Criminal defense in Japan -Fee and Service (Shoplifting case)-
Updated: Nov 25, 2020
“How much does it cost to retain a criminal defense lawyer in Japan?"
This is the most frequently asked question from prospective clients.
The simple and easiest answer for lawyers is "it depends”. It is hard to generally estimate the cost of the defense fee, since it depends on a variety of factors such as; what phase of criminal justice system you are in (Investigation Phase or Trial Phase), what current or possible charge there is, whether you are in custody or not, whether you are trying to claim innocence or not, and whether it is a first time offense or not.
The legal fee is generally more expensive for non-Japanese speaking clients compared to Japanese clients because a translator's fee (around at least 100 USD) is added to the legal fee unless the lawyer is available in English.
However, I would like to introduce how much I would charge in a typical case for a non-Japanese speaker using a hypothetical case.
【Shoplifting case 1】
When you admit to the alleged facts of the crime
Jim from the U.S. has been living and working in Japan for 6 years. He has a Japanese wife. On Sunday, while he was shopping with a friend, he stole a small bottle of wine from a local liquor store. However, he was discovered by the shop keeper and now he has been arrested and is detained at a local police station. He has to go to work from Monday. He will face severe difficulties if he isn’t released for a long period.
2. Legal Fee
1) Starter Fee: 400,000 yen (4000 USD)
2) Success Fee regarding detention
Not detained or successfully avoiding extension of detention: 100,000 yen (1000 USD)
3) Success Fee
Not prosecuted: 400,000 yen (4000USD)
Summary Order (Fine without formal trial): 300,000 yen (3000 USD)
1) Possible penalty for theft (Shoplifting)
Shoplifting is one of the most commonly seen crimes in Japan. It is punishable as theft by up to 10 years imprisonment or a fine of up to 500,000 yen (about 5000 USD).
After the arrest, Jim will be sent to the prosecutor's office within 48 hours of the arrest, and the prosecutor will decide whether to ask the court for detention of him. If the court issues a detention warrant, he will be detained for 10 days (generally), which can be extended up to an additional 10 days, for a total of 20.
2) Goal of defense activity
The goal of defense is:
a) Avoid detention or avoid extension of detention and
b) Avoid formal prosecution (formal trial)
In order to avoid detention, it is important for Jim to get a competent criminal defense lawyer as soon as possible after the arrest, so that the lawyer can negotiate with the prosecutor and the judge not to detain him or not to extend detention.
According to criminal procedure law, the court may grant a detention warrant when there is substantial reason to suspect that a suspect committed the alleged facts of the crime and one of the following three elements (a-c) are met.
a. When a suspect does not have a fixed place of living in Japan
b. When there is substantial reason to believe that a suspect will tamper evidence
c. When there is substantial reason to believe that a suspect will escape
4) What criminal defense lawyers can do to avoid detention
The first thing for criminal lawyers to do to avoid detention is to show a prosecutor and court that the case is not sufficient to qualify for the above elements required for detention. Criminal defense lawyers can do so through the providing of documentation and negotiating with the prosecutor and the judge.
For example, in Jim's case, a lawyer will contact Jim's wife and get a document from his wife promising that she will supervise him during the investigation and make sure that Jim will not tamper with evidence nor escape. Also, the defense will get documents from Jim promising that he will not escape nor tamper evidence.
In addition, it is helpful for Jim to write an apology letter to the victim, prepare and settle with the victim by compensating the shop owner for any damage as soon as possible.
If the settlement is concluded before the court decides on the detention request from the prosecutor, it is more likely that Jim will be released without detention.
4. What criminal defense lawyer can do to avoid prosecution
In Japan, a prosecutor has exclusive authority to decide whether to put someone on trial or not (whether to prosecute them or not). According to Japanese criminal procedure article 248, a prosecutor may choose not to prosecute when prosecution is deemed unnecessary considering the character, age, and background of the offender, the severity of the offense, and the circumstances following the offense.
As a result, the aim of the defense is to show supporting evidence for the client regarding the above factors.
In Jim's case, factors like having no prior criminal record, family to live with, settling with the shop (victim), and Jim’s remorseful attitude will be strong evidence to convince a prosecutor not to prosecute him.
Such factors are shown by the defense by presenting documents, and negotiating and explaining supporting evidence for the client to/with the prosecutor.
5 Total Fee
If Jim is released without detention and is not prosecuted as a result, the total fee would be 900,000 yen (Starter Fee 400,000 yen + Success Fee regarding detention 100,000 yen + Success Fee 400,000 yen (Not Prosecuted)).