 6 months 6 months
Crimes life than 30 than 20 than 10 than 5 Suspension Suspension Suspension Suspension Suspension Suspension Suspension Suspension Suspension Suspension
of execution of execution of execution of execution of execution of execution of execution of execution of execution of execution
years years years years of sentence of sentence of sentence of sentence of sentence of sentence of sentence of sentence of sentence of sentence
(Statutory range of imprisonment)
in part in w hole in part in w hole in part in w hole in part in w hole in part in w hole

(100.0) (0.0) (0.1) (0.4) (1.7) (4.6) (6.4) (0.1) (3.9) (21.7) (0.8) (12.3) (41.2) (1.2) (28.8) (20.9) (0.1) (14.9) (2.9) (0.0) (1.8)
Total
43,297 18 31 187 751 2,002 2,772 64 1,710 9,391 361 5,321 17,845 514 12,465 9,060 29 6,434 1,240 2 783
(100.0) Family Court (5.9) (5.9) (5.9) (5.9) (44.1) (44.1) (44.1) (44.1)
Offer of bribes (3yrs. ⇔ 1mth.)
34 - - - - - 2 - 2 2 - 2 15 - 15 15 - 15 - - -
(100.0) (2.9) (17.1) (17.1) (45.7) (42.9) (34.3) (34.3)
Acceptance of bribes (see below *)
35 - - - - 1 6 - 6 16 - 15 12 - 12 - - - - - -
Homicide (100.0) (3.5) (6.1) (36.5) (23.9) (7.8) (20.0) (15.7) (2.2) (0.9)
(death pen., life,20yrs. ⇔ 5yrs.) 230 8 14 84 55 18 46 - 36 5 - 2 - - - - - - - - -
(100.0) (0.6) (3.0) (6.4) (0.1) (4.8) (26.1) (0.2) (19.0) (51.2) (0.2) (36.8) (12.4) (5.7) (0.3) (0.1)
Injury (15yrs. ⇔ 1mth.)
1,745 - - - 11 52 112 1 83 455 3 332 893 3 642 217 - 100 5 - 1
Injury through negligence in the pursuit (100.0) (50.0) (50.0) (50.0) (50.0)
of social activities (5yrs. ⇔ 1mth.) 2 - - - - - - - - - - - 1 - 1 1 - 1 - - -
Death through negligence in the pursuit
of social activities (5yrs. ⇔ 1mth.) - - - - - - - - - - - - - - - - - - - - -
(100.0) (0.6) (0.6) (4.3) (3.7) (45.9) (44.6) (48.8) (47.3) (0.3) (0.2)
Negligent driving causing injury (7yrs.⇔1mth.)
621 - - - - - 4 - 4 27 - 23 285 - 277 303 - 294 2 - 1
(100.0) (2.6) (5.1) (41.0) (28.2) (38.5) (15.4) (12.8) (12.8)
Negligent driving causing death (7yrs. ⇔1mth.)
39 - - - 1 2 16 - 11 15 - 6 5 - 5 - - - - - -
(100.0) (0.4) (3.6) (5.5) (0.0) (3.9) (20.4) (0.0) (12.3) (53.0) (0.0) (34.0) (16.8) (0.0) (7.1) (0.2) (0.0)
Theft (10yrs. ⇔ 1mth.)
11,533 - - - 42 418 635 1 445 2,358 5 1,421 6,115 3 3,916 1,940 3 815 25 - 2
(100.0) (0.4) (21.6) (15.6) (51.6) (0.1) (10.9)
Habitual theft (20yrs. ⇔ 3yrs.)
1,094 - - - 4 236 171 - - 564 - 1 119 - - - - - - - -
(100.0) (2.0) (2.2) (4.2) (31.8) (27.6) (27.6) (20.5) (4.5) (1.3)
Robbery (see below **)
449 9 10 19 143 124 124 - 92 20 - 6 - - - - - - - - -
(100.0) (2.1) (9.9) (17.0) (12.5) (33.6) (0.0) (21.1) (34.6) (24.8) (2.7) (0.9) (0.0)
Fraud (10yrs. ⇔ 1mth.)
3,240 - - - 67 322 550 - 404 1,090 1 683 1,121 - 805 89 - 28 1 - -
(100.0) (1.0) (4.5) (8.1) (5.5) (40.6) (27.6) (44.5) (32.8) (1.3) (0.3)
Extortion (10yrs. ⇔ 1mth.)
308 - - - 3 14 25 - 17 125 - 85 137 - 101 4 - 1 - - -
Violation of the Public Office Election Act (100.0) (33.3) (66.7) (66.7)
(7yrs. ⇔ 1mth. ***) 3 - - - - - 1 - - - - - 2 - 2 - - - - - -
Violation of the Stimulant Drug Control Act (100.0) (0.0) (0.0) (0.4) (1.3) (6.9) (5.8) (0.9) (0.7) (34.8) (5.2) (11.1) (50.6) (7.3) (26.6) (0.1) (0.0) (0.0)
(life, 20yrs. ⇔ 1mth.***) 6,559 1 3 26 82 453 382 60 43 2,281 341 728 3,322 480 1,746 7 - 1 2 - -
Violation of the Road Traffic Act (1) (100.0) (0.0) (0.1) (0.4) (0.4) (2.1) (1.6) (21.2) (18.8) (58.8) (0.0) (49.4) (17.3) (12.9)
(10yrs. ⇔ 1mth.***) 5,078 - - - 2 6 22 - 19 105 - 81 1,077 - 956 2,986 1 2,507 880 - 657
(100.0) (0.0) (0.5) (2.8) (2.9) (5.5) (0.0) (4.4) (18.9) (0.1) (15.7) (38.5) (0.2) (32.3) (28.4) (0.2) (21.7) (2.6) (0.0) (1.0)
Others
12,327 - 4 58 341 356 676 2 548 2,328 11 1,936 4,741 28 3,987 3,498 25 2,672 325 2 122
(1) Including violation of the Act Regarding Security of Storage Places for Automobiles.
* Acceptance of bribes includes: acceptance upon request (7yrs. ⇔ 1mth.); acceptance in advance of assumption of office (5yrs. ⇔ 1mth.); passing of bribes to a third party (5yrs. ⇔ 1mth.);
aggravated acceptance (20yrs. ⇔ 1yr.); acceptance after resignation of office (5yrs. ⇔ 1mth.); acceptance of bribes for exertion of influence (5yrs. ⇔ 1mth.); and simple acceptance of bribes (5yrs. ⇔ 1mth.)
** Robbery includes: robbery causing death or injury (death, for life, 20yrs. ⇔ 6yrs.) and simple robbery (20yrs. ⇔ 5yrs.)
*** For violations of each Act
Notes: Figures in parentheses are percentages of the total number for each offense.
Supreme Court of Japan