Daniel H. Foote, Prosecutorial Discretion in Japan: A Response, 5 UCLA Pac. Basin L. Rev. 96 (1986), https://digitalcommons.law.uw.edu/faculty-articles/1017
Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system.
Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards by advocating new legal theories and drawing public attention to a particular issue. Following these initial efforts by practitioners, academics often take up the cause, generating a plethora of different theories. These often turn on fairly fine gradations in approach and on occasion reach exactly the same conclusions on somewhat different grounds.
In some cases, such efforts result in adoption of new criminal procedure standards by the courts (with success occurring most often in those cases where the academics have achieved a high degree of consensus). In others, the academic debates seem to become primarily a theoretical exercise with a life of their own. Lower courts may on occasion base a decision on one of the theories. The Supreme Court may even discuss certain basic principles of the reform efforts with apparent approval, but this is typically dictum in a decision rejecting the reformers' position in that particular case. While such Supreme Court dictum is sometimes adopted readily by lower courts as a new controlling standard, in many cases the dictum ends as just that. It may serve as an admonition to police and prosecutors, but it does not create any enforceable rights for defendants.
Despite Goodman's apparent optimism about the success of the abuse of prosecutorial discretion movement in Japan, I am inclined to regard this as yet another example of the above pattern of legal debate. An active and vocal defense bar has focused attention on the issue, which has subsequently generated extensive academic debate. Certain theories have gained acceptance in isolated lower court decisions and have even been cited with apparent approval in dictum by the Supreme Court. Nonetheless, for the most part, such efforts have yet to result in concrete changes in legal standards, and the ultimate effect of the Supreme Court's pronouncements in the field remains in doubt. Yet, rather than expand on these thoughts, which I have discussed at greater length in a somewhat different context elsewhere, I would instead like to turn to two other issues raised by Goodman's article: the extent to which plea bargaining exists in Japan, and due process considerations raised by the system of so-called "suspension of prosecution."