Questions and Answers on Criminal Procedure

Supreme Court of Japan > Judicial System in Japan > Questions and Answers on Criminal Procedure

※ All court proceedings are conducted in the Japanese language (Article 74 of the Court Act).

No1. Investigation

No2. Prosecution

No3. Trial Proceedings in the First Instance

What does "arrest" mean?
 Arrest is a compulsory measure to physically restrain a person who is suspected of committing a crime (the suspect).
 In principle, arrest is executed by means of an arrest warrant issued by a judge (ordinary arrest). However, if there is no risk of mistaken identity as the crime is presently being committed or has been just committed, arrest may be executed without an arrest warrant. If a crime that is punishable by a heavy penalty is suspected but there is no time to request an arrest warrant before arresting the suspect, the suspect may be arrested without an arrest warrant, provided that a request for an arrest warrant is filed with a judge immediately after that (emergency arrest).
 For statistical data on the processing of requests for arrest warrants over the last ten years, refer here (PDF:90KB).
 The police must either release the suspect or send the suspect to the public prosecutor within 48 hours after the arrest. If the suspect is sent to the public prosecutor, the public prosecutor must decide whether to make a request to a judge for detention of the suspect, institute prosecution against the suspect, or release the suspect, within 24 hours after receiving the suspect and 72 hours after the arrest.
What does "detention" mean?
 Detention is a measure to physically restrain the suspect during the investigation stage or the accused after the institution of prosecution.
(1) Detention of the suspect
 If the public prosecutor considers it necessary to continue to place the arrested suspect under physical restraint in order to conduct investigation, the public prosecutor requests a judge to detain the suspect. The judge issues a detention warrant when it is necessary to detain the suspect because there is probable cause to suspect that the suspect has committed a crime and that the suspect may conceal or destroy evidence or flee.
 For statistical data on the processing of requests for detention over the last ten years, refer here (PDF:74KB).
 The period of detention of a suspect is ten days. Upon the request of a public prosecutor, a judge may extend the detention period for a period not exceeding ten days, when finding unavoidable circumstances.
(2) Detention of the accused
 The accused may also be detained when it is necessary to do so because there is probable cause to suspect that the accused has committed a crime and that the accused may conceal or destroy evidence or flee.
 The period of detention of the accused is two months and may be extended for additional periods of up to one month each if certain requirements are met, such as there is probable cause to suspect that the accused may conceal or destroy evidence.
What is written in a charging sheet?
 A charging sheet is a document submitted by the public prosecutor when demanding the court to impose punishment on the accused. The following matters are required to be written in a charging sheet:
(i) the matters necessary to specify the accused: the name, date of birth, address, etc.
(ii) the charged facts: the facts of the crime that the accused is suspected of committing; and
(iii) the charged offense and the applicable penal statutes.
 It is prohibited to include in the charging sheet anything which might cause the judge to be prejudiced with regard to the case, and no evidence can be attached to the charging sheet. Upon attending the first trial date, the judge is supposed to know nothing about the case other than the information contained in the charging sheet. This is generally referred to as the "charging sheet-only principle."
How is the defense counsel appointed?
 The defense counsel plays a role in protecting the rights of the suspect during the investigation stage or the accused under prosecution.
 There are two types of defense counsel depending on the appointment method: appointed by the suspect or the accused or by their family (private defense counsel); or appointed by the court if the suspect or the accused is unable to appoint defense counsel because of indigence or any other reasons (court-appointed defense counsel). There is no difference between the private defense counsel and the court-appointed defense counsel in terms of what they do to defend the suspect or the accused.
What is bail?
 Bail is a system under which the accused under detention may be released under certain conditions, such as payment of a certain amount of the bail bond.
 Bail may be requested by the accused and also by the accused's spouse, parents and other family members, or defense counsel, and at any time after the institution of prosecution, even before the trial begins, until a judgment becomes final and binding.
 If bail is requested, the court must grant bail except in cases specified by law, such as when: the accused has allegedly committed a serious crime, such as homicide and arson; the accused has allegedly habitually committed a prescribed crime; or there is probable cause to suspect that the accused may conceal or destroy evidence (mandatory bail). Even in such cases, the court may grant bail, taking into account the circumstances of the case, such as the extent of the risk that the accused may flee, or conceal or destroy evidence if the accused is bailed, as well as the extent of disadvantages to be incurred by the accused due to continued physical restraint (discretionary bail).
 The amount of the bail bond is set by the court as an appropriate amount to ensure the appearance of the accused, in consideration of the seriousness of the crime that the accused has allegedly committed, the accused's financial conditions, and other circumstances.
 If the accused flees, conceals or destroys evidence, the bail is rescinded, the accused is placed under physical restraint again, and the bail bond is sequestered. Otherwise, the bail bond is returned after the trial is concluded, irrespective of whether the accused is found guilty or not guilty.
 For statistical data on the processing of requests for bail over the last ten years, refer here(PDF:72KB).
 For statistical data on the comparison of the rate of bail depending on whether the accused pledged guilty or not, refer here(PDF:76KB).
What is the Committee for Inquest of Prosecution and what does it do?
 The Committee for Inquest of Prosecution is an organization consisting of 11 prosecution councilors elected by lottery from among citizens having the right to vote. Its major duty is to examine whether a public prosecutor’s decision not to institute prosecution is appropriate.
 For more information, refer to "Committee for Inquest of Prosecution" (in Japanese).
What is the Saiban-in system?
 The Saiban-in system is a system under which six lay judges called Saiban-in, who are appointed from among the citizens, participate in the proceedings of criminal trials and form a panel with three professional judges to find whether the accused is guilty or not guilty, and decide the sentence given to the accused if found guilty.
 It is expected that through the citizens' participation in criminal trials, the good sense of the citizens will be reflected in the judicial decisions and proceedings, leading to deepening the citizens' understanding of and enhancing their trust in the justice system.
 For more information, refer to the "Saiban-in System" website (in Japanese).
What is a pretrial conference procedure?
 The pretrial conference procedure is held prior to the first trial date in order for the court, the public prosecutor, and the defense counsel to clarify the issues of the case, arrange evidence for judging the issues, and establish a trial plan.
 The pretrial conference procedure is mandatory for cases to be tried under the Saiban-in system.
How long does it take for a criminal trial to be concluded?
 The Constitution of Japan guarantees the accused’s right to a speedy trial, and achieving prompt proceedings is naturally a significant goal to be aimed at by those who are engaged in trials. Accordingly, the court may request a party (the public prosecutor or the defense counsel) to make sufficient and necessary preparation prior to the first trial date, or even between trial dates.
 Although it is often pointed out that criminal trials in Japan tend to be prolonged, in reality, judgements are rendered in around three months on average after the institution of prosecution, and this is not at all long in comparison with other countries. In addition, when expedited trial proceedings or summary proceedings are adopted, the cases are concluded in a very short period of time.
 For statistical data on the average trial period over the last ten years, refer here(PDF:71KB).
What is the right to remain silent?
 The Constitution guarantees that no person shall be compelled to testify against himself or herself, and the accused may remain silent at all times in the trial. This is referred to as the right to remain silent. The accused is also allowed to refuse to make a statement in response to particular questions (the right to refuse to make a statement). In order to guarantee these rights for certain, it is provided that the judge must explain these rights to the accused in the opening proceedings of the trial.
What does "burden of proof” mean?
 As represented in the expressions "innocent until proven guilty" and "in dubio pro reo," in a criminal trial, the public prosecutor assumes the responsibility to prove the accused's guilt to the extent that it is certain, according to common sense, that the accused has committed the crime. This is the burden of proof. The accused is found not guilty if it is uncertain whether the accused has committed the crime despite the public prosecutor's effort to prove guilty.
What measures are available for crime victims in criminal proceedings?
 In criminal proceedings, various measures are provided in order to give consideration to people who have suffered damage from crime: consideration to preferential observation of a trial; participation in a criminal trial; measures of non-disclosure of the name and other information identifying the victim in open court; measures for easing a witness's anxiety and tension.
 For more information, please refer to "Systems for Crime Victims in Criminal Proceedings".
How is a sentence decided?
 If the judge finds the accused guilty as a result of proceedings, the judge then decides a punishment to be imposed on the accused. Specifically, in addition to the type of punishment, such as death penalty, imprisonment, and fine, the judge also decides the period of sentence of imprisonment for a definite term and the amount of fine. This process is called sentencing.
 Under Japanese penal laws, the punishment to be imposed on a crime (statutory punishment) is prescribed with a considerably broad range. For example, the punishment for homicide is prescribed as “death penalty or imprisonment for life or for a definite term of not less than five years,” and the judge is to choose a sentence from such a broad range between the death penalty and imprisonment for not less than five years.
 In general, the court determines the punishment on the basis of the factors relevant to the crime, such as the seriousness of the outcome of the crime, the danger of the crime, and the culpability of the accused in light of the motive and process of the crime, and also in consideration of the factors relevant to the accused, such as the compensation for the victim, criminal records, rehabilitation environment, and repentance.
What happens if a suspension of sentence is granted?
 For example, if the court renders a judgment sentencing the accused to imprisonment for one year without a suspension of sentence and the judgment becomes final and binding, the sentence of imprisonment for one year is immediately executed and the accused is to serve his or her term in prison.
 On the other hand, if the sentence of imprisonment for one year is given by a judgment with a three-year suspension of sentence, even when the judgment becomes final and binding, the accused is not immediately sent to prison. You may think that in such a case, it would be no different from acquitting the accused, but it is not. In the case of a suspended sentence, if the accused commits a crime again during the three-year period of suspension rendered in the judgment, the suspension is revoked and the sentence for one year is executed. If the accused spends the three-year period of suspension without committing a crime again, the accused is no longer subject to the execution of the sentence.
 There are cases in which the accused who is given a suspended sentence is placed under probation so that the accused receives guidance from a probation officer of a probation office or a volunteer probation officer during the period of suspension.