The worst has happened, you have been arrested in Japan, and you are panicking. You may not speak Japanese; you may have little idea of what is going on; you might even just be here on holiday and be completely out of your depth. Alternatively, a friend, child or loved one has been arrested and you want to help any way you can. This article is designed to give you some idea of the arrest process and what you are likely to face, and more importantly what rights you have (and unfortunately some that you don't) that you should be aware of; it could make all the difference to your future and liberty, so please read on and familiarize yourself with the contents even if you think it doesn't apply to you. Remember, nobody plans on being arrested.
Firstly, if you are arrested in Japan, your mobile phone or other means of communication with the outside world will be taken away, and you will likely be placed in a police detention facility where you may be physically detained for up to 23 days on a single charge, after which the prosecutor will decide whether to indict you or not; this is the investigation phase. If you are indicted, unlike many jurisdictions, the case will almost certainly proceed to trial, so the investigation phase is critical. However, this period can be repeated again for a separate charge if you are facing multiple charges, sometimes leading to total detention times extending for 40 days and beyond, all before being indicted with any crime; a fact which often shocks many westerners when they first hear it. In addition, if the crime you are facing is serious, and especially if you are claiming innocence, you will be subjected to intense interrogation by police officers and prosecutors almost every day.
The main purpose of the daily interrogations, with you being physically detained in a police station or other detention facility, BEFORE being indicted (in contrast to many western countries), is to get you to admit to the crime and to prepare a written statement containing your "confession" in the best possible form for the investigating side. In addition, unlike in most western countries, even after appointing a lawyer, you will have to undergo these interrogations alone, without your lawyer present in the interrogation room. You can and should discuss with your lawyer all your interrogations before and after they happen, but the reality of facing the interrogations alone can be very daunting, and they are meant to be; this method leads to an unusually high number of confessions, some of which amount to ‘forced’ or ‘false’ confessions. The impossibility of bail during the investigation phase also surprises people, all of which has led many observers both within and without Japan to describe the investigative process as ‘hostage justice.’
So, in order to face the rigors of a Japanese investigation, and to provide you with the best possible chance of getting a just decision, what do you need to know? Well, there are three main rights you, as a suspect, have that you should be aware of:
・ You have the right to remain silent
・ You have the right to appoint legal counsel
・ You have the right to correct the police or prosecutor's written statement and to
refuse to sign any written statement they make
The right to remain silent is the right not to say what you do not want to say, or the right to not say anything at all, to any question they may ask. This is extremely important; you do not have to say anything or answer anything, because of course they can and will use it against you if it is in their interests to do so. In addition, this is likely to be the first right that you will exercise, as in many cases the police may begin interrogating you immediately, before your lawyer has arrived, or before you have even contacted a lawyer or had one assigned to you. You do not have to answer their questions, and there are many reasons not to depending on the particulars of the case. For example, in many instances your memory may be fuzzy, you could be intoxicated, or you may not know how to answer the question, or you could just be scared that you will accidentally incriminate yourself.
This leads us on to your second, and undoubtedly the most important right that you have, the right to legal counsel. Once arrested, you should immediately insist on the police contacting a lawyer on your behalf. Police officers and prosecutors will persistently ask you questions, but it is important to clearly state that you want to consult with a lawyer before answering any questions, and stick to that position. It is a favorite tactic of the police to try and get you talking and thereby delay the arrival of your lawyer. If you already have a lawyer that you think would be able to help you, such as a friend or acquaintance, or simply one that comes highly recommended, make a note of their name, the name of their firm, and contact information and keep it with you (like in your wallet or bag) and ask the police to contact them as soon as you are arrested, even if they try to begin interviewing you right away.
If you don't know any lawyers in Japan, Japan has a system where you can get a referral from the bar association to a lawyer in the area where you are being arrested, for free, for a first consultation (on-duty lawyer system), so even if you don't know any lawyer's name, persist in asking the police officer to call a lawyer using this system. If you consistently take the attitude of not answering questions until after consulting with a lawyer, they will comply with your request, but it is important to be firm.
This first consultation is vitally important, as the lawyer will be able to answer any more detailed questions you may have, and deal with any of the issues unique to your case. Crucially, this lawyer will also be able to contact a member of your family, a friend or even your boss. There is no ‘one phone call’ system in Japan, so without a lawyer, no one will know what has happened to you, potentially for multiple days. In addition, if you are contacting a lawyer via the on-duty lawyer system, the lawyer may not necessarily be familiar with criminal defense and may not speak your language, so you may want somebody to find a more suitable lawyer for you.
Once you have your lawyer assigned, they will be able to assist you with the rest of your interrogation, which is where you will be faced with one of the most important decisions you have (and one you shouldn't ever make alone), which is whether to exercise your right to correct the police or prosecutor's written statement and to refuse to sign any written statement they make. This right allows you to request a correction to a police officer or prosecutor of the contents of the written statement that summarizes your story in Japanese, and to refuse to sign or stamp with your fingerprint if you do not agree with the contents, or for any other reason, such as on the advice of your lawyer.
This written statement is a summary of what you have said to the police officer or prosecutor. Police officers and prosecutors will insist on asking you to sign it.
However, it often happens that police officers and prosecutors summarize your story to make you seem more guilty, such as by omitting or emphasizing different aspects of your story, or there are times when the content is simply incorrect. Unfortunately, the competence and impartiality of interpreters attending interrogations by Japanese police officers and prosecutors are also not guaranteed. When they read out to you the written statement they have written in your language, it may not necessarily match the content of the Japanese.
If you sign the written statement, there is a risk that it will be used to your detriment in the future. This is because only signed statements are admissible in court.
In addition, the interrogation is recorded and may be used to your detriment later as well. Therefore, whether or not to speak in an interrogation, how to speak, what or whether to answer specific questions etc. and whether to sign the prepared written statement must be carefully judged based on the advice of a lawyer who is a legal expert.
Based on the above, it may seem like remaining silent is always the safest course to take, and in many cases your lawyer will recommend this. You have the right to remain silent, and the prosecution cannot legally make your silence a disadvantageous factor in and of itself. You also have the right to correct the contents of the written statement prepared by a police officer or prosecutor, or to refuse to sign it if you are dissatisfied with its contents, and there is no law that such actions will be considered in a prejudicial manor.
However, in reality, there are cases where it is advantageous to tell your story clearly and succinctly and to sign your written statement. Therefore, how to respond to an interrogation is exactly why you need to consult with a lawyer, as soon as possible after your arrest, and before agreeing to questioning.
Being arrested may seem like a nightmare you just want to wake up from, but if you are prepared and stay calm, think clearly and remember your rights, you will give yourself the best chance to obtain justice, no matter how shocked and scared you are at the beginning. Alternatively, if a family member or loved one has been arrested, remember that you are not powerless, you can contact a lawyer on their behalf and arrange for them to see your loved one as soon as possible, again, giving them a fighting chance at a successful outcome.