Japan can do better than this. To substantially reduce the risk of wrongful conviction, Japan must create more transparency and accountability in its interrogation rooms—the most closed and secretive spaces in Japanese criminal justice. Prosecutors must also become more transparent about the evidence in their possession, and the last half-century of history shows they will not do so voluntarily. As a result, few special procedures or protections have been established to reduce the risk of error in life-or-death cases. Prosecutors are not obligated to give the defense advance notice of whether they will seek a sentence of death at trial.
There are no separate stages for fact-finding and sentencing at trial, and some defendants who deny the charges against them have been condemned to death in the near absence of information about who they are.
Victims and survivors are allowed to make demands for punishment before the facts have been found, thereby raising the risk that fact-finding will be contaminated by emotional appeals for vengeance. There is no automatic appellate review for persons who have been sentenced to death, so that over the past decade about one-third of all persons executed in Japan never had their case reviewed by the Supreme Court.
FDFA Action Plan for the Universal Abolition of the Death Penalty
Given all of these problems, is it surprising that the death sentencing rate in murder trials where prosecutors seek a sentence of death has risen from 56 percent in the trial system that relied solely on professional judges to 70 percent or so in lay judge trials? If Ministers and prosecutors were serious about what they say, they would push for special procedures and protections which reflect the fact that death is indeed a different kind of punishment. Reforming institutions is the main means of change in the modern approach to developing democracy, but the idea that structural reform alters actual practice is more hope than fact Flyvbjerg, Culture and history strongly condition the effectiveness of new rules and institutions, and long established practices frequently limit the possibilities for achieving meaningful reform.
Since culture counts, addressing the problem of wrongful convictions in Japan must attend to this area as well. The most important imperative concerns cultural assumptions that are relevant in many areas of Japanese society, from aviation and medicine to nuclear energy and criminal justice. Three principles are primary. First, in order to reduce error one must assume it is inevitable Schulz, Subsequent events reveal this claim to be false.
Japan continues to have problems with wrongful conviction, and the most serious problem involves a culture of denial that makes it difficult for police, prosecutors, and judges to acknowledge their own mistakes and for the media and other external agents of accountability to conduct rigorous investigations Ezoe, This culture of denial shields criminal justice officials from pain, humiliation, and change—and it is therefore easy to understand why they cling to it.
Letting the culture of denial go and embracing the lessons that error can teach will require honor and courage from police, prosecutors, lawyers, and judges. More importantly, it will require pressure from Japanese politics and society. Second, in fields like medicine and aviation, successful strategies for error prevention rely on principles of openness and transparency to identify and learn from mistakes National Institute of Justice, Most interrogations are not electronically recorded.
Prosecutors possess wide discretion to withhold evidence from the defense, and they are not reluctant to hide evidence when it serves their own interests. Lay judges are not permitted to discuss case details or deliberations even after their service has ended. The insularity of Japanese criminal justice reflects the mistaken assumption that criminal proceedings are the special province of legal professionals. The third important principle of error prevention is reliance on data so that criminal justice can be administered based on facts rather than on opinions, assumptions, and the prerogatives of power Schulz, Empirical criminology is not well developed in Japan, and little is known about how Japanese criminal justice is patterned.
One key cause of this deficiency is the resistance of Japanese criminal justice officials to being studied in a serious way. Some fine Japanese scholars have experienced this resistance firsthand, and so have I, several times. To take one example, I went to Tokyo a few years ago to do research about policing in Kabukicho. Despite my best efforts, that access never materialized. All the while, I was watched by handlers sent from the Tokyo Metropolitan Police Department, who seemed every bit as bored with their assignment as I was with my own meager access to their world.
Police are the most understudied actors in Japanese criminal justice. But hardly anyone studies the Japanese police in a serious way, and in this respect Japan remains a strange land with respect to police research. Conclusion Wrongful convictions will continue to occur as long as there are criminal convictions, but they can be curtailed. As of June , these units had agreed to review some cases, and the number is growing rapidly Peltz, This more open orientation to mistakes is a marked break from the culture of denial that long characterized prosecution in America, and it also helps explain why there have been so many more exonerations in the United States than in Japan.
Of course, America still has a long way to go to adequately address its problem with wrongful convictions, but the increased willingness to acknowledge error and learn from mistakes must be reckoned a welcome development. In contrast, exonerations in Japan are almost always achieved despite strong resistance from police and prosecutors, and Japanese judges are often slow to acknowledge error as well while Hakamada was incarcerated, more than a dozen judges rejected his appeals. If you recognize that errors are inevitable, you will not be surprised when they occur and you will have plans in place to correct them.
Conversely, if you refuse to admit to yourself or the world that mistakes do occur, then every wrongful conviction becomes stark and embarrassing evidence of how wrong you are Tavris and Aronson, , p.
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Doubt is a skill they still need to learn, and error is a reality they must learn to acknowledge. But they will not learn these lessons on their own. How long will Japanese society tolerate the status quo? And when will Japanese law and society take serious interest in the iceberg?
This is part three of a three part series curated and written by David T. David T. He is co-author with Franklin E. Johnson and Franklin E. Committee for the Protection of Human Rights. October November Tickets: Riffraff.
ISBN 13: 9783847101840
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