During the post-prosecution stage, the defense attorney’s focus shifts to trial preparation. This involves gathering additional evidence, preparing witnesses, and more. Given the fact that Japan’s conviction rate exceeds 99%, the primary objective often becomes securing a reduced sentence and a suspension on the sentence (avoiding prison time).

➡ (Part 1 – Pre-prosecution Stage)

1. Detention and Bail

•Overview: Detention may continue, post-prosecution. However, bail becomes a viable option at this stage. If bail is not granted, detention may continue until the trial concludes.

To secure bail, the accused must demonstrate the following:
(1) Resident stability: Proof of a stable residence.
(2) Non-interference with evidence: Assurance that they will not conceal or destroy evidence, including refraining from contacting the victim or witness to threaten or intimidate.
(3) Flight risk mitigation: This is particularly challenging for foreign residents, as the court may suspect they will leave the country if released. Demonstrating a stable life in Japan and getting a personal guarantor are imperative.

•Personal guarantor: Personal guarantor (Mimoto Hoshōnin) is a trusted individual, often a family member or employer, who acts as a guarantor during the bail process. This person vouches for the accused individual’s reliability and may also serve as character witness during the trial.

•Bail Money: Bail money is required in all cases, typically ranging from 1.5 million to 2 million yen (higher in certain cases). For individuals lacking sufficient funds, borrowing from the Japan Bail Support Association is an option, though a guarantor (in this case, someone legally responsibility for repaying the bail money if conditions are breached) is necessary.

•Passport: To demonstrate a foreign resident is not a flight risk, the defense attorney may retain the individual’s passport and provide a statement to the court ensuring this.

2. Trial Preparation

•Evidence: Attorneys collect relevant documents, police reports and other materials related to the case. Interviews with potential witnesses are conducted. They scrutinize the evidence presented by the prosecution, assessing its strength, relevance and potential weaknesses.

•Strategy Formulation: Understanding the accused’s version of events is crucial. Attorneys listen to their account and identify relevant details. Based on the evidence and client input, attorneys develop a defense strategy. This may involve challenging specific elements of the case or seeking alternative resolutions. On a side note, attorneys gain access to evidence gathered by law enforcement only after the prosecution.

•Settlement with victims: When there is a victim involved, reaching a settlement can impact sentencing. Attorneys instruct the accused on writing an apology letter and engage with victims carefully for negotiation.

3. Trial

•Overview: In most cases where the accused is pleading guilty, the trial involves two to three court dates over a period of two to three months. In some cases, especially if the accused is pleading not guilty, the trial can extend much longer, sometimes up to a year or more.

During bail, attendance at court dates is mandatory. Breaching this condition can result in immediate cancellation of bail.

•Interpretation checker: When the accused is a foreign resident, a courtappointed interpreter will be present during the trial. However, sometimes their interpretation may not be accurate, potentially leading to misunderstandings of the accused’s statements in court. In our law firm, we have a lawyer fluent in English who can also serve as interpretation checker during the trial.

•Jury trial: In Japan, certain criminal cases are subject to jury trials (Saibanin Saiban), where both judges and juries (citizens) participate in the decisionmaking process. Examples of such crimes include arson of an inhabited building, counterfeiting and use of counterfeited currency, non-consensual indecent acts or sexual intercourse causing injury or death, murder, kidnapping for ransom, robbery causing injury or death, and the import, export or manufacture of methamphetamine for profit.

Jury trials usually take much longer, the average preparation period being eight months and more than five trial dates.

4. Punishment

•Overview: In most cases, the punishment is imprisonment with work, sometimes accompanied by fines. The key considerations are whether the sentence is suspended and, in case of some foreign residents, the length of the sentence itself.

•Suspended sentence: A suspended sentence allows the individual found guilty to avoid imprisonment, provided they comply with certain conditions during a probationary period. There is also a partially suspended sentence in some cases.

•Impact on visa: Being convicted of a crime can result in immediate deportation.

For instance, a foreign resident of any visa status who has been convicted of a crime and received a sentence longer than one year of imprisonment without a suspended sentence will face immediate deportation. A foreign resident with a status of the Appended Table I of the Immigration Control and Refugee Recognition Act (typically a person with a visa other than spousal or permanent residency) who has been convicted of a crime and received a sentence with imprisonment (regardless of the length and suspension of the sentence) for crimes such as breaking and entering, assault, theft, burglary, fraud, extortion, dangerous driving causing death or serious bodily injury, and others will also face immediate deportation.

A foreign resident of any visa status who is convicted of a drug-related crime (regardless of the severity of the sentence) will face immediate deportation as well. Japan is strict on drug-related crimes, including marijuana. Be aware that if you “slip in” some marijuana while traveling overseas and bring it back to Japan, or if your friends overseas send you marijuana as a joke, you can face serious consequences.

Even if immediate deportation is avoided, having a criminal record can affect the renewal of one’s visa. The above are only partial and simplified examples. There are many intricate rules regarding this matter, so consult a professional if you have concerns.

Japan’s criminal system and its customs are very different from what most foreign residents are familiar with. Long detention without bail can result in job loss, and the outcome of a case can negatively impact future visa status. Seeking immediate professional guidance is strongly advised for any foreign resident under criminal procedure.

➡ (Part 1 – Pre-prosecution Stage)