User:Nyansuki/sandbox

One of the main features of the Japanese criminal justice system well known in the rest of the world is its extremely high conviction rate, which exceeds 99%.[7] Some in the common law countries argue that this is to do with elimination of the jury system in 1943, however, trials by jury were rarely held as the accused had to give up the right to appeal. Lobbying by human rights groups and the Japan Federation of Bar Associations resulted in the passing of a judicial reform bill in May, 2004, which introduced a lay-judge system in 2009, which is often confused with jury system in common law countries.[8]

J. Mark Ramseyer of Harvard Law School and Eric B. Rasmusen of Indiana University examine if the accusation is in fact warranted. In their paper ("Why Is the Japanese Conviction Rate So High?") they examined two possibilities. One is that judges who come under the control of central bureaucracy are pressured to pass a guilty verdict, ensuring high conviction. Another possibility is that, given that the non-jury system under inquisition system has predictable ruling on guilt, Japan's understaffed prosecutors working on low budgets only bring the most obviously guilty defendants to trial, and do not file indictments in cases in which they are not certain they can win.[9]

The most likely reason why the Japanese conviction rate is so high is that prosecutors have a broad discretion to prosecute or not, taking into account many factors (similar to sentencing factors in Western countries). The prosecutors may decide, for example, not to prosecute someone even if there is sufficient evidence to win at trial, because of the circumstances of the crime or accused. Article 248 of the Japanese Code of Criminal Procedure states: "Where prosecution is deemed unnecessary owing to the character, age, environment, gravity of the offense, circumstances or situation after the offense, prosecution need not be instituted." Thus, prosecutors in Japan have a very broad discretion in the decision to prosecute or not.

All Japanese court rulings are accessible in digital format; the two academics examined every case after World War II in which the court found the defendant not guilty. The result is mixed. Simple statistical analysis shows that the judge's later career tends to be negatively affected by a non-guilty verdict. However, by examining the individual cases, the two academics found that all of those cases which negatively affected judges' careers had political implications (such as labour law or electoral law) and that the facts of the case (i.e. the defendants committing the accused deed) itself were never in dispute. However, judges delivered 'not guilty' verdicts on technicalities such as statutes of limitation or constitutional arguments, which were subsequently reversed in a higher court. In cases in which the judge delivered a 'not guilty' verdict because they ruled that there was insufficient evidence to ascertain that the defendants did the accused deed, the judge suffered no negative consequence. For this reason, the paper argued that Japanese judges are politically conservative in legal interpretation but are not biased in matter of fact.

In the matter relating to Japanese prosecutors being extremely cautious, the paper found ample evidence for it. In Japan, 99.7% of all the cases brought to court resulted in conviction, while in the U.S. the figure is 88%. According to a cited research, in the U.S. the accused contest guilt in 22% of federal cases and 11% of state cases, while in Japan, the ratio is modestly less. The paper attributes this difference to greater predictability of the outcome in Japanese cases. This is due to two reasons. One is that it is the judge rather than the jury who determines the verdict. As judges "have seen it all before" and the lawyers on both sides "have seen them seeing it", as they can read the judge's previous ruling (which includes written reasoning for the previous verdict), the way that the judge thinks and argues is very predictable.

Secondly, Japanese trials before the institution of the current lay judge system, were discontinuous. The defense and the prosecutor would first gather in front of the judges and present the issue. Then, the court would enter recess and both sides would go back to prepare their case. As they reconvened on different dates, they would then present each case which the judges examined, the court would be put in recess again and each side would go back to gather further evidence. Some complex trials took years or even a decade to conclude which is impossible under jury system. During the questioning of evidence, judges were explicit about their opinions by the way they questioned the evidence, which gave greater predictability about the final verdict.

For this reason, the prosecutor is far more likely to bring in the case where conviction is assured and the accused is far more likely to settle.

Moreover, the paper found that Japanese prosecutors have a far more pressing need to be selective. In the U.S., the federal government employs 27,985 lawyers and the states employ another 38,242 (of which 24,700 are state prosecutors). In Japan, with about a third of U.S. population, the entire government employs a mere 2,000. Despite Japan having a low crime rate, such numbers create a significant case overload for prosecutors. In the U.S., there are 480 arrests (96 serious cases) per year per state prosecutor. (The actual figure is lower as some are prosecuted in federal court). In Japan, the figure is 700 per year per prosecutor. In the U.S., a rough estimate is that 42% of arrests in felony cases result in prosecution - while in Japan, the figure is only 17.5%.

In murder, U.S. police arrested 19,000 people for 26,000 murders, in which 75% were prosecuted and courts convicted 12,000 people. In Japan, 1,800 people were arrested for 1,300 murders, but prosecutors tried only 43%. Had the allegation that Japanese prosecutors use weak evidence mostly based on (forced) confessions to achieve convictions been true, the larger proportion of arrests would have resulted in prosecutions and eventual conviction. But the opposite is true. In fact, the data indicates that Japanese prosecutors bring charges only when the evidence is overwhelming and likelihood of conviction is near absolute, which gives a greater incentive for the accused to confess and aim for a lighter sentence, which, in turn, results in a high rate for confession.

The Japanese criminal justice system, despite retaining the death penalty, is relatively lenient in sentencing by the standard of the United States. Outside capital cases, many of those sentenced to life sentences are paroled within 15 years. Those convicted of less heinous murder and manslaughter are likely to serve less than 10 years. Those convicted of rape will often serve less than two to five years. It is even possible for someone convicted of murder to serve a suspended sentence if the defense successfully argues for mitigating circumstances. Moreover, in Japanese criminal proceedings the conviction and sentencing phase are separate. In the Japanese criminal justice system, these are distinct phases, echoing that of common law jurisdictions where sentencing is usually remitted to a later hearing after a finding of guilt. The court proceedings first determine guilt, then a second proceeding takes place to determine the sentence. Prosecutors and defense teams argue each phase. Defense lawyers, given the predictability of the outcome in term of guilt once the charge is brought, together with leniency of punishment (except in death penalty cases), often advise the accused to confess their guilt in trial. Remorse is seen as a mitigating factor which tends to bring reduced sentences.