Criminal Justice System of Japan - Confession in Japanese Criminal Investigation

Confession in Japanese Criminal Investigation

Many Western human rights organizations alleged that the high conviction rate is due to rampant use of conviction solely based on confession. Confessions are often obtained after long periods of questioning by police. This can, at times, take weeks or months during which time the suspect is in detention and can be prevented from contacting a lawyer or family.

Article 38 of Japan's Constitution categorically requires that "no person shall be convicted or punished in cases where the only proof against suspect is his/her own confession," In practice, this constitutional requirement take a form of safeguard known as "revelation of secret" (Himitsu no Bakuro, lit "outing of secret"). Because suspects are put through continuous interrogation which could last over a month as well as isolation from the outside world, including access to lawyer, the Japanese judiciary as well as the public is well aware that confession of guilt can easily be forced. Consequently, the court (and the public) take the view that mere confession of guilt alone is never any sufficient ground for conviction.

Instead, for confession to be a valid evidence for conviction, the Japanese court requires confession to include revelation of verifiable factual matter which only the perpetrator of the crime could have known such as the location of an undiscovered body or the time and place the murder weapon was purchased, a fact about the crime scene, etc. Furthermore, to safeguard against the possibility that the interrogator implanting such knowledge into confession, the prosecutor must prove that such revelation of secret was unknown to the police until the point of confession. For example, in the Sachiura murder case which happened in 1948, the conviction (and three death penalty) was initially secured by the confession of the location of the body which was yet to be discovered. However, it later transpired that the police likely knew the location of the body and this created a possibility that the confession of the location of the body could be forged and implanted by the investigating police, resulting in the higher court declaring the confession unsafe and reversing the verdict.

While it is impossible for an innocent suspect to reveal relevant information about a crime even under severe torture, a guilty suspect is likely to crack under prolonged interrogation in isolation and make a damning confession. Activists claim that the Japanese justice system (and Japanese public to some extent) consider that prolonged interrogation of suspect in isolation without access to lawyers is justified to solve the criminal cases without risking the miscarriage of justice. In addition, the requirement that the revelation of relevant information by the accused was unknown to the police and that the prosecutor examines the police investigation before the case is brought to the court, is seen as an extra layer of safeguard for the validity of confession as evidence.

However, most miscarriage of justice cases in Japan are, indeed, the results of conviction solely based on the confession of the accused. In these case, (1) the record of sequence and timing of the police discoveries of evidence and the timing of confession is unclear (or even faked by the police) (2) the contents of the revelation of secret has only weak relevance to the crime itself or that (3) the revelation of secret to be actually vague enough that it is apply only loosely to the elements of crime (Prosecutor's fallacy). Serious miscariage of justice cases in Japan involve police deliberately faking the police evidence (and insufficient supervision by the prosecutor to spot such rogue behaviour) such as where the police already knew (or suspected) the location of the body or the murder weapon but they fake the police record to make it appear that it is the suspect who revealed the location. During 1970s, a series of reversals of death penalty cases brought attention to the fact that some accused, after intensive interrogation signed as-of-yet unwritten confessions, which were later filled in by investigating police officers. Moreover, in some case, the police falsify the record so that it appear that the accused confessed to the location where the body was buried yet the truth was that the police written in the location in the confession after the body was discovered by other means. These coerced confessions, together with other circumstantial evidence, often convinced judges to (falsely) convict.

Currently the Japanese Federation of Bar Associations is calling for the entire interrogation phase to be recorded to prevent similar incidents occurring. The International Bar Association, which encompasses the Japanese Federation of Bar Associations, cited problems in its "Interrogation of Criminal Suspects in Japan". Japan's current Minister of Justice, Hideo Hiraoka, has also supported videotaping interrogations. Police and prosecutors have traditionally been opposed videotaping interrogations, stating that it would undermine their ability to get confessions. The current office of prosecutors has, however, reversed their previous opposition to this proposal. Proponents argue that without the credibility of confessions supported by electronic recording, the lay judges may refuse to convict in a case when other offered evidence is weak. It is also argued that recording of interrogation may allow lowering standard in the "revelation of secret" that confession must contain the element of crime which police and prosecutor did not know. Once the recording is introduced, it would become impossible for the police to forge confession. Then, it may become possible to bring conviction based on confession of elements of crime which only perpetrator "and" police knew.

In October 2007, the BBC published a feature giving examples and an overview of "'Forced confessions' in Japan". The case was called "Shibushi Case". In addition, Hiroshi Yanagihara, who was convicted in November 2002 for attempted rape and rape due to forced confession and the identification by the victim despite alibi based on phone record, was cleared in October 2007 when the true culprit was arrested on unrelated crime. The two cases damage the credibility of Japanese Police.

To Japanese citizens and police, however, the arrest itself already creates the presumption of guilt which needs only to be verified via a confession. The interrogation reports prepared by police and prosecutors and submitted to the trial courts often constitute the central evidence considered when weighing the guilt or innocence of the suspect.