00;00;16;26 - 00;00;38;05

Jonathan Hafetz

Hi, I'm Jonathan Heifetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Film, in turn, tells us a lot about the law. In each episode, we'll look at a film that's noteworthy from a legal perspective. What is used as a film? Explore. What does it get right about the law and what does it get wrong?

00;00;38;08 - 00;01;14;12

Jonathan Hafetz

How does law help us understand the film, and what does the film teach us about the law and the larger social and cultural context in which it operates? This episode examines I Just Didn't Do it. A 2007 Japanese film written and directed by Masayuki Shuo in the film 26 year old Tabby Kaneko, played by Real Cassie, is traveling to a job interview on a packed Tokyo commuter train when a 15 year old schoolgirl who is standing in front of him on the train and whom Kanako hardly noticed, wrongly accuses him of groping or.

00;01;14;15 - 00;01;40;20

Jonathan Hafetz

Kanako is subsequently arrested, at which point he is advised to just plead guilty and pay a small fine, after which he can go free. But because Kaneko maintains his innocence, he decides to fight the case, even though he's told that nearly everyone who takes their case to trial in Japan is convicted. The film then documents Kanako is Nightmare Odyssey through the Japanese criminal justice system, where he is detained for months and ultimately convicted.

00;01;40;22 - 00;02;16;20

Jonathan Hafetz

I just Didn't do it provides important insights into the Japanese criminal justice system and a critique of how it operates. Joining me to discuss the film is Professor Naoko Akimoto. Naoko Akimoto is associate professor in the Faculty of Law and Politics at Yale University in Tokyo in Japan. She's currently a visiting scholar at Harvard Law School. Before joining the faculty of Yale University, Professor Akimoto was previously assistant professor at National Yang Ming Jiao Tong University School of Law in Taiwan, and a visiting scholar at Washington University in Saint Louis.

00;02;16;23 - 00;02;38;23

Jonathan Hafetz

Professor Akimoto earned her PhD from the University of Tokyo Graduate School for Law and Politics in Japan, where she concentrated on Anglo-American law. One area Professor Akimoto is teaching and research is on juries. And when I was previously a visiting scholar at Yale University, I had the honor of co-teaching a seminar with Professor Akimoto on the jury system in America.

00;02;38;25 - 00;02;44;00

Jonathan Hafetz

Now go, professor Akimoto, it's wonderful to have you on the podcast. Welcome.

00;02;44;02 - 00;02;50;13

Naoko Akimoto

Thank you very much for inviting me and to, you know, the wonderful podcast. I'm very excited to talk with you on the field.

00;02;50;16 - 00;02;59;19

Jonathan Hafetz

Well, can you just tell us a little bit of background on the Japanese criminal justice system, its origins, main features, things like that?

00;02;59;21 - 00;03;25;07

Naoko Akimoto

Sure. The modern criminal justice system in Japan was, you know, established after the Meiji Restoration. As you may know, in the late 19th century, after the samurai period. Right. And then, like, at a time like Japan, transplanted European rose into about, like civil law or criminal and the commercial and a code of criminal procedure was problem related based on the German court at that time.

00;03;25;10 - 00;04;04;23

Naoko Akimoto

And then the current Code of Criminal Procedure was enacted after World War Two, in accordance with the principle of our new Constitution, which was influenced or, you know, written by American, you know, the government. And then so that the current court upcoming procedure in France, the protection of the fundamental human rights, which was, you know, in the current constitutions and under the current code, although the traditional European judicial systems, you know, criminal system is maintained, you know, from the, the, the one the American law of clean up procedure influences a lot.

00;04;04;28 - 00;04;29;16

Naoko Akimoto

You know, at the same time, it's kind of mixture. And also, Japanese scholars of criminal procedure introduced the doctrine and the principles not only from Germany but also from American law, such as evidentiary Lu. And then like also like we had a judicial system reform since the end of the 20th century to make the judicial system more close to the citizens and public.

00;04;29;19 - 00;04;55;23

Naoko Akimoto

And as a part of that reform, the criminal procedure have also been amended to empress and, you know, speed up the process of the procedure and to expand the public defense system. And in addition, the old system, which is called Taiwan in system, has been in place since 2009, where the general public, I mean, the citizens, participates in the trial and adjustment of criminal cases.

00;04;55;29 - 00;05;00;06

Naoko Akimoto

This is a very brief overview of the Japanese criminal justice system.

00;05;00;09 - 00;05;02;17

Jonathan Hafetz

And they participate as the jurors. Right?

00;05;02;19 - 00;05;18;24

Naoko Akimoto

Yeah, but it's, different from, you know, jury in America because the leaders are selected, you know, by those adults about they participate with judges, judges, you know, together with judges. So it's not really an independent body like jury in the US.

00;05;18;26 - 00;05;29;25

Jonathan Hafetz

The movie focuses on this particular crime grouping or done in Japanese. What's the legal and social significance of this offense?

00;05;29;28 - 00;05;57;18

Naoko Akimoto

Oh, yeah. Like, you know, to understand the crime of the groping and also it's accusation like, I think like we need to look back some history in Japan because, you know, of course, like Chinese, obviously the sexual crime. However, it is they that's also awareness that groping is a crime did not exist until the early 1990s. And before that time, like even voyeurs understood as immoral.

00;05;57;20 - 00;06;20;19

Naoko Akimoto

But the groping was treated more like culture. And lot a few magazines are to kind of like, you know, us at something like entertainment, right? And also posters at the train station are described groping as a the manner rather than, you know, offense a crime and and also at a time like women were forced to self defend rather than accuse.

00;06;20;26 - 00;06;57;07

Naoko Akimoto

You know the criminal the offender. So this is really like, you know, the social codes are like a lot like, you know, we have this is a problem. However it's not really crime. And then like a man's, you know, treated us like, you know, the culture and entertainment. But the situation changed through especially the 1990s and some, you know, earnest movement against sexual offenses either report on groping and also, like police officers started to actively crackdown on the offense and an increase in the number of women outside also, you know, contributed to this change.

00;06;57;10 - 00;07;22;13

Naoko Akimoto

So that's why under this context, the more and more, you know, groping case is studied, the accused in a criminal court. And then, you know, as the policing of groping becomes strict, you know, the number of occupations, increased as a result. You know, I don't see like, number of the groping increased. You know, the number of the accusation increased, even though the actual number of groping is much more than the number of the accusation.

00;07;22;13 - 00;07;49;12

Naoko Akimoto

However, still, the number of the accusations increased at a time in the 1990s and then that in general, however, the groping is offense that is difficult to accuse in the sense that it often lacks objective evidence. And then, since the 2003 2000, in several cases of groping, the verdicts of not guilty were turned down in the trial court.

00;07;49;14 - 00;08;07;12

Naoko Akimoto

And then, as the movie illustrates, the having the not guilty verdict is very rare in Japan. So therefore are those cases were highlighted as miscarriage of criminal justice in Japan. And then this movie was taken in this social context in 2006.

00;08;07;14 - 00;08;24;18

Jonathan Hafetz

It's very interesting how it evolves. And there's almost you almost get a sense in the movie that they're, you know, they're now that system is deciding to take this offense seriously in responding to kind of the way it had been taken less seriously by the legal system, as you explained in the past, which overall is a positive thing.

00;08;24;18 - 00;08;28;24

Jonathan Hafetz

On the other hand, it can present some problems in the case for the defendant.

00;08;29;01 - 00;08;42;05

Naoko Akimoto

Yeah, there is some tension even like those two programs are kind of, you know, independent to each other, like sexual crimes as well as the miscarriage of criminal justice. However, you know, it's like, you know, we have some tension between the two.

00;08;42;07 - 00;09;07;00

Jonathan Hafetz

And if you, confess, if you admit it, the punishment is is very light. And the movie shows us right in the beginning, this one case where the person does commit the offense clearly is arrested, confesses, and goes home. So after the defendant, 26 year old Teppei, cannot go play by real casting, is arrested and detained. He meets with the public defender who advises him to plead guilty.

00;09;07;03 - 00;09;25;17

Jonathan Hafetz

Cannot go. We'll just have to pay a small fine. He'll be out in a day. It would be, the public defender says, like a traffic infraction. And then actually, the film opens with a different case. There's a short segment before we get to Cannes. It goes case where a man, middle aged man, clearly gropes a woman on the train.

00;09;25;21 - 00;09;50;18

Jonathan Hafetz

The man is taken to the station, he's presented with the accusations, he confesses, and he's released with, you know, effectively kind of a slap on the wrist. Now, the public defender tells Kanako that there's a 99.9% conviction rate in Japanese criminal courts. He tells them that interrogations can last for up to three weeks, pretrial detention can last for 3 to 6 months, and it could be up to a year before any trial.

00;09;50;21 - 00;10;00;29

Jonathan Hafetz

So what role does the defender play in these situations, and how accurate is the characterization of the system and the pressure on defendants to plead guilty?

00;10;01;02 - 00;10;24;14

Naoko Akimoto

So I just, you know, let me introduce like about this, you know, procedure like after the suspect is arrested, you know, that under the generalized criminal procedure, after the police officer, well, you know, the private citizen arrest the suspect, they should refer the suspect to the prosecutor's office within 48 hours. And then the prosecutor should request detention to the court within 24 hours.

00;10;24;17 - 00;10;52;06

Naoko Akimoto

And then, you know, the first public defender that you mention is then called Toba Bengazi, which is sent for is sent from the bar association. It's not really a public defender afforded by afforded under the criminal procedure. The Court of Criminal Procedure is to offer a public defender to detain the suspect and accused. However, it does not, you know, offer a public defender to, not yet detain the suspect.

00;10;52;06 - 00;11;14;17

Naoko Akimoto

You know, that basically like 72 hours. Right. And it is important to have a defense lawyer at this point before the decision is made to detain him, because the police officers start the interrogation and they start to make the record of the statements. So, you know, that's why the other, you know, suspect suggested him to call to see at that point.

00;11;14;19 - 00;11;38;04

Naoko Akimoto

And then, like I say, is, depicted in the movie, you know, if the suspect pleads not guilty, he will likely be detained, that is for ten days, the first ten days. And then which, like plus three plus additional ten days or 20 days in total before going to trial. And there's such a practice of the time that has been changing.

00;11;38;04 - 00;12;04;12

Naoko Akimoto

However, you know, pleading not guilty makes judges think, you know, there should be some probable cause to suspect that he might affect the evidence, affect the victim of the case. So that's why it's likely that if he pleads not guilty, like he will likely be detained. Well, yeah. 20 days he's in jail because ten days for ice truth for the prosecutor to complete the investigation.

00;12;04;12 - 00;12;30;22

Naoko Akimoto

So 20 days usually. And then so as you said, and also I've seen the movie if the you know, if it's the first offense to that suspect and he is the first one to be arrested by this offense. Right. And also the there are two kinds of offenses for groping, actually, which is also explained in the movie. One is like the violating the ordinance against disturbing the peace, which is your name.

00;12;30;22 - 00;12;59;19

Naoko Akimoto

But it's not only for the groping, however, it's it's more like ordinance by the prefecture. So every prefecture has this kind of ordinance. And with this apply to groping as well. So in the apply to when the the offense is something like touching outside of the underwear, if the criminal you know touch you know put his and into the the underwear the offense is more serious which is called indecency through compulsion, which is much more serious crime.

00;12;59;22 - 00;13;31;20

Naoko Akimoto

And then so his offense is the lighter one, right? The violation of the ordinance. And then so it is a first time for him. So it is likely that if he pleads duty at this point, he would not be detained and charged with a fine, you know, even if his case go to trial. So therefore, what the first lawyer, the program then, because he said to him is true, you know, even though you know such a suggestion, it's against legal ethics, right?

00;13;31;24 - 00;13;58;03

Naoko Akimoto

You cannot suggest the suspect who is, you know, saying that. Oh, you know, and then there's this him to plead guilty, obviously, like we are, you know, lawyers are prohibited to do this. However, you know, even the first of all, you consider about him. And if he is not broken, if he has free that right, he is looking for a child, not, you know, if he work at a company and then be absent from company without any reason.

00;13;58;03 - 00;14;24;03

Naoko Akimoto

And then if the you know the information that he is arrested, like raised to the company, you know, it's kind of likely that the company fired him, even though, like, now, maybe not every case goes like this, however. So that's why, you know, the lawyer suggested him to, you know, just be guilty and get released. And, you know, he would be fine, even though he claims that he is innocent.

00;14;24;05 - 00;14;50;22

Naoko Akimoto

Then it was only 99% of the conviction rate, which is, you know. Yeah. Also described then that is true in Japan. It may sound very, very high, unbelievably high for those, you know, in America. Okay. With America, however, it means that prosecutors in Japan do not indict the suspect unless they believed to have very concrete evidence to prove guilt at the trial.

00;14;50;24 - 00;15;14;15

Naoko Akimoto

So there is because investigation is really, you know, again, it's very precise. And they should be sure to make the decision to indict the suspect. So which means the significant number of cases sent to prosecutor's office from police office do not go to trial so that even though the prosecutor feels like, oh, maybe like this is, you know, that he did it, he or she did it.

00;15;14;15 - 00;15;43;11

Naoko Akimoto

However, they decide not to, you know, indict the case if they're 100% sure that, you know, they can prove the case in the trial. So I don't know if this kind of practice of prosecutors Siqueiros office is good or bad because, you know, you cannot be easily in that it is not bad a thing. However, this 99.9% conviction rate, you know, I feel give some unconscious bias to judges, right.

00;15;43;12 - 00;15;55;20

Naoko Akimoto

You know, judges also know this kind of practice. So, you know, like once a criminal, it's sent to the court. It's very highly likely that, you know, prosecutor's office already collect the concrete evidence.

00;15;55;22 - 00;16;15;17

Jonathan Hafetz

It's really interesting how that plays out. Just the prosecution doesn't like to bring cases that it doesn't think it can win to trial. Right. It does seem to weed out cases before the indictment. On the other hand, as you say, if the prosecution is moving forward, it creates this, as you said, unconscious bias, that you know, that person is guilty.

00;16;15;17 - 00;16;35;04

Jonathan Hafetz

And I think the movie does talk about how it creates sort of incentives on the prosecution not to not to lose. Like once they decided to indict a case. There seems to be that, you know, there's a lot of pressure that that case should result in a conviction. I also think it's kind of interesting in the movie that because all the incentives are on the defendant to plead guilty, right.

00;16;35;04 - 00;16;47;22

Jonathan Hafetz

Avoid the trial, pay the fine. The fact that he decides to continue fighting almost seems like to be persuasive to like his lawyers, that he maybe he's actually innocent is a very interesting the way the dynamics play out.

00;16;47;25 - 00;17;03;16

Naoko Akimoto

Yeah. And also we don't have plea bargain. Right. Like in the U.S. so you know, so like either the, the way like, you know, the plead guilty or not, I mean, not guilty and there is no room for the bargaining like the one in America.

00;17;03;18 - 00;17;27;23

Jonathan Hafetz

Right? So the prosecution also doesn't then overcharge to try to result in a bargain. They charge the offense that your time with. So there's also I mean the movie does show sort of another pressure point or pressure on the defendant Kanako. Is he subjected to continued interrogation while he's in custody so these can last how long up the how long?

00;17;27;23 - 00;17;37;26

Jonathan Hafetz

And also, even though it's not depicted as there's no physical violence or even threat of physical violence, there is a sense that there is a degree of coercion, psychological pressure involved.

00;17;38;02 - 00;18;14;21

Naoko Akimoto

There, of course, like, you know, detention and also interrogation by police officer as well as prosecutor provides, you know, only the fact, you know, gives, so much pressure on those, you know, suspects, especially the suspect. It is the first time for him. It's not, you know, can I say it later rather than the first time? You know, first time for the suspect to be detained and then, you know, like so many movies, not only this, but also TV program shows that it's such a close if, you know, interrogation by police officer and them it does it still exists in Japan, I think.

00;18;14;21 - 00;18;34;18

Naoko Akimoto

But like it's not every there, you know, ask the movie or the TV program shows I think. But I don't know the true reality of the interrogation of the detained a suspect by police officers. You know, I've never experienced I mean, I did something. No, you know, the opposite, but it's a long time ago is also, you know, the pleading guilty case.

00;18;34;18 - 00;18;45;14

Naoko Akimoto

So I've never encountered, you know, that the case, with the suspect pleading not guilty. So. Yeah. Still exist. But not all the cases are like this. I have to say.

00;18;45;17 - 00;19;15;16

Jonathan Hafetz

Another thing the film explores is the challenges of finding a lawyer, and in particular, a criminal defense lawyer who will take a case to trial. So Kanako, the defendant's mother and his best friend Tatsu, search for a lawyer. Right. Once Kanako pleads not guilty and is going to fight the case. And so they, you know again, they try to find someone who has criminal defense experience versus like a corporate or commercial lawyer and someone who's committed to a zealous defense and not just pleading guilty.

00;19;15;19 - 00;19;19;23

Jonathan Hafetz

Is there a criminal defense bar in Japan, and how is it organized?

00;19;19;26 - 00;19;43;16

Naoko Akimoto

So let me explain. Like how to find the, you know, the public defender as well as private lawyer when you're, you know, arrested and detained or even not listed. So the public defender like the offering public defender is mandatory if the suspect or accused, cannot afford it and which is, you know, provided under the Code of Criminal Procedure and the cost is borne by the government.

00;19;43;19 - 00;20;09;23

Naoko Akimoto

So and then like, you know, to, you know, the full become the public defender for some particular case. It's like each prefecture bar association. We do have the bar association in each prefecture, in addition to the Japanese Bar Association, the overall. And they like the bar association, are organized, organizes a list of lawyers to serve as a public defenders and to assign the cases to them based on that list.

00;20;09;25 - 00;20;33;13

Naoko Akimoto

So if lawyers put their names on the list of the bar association and they are assigned to a specific date, or your date is, for example, like, you know, 20, 25, February, 20 year, and they're like, you know, the the lawyers need to be ready to visit the police office if they receive the call from that quote, and then they serve as a public defender.

00;20;33;16 - 00;20;59;20

Naoko Akimoto

So it's kind of very I say random goes into that list, and then the Interpol and the every lawyer has an obligation to do some public job once a year. And then once that job is to serve as a public defender. I mean, they put the name on the list. And so, you know, therefore, to there's a many lawyers put their name on the list in order to, you know, fulfill this obligation.

00;20;59;22 - 00;21;25;23

Naoko Akimoto

And then the city's told to have a public defender is not difficult them. It's very automatic for the suspect or accused. However, the quality of the lawyer and experience and their awesomeness is just my luck. Yeah. So it's really depending on the luck. And then also that finding a good private lawyer is not easy for those who have never.

00;21;25;29 - 00;21;52;27

Naoko Akimoto

You know, encountered legal problems like the one you know, mother and his best friend in the movie. Because asking a lawyer is still very unusual thing for ordinary citizens in Japan. So I don't say like corporate lawyer cannot, you know, a good defense. I because when I heard about the story, like when, you know, like the junior lawyer, just, you know, get the license and started work and like three years, four years.

00;21;53;03 - 00;22;23;04

Naoko Akimoto

But those young lawyers will work in the business law firm. They are still very can I say motivated. And they are smart. So if they are assigned a public, you know, defense case, they do some really good job. But of course experience matters, especially for those cases where the suspect is pleading not guilty. However, even if the case for pleading guilty, like, there are, there are a of work for the lawyers to do.

00;22;23;07 - 00;22;29;11

Naoko Akimoto

And then so, you know, in that case, maybe they'll say the motivation is all about.

00;22;29;14 - 00;22;50;22

Jonathan Hafetz

Japan has a protection, a privilege of self-incrimination. But in the movie, the defendant testifies at trial. Does that happen often that well? The defendant often testify, or is there most defendants invoke their privilege and require the prosecution simply to prove that, meet their burden without having to testify?

00;22;50;24 - 00;23;27;23

Naoko Akimoto

I don't see the details. So I cannot say, like, how much? And like most of something I should ask my friends. However, like, maybe like, as far as I know or in my impression, like, you know, even in those cases, pleading not guilty, the, you know, defendant, the accused, then, did testify in the court. I think that one reason is that, like, they might feel like if they did not testify, it might of course, it shouldn't happen, but it might still affect the impression of the judges, you know, presiding judge.

00;23;27;28 - 00;23;47;22

Naoko Akimoto

And also they want to provide their own story. So like before going to trial, the defendant and, lawyer discuss a lot how to, you know, respond to the judge's question or the question by prosecutor. So I think it's very important to provide his or her own story.

00;23;47;24 - 00;24;16;01

Jonathan Hafetz

Yeah. I felt in this case, especially without a lot of other evidence, another issue that comes up is over the prosecution's obligation to disclose evidence, their records of the interrogations of the accused. There's a report of the reenactment of the crime scene that seemingly can't be located. What are the rules governing the prosecution's disclosure obligations in criminal trials in Japan?

00;24;16;03 - 00;24;52;13

Naoko Akimoto

So, you know, we do have some disclosure provisions under the Code of Criminal Procedure. However, it's not mandatory for all kinds of cases, you know, because, those disclosure provisions, the prosecutors evidence apply for those cases which accompany pretrial proceedings. The Court of Criminal Procedure introduced mandatory disclosure of the evidence by prosecutors, but also this kind of introduction of the provision comes into play together with the introduction of pretrial proceedings.

00;24;52;16 - 00;25;18;04

Naoko Akimoto

And then we did not have pretrial proceedings, before early 2000, because this pretrial proceedings was introduced at the same time of introducing early judge system, you know, because before the line like only procedure orders and judges and also, you know, defense lawyers are the players in a criminal court. So we did not need to arrange the case and organize a case.

00;25;18;04 - 00;25;44;21

Naoko Akimoto

We were going to trial, even though it did to a certain extent. However, they are professionals. You know, those cases with very complicated, you know, issues and the fact that those, you know, people that professions can still deal with that without organization. However, after the late judge, quote, the the system was introduced, of course, some cases need to be present added to ordinary citizens without any legal background.

00;25;44;24 - 00;26;11;13

Naoko Akimoto

So therefore, you know, like in order to make this system works mostly we need to have, you know, process that some, you know, pretrial proceedings to organize the, issues and evidence. So that's why the disclosure provision was introduced at the same time. So the disclosure provision in a criminal procedure called now is mandatory for those cases. Basically judges.

00;26;11;20 - 00;26;46;20

Naoko Akimoto

However, the disclosure of the prosecutor's evidence is primary for those cases without pretrial proceedings. So that's why in this case there is no pretrial proceedings. By the way, the system is applicable only for those serious crimes. So it's mandatory. So it is not the right of the defendant like the one in the US. It's more like, you know, oh, if the offense is like this, you know, provided under the court, and then the court is just applied, it's mandatory.

00;26;46;22 - 00;27;17;09

Naoko Akimoto

So except for those, you know, late judge cases, of course lawyers can, you know, request the pretrial proceedings. But whether to provide a pretrial proceedings is in the discretion of the judge. So it's not necessary. And also, even without pretrial proceedings, the lawyer still can request the disclosure of the evidence to the prosecutors, like the lawyer did in the movie.

00;27;17;16 - 00;27;45;10

Naoko Akimoto

However, it's still very voluntary. So it's not really, you know, like not very sure whether the disclosed evidence or not. And the usually like the defense lawyer, of course, see the evidence the prosecutor decide to, you know, use in the trial. However, if the prosecutor decides not to use some evidence to the trial, the lawyer do not have any for the defendants of any right to have access to those evidence.

00;27;45;12 - 00;27;47;14

Naoko Akimoto

So this is the program.

00;27;47;16 - 00;28;12;15

Jonathan Hafetz

And as you're saying, the way the lay jury being mandatory and as you said, in contrast to the US, where you can waive you're right. Most defendants don't, but it's only applicable in certain cases. And so although the movie takes place before the lay jury system was introduced, you know, it's a movie have been shot and made. Now, there wouldn't be a jury anyway, because the offense does not rise to the level where you would have a lay jury.

00;28;12;18 - 00;28;30;01

Naoko Akimoto

Yeah. Right. Right. So the sexual crime, like right is of course like, you know, the ladies court, you know, the case is basically just quote, however, you know, violation of the ordinance. This case never go to they just quote because of the lightness of the offense.

00;28;30;03 - 00;28;48;19

Jonathan Hafetz

Another thing the movie talks about is the bail system, right? So in the movie, the defendant isn't released on bail until after the victim testifies at trial. And the bail then is set at quite a high amount. I think it's about 20,000 USD or something in that range, which is, you know, seeming very high considering it's a nonviolent offense.

00;28;48;19 - 00;29;02;15

Jonathan Hafetz

And there doesn't seem to be any flight risk. And the rationale that's given is they need to wait until after the victim testifies because of the fear that the defendant might try to intimidate the victim. So how common is the practice of denying bail pending trial, and is it changing at all?

00;29;02;18 - 00;29;25;15

Naoko Akimoto

I'm not very sure about the frequency of the practice. However it does, you know, exist that like, you know, the villains, released with bail is not granted until the victim testifies in the trial court. It's not like, I don't know, like, maybe depending on the, you know, offense. Right? So, yeah, but it's likely that in this kind of offense it happens, I think.

00;29;25;17 - 00;29;50;24

Naoko Akimoto

But however, like theoretically, the prosecutors are supposed to complete the investigation before trial starts. So, you know, the necessity to keep the detention, although the risk of intimidating the victim might be lower, however, especially the case where the defendant is not guilty. Yeah, like maybe the judge, they suspect that, oh, there might be some risk of intimidating the victim.

00;29;50;24 - 00;30;32;04

Naoko Akimoto

So it might happen, I think. And then like, you know, as you pointed out, the church is in general is around 10,000 to 30,000. It is like, okay, so around this kind of range, of course, like this is supposed to be a discretion of the judges. So it might be higher or lower. But however, the defense lawyer might explain to their client that, oh, maybe this rents and then so maybe like those, you know, accused with this kind of offense, this man is not well actually the high however you know they cannot avoid you know being tourist this amount and this.

00;30;32;04 - 00;30;56;20

Naoko Akimoto

So this kind of you know the amount of the church prevents accused apply for a public defender. I mean I mean it's like, you know, they cannot afford the private lawyer. So, you know, they do not usually challenge a request for the moment. It also yeah. However, like, you know, before it is say that, you know, even the keep the day detention after the trial.

00;30;56;20 - 00;31;04;17

Naoko Akimoto

This is very ordinary cost. Some however is changing. I think it is. It's a bit change.

00;31;04;19 - 00;31;29;11

Jonathan Hafetz

In the middle of the trial, judges replaced it. Yeah. And the movie notes the previous judge, the first judge, had two acquittal verdicts overturned on appeal, and the new judge seems, well, very as we would call in the US, a kind of pro prosecution judge. So how unusual is this practice? Because it's in the movie, it seems to be sort of a defining moment in the trial.

00;31;29;14 - 00;31;57;11

Naoko Akimoto

Yeah. Right, right. And the thing is, you know, actors play very well, right? Although when the second one looks very, very nice, you know, give everybody praise and about judge the movie right in this way. So but like we need to be cautious about like oh this happened just because of the attitude of the case. You know, like the attitude of the Yankees, the first test or the case because each other like, judges, the Indiana.

00;31;57;11 - 00;32;22;13

Naoko Akimoto

I mean, in Japan, the judges are moved from one code to another every few years we have this kind of rotation system and then know such a rotation system is, you know, it's default. I mean, they said to prevent, you know, judges from having to close relationship with the citizens or police officers in one area. So in order to keep the fair trial.

00;32;22;21 - 00;32;47;01

Naoko Akimoto

Yeah. So, you know, when you become judges and a prosecutors as well, like you need to, you know, be ready to move around Japan, you know, in your career, it is already determined from the beginning. And then this kind of, you know, rotation and also relocation of judges or governors at a certain times, such as the beginning of fiscal year, the April.

00;32;47;03 - 00;33;15;14

Naoko Akimoto

Well before summer vacation, this kind of specific timing in a year. And then so, you know, I think the sudden replacement of a judge outside of this kind of, you know, ordinary rotation system rarely happens. You mean like this is more systematic and this so this movie two, I think the young judge was replaced out of such a rotation system, just not because, you know, he wasn't going to render, you know, not guilty verdict in this case.

00;33;15;14 - 00;33;35;22

Naoko Akimoto

So that's why we need to replace him with the other court. No, this is very unlikely. I think even though there is such motivation, they cannot do this such obvious thing. So they need to wait until the end of the fiscal year to move him to the other court. I think. So, however, changes in judges actually affect the result of the trial.

00;33;35;22 - 00;34;04;06

Naoko Akimoto

I think so, yeah, but as I say, like it will affect. However, it is unlikely that a change is made in order to affect the outcome of the case. I'm not very sure, but it is the very. I cannot say, important political case. Could be, I don't know, it's just it could be. But however, even though it is high stakes like in this movie, however, it doesn't happen to change the outcome of this kind of, you know, minor crime.

00;34;04;06 - 00;34;05;13

Naoko Akimoto

I would say.

00;34;05;16 - 00;34;34;13

Jonathan Hafetz

As one of the defense lawyers notes in the movie, once a person is indicted, they need to be convicted. That's a public prosecutor's job, right? And then the movie also sort of suggests that judges will get promoted in the bureaucracy if they acquit too many defendants. And we touched a little bit on this before, but how strong are the incentives and pressures in favor of conviction kind of within the system.

00;34;34;15 - 00;35;05;06

Naoko Akimoto

So, you know, like I've never experienced this charge of a prosecutor. So it's my options are based on the objective, impression, you know, from outside. But I think like, there is a pressure on prosecutor orders as well as judges systematically, you know, as you say, bureaucratic, you know, career system. And so, as I said that because prosecutors usually indict only those cases with concrete evidence that they should be sure to prove their case in a trial.

00;35;05;06 - 00;35;35;00

Naoko Akimoto

So the conviction rate is very high then. So this practice in turn, I think, makes prosecutors have such a very high pride that they cannot admit that their failure, you know, when their case turns out to be weak at a trial because of the defense or, you know, evidence. Right? And then especially in those cases in which the accused plead not guilty, the prosecutors might feel like, oh, once we prosecute it, you know, we need to win the case.

00;35;35;03 - 00;36;04;17

Naoko Akimoto

It's kind of a shame for them to lose the case because, you know, it's like 0.01%, right? Yeah. And by the way, in Japanese prosecuting system like the prosecutors who are in charge of investigation will not pursue the case in the trial. So they always change. You know, the prosecutor who is in charge of, okay, let's say proving the case in the trial is always different from the one, investigated.

00;36;04;21 - 00;36;31;00

Naoko Akimoto

However, like they move up to a, you know, system level organization. So anyways, you know, like they cannot, you know, give up the case even though they, you know, not there's something wrong with the prosecutor, I think. So that's why like, you know, because of this pride or like some, you know, like the idea. So the prosecutors are urged to appeal the case when the judgment is not guilty, I think.

00;36;31;07 - 00;36;56;00

Naoko Akimoto

And also from the judge's perspective, it is sped up. You know, there is a mid promotion, right? So if the judgment is reversed by higher court, too often it affects the promotion of the. And. Yeah, just you know, I heard about this story by the judges and so many places, but I'm not very sure. But maybe maybe because you know the library.

00;36;56;02 - 00;37;18;03

Naoko Akimoto

But I'm not very sure I like it. Also like in addition to the high conviction rate and the prosecutor's practice of appealing cases, it may affect judges attitude by, oh, 99%. And if my, you know, judgment is reversed in a higher cold and then it if it happens too many times for me, like it might affect my promotion then.

00;37;18;07 - 00;37;31;24

Naoko Akimoto

Bye. So yeah. Like there might be some pressure on chances. Yeah. Of course if I ask does they would say no. However may be very unconscious. You know bias might affect them, I think.

00;37;31;27 - 00;37;51;09

Jonathan Hafetz

I mean you can see the logic of why. Because if you're, you know, these are judges. They're not it's a bureaucratic system. They're not political appointees. And if the idea of appeals is, correcting of error, and if you get reversed too many times, it looks like, you know, you're making errors, right? There's some, you know, logic to it in that sense.

00;37;51;09 - 00;37;52;08

Jonathan Hafetz

I think.

00;37;52;10 - 00;38;14;20

Naoko Akimoto

Yeah, I think and the judges promotion, is all decided by Supreme Court. So there is some office, you know, on the Supreme Court to make all the decisions about the career of each judge. Yeah. Because the summary is already, I think, in accordance of the year by which quote they are assigned or what kind of position they are assigned.

00;38;14;20 - 00;38;41;23

Naoko Akimoto

My also, you know, they consider us very good carriers or not very good carriers. Right. So if I would say, like if you see the carrier of the Supreme Court judge, for background of judge, he goes to very important that, you know, not very remote area. So yeah, it is kind of almost if they pursue this kind of good carrier, but not every justice like.

00;38;41;25 - 00;38;43;21

Naoko Akimoto

But I think.

00;38;43;24 - 00;39;03;25

Jonathan Hafetz

In the movie, the defendant Kanako is ultimately convicted. He's sentenced to serve three months, which I think the movie says he can do within three years, which also found interesting. He also has to pay the cost of the trial, which is certainly different than in the U.S. but the main point is that there's no question based on the movie and what the movie tells you, that he did not do it right.

00;39;03;25 - 00;39;09;05

Jonathan Hafetz

It was someone else who did it. He's just the wrong person. So what was your impression of the verdict in the movie?

00;39;09;07 - 00;39;36;02

Naoko Akimoto

I think, like as for us, I consider all the facts for evidence presented in this movie. I think I would say there is a reasonable doubt for his committing a crime offense, because I think there's no objective evidence and also no direct witness in this case. And then the credibility of the victim is kind of key. However, as we saw in the movie, the credibility of victim is a statement.

00;39;36;02 - 00;40;02;21

Naoko Akimoto

It's a little weak right after the young judge ask, it made sure with her whether she followed the Queen of hearts with her eyes and then also like furthermore, the reproduction of the scene by clinical team, the defendant team supports his stories. And I feel like, you know. Yeah, like I would say, I hesitate to if I, I hesitate to render the guilty judgment.

00;40;02;23 - 00;40;19;12

Jonathan Hafetz

And actually the one witness is a woman who is on the train. And as soon as it happens, she goes on, they see and she sees that Kanako was taken to the station officials office to be questioned. She comes and says, you know, or she tried to intervene and says it wasn't him. And then he tries to find her.

00;40;19;12 - 00;40;40;16

Jonathan Hafetz

She's left the station. And then there's a sort of all interesting part of the movie where they, his mother and his friend and eventually can come something. They show up because like every day or many days at that station, we see like these sandwich board signs trying to find this woman again. And they ultimately do find her. And she does testify, even though her testimony wasn't overwhelmingly persuasive.

00;40;40;16 - 00;40;50;01

Jonathan Hafetz

You know, in terms of what she saw, she's very clearly suggested that Kanako was not the person. So I thought that was another piece of the kind of reasonable doubt in the movie.

00;40;50;04 - 00;41;15;18

Naoko Akimoto

Yeah, I agree with you. And also I got another point about regarding evidence, because you know, the judge changed in the middle, right. And then the second just didn't listen to the testimony of the victim by himself in a quote. And then he just read the record. So it's also affect him. Like, you know, if he says the way the victim testified, it may be like so maybe not very sure.

00;41;15;19 - 00;41;40;21

Naoko Akimoto

I, you know, regarding, you know, with us, you really follow our eyes on the hands. Yeah. So I feel like when they had, you know, the, the testimony, the, the female, you know, first say that it's not him. I say, like, at that point, the judge, the second judge already have some, you know, impression that he is guilty.

00;41;40;21 - 00;42;05;29

Naoko Akimoto

He already made up his mind almost. So I feel like the judge asked several questions to her. The witness, I mean, their testimony. And this, you know, it sounds like, you know, he is the judge was trying to find a reason to, you know, rebut her testimony, the credibility of her testimony. Right. Oh, how long is the time?

00;42;06;02 - 00;42;32;04

Naoko Akimoto

You know, where she shows the conical? You know, like trying to pull his jacket from the door and also, you know, the timing, the victim say, please don't do that. And it's ten minutes or something. And then like, the verdict, the judge read it out. The reason, you know, of the judgment, like you say. Oh, he is like, oh, why he did not take this testimony supporting not guilty verdict.

00;42;32;04 - 00;42;53;25

Naoko Akimoto

So I think like he already prepared, you know, in his mind this kind of judgment results. So yeah, I feel like, you know, the timing of that. Right. And also the, the tense in the judge's affect. I not very sure if the second judge precise in this case from the beginning, the result is the same or not. I know very sure about that point.

00;42;53;27 - 00;43;18;14

Jonathan Hafetz

Yeah. It does seem like when he gives the reasons and that's interesting. You judges have to give the reasons, right. That he was sort of looking to to kind of find any possible holes in the defendant's story, anything that, you know, any possible ways to undercut it rather than kind of sort of saying, what did the prosecution prove beyond reasonable doubt that the defendant had committed the crime?

00;43;18;17 - 00;43;34;02

Jonathan Hafetz

So one more question on the lay judge system. We know it's, you know, it's introduced after the movie, but it wouldn't have applied in the movie. What kind of impact has that had on convictions and sentences in the Japanese criminal justice system? The introduction of the late the late judges.

00;43;34;04 - 00;43;58;23

Naoko Akimoto

I think like I check some they about, you know, after the introduction of the late judge and then like the data shows that, you know, for those serious crimes the judge system is applied. They say like the sentence, especially the model, the sentence has become, you know, slightly higher than the case, you know, before, they just caught it.

00;43;58;23 - 00;44;34;09

Naoko Akimoto

It's kind of interesting to see this kind of data. And also the conviction rate is almost the same as those, you know, having been judged by traditional quotes. So period does not change so much. And there is one interesting case, you know, in Japan. So I think like in that case is like a child abuse case, I remember and then the sentence, rendered by the judge called, so they just call this only full trial, right.

00;44;34;12 - 00;45;02;09

Naoko Akimoto

And then so the sentence is kind of higher than usual. I mean, than usual means like even for like just quote. And also traditional codes like the Criminal Code have some range for the sentence. Right? Of course. But it's very discretionary within the range. And then however, of course code has some data over the previous case. Or if this is the model case and there is some this kind of, you know, the conditions and then the criminal.

00;45;02;09 - 00;45;29;12

Naoko Akimoto

Q for example, like one person or two persons, three persons, and then maybe the range of the sentence is like this. So there is some other it's, you know, average of the sentence. So they have some data. And then like it is revealed that just and later as well. And then but anyway, so that one case of the offense was the child abuse and the child was, you know, murdered by his or her parents.

00;45;29;14 - 00;46;02;08

Naoko Akimoto

And then the sentence, you know, rendered by Leisure's code was higher than the other age. And then the case was appealed to the higher court. And then so the higher court rendered the the sentence by the higher court was lighter then the, you know, they just called then they feels like, you know, this was broadcasted as well. And I feel like, you know, we have the English Society house on the, you know, very, you know, say concerns about child abuse cases with century.

00;46;02;10 - 00;46;27;11

Naoko Akimoto

And then they feel like, oh, we should, you know, punish those parents more seriously. I mean, I would say he is, you know, better or not about like, you know, we have this kind of tendency in the society. And then like, if this kind of, you know, awareness or the inference, I mean, the idea of the society was reflected in the way that, you know, the court, how it was, you know, sentence was reversed by the higher court.

00;46;27;11 - 00;46;50;21

Naoko Akimoto

So, you know, what was the meaning of, you know, the system to reflect, you know, public's idea about the criminal justice. So it's the, the way like victims side and also, you know, the defense, like we do need to protect the human rights of the defendant, however, you know, like we have this kind of, you know, phenomenon in Japan.

00;46;50;23 - 00;47;11;19

Jonathan Hafetz

Yeah. It's so interesting to see how it operates. I think, like the overarching or maybe the overarching, certainly an overarching purpose is to kind of deconstruct and critique the presumption of innocence, which is referred to often. It's sometimes given kind of lip service. It seems as being sort of fundamental. And I think, you know, that's true everywhere.

00;47;11;19 - 00;47;32;00

Jonathan Hafetz

Someone, you know, someone we even systems that have a presumption of innocence. But often if someone's charged the idea as well, if they were charged, you know, how can they be innocent? But anyway, this seems like the overall sort of point of the movie is to kind of critique that presumption. It's there. It's on paper, everyone acknowledges it, but in reality it's not quite so strong.

00;47;32;05 - 00;47;35;23

Jonathan Hafetz

Do you agree with that? The message of the film and the critique?

00;47;35;25 - 00;48;06;20

Naoko Akimoto

Yeah, I feel like it is true that the presumption of innocence, which is a fundamental principle of criminal justice, is not well, working in Japan. Given the prosecutor's practice of accusing cases, this strong evidence, which results in 99.9% conviction rate, I agree. So and also like as we discussed like there should be a certain impression on a just to render a not guilty judgment.

00;48;06;20 - 00;48;35;15

Naoko Akimoto

So it's kind of, you know, judges need to have some courage. I mean, to be brave, to render not guilty judgment, you know, under this all these kind of situation. And then so in this space, in this sense, this movie is successful in making critique of this issue in Japan, Germany's criminal justice. However, at the same time, I feel like, you know, I have the impression that in this story, in this movie.

00;48;35;18 - 00;48;59;25

Naoko Akimoto

So all kinds of problems in Japanese criminal system occur, you know, happens within a single case, which is not really you. Right? You know, you put all the problems into one case, you know, there should, based on one problem, in one case about another problem in another case about like every all the problems happens in one case. And there's always resolve in case you know that doesn't you know the outcome.

00;48;59;28 - 00;49;23;25

Naoko Akimoto

So I think there should be several chances to prevent this case from being, you know, turned into guilty a sentence. And then I feel like that, first of all, as I said, it is kind of, you know, not very usual, not 0%, but unusual that the prosecutor decides to indict him with the kind of evidence in this case, you know, the evidence is not so strong from the beginning, I think.

00;49;23;27 - 00;50;01;25

Naoko Akimoto

And then, you know, so in the movie, one police officer started to hear where he was, you know, released, with Belmont, like, in this case was unlikely to be indicted. Right. So I didn't think that here, you know, that. So, like, you know, this is the impression of the the police at the time. And I also impressed on mind and also that in order for the prosecutor to indict a case and to bring the case to the cold trial, I think like in addition to his decision, the decision of the prosecutor who is in charge of the investigation, you know, such a decision should be approved by a prosecutor in the higher position.

00;50;01;27 - 00;50;36;00

Naoko Akimoto

You know, so there are some levels of the decision making in prosecutor's office. So like, you know, the both liquidators, like the one who was in charge of investigation of the the prosecutor, make the final decision to go or not to go. So it might raise doubt on the case in reality. But if the combination of the two is kind of go wrong, maybe, like this case, still be indicted, but like, you know, full plate, like either of the two might work in reality, I hope I don't say like it never happened.

00;50;36;00 - 00;50;57;16

Naoko Akimoto

I mean, this case never goes to trial in reality. But like, you know, in reality, maybe, like, cannot go so easily to the trial. And I also like the judge who would render a not guilty judgment given the evidence in this case, I think the especially the replacement of a judge, you know, happened at a very bad time in this movie.

00;50;57;16 - 00;51;22;25

Naoko Akimoto

Right? And then you just didn't hear the victim's testimony by himself. And, you know, so I can sense so attitude toward the case really affected the outcome of this case. And also, you know, outside of the point, however, you know, in practice, I mean the judge by themselves. No. Like whether the replacement occurs not, you know, well, I already, you know, in this court already like for two years, three years.

00;51;22;28 - 00;51;54;13

Naoko Akimoto

So it's almost the time to report this to the other court. So they might know they and also they are notified like maybe at least one month or two months in advance, I think. And then so I feel like I heard that, you know, they still tried to complete their case before the replacement occurs. And especially if I if you know the judges, if the judge is like the one, the young judge who has some, you know, the strong, can I say belief in his mind not to make any miscarriage?

00;51;54;19 - 00;52;24;00

Naoko Akimoto

I feel like he should try to complete the case before the replacement. And of course, at the end of the fiscal year. And also for the lawyer side, you know, the attorneys are very sensitive about the who is the judge for his case, even in a civil court case and especially for the criminal case and the lawyer, it's very you know, it's I experienced one for the criminal case and he actually he was shattered before and then.

00;52;24;00 - 00;52;46;03

Naoko Akimoto

So I think it's very lucky for the defendant in this case that the case was assigned to that young judge, because even the young judge has this kind of, you know, tendency is already famous because the lawyers hear this kind of information about this judge, have this kind of, you know, very smooth. So I think if it's very lucky.

00;52;46;03 - 00;53;12;13

Naoko Akimoto

So probably the attorneys will try to complete the case before the replacement happens. It's not really out of sudden. So that's why like, you know, there should be some chance for them to finish the case. Yeah. Because he pleads not guilty. So it makes the case longer. But you know, if I were the lawyer, maybe I would try my best to complete the case before the replacement occurs.

00;53;12;13 - 00;53;35;24

Naoko Akimoto

So. Yeah. So I'll leave it, you know, not really of particular thing in this case, however, I would say. But anyway. So overall like I feel like what happened to the mero the typical vehicle may still happen. The reality may come. I cannot say like maybe it's just fiction. Not it may happen. However, I cannot deny it. However, it not everything not open.

00;53;35;26 - 00;53;54;26

Naoko Akimoto

But you know, like even if it's not often like even just one single case is a problem, right? So after a younger judge stayed in the movie, if the purpose of the criminal justice is not to convict even only one innocent person. Yeah. The purpose, this kind of purpose. Okay, no, justice is not yet achieved under the current situation.

00;53;54;26 - 00;54;00;02

Naoko Akimoto

But I have to say, oh, this happens every year in the very open in Japan.

00;54;00;05 - 00;54;23;19

Jonathan Hafetz

It's a great explanation. I mean, it seems like a lot of the critiques of the movie, the different critiques are so they make points, but there's a sense where it's almost like a perfect storm, like they all happen in one case, like everything possible, all the areas where things could break down or the incentives to push for conviction at the expense of having someone innocent, convicted, all the different points where something can go wrong, go wrong.

00;54;23;26 - 00;54;46;03

Jonathan Hafetz

And that in itself seems, you know, a little unusual, while at the same time there's sort of different isolated points they make or the different points are there's something to them. So interestingly, the director, as I understand it, and the writer must have usually got the idea for the movie while reading, something in the newspaper about a case of someone who's accused of Jagan of groping that he was innocent.

00;54;46;03 - 00;54;56;18

Jonathan Hafetz

I think that in the case that he read about, it was reversed. The conviction was reversed on appeal. I think that's where the idea came from. Well, no. Are there any final thoughts you had on the movie?

00;54;56;21 - 00;55;12;13

Naoko Akimoto

No. I mean, like when I, like, talk with you like always movie. We can talk, in your podcast and then like you say, oh my God, I this movie. And I think, oh, that's great. However, I like when I start to, you know, think about, like to watch this movie again because it's already 20 years ago.

00;55;12;15 - 00;55;31;09

Naoko Akimoto

It's gone a long time ago, I suppose. And I feel like it's very difficult, you know, to to explain it to foreigners. I mean, for me, you and also the listeners who are mainly foreigners and they're like this, you know, I try to be objective, you know, about this movie. And also this is also related to the sexual crime, right?

00;55;31;09 - 00;55;49;02

Naoko Akimoto

Which is still very, you know, important issue recently in Japan and also in America as well. So many, you know, social problems as, you know, reverse into movies, but it's kind of good movie. Yeah, I agree with you on this kind of very pleasure to talk about this is. Yeah.

00;55;49;04 - 00;55;59;14

Jonathan Hafetz

Yeah, absolutely. It seems like a good movie, but something to take with, as I say, kind of a grain of salt. Well, now go. It's been wonderful to have you on the podcast. Thank you so much.

00;55;59;16 - 00;56;01;00

Naoko Akimoto

Yeah. Thank you so much.