The beginning of criminal trials before citizen lay judges in May 2009 has helped bring attention to an interesting aspect of the Japanese criminal-justice system: the lack of transparency in investigations by police and prosecutors.

Japan is one of the few developed countries where interrogations of criminal suspects are not videoed or tape-recorded in full. Once arrested, suspects can be held for weeks in jail before they are prosecuted for a crime. During this period, they can be questioned in secret from dawn until dusk without contact with their family and have severely limited access to legal counsel (which may be even more heavily restricted if the suspect has the temerity to insist they did nothing wrong).

Interrogations of this sort are characterized by lawyers and civil-rights activists as a hotbed for police wrongdoing and coerced confessions. Once in court, a defendant may assert that his or her confession was coerced, but because there is no record of the interrogation, it ends up being the word of the police and prosecutors against the word of a (probable) criminal. Occasionally, such defendants are found not guilty, but it is very rare. In well over 99 percent of Japanese criminal trials, the defendant is found guilty.

In 2009, the Japan Federation of Bar Associations submitted to the Diet a petition with over a million signatures demanding that interrogations be fully recorded. With the advent of the lay-judge system, police and prosecutors have responded by preparing “partial” video records of interrogations, but only the convenient bits – the part where the suspect says “I did it.”

This may seem like progress, but more likely reflects the adaptation of existing practice to a new audience. Until now, investigators have focused on getting suspects to write (or at least sign) a confession. Japanese criminal trials have traditionally been very document-focused, which probably suited professional judges just fine, since a written confession is something they could re-read as necessary in the course of trials that might go on for years over a series of monthly hearings.

Written confessions are also good for police and prosecutors who can prepare them for signature, free of any troubling narrative inconsistencies or inconvenient potentially exculpatory details.

With serious criminal trials now being conducted in a concentrated period over a few days before a panel of professional and lay judges, video confessions are a logical innovation for the police and prosecutors. This is particularly true if one assumes there is an unspoken concern on the part of such authorities that some of the lay judges (some of whom – gasp – will have barely graduated from high school) “may not read so good,” and thus be unable to appreciate a well-drafted written confession.

When it comes to recording interrogations in full, however, the guys with badges and guns are still pretty negative. So is their boss. On June 5, 2009, then-Justice Minister Eisuke Mori voiced his objections to full recording on the grounds that it could cause suspects to “hesitate” to speak out and that it could also “pose an obstacle to the revelation of the truth.”

Given that Japanese prosecutors are not obligated to reveal exculpatory evidence to the defense, objections to recording based on the pursuit of “the truth” come across as a bit disingenuous. Yet police and prosecutors have a legitimate beef with full recording, just one that they have done a poor job of articulating.

A commonly voiced objection to full recording of interrogations is that it might damage the “relationship of trust” between interrogator and suspect. To the average person this sounds silly and self-serving. Yet it contains a kernel of truth, one that is more relevant to Japan’s lack of a formal plea-bargain system. That Japan lacks such a system is also often presented in press accounts as another reason for official objections to full recording of interrogations, but always in passing, without any deeper explanation (as was the case with Mori’s recent comments).

Anyone who watches American courtroom dramas knows what a plea bargain is. Threatened with prosecution for say, first-degree murder, a bad guy agrees to plea guilty to a lesser charge – second-degree murder or manslaughter. On TV, prosecutors and defense lawyers haggle over the range of punishment the bad guy will get in the deal. What is less commonly shown is the defendant cooperating with a police investigation as part of the bargain – a low-level gangster may agree to finger “Mr. Big” in exchange for a lighter sentence.

Accepting a plea bargain involves waiving some important rights. One of these is the defendant’s right to a trial in open court before a jury. With the defendant admitting guilt, there is no need for a jury, since all that remains is sentencing, which in the U.S. system is generally the exclusive province of judges. After a plea bargain has been accepted, there is a sentencing hearing, during which the judge hears evidence relevant to the sentencing decision. This may include evidence about the defendant’s cooperation.

Furthermore, unlike a jury trial, this part of the proceedings may be held in a closed session, so that details of ongoing investigations and the nature of the defendant’s cooperation are not made public. It is a win-win proposition for law enforcement and criminals alike.

It may not seem like such a great deal for the victims of crime, but in some jurisdictions, prosecutors are required to consult with victims (or their surviving family members) before agreeing to a plea bargain. Victims may even prefer a plea bargain if it prevents embarrassing details or disturbing accounts of the crime from being exposed in open court. Indeed, the plea-bargain system helps resolve another problem with criminal trials in Japan – how to give the victims a greater voice in the proceedings without prejudicing the presumption of innocence supposedly accorded to defendants.

Since sentencing hearings are held separately from the actual jury trial, victims can testify at such hearings without any danger of evidence improperly affecting the decision of guilt or innocence. By contrast, under a procedure introduced in Japan just before the lay-judge system, victims of crimes or their surviving family can testify about their suffering and ask questions, all at a stage in the proceedings when it has not yet been proven that the defendant is responsible. This means that lay judges (who, unlike in most jury systems, also participate in sentencing decisions) may hear emotionally powerful evidence that is at the same time potentially irrelevant to the question of guilt or innocence.

Currently the Japanese criminal-justice system lacks formal mechanisms for plea bargaining, so even defendants who freely confess and express remorse must go through the motions of a full trial at which they are found guilty based on the evidence presented against them in open court. This means that there would probably be no way of keeping the entirety of recorded interrogations (including the details of any cooperation with police investigations) from being made public, other than by not having them in the first place, which is the current approach.

Thus, while the current attempt by police and prosecutors to have their cake and eat it too by recording only the convenient parts of interrogations may seem hypocritical, it probably reflects some legitimate concerns.

This is just speculation, of course, but whatever the reason for resistance, the experience of other countries suggests that although the police may object to full recording at first, they may ultimately come to appreciate it. After all, while recording protects defendants, it also makes it harder for them to make false allegations about police abuse during interrogations. Perhaps Japanese police and prosecutors will reach a similar conclusion – certainly there is no shortage of accounts alleging abusive behavior by Japanese investigators.

Even if the lack of a plea-bargain system is resolved, however, one suspects that Japanese law-enforcement officials would still resist full recording simply out of a reluctance to lose the power that comes with having almost absolute control over a suspect, a power which, if misused, can be exercised for as long as it takes for most normal people to crack and admit to whatever is convenient. It is here that the lay-judge system may have the most impact.

One of the interesting things about the jury system is that it had the historical effect of causing Anglo-American criminal-justice systems to evolve away from proceedings devoted to making defendants say “I did it,” to those devoted to making a jury say “he did it.” This was not always a good deal for jurors, who in English courts hundreds of years ago might not be fed or allowed to relieve themselves until the trial was over, and might even be punished for arriving at the “wrong” verdict (i.e., “not guilty”).

Today, ironically, a great deal of the energies of the criminal justice system in the United States are devoted to the avoidance of jury trials through plea bargains, a process that, in the federal system at least, is encouraged by shockingly harsh mandatory punishments which may encourage even the innocent to cut a deal rather than spend life in prison.

Nonetheless, the jury system has meant that Anglo-American criminal trials never developed an obsession with confessions of the type that has prevailed in Japan for so long. Thus, whether full transparency of interrogations is realized or not, the most significant impact of the lay-judge system in the long run may be in changing this dynamic, and forcing police and prosecutors to rely on more than confessions and a compliant, overburdened judiciary to convict people of crimes. ❶