Ishimatsu Takeo, Are Criminal Defendants in Japan Truly Receiving Trials by Judges? 22 Law in Japan: An Annual 143 (1989), Daniel H. Foote (translator)
Since my initial appointment as an assistant judge in April of 1950, I have served as a judge for over 39 1/2 years. For most of that time, over 30 years, I have handled criminal trials. Thus, one might say that I personally represent a living history of the current Code of Criminal Procedure. Human beings, however, inevitably tend to idle their time away; and I have been kept busy day in and day out handling cases and up until now have never had the chance to sit back and reflect dispassionately on the actual state of criminal trials. That said, no matter how idle a person may be, you cannot spend this long a time doing the same work without giving some thought to matters. One such matter is the question of whether criminal defendants in Japan are truly receiving trials by judges. Conversely, one could pose the question as being whether the work performed by criminal judges in Japan-myself included-can truly be called "conducting trials."
When I say that, I realize that I'm likely to be scolded. After all, how could such an absurdity be the case? At Japanese courts, in criminal matters, aren't proceedings conducted in open court and judgments rendered by qualified judges? In form, that is certainly the case. What I really want to ask, though, is whether, when one examines the reality, the current state of criminal trials can truly be called trials by judges.
To set out my conclusion at the start, I believe that, in their current state, criminal trials-and in particular the factfinding that lies at the heart of trials-are conducted in closed rooms by the investigators, and the proceedings in open court are merely a formal ceremony. In a word, it is the turning of public trials into an empty shell. Former Justice Masataka Taniguchi, who retired upon reaching retirement age last year, in his work entitled "Taking Off the Judicial Robe" ("Hofuku o nuide," contained in M. Taniguchi, Saiban ni tsuite kangaeru (Thinking about Trials)), stated, "Criminal trials tend to begin and end with the non-procedural steps of confirming the subjectivity of the prosecutors in their investigation and deliberating on the sentence. Is this really proper?" This statement, I believe, rests on the same view of the current state of criminal trials as my own. In the same vein, you have probably heard expressions such as "trial by dossier" (chosho saiban) and "exact justice" (seimitsu shiho). There are differences in nuance between these expressions, but they, too, reflect this same view of the actual state of criminal trials.