Daniel H. Foote, Confessions and the Right to Silence in Japan, 21 Geo. J. Int'l & Compar. L. 415 (1991), https://digitalcommons.law.uw.edu/faculty-articles/1016
In several highly-publicized recent cases in Japan, individuals convicted of murder and sentenced to death were acquitted in retrials obtained after decades on death row. These so-called "death penalty retrial cases'" generated great controversy and considerable reflection about the criminal justice system in Japan. A central, substantive issue presented by these cases relates to the procurement and use of confessions; each of these cases-and several other major recent Japanese cases in which defendants have been acquitted following bitterly contested trials-turned on the validity of repudiated confessions.
Consequently, much recent commentary has focussed on conf essions and related issues. Not surprisingly, the battle lines generally reflect the professions of the authors, with prosecutors often arguing that these cases reveal the need to interrogate suspects more thoroughly and to obtain even fuller confessions, while defense attorneys and many academics contend that further restrictions should be placed on the procurement and use of confessions. This controversy, in turn, is part of a much broader debate over the right to silence and the role of confessions in Japan, a topic with deep historical roots.
That broader debate finds close parallels in the debate over Miranda v. Arizona in the United States. For the moment, the continued validity of Miranda itself seems secure, although that opinion has come under considerable attack in recent years and the Supreme Court recently indicated a willingness to reexamine other longstanding principles of the law on confessions. Among the commentaries critical of Miranda is a report on pre-trial interrogation prepared by the Office of Legal Policy of the Department of Justice at the direction of then-Attorney General Edwin Meese. In advocating that Miranda be overruled, the report noted the existence of less stringent restrictions on questioning of suspects in a number of foreign countries.
Although the report did not do so, it might well have relied heavily on the example of Japan. After all, the right to silence is enshrined in both the Constitution and Code of Criminal Procedure in Japan, in terms that are in some respects strikingly similar to standards set forth in Miranda itself. Despite those constitutional and statutory provisions, Japanese police and prosecutors possess very broad tools for obtaining confessions. Moreover, according to such measures as crime rates and clearance rates, Japan's criminal justice system ranks as one of the best in the world, and Japanese prosecutors enjoy a conviction rate of 99.90% What more could Ed Meese have wanted?
On the other side of the spectrum, the Japan Civil Liberties Union and many others contend that the current system of pretrial interrogation in Japan results in widespread invasion of human rights. As an examination of existing standards and practices will reveal, from an American perspective the current scheme appears to present an array of human rights concerns. It is important to consider those standards and practices not just from an American perspective but in the context of both historical attitudes toward confessions and authority in Japan and Japan's overall criminal justice system. The fundamental differences in history, attitudes and systems render the approach to the right to silence much more understandable and reasonable (although by no means entirely free of concerns and dangers) within the Japanese setting, yet raise grave doubts about Japan's suitability as a model for the United States in this regard.