Police Investigation, Arrest, Interrogation and Detention in Japan
Wednesday, August 21, 2019
Know your rights and options in facing the Japanese criminal justice system
Disclaimer: This article is intended as general information and not as legal advice. If you are investigated or arrested in Japan, you should get advice from a lawyer qualified to practice law in Japan.
The sources of police investigation in Japan do not differ so much from other countries except that the koban (neighborhood police outposts) system encourages neighborhood residents to report incidents in their neighborhoods. The police may ask you to come to the police station or interview you at your residence but as long as you are not arrested (see below), you are free to leave or end the interview and you are always free not to answer questions (see Right to silence below), however, the police may see an unwillingness to cooperate as suspicious or a sign of guilt which may lead to your arrest.
Arrest and Search and Seizure
Articles 33 and 35 of the Constitution of Japan stipulates that warrants are required in principle for arrest and search and seizure. As a significant exception to arrest with a warrant, the police may arrest a suspect on the spot during the crime or immediately after a crime, particularly if they believe the suspect may flee but the police still must clearly state that the suspect is under arrest and the reason for the arrest in such a case. Search and seizure (including urine or blood test) requires a search warrant, “describing the place to be searched and things to be seized.” Therefore, you may refuse the search if the police do not have a warrant, and there is the possibility that the police will search you or your property if you do not explicitly refuse, interpreting the lack of such a refusal as consent. The Supreme Court has also allowed searches conducted without a warrant or consent as acts that accompany interrogation procedure under the Police Duties Execution Act relying on the “necessity, urgency and propriety” for such search..
Police and prosecutor questioning
Police officers usually arrest and interrogate and then a public prosecutor interrogates the suspect at the public prosecutor’s office. Immediately after the arrest, the police will ask you about the facts of the suspected crime, as well as, your work history, family, occupation, and living conditions. Although these topics may be regarded as unrelated to criminal proceedings, in Japan, the police usually ask about these matters. Once again, you may refuse to answer such questions but the police may view you suspiciously if you do and that may make release difficult.
Extension of detention: possibility of 23 days detention without charge
Within 72 hours after the arrest, the public prosecutor will decide whether to request the court for detention. If no detention request is made, you will be released. If a request for detention is made, the judge will ask questions about the suspected crime. However, most courts allow detention as requested by the public prosecutor. Judges tend to permit detention of foreigners without a residence in Japan.
The detention period is 10 days. The public prosecutor will request an extension and, if the court permits, extend the detention for an additional 10 days. Therefore, a suspect can be held in detention for a total of 23 days of the arrest and detention periods without the suspect being charged.
Charging and bail
Within the detention period, the public prosecutor must decide whether to charge or release. If charged, you will be held in detention until bail is granted or if bail is not granted, until the verdict.
The court allows bail only after being charged. Your defense counsel may request bail and if the court allows bail and you pay the bail deposit, bail will be granted. The courts rarely grant bail for a foreign citizen and if the court grants bail to a foreign citizen, as a condition for bail, he or she must promise not to leave Japan until the court reaches a verdict. The bail deposit will vary depending on the case, but the amount of bail deposit is usually about 2 or 3 million yen.
An interpreter provided by the police and prosecutors will be present at the interrogation. Although the interpreter may be friendly, it is important to remember that the interpreter works for the police or the prosecutor.
Attorney (defense counsel)
Defense counsel is not allowed to attend the interrogation. The key interrogation technique is to take meticulous notes during long interrogations and ask the same questions repeatedly with small variations to see if your story remains consistent.
Although the Japanese police are prohibited from providing false information to induce a confession and other such interrogation tactics, recently, they have been criticized for forced confession or inducing false confessions from innocent people. Innocent people will often confess to get released during the long period of detention mentioned above in isolation and under difficult conditions (this situation is frequently referred to as “hostage justice” (人質司法 hitojichi shiho)) or to avoid the threat of being charged with and convicted of a serious crime. Four measures you should take to avoid a forced confession are (1) maintain silence if you do not feel comfortable answering a question (see Right to silence below), (2) ask for an attorney (see Right to counsel below), (3) inform your embassy of your arrest (see Contacting embassy below) and (4) do not sign anything unless you fully understand and agree to it after consulting with your attorney (see Written statement below).
Right to silence
You have the right to remain silent (Art. 38 Paragraph (1) of the Constitution, “No person shall be compelled to testify against himself.”), however, you must attend all interrogations and cannot refuse to be interrogated.
The police and public prosecutor conduct interrogations to prepare a written statement (a type of confession). You do not have to sign the written statement, and you may ask that the statement be changed. If you do not understand Japanese, the interpreter will interpret the written statement aloud in your language prior to signing but the written statement will not be translated and no record of the interpretation is kept, so challenging the accuracy of the interpretation in court will be impossible. In Japanese trials, the content of a signed written statement given much weight and denying the content will be difficult. However, if you do not sign the written statement, it will not be admissible as evidence. Therefore, consulting with an attorney before signing is strongly recommended.
Contacting your embassy is recommended mainly because the embassy can ensure that you receive medical care and the monitoring of your situation makes abuse less likely
Rights during Detention
Contact with outside
You cannot make a telephone call or contact the outside by other means (cell phones and other such devices are confiscated). No interpreter is provided except during interrogation and while in detention, you may not request interpretation within the detention center.
Meeting with defense counsel
You may meet with your defense counsel in the detention center’s meeting room. You may speak with your defense counsel in English or other languages and may meet with him or her on Saturdays, Sundays and holidays. There is no time limit on meetings with defense counsel.
Informing of family of arrest
Though not a right, in practice, police officers usually inform family or relatives that the suspect has been arrested, however, the police will not make international telephone calls for you (see Contacting embassy below for how to contact family or relatives outside of Japan).
Meeting with persons other than defense counsel
Meetings with family, colleagues, clergy and other persons are possible during detention (not possible while under arrest). A police office will be present at all meetings. Such meetings are limited to 20 minutes per group per day. No such meetings are allowed on Saturdays, Sundays or holidays. In principle, you may only speak Japanese with visitors and other languages, including English, are not allowed. However, if you and the visitor do not speak Japanese, you might be allowed to have a private interpreter so that the police officer present can understand the conversation (rare in practice), but you will have to pay for the interpreter.
In principle, you may send letters. However, as a police officer will examine the letters, the letters will not be mailed immediately. Exchange of letters written in foreign languages is also not allowed.
Court ban on letters and meetings
If it is judged that evidence may be destroyed, meetings and sending letters may be prohibited except with defense counsel. In some cases, the court will decide to prohibit all meetings with persons other than defense counsel.
You may inform your embassy that you have been arrested. Contacting your embassy is recommended mainly because the embassy can ensure that you receive medical care and the monitoring of your situation makes abuse less likely (see Forced confession above). As well, the embassy will contact your family, friends or employer for you and facilitate receiving money from family and friends (which can be used to purchase items in detention) and persons from the embassy may visit you and give you personal items including reading materials. However, embassies cannot substantively assist you in the legal process including asserting your innocence, testifying on your behalf or providing interpreting or translation.
Right to counsel and getting counsel
You can ask for an attorney while under arrest or in detention. Retaining an attorney is expensive (roughly $6,000 to $10,000 for a criminal case) so you may wish to have an initial free consultation on your case with a duty attorney (当番弁護士 toban bengoshi). The duty attorney will also contact your family and explain the charges against you and can provide you with a notebook to record the details of interrogation called a “suspect’s notebook.”
Here are the telephone numbers for duty attorney.
Here are some lists of English-speaking Japan qualified criminal attorneys
Withdrawal of complaint by victim and reducing sentence
Your attorney may recommend that you compensate the victim of the crime, particularly in cases of property damage or assault. This compensation may result in the charges against you being dropped, if the victim cooperates and withdraws the complaint and if not, the judge will consider the compensation in sentencing as a sign of remorse for the crime.
Arrest of a US citizen: https://jp.usembassy.gov/u-s-citizen-services/arrest-of-a-u-s-citizen/
Australian Embassy information: https://japan.embassy.gov.au/tkyo/arrests.html
Bilingual criminal defense attorneys in Tokyo: https://www.t-nakamura-law.com/en/qa
Vlog - Why Japan Arrests Foreigners: https://www.youtube.com/watch?time_continue=490&v=r1ZLGqL1FMo
What to do if Arrested in Japan (from 2008): https://www.jistec.or.jp/Fellow/AH/Hotline0808_e.html
2.3 Criminal Cases: https://www.nichibenren.or.jp/en/about/judicial_system/judicial_system.html
Toban system: https://www.nichibenren.or.jp/en/legalinfo/arrest.html
About the Author
Lawyer in Tokyo