Symposium on Making Sense of the Carlos Ghosn Case:
Comparative Views of Japanese Criminal Justice

There are many major differences between the criminal justice systems of Japan and the United States. I first wrote about some of them in The Japanese Way of Justice: Prosecuting Crime in Japan (2002). In this essay, I focus on two similarities that are often overlooked: Japan and the United States both rely heavily on admissions of guilt in the criminal process, and both employ considerable pressure to obtain them. After describing these similarities, I discuss some causes, contexts, and comparisons. I argue that admissions of guilt help legitimate use of the criminal sanction, which has limited capacity to do good and great potential for doing harm (Packer, 1968). By legitimating decisions to punish, admissions of guilt can bolster the integrity of the criminal justice system, but when admissions of guilt are obtained under compulsion, as they often are in the US and Japan, the system’s integrity must be called into question.

Japan

In Japanese criminal justice, interrogation (torishirabe) is the main means by which police and prosecutors obtain confessions, which remain the “king of evidence” as they have been for centuries. Confessions are also the cornerstone of some significant achievements in Japanese criminal justice (Johnson, 2002, ch.8; Foote, 1992), yet how they are produced has been harshly criticized, and for good reasons (Johnson, 2002, ch.8; Miyazawa, 1992; Hamada, 2018). Criminal confessions are seldom truly voluntary and spontaneous, regardless of the country or culture. Many are “compelled, provoked, and manipulated from a suspect by a detective [or prosecutor] who has been trained in the ‘genuinely deceitful art’ of interrogation” (Simon, 1991, p.199). In short, many confessions are produced through the application of social and psychological pressures (Leo, 2008). What is striking about Japan is how intense and sustained these pressures can be.

[M]any confessions are produced through the application of social and psychological pressures. What is striking about Japan is how intense and sustained these pressures can be.

Interrogations in Japan are long. On average they last more than twenty hours in an ordinary criminal case and more than forty hours in cases that are eligible for lay judge trial (Homusho, 2012). In bribery cases, the average length of interrogation is 130 hours, and in the controversial case involving former Nissan executive Carlos Ghosn, interrogations lasted more than 500 hours (Aronson and Johnson, 2020). Critics have rightly raised questions about the propriety of these practices.

Interrogations in the United States are much shorter than interrogations in Japan. One American study examined interrogation in 182 felony cases in three police departments in California (Leo, 1996). Nearly 80% of the cases were homicide, robbery, or assault. Twenty-nine of the 182 criminal suspects (16%) invoked their Miranda rights and avoided interrogation (American police detectives are adept at obtaining Miranda waivers). Of the remaining suspects, 35% were interrogated for less than thirty minutes, 37% were interrogated for thirty-one to sixty minutes, and only 29% were interrogated for more than one hour. In this study, the median length of interrogation was approximately forty-five minutes, the longest interrogation was four and a half hours, and only 8% of all criminal suspects (n=12) were interrogated for more than two hours (Leo, 1996, p.279). On average, interrogations in these American police departments lasted less than 5% as long as interrogations in Japan.

Research in the United States also shows that long interrogations frequently precede false confessions. A national study of false confessions found that 84% occurred after interrogations of six hours or longer and that the average duration of interrogation in false confession cases was sixteen hours. The authors of this study recommended that evidence obtained after interrogations in excess of twelve hours (about half the Japanese average) should be categorically impermissible in American courts, while confessions obtained after six hours or more should be admissible only if the prosecution can prove beyond a reasonable doubt that the admissions were made voluntarily (Drizin and Leo, 2004).

It is impossible to say how often long interrogations in Japan overbear the will of criminal suspects because there are few rigorous studies on this subject. But the available evidence suggests the problem is probably severe. In a National Police Agency (NPA) survey of police interrogation practices in ordinary cases (n=397), confessions were obtained in 86% of cases, and 82% of those confessions were obtained on the first day of interrogation. Conversely, 18% of those who did not confess on the first day subsequently did confess. In more serious cases (sosa honbu jiken, n=86), 66% of suspects eventually confessed, with 84% of the confessors doing so on the first day of interrogation. This means 16% of those who eventually confessed did so after the first day of interrogation. Hence, in serious and less serious cases alike, more than 15% of confessing suspects did so after the first day of interrogation (Keisatsucho, 2012). How many of their confessions were false and/or coerced?

The NPA survey also asked police about the “occasion for confession” (jihaku no kikkake). From most to least frequent, the top five answer categories were: a relationship of trust was formed between the police and the suspect, the interrogator’s skill, the presence of other evidence against the suspect, the suspect’s consciousness of crime, and the suspect came to see confession as in his or her best interest (Keisatsucho, 2012, Table 7). Absent from this list of contexts and causes are two states of mind that criminal suspects commonly experience: a desire to terminate interrogation and thereby escape from the stress, pressure, and confinement of the questioning process; and a perception that suspects have no real choice but to comply with the interrogator’s demands (Leo, 2008, p.162). Long interrogations raise the risk of producing these two states of mind.

A Ministry of Justice survey that examined interrogations by police and prosecutors (n=8193 cases) found that 10.5% (861) of all suspects started out “denying” (hinin) the allegations against them but subsequently confessed. In these cases, the average length of interrogation was twenty-seven hours, and the maximum length was 140 hours. If 1% of these “conversion confessions” were false, there would be eight or nine false confessions in this sample. If 10% were false, there would be nearly ninety false confessions. And of course, 8,193 is a small fraction of all the suspects who get interrogated each year in Japan, and false confessions also occur on the first day of interrogation.

Criminal suspects have a right to remain silent, but if they invoke it they still have a duty to endure questioning.

Japan has other interrogation problems in addition to intensity and duration. Criminal suspects have a right to remain silent, but if they invoke it they still have a duty to endure questioning. If a suspect speaks, his words need not be written verbatim in the statements (chosho) composed by police and prosecutors. After Japanese prosecutors were caught trying to frame a senior bureaucrat (Muraki Atsuko) by forging a floppy disc, a survey of 1,300 prosecutors found that 26% had been ordered by a superior to compose a written statement that differed from what a suspect or witness actually said (Johnson, 2012, p.63). Despite recent reforms, most interrogations in Japan are still not electronically recorded. Defendants are seldom released on bail if they deny the charges against them – a system of “hostage justice” that has been harshly criticized (“Call to Eliminate Japan’s ‘Hostage Justice’ System by Japanese Legal Professionals, 2019). And criminal suspects in Japan do not have the right to have a defense lawyer present during interrogation, unlike their counterparts in the United States, England, France, Germany, and South Korea.

These features of Japanese interrogation put great pressure on suspects to confess, especially when a case is high-profile, other evidence is lacking, and the suspect refuses to admit guilt. In these circumstances, Japan’s extreme reliance on confessions can lead to extreme efforts to obtain them. Many problems in Japanese criminal justice (including wrongful convictions) stem from two connected facts: the system’s strong dependence on admissions of guilt, and the weakness of checks on police and prosecutors in the interrogation room. There is also an entrenched “culture of denial” that makes it difficult for insiders to acknowledge mistakes (Johnson, 2020, pp.61-80). Moreover, even when a suspect is not “actually innocent,” the pressure of the interrogation process raises questions about the voluntariness and reliability of confessions that Japanese progressives (and the United Nations) have been rising for decades – and that Japanese courts rarely recognize.

Some Japanese insiders lament the system’s heavy reliance on confessions. In 1997, for example, one prosecutor argued that “if there is not some kind of alternative to interrogation as a method for obtaining statements, it is greatly feared that in the future our country’s criminal justice system may very well collapse” (quoted in Johnson, 2002, p.270). In 2011, a survey of 1,444 prosecutors found that 82% believed “it has become more difficult to obtain statements from suspects and witnesses” (Johnson, 2012, p.64). For these reasons, and in exchange for prosecutors’ assent to some recording reforms, a new law took effect in 2018 that permits plea bargaining, though only when one offender informs on another (Ohno, 2020). The United States has long relied on “snitch” testimony of this kind, with many troubling results (Natapoff, 2011). Japan’s new plea bargaining system has some safeguards, and time will tell how it is used and whether it expands. (In Carlos Ghosn’s case, questions have been raised about the propriety of the deal prosecutors made with Nissan executive Hari Nada; see Dooley, 2021.) Here, though, I would like to stress one striking fact: Japan’s “solution” to the problem of over-reliance on interrogation and confession involves the introduction of a parallel system for producing admissions of guilt. This irony – a criminal justice reform that could reinforce the problem it is meant to ameliorate – is a common finding in comparative criminal justice research (Nelken, 2010).

America

About a quarter of all cleared crimes in the United States are “solved” by confessions (Leo, 2017, p.10), and many of these confession cases do not go to trial because they end in plea bargains. In fact, the vast majority of criminal cases in America are disposed of through plea bargaining – over 97% at the federal level, and about 94% in the fifty states (Aronson and Johnson, 2020). These percentages have been increasing for decades, leading some analysts to worry about “the death of the American trial” (Burns, 2009). If a Martian anthropologist came to Houston or Honolulu to study how Americans do criminal justice, it might be struck by this contradiction: almost everyone believes in the value of jury trials, but few jury trials actually occur. Plea bargaining has “triumphed” so completely in the United States that it can hardly grow anymore (Fisher, 2003, p.230). In many respects, “plea bargaining is the criminal justice system” (Justice Anthony Kennedy in Cooper vs. Laffler, 2012).

It is hard to find a principled defense of plea bargaining in the United States

Some things can be said in defense of American plea bargaining: it saves time and resources, it reduces risks, it rewards cooperation, and so on. But almost all of the justifications are rooted in expediency and pragmatism. It is hard to find a principled defense of plea bargaining in the United States (Langbein, 1978).

And American plea bargaining has many problems. It distorts the truth, for defendants often plead guilty to offenses that bear little relation to their actual conduct. It sacrifices the principle of desert that is supposed to govern punishment decision-making. It sacrifices other important legal principles, including the presumption of innocence, proof beyond a reasonable doubt, the privilege against self-incrimination, the right to confront and cross-examine witnesses, and the principle of lay participation in criminal adjudication (plea bargaining is not even mentioned in the US Constitution). It concentrates immense power in the prosecutor’s hands. It forecloses opportunities for appellate review and the detection of error. It amounts to justice without trial. And most problematically, plea bargaining is coercive at its core (Langbein, 1978).

Many criminal defendants in the US are pressured to plead guilty. Defendants who decline a prosecutor’s offer and go on to get convicted at trial are routinely punished with a substantially more severe sanction than they received during “negotiations.” The difference between (a) the punishment that is offered and refused and (b) the punishment received after conviction at trial is known as a “trial tax,” “trial penalty,” or “sentencing differential.” A small trial tax may be acceptable, for it creates an incentive – a nudge – for persons accused of a crime to take responsibility, cooperate with the state, and save the resources it takes to conduct a trial. Some countries recognize this by placing legal limits on the size of a trial tax, ranging from 10% to 15% in Australia to 25% in New Zealand and 33% in England and Wales (Fair Trials, 2016, p.57). But all too often the trial tax in American criminal justice is neither a nudge nor a reasonable incentive to cooperate. Rather, it is like the offer made by mafia boss Don Vito Corleone in “The Godfather” film – an “offer that cannot be refused” (Zeisel, 1983).

Many people either do not know about the size of the trial tax in the United States or they deny its coercive effects. Some even deny that it exists (Abrams, 2013). But the evidence is clear and abundant: the trial tax is large and coercive (Langbein, 1978). As one recent review of the scholarly literature put it, “Estimates of [the trial tax’s] magnitude differ across studies and jurisdictions, but it typically involves a two- to six-times increase in the odds of imprisonment and a 15–60 percent increase in average sentence length” (B. Johnson, 2019, p.313). When Hans Zeisel studied felony case processing in New York City in the 1970s, he found that plea offer “refusers” received an average increase in punishment of 136% (Zeisel, 1983). Since that study was published, trial taxes have grown substantially (McCoy, 2003; Lynch, 2016; National Association of Criminal Defense Lawyers, 2018). In 2004, Chief Judge William G. Young of the Federal District Court of Massachusetts put the problem forcefully:

“Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible…. Today, under the Sentencing Guidelines regime with its vast shift of power to the Executive, that disparity has widened to an incredible 500 percent. As a practical matter this means, as between two similarly situated defendants, that if the one who pleads and cooperates gets a four-year sentence, then the guideline sentence for the one who exercises his right to trial by jury and is convicted will be 20 years. Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that today we punish people—punish them severely—simply for going to trial. It is the sheerest sophistry to pretend otherwise.” (US v Richard Green, 2004)

There are four main theories of plea bargaining’s emergence and expansion in the United States. One theory stresses the press of heavy caseloads. Another stresses the increased complexity of criminal trials. A third emphasizes institutional changes in policing and prosecution, such as improvements in policing and evidence-gathering, which create incentives to negotiate before trial. Finally, some scholars believe the key causes of plea bargaining are to be found outside the criminal justice system, in changes in the political economy and in shifts in public attitudes toward crime and criminal justice (Smith, 2005, pp.133-136). Studies of the history of plea bargaining lend some support to all of these theories (Smith, 2005, pp.136-140), but here I would like to emphasize two common themes. First, all of these theories recognize the increased cost and complexity of criminal trials in the United States – and of the criminal process more generally. Second, this increased complexity creates incentives for criminal justice professionals – prosecutors, judges, and defense attorneys – to avoid complicated case processing by seeking shortcuts and simplicity. In this context the trial tax emerged (and grew) as a means of pressuring the accused to avoid trial (Langbein, 1978).

Contexts and Causes

This essay has stressed two similarities between Japan and the United States: both rely heavily on admissions of guilt in the criminal process, and both employ pressure to obtain them. Some of the causes of these similarities surely differ between the two countries. Culturally, there is “a stronger role for apology in Japan than in America” (West, 2006, p.286), and for “confession, repentance, and absolution” too (Haley, 1991, pp.129-138). Japan has even been called “the apologetic society par excellence” (Tavuchis, 1991, p.37). More generally, research shows that Japanese culture is “tighter” than American culture, with stronger norms and less tolerance for deviance in many social spheres (Gelfand, 2018). When these norms relate to criminal deviance, the cultural pressures to admit guilt are intense (Bayley, 1991, pp.126-151).

[W]hen admissions of guilt are obtained through compulsion, the system’s integrity can be called into question, as I have tried to do in this essay.

But there are also common causes. In the United States, plea bargaining triumphed “largely because it served the interests of the powerful,” especially by giving prosecutors authority to dictate criminal sentences (Fisher, 2003, p.2). In Japan, too, confession and remorse undergird the rehabilitative ethos of the criminal justice system, but this “benevolence” is administered in decidedly “paternalistic” ways that reflect and reinforce law enforcement’s powers (Foote, 1992). Similarly, in both countries police and prosecutors exercise great influence in the criminal process while judges do little to control the law enforcement actions that produce admissions of guilt. And in both countries, admissions of guilt make the work of legal professionals – police, prosecutors, judges, and defense lawyers – more efficient and convenient, thereby creating incentives to cooperate with each other in the guilt-inducing-and-ratifying process. Most fundamentally, in both countries admissions of guilt help legitimate use of the criminal sanction, which is “the paradigm case of the controlled use of power within a society,” and which typically involves the purposeful imposition of pains and deprivations (Packer, 1968, p.5). By legitimating the infliction of pain – “you said you did it and therefore you deserve this” – admissions of guilt bolster the integrity of a criminal justice system. But when admissions of guilt are obtained through compulsion, the system’s integrity can be called into question, as I have tried to do in this essay.

I have focused on Japan and the United States. What about Europe? It appears that admissions of guilt have become increasingly important in countries on the continent, too. In England, Wales, and France, for example, more and more criminal suspects and defendants are being “shepherded” toward admissions of guilt (Hodgson, 2020, p.338), and “in the overwhelming majority of cases…there is no opportunity for the defense to have any part in the investigation” (Hodgson, 2020, p.344). In these jurisdictions, “the thrust of criminal justice policy and reform…has been away from trial and the public disposition of cases” (Hodgson, 2020, p.344). In these ways, “criminal justice in Europe pays lip service to a human rights narrative” while in reality its criminal processes “are increasingly characterized by an administrative justice model that is measured by a set of managerialist outcomes more concerned with throughput than with the quality of justice” (Hodgson, 2020, p.344). Moreover, when defendants in Europe try to exercise their right to silence, they often encounter more coercive methods of questioning (Hodgson, 2020, p.243). In sum, criminal justice systems in Europe often operate on a de facto presumption of guilt, and legal efforts to tame the interrogation process have been met with much resistance.

When we cast our comparative gaze even more widely to consider the rest of the world, one striking finding is the rapid spread of plea bargaining and related “trial waiver systems.” In 1990, only nineteen of ninety jurisdictions had trial waiver systems, but by the end of 2015 the number had grown to sixty-six (Fair Trials, 2016, p.4). As trial waiver systems have become increasingly common, international law and human rights frameworks have done little to provide protection for suspects and defendants (Fair Trials, 2016, p.62), despite serious risks of false testimony and wrongful conviction when justice is “bargained” (Pardieck, Edkins, and Dervan, 2020). Which is to say, this essay has focused on Japan and the United States but the story it tells might have much wider relevance.

Conclusion

In 1896, the US Supreme Court declared that the “true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort” (Wilson v. United States). Article 38 of Japan’s Constitution states similar principles, that “[n]o person shall be compelled to testify against himself,” and that “[c]onfession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.” In practice, these principles are often honored in the breach.

Some analysts believe criminal confessions (and by extension, guilty pleas made under pressure) should be abolished – categorically excluded from criminal prosecutions (Krishnamurthi, 2020). On this view, admissions of guilt: (1) have low probative value and are prejudicially overvalued by courts; (2) frequently result in false convictions that undermine confidence in the criminal justice system; (3) impose significant harms on defendants in terms of their due process and moral rights; and (4) are poorly governed by doctrinal approaches that fail to prevent the foregoing problems (Krishnamurthi, 2020, p.5). Although these are powerful objections, efforts to abolish admissions of guilt seem doomed to fail for practical and political reasons. What is more, research shows that when strict restrictions are enacted, they are often subverted by the self-interested actions of legal professionals (Langbein, 1978).

Some analysts predicted that “the fall of the confession era” would occur as new technologies develop for gathering and assessing evidence (Bilz, 2005), but admissions of guilt have remained “central” in all criminal justice systems, regardless of the procedural tradition or rhetoric (Hodgson, 2020, p.15). Yet there are differences of degree. Where reliance on admissions of guilt is extreme, as in Japan and the United States, extreme measures are often taken to obtain them. As many addicts will acknowledge, the first step toward improvement is admitting you have a problem. I hope this essay encourages people in both countries to wonder whether their criminal justice systems have admission-of-guilt problems.

This essay is a substantially revised English version of David T. Johnson, “Nichibei no Jihaku ni tsuite” [Confessions in Japan and the United States] 2473 Hanrei Jiho 120 (Hinako Sugiyama trans., 2021).

A list of the authors and titles of the original essays in Japanese is available on the website of Hanrei Jiho: http://hanreijiho.co.jp/wordpress/book/%E5%88%A4%E4%BE%8B%E6%99%82%E5%A0%B1-no-2473%E3%80%94%E8%A9%95%E8%AB%96-no-746%E3%80%95/

Suggested Citation:
David T. Johnson, “On the Pressure to Produce Admissions of Guilt in Japan & the United States,” in Symposium on Making Sense of the Carlos Ghosn Case: Comparative Views of Japanese Criminal Justice, USALI East-West Studies 1, No. 6, June 16, 2021, https://usali.org/comparative-views-of-japanese-criminal-justice/on-the-pressure-to-produce-admissions-of-guilt-in-japan-amp-the-united-states.

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The views expressed are those of the authors and do not represent those of USALI or NYU.

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