Saturday, February 02, 2008

Legal Transplants from Abroad in Japan; Police Treatment in Japan of Criminal Suspects in Custody

David McNeill, Citizens routinely denied legal rights, Japan Times Online (Feb. 2, 2008):

[Constitutional] safeguards [of the rights of criminal suspects] are interpreted by Japanese courts in a way that makes them virtually meaningless.

The provisions were drafted by the postwar Allied Occupation, with the goal of creating an "adversary system of justice" along American lines: Investigating and gathering evidence should be separated from considering evidence and deciding a case; judges should be removed from the investigating function; and prosecution and defense must enjoy equal opportunity to present evidence.

This reform was a radical change from the prewar system in which prosecutor and judge were not clearly separated, and defendants were seen more as part of an inquisitorial process than a neutral rehearsal of evidence and fact.

Says [Lawrence] Repeta [Omiya Law School Professor]: "Many observers agree that what we have today bears a closer resemblance to the prewar system than the adversary system envisioned by the drafters of the Constitution. Judges question witnesses aggressively when they wish, and prosecutors play a dominant role, with defense lawyers typically in a minor role in trials."

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So who will protect the suspect [in criminal cases in Japan]? Well, in Japan it will be the police, according to new interrogation rules issued this week in the wake of the Kagoshima and Toyama cases. From April, detectives will be explicitly forbidden from striking, shaking or even touching someone in custody, or from using words "likely to embarrass or make a suspect feel uneasy," harming their dignity or promising lighter treatment in return for a confession.

The new guidelines suggest that the impact of jury trials is already being felt: The police are "mindful," says state broadcaster NHK, that juries who mistrust the police could undermine trials. But the monitoring will be internal, and the police are still refusing to cede a key demand from the Japan Federation of Bar Associations: The videotaping of interrogations.

"There is no change in a system where insiders check other insiders," Hokkaido University Professor Yuji Shiratori told Kyodo News on Friday.

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