Japan is home to an estimated two million foreign residents with mid- to longterm visas. Many of them have established lives here, including jobs, friends and family. When a foreign resident faces arrest, the implications extend beyond the immediate criminal proceedings—they can also impact visa status.

Navigating a legal system that may be very different from what one is accustomed to can be challenging, especially when coupled with a language barrier. In this post, we'll explain how police investigation during the pre-prosecution stage works and the importance of avoiding prosecution.

➡ (Part 2 – Post-prosecution Stage)

1. Before Arrest

• Police investigation: During a criminal investigation, the police often reach out to suspects for voluntary interviews. While participation is not obligatory, it is generally advisable to comply politely rather than reject outright. Caution is required when dealing with such requests, as in some cases, rejection can prompt the police to proceed with an arrest.

Negotiating the timing of such interviews is possible, so it is crucial to promptly seek legal consultation before the interview to receive guidance on handling the process. Additionally, requesting an interpreter for the interview is essential.

Although lawyers cannot be physically present during police interviews (a notable difference that can baffle foreign residents accustomed to the idea of having legal representation during interactions with law enforcement), seeking legal advice is vital during this phase of investigation. In fact, it is the most critical time to obtain proper guidance and ensure awareness of relevant laws and customs.

• Written Statement: At the conclusion of a police or prosecutor interview, individuals may be asked to sign a written statement. While it is acceptable to do so, exercising extreme caution is crucial to ensure that the statement accurately reflects the explanation given to law enforcement. If any errors or omissions exist—even minor ones—individuals have the right to request amendments before signing.

2. From Arrest to Detention

• Overview: A suspect can be arrested if there is probable cause to suspect their involvement in a crime. In relatively minor crimes, investigations may continue without an arrest. However, in other situations, arrest becomes unavoidable.

Upon arrest, the police have 48 hours to conduct initial investigations before forwarding the case to a designated prosecutor’s office. The prosecutor then has 24 hours to file for detention. A judge assesses the necessity of detention. If the alleged crime is relatively minor or lacks strong grounds, the prosecutor may choose not to detain the suspect, allowing continued investigation without confinement.

• Communication Options

(a) Embassy or Consulate Notification: Foreign suspects are asked whether they want their country’s Embassy or Consulate to be informed. While the level of assistance varies by country, diplomatic missions cannot represent individuals in criminal defense.

Often, individuals arrested while just traveling in Japan use their Embassy to contact family members back home, leading concerned family members to seek our firm’s assistance in visiting them in jail.

(b) Legal Representation: The only external contact permitted during this stage is with lawyers. If you know a lawyer, you can request that the police contact them on your behalf. Alternatively, you can ask for a “Duty Attorney” (Tōban Bengoshi), who will provide a free initial consultation.

3. Detention

• Process and Duration: Once the prosecutor seeks detention, there is a high likelihood that the judge will grant it (over 95%). Detention can last up to 20 days per charge for most crimes (meaning that if there are multiple charges, the detention period can be longer). During detention, daily interviews occur with police and prosecutors. Simultaneously, investigative efforts intensify, as prosecutors must decide whether to proceed with prosecution or release the suspect within the 20-day window. Notably, bail is unavailable during the pre-prosecution period.

The impact of being held in detention for 20 days can be significant—professionally and personally—even if ultimately, they emerge without facing prosecution. We strongly recommend consulting a lawyer to receive proper legal advice from the onset.

• Visits: During detention, it is possible for someone other than attorneys to visit the detainee. However, certain restrictions apply, such as the presence of a police officer who understands the language used during visits. Therefore, it is necessary to contact the police station where the detainee is being held in advance.

In some cases involving possible accomplices or additional offenses, a nocontact order may be issued, prohibiting visitors and all outside communication except with attorneys during detention.

• Attorney Representation: The Duty Attorney mentioned above is only for the first meeting during arrest. Subsequent decisions regarding legal representation must be made. If financial resources are limited, individuals in detention qualify for a pre-prosecution public defender, with the government covering attorney fees (with some exceptions).

However, using a public defender has drawbacks for foreign suspects. For example, individuals cannot select their preferred lawyer, and most public defenders only speak Japanese. Consequently, interpreters are necessary during meetings with the attorney, which can lead to less frequent visits due to scheduling challenges. Additionally, communication involving interpretation typically takes twice as long, resulting in significantly less direct interaction with the attorney. And, unfortunately, we often hear that the quality of interpretation is inadequate.

Furthermore, when a foreign resident is involved in a crime, the evidence is typically in mother-tongue. Even when evidence could prove innocence or mitigate charges, assessing its content may require translation which takes time.

At our law firm, we have an attorney who is fluent in English. This allows us to communicate directly with our English-speaking clients without an interpreter. When clients provide evidence (such as emails) in English that could benefit their case, we can thoroughly review it, treating it like any other evidence.

Japan’s conviction rate exceeds 99%, making the pre-prosecution phase critical in criminal defense. The objective during this phase is to persuade prosecutors to drop charges. Attorneys can gather and assess evidence, negotiate with victims for settlements, talk to family or friends to secure a personal guarantor (see Part 2 for details), etc.

In contrast to civil cases, most criminal cases require attorneys to be geographically close so they can see the accused individuals where they are detained. Therefore, it is advisable to contact a lawyer in your area for assistance.

➡ (Part 2 – Post-prosecution Stage)