By Steve Thorpe
Judge Yasuhisa Kurachi of the Kobe District Court in Japan acquainted students, faculty and guests with Japanese criminal legal proceedings from investigation through prosecution during a talk at the Wayne University Law School. Kurachi has been a Kobe District Court Judge since 2008.
Kurachi's lecture on Wednesday, Feb. 15, was part of a joint program of Wayne Law, the Third Circuit Court of Michigan and the Supreme Court of Japan. The program was begun in 2007 and allows a Japanese judge to study the American judicial system with the emphasis on the Michigan system.
Kurachi has been observing the Third Judicial Circuit Court of Michigan and has had an opportunity to make direct comparisons with his court at home.
In a statement before the lecture, Kurachi said, "Throughout my research, I noticed that the proceedings from investigation to prosecution of the Third Circuit Court were totally different from those of Japan. So, at this time, I'd like to introduce Japanese proceedings from investigation to prosecution compared with those of Wayne County."
Starting with the arrest process, Kurachi explained that there are three types of arrests in Japan: Ordinary arrest with warrant, warrantless arrest in a case of urgency (for example, a possible flight risk) and warrantless arrest of a flagrant offender.
Even in cases where there was no warrant at the time of the arrest, the police or prosecutor must acquire a detention warrant from a judge within 24 hours or release the suspect.
The Japanese also have a required process similar to a Miranda warning where the suspect is advised at arrest that they have the right to remain silent, have the right to have the allegations and charges read to them and have the right to make a statement if they choose.
The Japanese have no system of bail for a suspect, but police are only allowed to hold a suspect if they have no fixed residence, there is reason to believe that the suspect will tamper with or destroy evidence or the suspect is a flight risk.
Also, police may only detain a suspect for 10 days before bringing formal charges and only one extension by a judge of 10 days is allowed.
A prosecutor has to decide whether or not to prosecute by the tenth day of detention, although in Japan they have the concept of "discretionary prosecution." The prosecutor may decide not to proceed based on the "character, age and situation" of the suspect.
The nature of the Japanese system means that only 33 percent of those arrested are prosecuted, but 99 percent of those prosecuted are convicted.
How do Japanese police officers view the low percentage of prosecution of those they arrest?
"I don't think they like it," he said with a smile.
What suggestions will he take home to his fellow Japanese jurists?
He said he believes that Japan should institute a bail system before prosecution. Currently a suspect cannot get bail until a trial has begun.
Kurachi also said he would like to see Japan's judges get involved earlier in the legal process, perhaps with something similar to the American discovery process.
Published: Fri, Feb 17, 2012