united-states criminal-law japan
Why is the conviction rate in North America and Japan so high?
<p>What causes the conviction rates in North America and Japan to be so high?
Are the cases usually strong where this happens? And what happens to weaker cases, do they result in an acquittal or do they generally not get cleared at all?</p>
<p><a href="https://en.wikipedia.org/wiki/Conviction_rate" rel="noreferrer">https://en.wikipedia.org/wiki/Conviction_rate</a></p>

<h2>Japan's justice system is sometimes called <a href="https://en.wikipedia.org/wiki/Hostage_justice" rel="nofollow noreferrer">hostage justice</a></h2>
<p>In general, the Japanese justice system has a more than 99% conviction rate! In part, this is because the number of state attorneys is super low - on about half the population of the US, there were only 2000 State attorneys out of 35000 lawyers in Japan, whereas the USA has a five-to-six digit number of state/district/... attorneys and 1.5 million lawyers in total. Or in other words: each state-employed attorney is responsible for more than 10 times the people and the caseload they create, and lawyers are prohibitively expensive.</p>
<p>This leads to a <a href="https://law.stackexchange.com/a/82077/10334">two-pronged result</a>: on the one hand, only the best cases should be followed up on and brought to court. Depending on the statistics, <strong>about every other case (~50%) that the police investigators hand to the prosecution is not followed up on by the prosecution</strong>. The other result is, that <strong>the Japanese justice system relies heavily on confessions</strong> obtained from the defendants.</p>
<p>As I elaborated when comparing the <a href="https://law.stackexchange.com/a/84030/10334">detention time without charges</a>, the Japanese justice system is unlike almost any other modern justice system in the world in some regards, even though it is a civil law system and most of the same principles can be found. The Japanese prosecution can detain people for up to 23 days without bringing the case, you can't have your lawyer present when talking to the police, and by clever tactic, the prosecution can hold a person nigh-indefinitely without even filing a case. As a result, the prosecution can often get confessions, and with a confession, the actual court case can become super fast: charges are brought, the confession is read, a little extra evidence is presented, and to <em>spare the victim a lengthy trial</em> with the confession in the room, the judge comes down with a guilty verdict.</p>
<p>This is compounded by how the rules of evidence are laid out: investigation and the court case are allowed to happen at the same time! As a result, the case of the prosecutor tends to become <em>better</em> the longer the case drags on, resulting in the defendant either settling or giving a (partial) confession to some of the charges just to get it over because lawyers are crazy expensive. By giving a confession, they <em>throw themselves at the mercy of the court</em> for a mild verdict.</p>
<h3>And it's very much stacked</h3>
<p>As shown above, the Japanese justice system is already stacked against the defendant. But it is even more stacked than what is shown up there.
As <a href="https://law.stackexchange.com/users/9517/ohwilleke">ohwilke</a> noted in excellent comments, I want to preserve them here:</p>
<blockquote>
<p>Also the vast majority of Japanese criminal cases are tried without lay judges,</p>
</blockquote>
<p>This is by the way a result of the Japanese legal system that was set up in the Meiji era being based on the Prussian branch of the <a href="/questions/tagged/german" class="post-tag" title="show questions tagged &#39;german&#39;" aria-label="show questions tagged &#39;german&#39;" rel="tag" aria-labelledby="tag-german-tooltip-container">german</a> Civil Law school. That was one of the dominant systems of the Meiji era next to the French and Spanish schools of Civil Legal Systems - and after WW2 they did not swap to a Common Law system but stayed with their own take on this Prusso-German branch of the Civil Legal System. This means there are no juries like in the common law system, and since 2009 <a href="https://en.wikipedia.org/wiki/Lay_judges_in_Japan" rel="nofollow noreferrer">lay judges in japan</a> are increasingly used, but not in every case. Those lay judges are very much akin to the Schöffen in Germany, being allowed to question the evidence and such - the German school is based on an inquisitorial system after all - but it is not used in every case. And the whole system is lived <em>extremely</em> differently from the inspiring Prussian system, such as this part of the comment shows:</p>
<blockquote>
<p>and from my experiences talking with several Japanese judges at length about the issue (back in the early 1990s, maybe it is different now), the institutional mindset is for judges to believe that all of the prosecution evidence is true and all of the defense evidence is lies unless the evidence to the contrary is overwhelming and unshakable. The level of judicial bias towards the prosecution is greater than in any other common law or civil law legal system, that is not in an authoritarian regime, in the world.</p>
</blockquote>
<p>This for example shows in the 23 days without charge. Technically, 23 days is not the initial time, but the police has 72 hours. But they can extend this time by 10 days with a judge's order, and then again by another 10 days on the same charge offered on the paperwork. According to a statistic, 99.8% of these requests are granted, meaning they are almost rubberstamped. Legally, people that are detained are not yet defendants, they are <em>suspects</em> and kept in <a href="https://en.wikipedia.org/wiki/Daiy%C5%8D_kangoku" rel="nofollow noreferrer"><em>Substitute Prisons</em></a> which are located in police districts - which further helps to get confessions.</p>
<p>And this plays directly into another factor that differentiates the Japanese system from other countries: There's a huge cultural factor, which is what makes the Japanese system so different from others.</p>
<blockquote>
<p>Additional factors are that police officers in Japan have much more authority to handle minor cases outside the court system and routinely do so, that a certain level of criminal conduct from organized crime and by authority figures is tolerated, that there is much less crime per capita in Japan than most places, and that Confucian values re deference to hierarchy and the Japanese specific high cultural obligation to apologize influences how Japanese people interact with the criminal justice system as defendants and as implementers of that system.</p>
</blockquote>
<p>This has its problems too: Because the prosecution is notoriously overworked, citizens with problems are often more reluctant to bring cases to their attention. Further, the shame culture works against not just the perpetrators, but also the victims and the people that report certain crimes - for example, <a href="https://www.youtube.com/watch?v=dajKNczCPRs" rel="nofollow noreferrer">a female police officer was groped on a train, and when she reported it, <strong>she</strong> became the target of shunning.</a></p>
<h3>Further reading &amp; Research papers</h3>
<ul>
<li>US Department of Justice: <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/toward-balancing-approach-use-apology-japanese-society" rel="nofollow noreferrer">Toward a Balancing Approach: The Use of Apology in Japanese Society</a>.</li>
<li>US Department of Justice: <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/confession-apology-repentance-and-settlement-out-court-japanese" rel="nofollow noreferrer">Confession, Apology, Repentance and Settlement Out-of-Court in the Japanese Criminal Justice System -- is Japan a Model of Restortative Justice? (From Restorative Justice in Context: International Practice and Directions, P 173-196, 2003, Elmar G. M. Weitekamp and Hans-Jurgen Kerner, eds. -- See NCJ</a>.</li>
<li>Hiroshi Wagatsuma, Arthur Rosett: <a href="https://www.jstor.org/stable/3053463" rel="nofollow noreferrer">The Implications of Apology: Law and Culture in Japan and the United States</a>, Law &amp; Society Review, Vol. 20, No. 4 (1986), pp. 461-498 (38 pages).</li>
<li>John O. Haley: <a href="https://www.jstor.org/stable/3053464" rel="nofollow noreferrer">Comment: The Implications of Apology</a>, Law &amp; Society Review, Vol. 20, No. 4 (1986), pp. 499-508 (9 pages).</li>
<li>DAVID ALLEN CHIYOMI SUMIDA: <a href="https://www.stripes.com/news/japanese-tradition-of-apology-western-worry-about-admitting-guilt-can-clash-1.309" rel="nofollow noreferrer">Japanese tradition of apology, Western worry about admitting guilt can clash</a>, (2002).</li>
<li>HOSOI, YOKO AND HARUO NISHIMURA: <a href="https://restorativejustice.org/rj-archive/the-role-of-apology-in-the-japanese-criminal-justice-system/" rel="nofollow noreferrer">The Role of Apology in the Japanese Criminal Justice System</a> (1999).</li>
<li>Ernils Larsson: <a href="http://uu.diva-portal.org/smash/get/diva2:1646984/FULLTEXT01.pdf" rel="nofollow noreferrer">Confucianism as
a Religion in Japan’s Courts of Law</a> (2022).</li>
<li>Joseph I. Lieberman: <a href="https://www.nytimes.com/1984/07/09/opinion/confucius-s-lesson-to-litigants.html" rel="nofollow noreferrer">CONFUCIUS'S LESSON TO LITIGANTS</a> New York Times (1984).</li>
<li>Lynn Berat: <a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&amp;httpsredir=1&amp;article=1508&amp;context=auilr" rel="nofollow noreferrer">The Role of Conciliation in the Japanese Legal
System</a> American University International Law Review (1992).</li>
<li>Nicholas Lassi: <a href="https://commons.und.edu/cgi/viewcontent.cgi?article=3264&amp;context=theses" rel="nofollow noreferrer">A Confucian Theory Of Crime</a>, Dissertation, University of North Dakota (2018).</li>
<li>Graham Mayeda: [Appreciate the Difference: The Role of
Different Domestic Norms in Law
and Development Reform;
Lessons from China and Japan] (2006).</li>
<li>Katrina Tran: <a href="https://scholarworks.sjsu.edu/cgi/viewcontent.cgi?article=1051&amp;context=themis" rel="nofollow noreferrer">How Japan How Japan’s Cultur s Cultural Norms Aff al Norms Affect Policing: A Side-By-Side olicing: A Side-By-Side
Comparison with the United States</a> Themis: Research Journal of Justice Studies and Forensic (2017).</li>
<li>David Brooks: <a href="https://www.nytimes.com/2016/03/15/opinion/the-shame-culture.html" rel="nofollow noreferrer">The Shame Culture</a> New York Times (2016).</li>
</ul>
<h4>podcast</h4>
<ul>
<li>Dan Carlin: <a href="https://www.dancarlin.com/product/hardcore-history-62-supernova-in-the-east-i/" rel="nofollow noreferrer">Hardcore History 62 – Supernova in the East I</a> (2018).</li>
</ul>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<blockquote>
<p>What causes the conviction rate in North America . . .  to be so high?</p>
</blockquote>
<p>Relative to what? What would you expect the conviction rate to be?</p>
<p>The conviction rate in the U.S. is not particularly high across the board, and is quite low in some U.S. states (59% in Florida), even though it is high in the federal courts (93%). As the cited link notes:</p>
<blockquote>
<p>In the United States federal court system, the conviction rate rose
from approximately 75 percent to approximately 85% between 1972 and
1992. For 2012, the US Department of Justice reported a 93% conviction rate. In 2000, the conviction rate was also high in
U.S. state courts. Coughlan, writing in 2000, stated, &quot;In recent
years, the conviction rate has averaged approximately 84% in Texas,
82% in California, 72% in New York, 67% in North Carolina, and 59% in
Florida.&quot;</p>
<p>In 2018, the Bureau of Justice Statistics reported that among
defendants charged with a felony, 68% were convicted (59% of a felony
and the remainder of a misdemeanor) with felony conviction rates
highest for defendants originally charged with motor vehicle theft
(74%), driving-related offenses (73%), murder (70%), burglary (69%),
and drug trafficking (67%); and lowest for defendants originally
charged with assault (45%).</p>
<p>There are frequent &quot;guilty acceptance&quot; plea deals in the United
States. That said, the ostensible &quot;conviction rate&quot; may not be
accurate because the charges are dropped.</p>
</blockquote>
<p>Federal courts handle <a href="https://en.wikipedia.org/wiki/State_court_(United_States)" rel="noreferrer">only a small share of U.S. criminal cases</a> and the kind of cases it handles are highly atypical:</p>
<blockquote>
<p>As of 2019, about 1,255,689 people currently behind bars in the United
States—or 87.7% out of a total of 1,430,805 prisoners—had been
convicted in state court for violating state criminal laws, rather
than in federal court for violating federal criminal laws.</p>
<p>The proportion of criminal cases brought in state court rather than
federal court is higher than 87.7% because misdemeanor and petty
offense prosecutions are disproportionately brought in state courts
and most criminal prosecutions involve misdemeanors and petty
offenses. The number of trials conducted in each system is another way
to illustrate the relative size of the two criminal justice systems.
In Colorado, in 2002, there were approximately 40 criminal trials in
federal court, and there were 1,898 criminal trials (excluding
hundreds of quasi-criminal trials in juvenile cases, municipal cases
and infraction cases) in state courts, so only about 2% of criminal
trials took place in federal court. Most jury trials in the United
States (roughly five out of six jury trials conducted in any U.S.
Court) take place in criminal cases in state courts.</p>
<p>State courts do not have jurisdiction over criminal cases arising on
Indian reservations even if those reservations are located in their
state. Less serious crimes on Indian reservations are prosecuted in
tribal courts. A large share of violent crimes that are prosecuted in
federal court arise on Indian reservations or federal property, where
state courts lack jurisdiction, since tribal court jurisdiction is
usually limited to less serious offenses. Federal crimes on federal
property in a state are often defined with reference to state criminal
law.</p>
<p>Federal courts disproportionately handle white-collar crimes,
immigration-related crimes and drug offenses (these crimes make up
about 70% of the federal docket, but just 19% of the state court
criminal docket). Federal courts have the power to bring death penalty
charges under federal law, even if they arise in states where there is
no death penalty under state law, but the federal government rarely
utilizes this right.</p>
</blockquote>
<p>Conviction rates are high in federal court because due to the overlap of the state and federal court system, federal prosecutors can choose to prosecute predominantly open and shut cases. Also, high mandatory minimum penalties for many federal crimes make the benefit of a lower sentence outweigh the modest probability of acquittal in all but the closest cases.</p>
<p>Conviction rates are frequently lower in state courts because they have to handle pretty much all criminal cases presented to them, the sentencing penalty for going to trial is often weaker causing fewer cases to be resolved by plea bargains, and the levels of resources and professionalism is lower in some (but not all) state courts relative to federal courts.</p>
<p>In a world with no procedural biases and near perfect information, most cases would result in plea bargains at modest discounts from the sentence that would be imposed at trial reflecting the cost of the trial process to the prosecutors, and cases that go to trial would have close to a 50% conviction rate among cases that go to trial, but a very high guilty plea rate, because the cases that go to trial would be only those cases where the outcome is hardest to predict.</p>
<p>We don't live in such a world, however. Indigent defendants are entitled to government paid public defenders at trial and on a direct appeal (and most criminal defendants are indigent). And, most criminal offense by number of cases (which is how conviction rates are calculated) have fairly modest maximum penalties, so the sentencing penalty for going to trial can be modest in a lot of low to medium level offense criminal prosecutions. And, as a practical matter, juries reach incorrect verdicts in cases close enough to go to trial at least about 10% of the time under normal state criminal court conditions, which is a nearly irreducible uncertainty involved in going to trial. So, even criminal defendants with a very high risk of being convicted will &quot;roll the dice&quot; and result in a more than 50% rate of conviction at trial (but a lower plea bargaining rate).</p>
<p>Ultimately, conviction rates for plea bargains and trials combined are a function of how well prosecutors and law enforcement prepare and screen their cases. The higher their standards, the higher the conviction rate will be, because close cases won't be prosecuted at all. The lower their standards, the lower the conviction rate will be, because even very weak cases will go to trial and result in acquittals. Ultimately, how strict those standards are ends up being a matter of institutional culture and the quirks of how minor differences in resources and formal rules between different criminal justice systems play out in practice.</p>
<p>In addition to institutional culture, the behavior of jurors in different places varies greatly.</p>
<p>For example, African American jurors are, on average, according to well designed studies including <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1673994" rel="noreferrer">one from Florida</a>, more skeptical of prosecutors and law enforcement, and hence, more likely to acquit criminal defendants at trial than other jurors (on average). So, jurisdictions in which African Americans make up a larger share of the jury pool tend to have higher acquittal rates at trial than jurisdictions with low percentages of African American jurors.</p>
<p>This is often a significant enough effect to significantly influence the overall conviction rate and jurisdictions with high percentages of African American jurors also often have fewer resources for prosecutors and law enforcement per crime prosecuted, which can reduce the quality of presentations that are made to juries in trials and the quality of criminal investigations, of all kinds, in those jurisdictions.</p>

<p>In the case of the United States, Plea Bargaining is an accepted practice and is not stigmatized against, such that prosecutors are likely to cut deals with defendant and charge them for lesser charges than what they would have taken them to court for.  This means less work (and less expense) to the prosecutor's office and a lesser sentence for the convicted (It's a high chance that most of the people convicted of simple drug possession in the U.S. were going to be charged with Possession with intent to Sell but had it reduced in exchange for avoiding going to trial.  Simple Possession is a slap on the wrist compared to &quot;Possession with intent to Sell&quot; and is easier to convict (Do you have drugs on your person?) where as intent is much more difficult).</p>
<p>In Japan, the high conviction rate seems to be due to the fact that unless the police witness the defendant committing a crime, they must get judicial approval to make an arrest, meaning, they have to be pretty close to indicting the person already.</p>

<p>In <a href="/questions/tagged/british-columbia" class="post-tag" title="show questions tagged &#39;british-columbia&#39;" aria-label="show questions tagged &#39;british-columbia&#39;" rel="tag" aria-labelledby="tag-british-columbia-tooltip-container">british-columbia</a> prosecutors are directed to not bring a charge unless there is a <strong>substantial likelihood</strong> of conviction (or, in exceptional cases, a mere <strong>reasonable prospect</strong> of conviction), considering the anticipated evidence, its reliability, and viability of any defences or constitutional impediments. See <a href="https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1.pdf" rel="noreferrer">the Crown Counsel Policy Manual's Charge Assessment Guideline</a>.</p>
<p>This standard applies throughout the proceeding. If evidence comes to light that changes the assessment, such that there is no longer a substantial likelihood of conviction, the Crown should request a stay of proceedings.</p>
