In Arthur Conan Doyle’s “Silver Blaze” story (1892), detective Sherlock Holmes notices that a dog did not bark during the theft of a horse. From this, he induced that the thief was not a stranger, which reduced the number of suspects to one. Case closed.
- Inspector Gregory of Scotland Yard::
You consider this to be important?
- Sherlock Holmes::
- Inspector Gregory::
Is there any point to which you would wish to draw my attention?
- Sherlock Holmes::
To the curious incident of the dog in the night-time.
- Inspector Gregory::
The dog did nothing in the night-time.
- Sherlock Holmes::
That was the curious incident.
The most curious thing about criminal justice reform in Japan is how much pressure for change has been directed at prosecutors—and how little has been directed at judges and defense lawyers. To be sure, prosecution does need reform. When more than one-quarter of prosecutors acknowledge that they have been directed by a superior to create a dossier (chosho) that differs from what a suspect or witness actually told them, the imperative of change is obvious.Footnote 21 It is also obvious that prosecutors and their allies will resist reform, for power seldom cedes control voluntarily.Footnote 22 But prosecutors are only one part of a “criminal court community” that is also inhabited by judges and defense lawyers. If prosecutors dominate this community, it is partly because judges and defense lawyers have let them. Much talk about reform overlooks the crucial fact that judges and defense lawyers have frequently failed to perform their duty to check prosecutors’ power in the criminal process.Footnote 23
Consider judges, who have the final word in the criminal process. They routinely use their authority to give prosecutors (and police) what they want: arrest warrants, detention warrants, evidence admitted at trial, convictions, and sentences. And when prosecutors do not get what they want from lower courts, they frequently get it on appeal. There is nothing necessary or inevitable about this judicial tendency. Postwar reforms included many progressive provisions, from the right to due process and a fair trial to protection against self-incrimination. But in translating the “law on the books” into the “law in action,” Japan’s judiciary has “adopted, accepted, or silently acquiesced in a wide range of interpretations that greatly circumscribed the protections for suspects and defendants, while granting broad authority to investigators.”Footnote 24 This extraordinary deference of judges to prosecutors is why some defense lawyers say that if they could change only one thing about Japanese criminal justice, it would be the tendency of judges to yield to prosecutors in their decision-making. On this view, judges defer to prosecutors so routinely that reforming the judiciary is even more urgent than reforming the procuracy. As one defense lawyer put it, “if judges change, prosecutors will have to change too.”Footnote 25
Like judges, defense lawyers have also been passive toward prosecutors and police. Legally and ethically, their obligation is to try, by every fair and legal means, to get the best result for their clients, but this duty often goes unfulfilled. For decades, many defense lawyers have been little more than passive props in trial ceremonies that are scripted by prosecutors, certified by judges, and barely contested by the defense. There are many reasons for this passivity, including some over which defense lawyers have little control. Judicial interpretations of law have restricted what defense attorneys can do for criminal suspects and defendants. Moreover, all but a few criminal cases pay poorly in comparison to the other work opportunities that Japanese attorneys have (in criminal defense as in other areas of life, you often get what you pay for). But while law and economics are impediments to good defense lawyering in Japan, the cultural obstacles may be even more formidable. In my view, defense lawyers are complicit in a state of affairs that Hirano Ryuichi (former president of Tokyo University and the dean of criminal justice studies in Japan) described as “abnormal,” “diseased,” and “really quite hopeless.”Footnote 26 Traditionally, defense lawyers in Japan have seldom advised suspects or defendants to invoke their right to silence. In 1991, a survey of more than 1000 lawyers found that over 60 percent had never recommended that a suspect or defendant exercise the right to remain silent. Not a single time. The same survey found that two-thirds of lawyers had never asked that a witness testifies in court when prosecutors sought to use written statements instead of live testimony, and three-quarters had never asked a court to compel prosecutors to disclose evidence. This level of passive acquiescence is like doing sumo with one hand tied behind your back.
Since it is often in a suspect’s best interest not to talk to interrogators, it is puzzling why there is so much reluctance to recommend this fundamental right. One cause is the difficulty of maintaining silence through Japan’s long interrogation process. As one attorney told me, “if I advise 100 suspects to remain silent, only one or two would be capable of staying mute until the [long] interrogations end.”Footnote 27 Still, in many criminal cases the best thing a defendant in Japan can do is what a full-page ad in the Boston Yellow Pages once urged (under “Attorneys”): JUST SHUT UP.
Even in trials where defendants claim innocence, it is striking how little vigorous advocacy there can be. During a rape trial in which the defendant insisted that the victim had consented to sex, I watched one defense lawyer scold his client in open court. “Who are you trying to kid?” he asked his befuddled client. “Do you really think anyone is going to believe your story? I don’t.” And in a murder trial in which prosecutors sought a sentence of death for a defendant who had a prior conviction for homicide, a pair of defense lawyers passed up numerous opportunities to press the prosecution’s key witnesses about weaknesses in their testimony. When prosecutors in this trial persistently pressed the defendant with incriminating questions despite the defendant’s complete silence, his lawyers barely uttered a word of protest. I was not surprised when that defendant was condemned to death. And I suppose he may have wondered about his own legal representation: with friends like this, who needs enemies?
It is difficult to defend homicide cases in a country where the criminal process is significantly tilted toward state interests. It also needs to be acknowledged that there is not one right way to do criminal defense. Culture counts, and in Japan’s legal culture, repentance and confession are salient themes.Footnote 28 Criminal defense strategy should depend on the case and the context—and Japan is not the United States. But sometimes the best defense is a good offense, even in Japan.
Defending someone accused of murder is not a job for people seeking approval. It is a job for those who are willing to rattle cages, make enemies, and raise a little hell. By raising hell, defense lawyers honor the law.Footnote 29 The need to “rattle cages” is what defense lawyer Takano Takashi had in mind when he told me that the lay judge system gives Japanese defense lawyers a precious opportunity to improve a system that sorely needs change:
The advent of the lay judge system [in 2009] marks the beginning of a war against professional judges. Many professional judges want to minimize the scope and significance of the lay judge reform. But this is a power struggle. [If we are to fulfill our obligation to protect the rights of defendants,] we defense lawyers must empower lay judges to stand up to professional judges and defeat them in the deliberation room. For this to happen, defense lawyers must shed the feeling of uselessness that has been their big burden. Defense lawyers are habituated to being passive in the criminal process. We have been socialized to believe that what we do does not matter. But with lay judges in front of us, we are no longer talking to a wall. Now we have a real opportunity to make a difference, and we need to make the most of it. We must fight in open court to change a system that is stacked against us.Footnote 30
Time will tell what Japanese defense lawyers make of the new opportunities the lay judge reform is giving them. By most accounts, defense lawyering has improved since the reform took effect in 2009. At the same time, lay judges routinely report that they found the trial presentations made by prosecutors clearer and more persuasive than those made by defense lawyers.Footnote 31 And continued change for the better in Japanese defense lawyering is far from guaranteed, not least because of new challenges raised by the other major reform in civilian participation in Japan’s criminal process.