Judicial responsibility

In some respects, the law-on-the-books about the right to silence in Japan is “strikingly similar” to laws in the United States and other developed democracies (Foote, Reference Foote1991: 416). The most fundamental principle is found in Article 38 of the Constitution, which states that “No person shall be compelled to testify against himself.” The imperative could not be clearer. There is also plain language in the Code of Criminal Procedure (CCP) (Foote, Reference Foote1991: 426). Article 198 states that “In the case of the interrogation…the suspect shall, in advance, be notified that he/she is not required to make a statement against his/her will.” Similarly, Article 319 of the CCP states that “Confession under compulsion, torture, threat, after unduly prolonged detention or when there is doubt about it being voluntary may not be admitted as evidence.”Footnote ¹

But if Japanese law gives suspects and defendants a right to remain silent, the judge-made “duty to endure interrogation” hollows it out. Of course, there is often a gap between what the law says and how it is interpreted and enforced. In the United States, for example, speed limits seldom mean what they say, and the right to trial by jury has been all but swallowed by plea bargaining (Edwards, Reference Edwards2006). However, in Japan there is an immense gulf between the right to silence in law and the right to silence in reality. The elevated language of the law books has been turned into an empty pretense by giving judicial permission to police and prosecutors who would bulldoze suspects into submission (Takano, Reference Takano2021; Nishi, Reference Nishi2025).Footnote ² These judicial interpretations, similar to many others in the jurisprudence of Japanese criminal justice, are highly enabling of the interests of law enforcement and disabling of the rights of suspects and defendants (Miyazawa, Reference Miyazawa1992). Indeed, the duty to endure interrogation may well be the most striking illustration of the longstanding tendency of Japan’s judiciary to show great deference to police and prosecutors. From restrictions on bail and the right to counsel to rules about hearsay and the disclosure of evidence to the defense, judges in Japan have created numerous loopholes and legal fictions that narrow the legal protections for individuals while expanding the authority of police and prosecutors to “make crime” through their investigations (Miyazawa, Reference Miyazawa1992; Foote, Reference Foote2010).

The most frequently cited justification for the duty to endure interrogation is a decision made by Japan’s Supreme Court in 1999, the central subject of which is the right of suspects to communicate with defense counsel during an investigation. While ruling on that issue, Japan’s highest court said suspects have no right to refuse questioning, and it also claimed this conclusion is so “obvious” that no explanation is needed. In the Court’s words:

Instead of breathing life into the right to silence, as courts in other developed democracies have done (see below), Japan’s Supreme Court throttled it and then passed the buck for the legicide by stating that this is a matter for the Diet to decide. The Court’s decision is vacuous, and so are other decisions that hold that suspects have a duty to endure interrogation (Takano, Reference Takano2021: 118–163).

Interrogation abuses

With few exceptions, judicial decisions about interrogation in Japan are exercises in abstraction that pay little attention to the realities of human interaction in the closed and secretive space of the interrogation room. Their expansive interpretations of the duty to endure interrogation enable and encourage coercive, deceptive, and denigrating practices that lead to false confessions, wrongful charges, and violations of human dignity, as a spate of recent cases show (Asahi Shimbun, 2024e).

The most remarkable case involves attorney Eguchi Yamato, who was arrested and charged in 2018 and subsequently convicted of inducing a client to make false statements about a car accident (he was given a suspended sentence of imprisonment, which made him ineligible to practice law). Eguchi then filed a civil lawsuit, and in 2024 the Tokyo District Court ordered the national government to pay him 1.1 million yen (US $6,700) in compensation for interrogations he endured for 56 hours over the course of 21 days (Kanno, Reference Kanno2024). Yet the same court dismissed Eguchi’s claim that the prosecution had acted illegally by continuing to interrogate him after he had invoked his right to silence. Underlying this conclusion is the view that criminal investigations would be hindered if interrogation must cease as soon as a suspect invokes the right to silence. In other words, Japanese courts interpret the right to silence to mean merely the ability to assert the right, without guaranteeing an environment where one can readily remain silent.

In Eguchi’s case, silence was a major achievement. Throughout his interrogations, he meditated like a monk while being berated by prosecutor Kawamura Masashi. Among other contemptuous comments, Kawamura called Eguchi “a baby” (okochama), “a brat” (gaki), and “a pain in the ass” (uttōshii). He wondered, “How the hell did you ever become a lawyer?” and he upbraided Eguchi for having received poor grades in science in middle school (the prosecutor somehow obtained Eguchi’s transcript). Eguchi’s silence made Kawamura furious. Among other outbursts, the prosecutor exclaimed, “What the hell is this? Is this how you’re exercising your right to silence? And what is this right to silence you’re asserting? I don’t get it. I mean, you don’t even know, do you?” (Eguchi Yamato Interrogations, 2018; Asahi Shimbun, 2024a).

In 2024, Eguchi’s attorneys released a video of some of the interrogation sessions, which sparked public outrage and calls for reform (https://www.youtube.com/watch?v=XArMxYdhk_U). However, in February 2025, the Tokyo High Court upheld the lower court’s decision (Japan Times, 2025a), finding that prosecutors abused their authority by impugning Eguchi’s character, while holding that suspects must endure interrogation even after they have invoked their right to silence (Sim, Reference Sim2025). According to the High Court, the fact of 56 hours does not, in itself, exceed what is socially acceptable, because the longest interrogation sessions lasted only a few hours, and because there were breaks between each session. One prominent attorney called the quality of this judgment “terrible” because of its empty reasoning (author’s correspondence with Nishi Yoshiyuki, February 7, 2025), and other attorneys have been similarly critical (author’s interviews, May 2025). As of this writing in August 2025, Eguchi’s case is on appeal at the Supreme Court, and the online platform Call4 has raised nearly 2 million yen (US $13,000) from more than 100 supporters to help fund his litigation.

In another highly publicized case, an employee of the Pressance Corporation was pressured by special prosecutors (tokusōbu) in Osaka to provide false testimony against his boss, chief executive Yamagishi Shinobu, who filed suit against prosecutors after he was acquitted of embezzlement in 2021, and who then wrote a book about his experiences (Yamagishi, Reference Yamagishi2023). In an unprecedented act, the Osaka High Court responded to prosecutors’ decisions not to charge any of their colleagues with criminal misconduct by using the “analogical institution of prosecution procedure” (fushinpan seikyū tetsuzuki) to charge prosecutor Tabuchi Daisuke with “assault and cruelty by a specialized public employee,” for berating the subordinate with shouts, table-pounding, and other intimidating acts that were calculated to obtain incriminating statements against Yamagishi—and that were captured on video (Osaka High Court, August 8, 2024).Footnote ³ Prosecutor Tabuchi presently works for the High Public Prosecutors Office in Tokyo, and his own criminal trial is scheduled to begin in late 2025. In March 2025, the Osaka District Court rejected Yamagishi’s lawsuit for civil damages while criticizing prosecutors for using “significantly inappropriate interrogation methods” in his case (Japan Times, 2025b).

In a separate white-collar crime case that was investigated by special prosecutors (tokusōbu) in Tokyo, a company president sued the national government for coercing his confession. A video recording of the interrogation shows a prosecutor telling the suspect, “You are an antisocial force because you ignore and despise the Prosecutors Office” (Asahi Shimbun, 2024d). Suspects in Japan who refuse to confess or who otherwise resist the authority of police or prosecutors are often treated with similar harshness (Johnson, Reference Johnson2002: 199–201 and 243–275).

In Hokkaido, a mother was interrogated on suspicion of illegally confining her son, who died the day after she was arrested. In a civil suit seeking damages for being pressured to falsely confess (the mother was not charged), a video of her interrogation shows a police officer saying, “Was your son an unwanted child? Then you never should have had him. Is that all the resolve you had to raise him?” (Asahi Shimbun, 2024a).

In the case of Kimura Ryuji, who was charged with attempted murder and other crimes in the bombing attack against former Prime Minister Kishida Fumio, the Wakayama District Prosecutors Office disciplined one of its own prosecutors for maliciously questioning the suspect after he invoked his right to silence. Among other disparaging statements that seemed calculated to provoke Kimura into talking, the prosecutor said “recluses” from society (hikikomori) might be “better off dead” since there would be “no negative impact on society” (Asahi Shimbun, 2024c). At Kimura’s criminal trial in early 2025, prosecutors sought a 15-year sentence, and the Wakayama District Court imposed a sentence of 10 years.

Countless other cases of abuse have occurred because of the duty to endure interrogation,Footnote ⁴ but I close this section by describing a cousin of this duty that I have observed at criminal trials (Johnson, Reference Johnson, Hood and Deva2013). In 2011, when I was doing research about Japan’s new lay judge system, which took effect in 2009, I was astonished to watch a Chief Judge in the Tokyo District Court permit prosecutors to continue questioning a defendant named Ino Kazuo during a homicide trial in which the defendant had made it abundantly clear that he would not answer any questions. This spectacle—a prosecutor asking incriminating questions to a resolutely silent defendant in front of a panel of three judges and six lay judges—made a mockery of the right to silence. In the end, the defendant was convicted and sentenced to death, but on appeal his sentence was reduced to life imprisonment.Footnote ⁵ The lesson from this case is both telling and troubling. If you try to exercise your right to silence in Japan, prosecutors can still try to run you over, and judges might give them a green light.

In all of these cases, the questioning occurred while the questioners were being watched. Ino was grilled in open court, and in the other cases, the interrogations were recorded on video. This raises a disquieting question. If police and prosecutors engage in high-pressure interrogations when they are being observed, is there reasonable grounds to believe that their behavior is acceptable in the 98% of criminal cases in which there is no legal duty to electronically record interrogations?

We also need to ask why police and prosecutors in Japan engage in abusive interrogations. According to former prosecutor Ichikawa Hiroshi, who has written about his own interrogation misconduct (Ichikawa, Reference Ichikawa2012), there are many reasons (Asahi Shimbun, 2024c).Footnote ⁶ Confession is considered “the king of evidence” in Japanese criminal justice. It is easier for prosecutors to charge a suspect if the suspect talks. Police and prosecutors in supervisory positions pressure their subordinates to make suspects talk. Investigators want to find the truth and rehabilitate offenders. Legal education and training are deficient. Moreover, interrogators get angry because they believe silence and denial are cowardly. There is some truth in all of these explanations, but behind them lies a fundamental cause that is often overlooked. Police and prosecutors engage in abusive interrogations because judges have given them permission to make suspects talk.Footnote ⁷

Other countries

The right to silence is better respected in other developed democracies (Sano, Nakazawa, Takano, and Cho, 2024). In the United States (US), the Supreme Court’s Miranda decision of 1966 embedded the right to silence in the Constitution and provided a roadmap to ensure compliance with the Court’s mandate. According to this ruling, if a suspect invokes the right to silence at any time, the interrogation must stop, and statements taken thereafter cannot be used as evidence. As the US Supreme Court explained,

Studies show that Miranda is less protective in practice than it appears to be on paper, because subsequent court decisions have weakened it, because American police convince about three-quarters of suspects to waive their right to silence, and because the Miranda rules legitimate deceptive and manipulative interrogation practices (Weisselberg, Reference Weisselberg2008; Leo, Reference Leo2008; Kassin, Reference Kassin2022). Nonetheless, there is a huge gap between the meaning of the right to silence in American criminal justice and the much narrower meaning that judges have constructed in Japan.

In the United Kingdom, suspects must endure interrogation during police custody, but this ordinarily ends within 24 hours of arrest. In Japan, by contrast, suspects who deny guilt can be interrogated for dozens or hundreds of hours over the course of 10–20 days or more (Human Rights Watch, 2023; Aronson and Johnson, Reference Aronson and Johnson2020). Suspects in the United Kingdom (UK) may also have defense counsel present at interrogation, which typically occurs only once for 2 hours or less. If police try to persuade a reluctant suspect to speak, defense counsel can stop the interrogation. More fundamentally, interrogation in the UK has undergone a remarkable paradigm shift in recent years, with the new approach reconceptualizing interrogation as a process of information gathering rather than adversarial confrontation (Kassin, Reference Kassin2022: 357). On the contrary, if a suspect fails to disclose relevant information during interrogation, the judge and jury are allowed to make adverse inferences, which means exercising the right to silence can be costly for criminal suspects. Adverse inferences are legally forbidden in Japan, but in practice, they are often made when suspects remain silent. Overall, the right to silence in the UK is much broader and better protected than the right to silence in Japan (Mazzone, Reference Mazzone, Jacqueline and Stephen2016).

In Germany, suspects have the right “not to make any statement” (Article 1355 of the German Code of Criminal Procedure), and if they exercise it, the interrogation must be stopped or significantly restrained. Defense lawyers are also allowed to attend interrogations, and they routinely advise their clients not to make any statements. Many German judges say that they have never heard a case in which a suspect’s statements were induced after the right to remain silent was invoked (Sano, Nakazawa, Takano, and Cho, 2024). More broadly, German criminal justice reflects a robust commitment to individual dignity, with strong safeguards for the right to silence (Mazzone, Reference Mazzone, Jacqueline and Stephen2016: 331–335).

In France, protections for the right to silence are not as strong as in Germany, and investigators used to be given almost unfettered access to suspects who were believed to have useful information. In recent years, however, decisions by the European Court of Human Rights recognizing the rights of suspects and defendants have prompted extensive reforms in French criminal procedure. Most notably, the right to silence and the right to assistance of counsel have been so significantly strengthened that some analysts conclude the traditional French approach “has been overhauled” (Mazzone, Reference Mazzone, Jacqueline and Stephen2016: 330). When the accused is examined under oath by an investigating judge (juge d’instruction), which is a crucial part of the French criminal process, “Questioning may only proceed with the consent of the accused, and such consent is only valid if it is given in the presence of the lawyer for the accused” (Mazzone, Reference Mazzone, Jacqueline and Stephen2016: 329).

In Canada, the Supreme Court permits investigators to continue questioning a suspect who expressly invokes the right to silence (R. v. Singh, 2007 SCC 48), and such questioning does not violate the Canadian Charter of Rights and Freedoms unless it leads to an involuntary confession (R. v. Oickle, 2000 SCC 38). In this respect, Canadian law does not distinguish between suspects who simply sit in silence and those who explicitly invoke their right to silence. Both may be interrogated (Lawrence, Saiter, Eerdmans, and Smalarz, Reference Lawrence, Saiter, Eerdmans and Smalarz2024: 370). In some ways, the Canadian rule seems to parallel the duty to endure interrogation in Japan, and as in Japan, suspects in Canada do not have a right to have their attorney attend interrogations. However, suspects in Canada do have a right to speak with an attorney before being questioned, and interrogations in Canada tend to be much shorter than interrogations in Japan. Moreover, while there is no legislation requiring video recording in Canada, it has been encouraged by the appellate courts, and it is common in British Columbia, Manitoba, Ontario, Quebec, and some other parts of the country. For these reasons, Canada’s version of the duty to endure interrogation seems significantly less problematic than the Japanese approach.

Because of Japan’s colonial influence, the law on the books in South Korea resembles Japanese law in many respects, but judges and lawmakers have breathed much more life into the right to silence than have their counterparts in Japan. Most importantly, confessions obtained after a suspect has invoked the right to remain silent are inadmissible as evidence in South Korean courts, and defense attorneys have the right to attend interrogations. The result is that in law and in practice, suspects in South Korea can refuse to be interrogated (Sano, Nakazawa, Takano, and Cho, 2024).

I have compared Japan to the US, the UK, Germany, France, Canada, and South Korea. There are other countries, of course, and in some of them (China, North Korea, Russia, and the like) the right to silence is even less respected than it is in Japan. However, among developed democracies, Japan seems to stand alone in its insistence that the right to silence must coexist with a duty to endure prolonged interrogation. This dubious distinction helps explain why some foreign governments refuse to extradite persons who are wanted in Japan, as Denmark recently did when it refused to send anti-whaling activist Paul Watson to Japan to be tried for crimes of violence and trespassing (Reuters, 2024). The Danish government feared Watson would not be treated fairly in Japan’s criminal justice system (Human Rights Watch, 2023).

Reform

People who are falsely accused often defend themselves with words and emotion. This seems to be human nature, and it is all the more likely if the accuser is an authority and the accusation is serious. Silence is not a natural response, and research shows that remaining silent is especially difficult for people who are innocent (Kassin, Reference Kassin2022). Believing that truth and justice will prevail, the innocent tend to talk, and this is the wellspring of many wrongful charges and convictions (false confessions are the leading cause of wrongful conviction in Japan; see Nishi, Reference Nishi2023: 152). More generally, “the duty to endure interrogation” gives police and prosecutors permission to pressure suspects into submission, regardless of whether they are innocent or not (Asahi Shimbun, 2024e).

The right to silence is a hallmark of fair systems of criminal justice. It ought to be a signature trait of Japanese criminal justice too, but judges have rendered it almost impotent by linking it to the duty to endure interrogation, a doctrine they have constructed and enforced, one dubious decision at a time. This needs to change, and three reforms can be recommended.

The first reform would video-record all interrogations, not (as current law mandates) just interrogations in cases that have been initiated by prosecutors or are eligible for lay judge trial, which together comprise less than 3% of all criminal cases in Japan (Ibusuki, Reference Ibusuki2024; Shihō Tōkei Nempō, 2024: 9).Footnote ⁸ Recording benefits all parties who value accurate fact-finding and informed criminal justice decision-making. It also advances other important goals, such as checking state power, protecting rights, and professionalizing the interrogation process (Leo, Reference Leo2008: 291–305). In many cases, recording also enables police and prosecutors to process evidence more effectively and efficiently.Footnote ⁹ However, a recording reform would not be enough to cure what ails Japan, as shown by the recent string of cases in which abuses occurred even though the interrogations were being recorded. More fundamentally, at present, when most interrogations are not being recorded, defense lawyers already feel overwhelmed by blue-ray discs of interrogations lasting tens or hundreds of hours. They cannot even review what they already have (author’s interviews, May 2025).

Second, defense lawyers should be allowed to attend interrogations (bengoshi tachiai), so that a suspect’s right to silence can be more meaningfully asserted and protected. This permission is enshrined in European and American law, but it is rarely allowed in Japan. Under present law, the decision is left to the discretion of police and prosecutors, and leaders and policies in both organizations discourage the granting of this approval. Giving defense lawyers legal license to be present in the interrogation room is a necessary step toward realizing a real right to silence in Japan, but this reform is also insufficient because few lawyers have time to attend hours of interrogation every day for days or weeks in a row (see the seven-part series on “attorneys in attendance” in Asahi Shimbun, 2023).

The most important reform will strike at the root of the problem, which is the extraordinary power police and prosecutors have to overbear the will of criminal suspects. To protect against this risk, the Japanese Supreme Court needs to rethink the feeble jurisprudence it has constructed around the duty to endure interrogation (Takano, Reference Takano2021). “Precedent” notwithstanding, judges should change their minds when there are good reasons to do so, and on this issue, the evidence is clear and abundant—Japan’s right to silence is a fiction and a facade. The Japanese Diet can help make the right to silence real by making it clear that Article 38 of the Constitution means what it says: “No person shall be compelled to testify against himself.” Ultimately, this means the right to refuse interrogation needs to be recognized and respected by judges, police, and prosecutors.

These proposals are ambitious, and we ought to be realistic about the politics of reform. Japan’s Supreme Court and Diet seem unlikely to significantly strengthen the right to silence anytime soon. If and when it happens, meaningful change will be the result of “the slow, steady boring of hard boards” (Weber, Reference Weber, Gerth and Wright Mills1919). The Right Against Interrogation Society is leading the movement to do this difficult work, and its membership is growing rapidly (Asahi Shimbun, 2025f)—far more rapidly than Japan’s “Miranda Association” (Miranda no Kai), which never gained much traction after it was founded by attorneys in 1995 (Takano, Reference Takano, Malcolm and Miyazawa2002). Since then, times have changed, scandals have multiplied, and trust in prosecutors has declined (Asahi Shimbun, 2024b). In the first year after it was established in 2024, RAIS achieved considerably more success than its leaders anticipated, by influencing case outcomes, and by shaping defense lawyer practice in many jurisdictions (Sankei Shimbun, 2025). In the long run, the impacts of this nascent social movement will depend on how many ordinary people demand that judges and politicians make the right to silence real, and on how effectively they organize to accomplish that goal (Steinhoff, Reference Steinhoff2014). In this sense, “the ultimate battle is for the hearts and minds of the public” (Foote, Reference Foote and Patricia2014: 171).