Significance of Criminal Trial and the Right of Defendants to Confront Witnesses

The criminal trial begins with a charge by a public prosecutor. The purpose of the criminal trial is to hear the other party, i.e. a criminal defendant, which gives the defendant an opportunity to challenge^[1]. A fair court will judge whether the prosecutor has sufficiently (beyond a reasonable doubt) proven facts of the crime that was allegedly committed by the defendant.

The right to confront witnesses (Article 37, Paragraph 2, first part of the Constitution) is important to give the defendant an opportunity to defend against the prosecutor's case in chief. The defendant is guaranteed the right to question the credibility of witnesses against him/her through cross-examination.

If it were possible to punish someone without such an opportunity, unreliable evidence would be prepared, the defendant would not be heard, and a death sentence would be handed down... That kind of system should be used as a means to eliminate inconvenient people, which leads to tyranny. It is essential in a modern criminal trial to guarantee any defendant the right to confront witnesses.

Necessity to Protect Crime Victims

Witnesses to be cross-examined by the defendant, however, may be crime victims, whose emotional burden must be considered in a criminal trial.

The 2000 amendment to the Code of the Criminal Procedure (hereinafter, "the CCP") allowed the court, in certain circumstances, to have witnesses accompanied by someone (Article 157-4 of the CCP), or to take shielding measures (Article 157-5 of the CCP). The latter measure makes impossible for the defendant and witnesses to be aware of each other's presence either from one side or from both sides, but measures to make it impossible for the defendant to be aware of the presence of witnesses may only be taken when the defense counsel is present.

The court may also admit the examination of witnesses via closed-circuit television, especially for victims of sexual crimes. The place where witnesses testify was initially limited to the same court premise as the courtroom (Article 157-6, Paragraph 1 of the CCP). Subsequently, the 2016 amendment allowed witnesses to make testimony at different court buildings in cases where the appearance in court may cause them a significant emotional distress or a risk of harm, or where they live remotely and are found difficult to appear in the same court premise (Article 157-6, Paragraph 2 of the CCP). Note that this can be taken in conjunction with such shielding measures that block the defendant's view on the monitor to show witnesses.

Constitutionality of the Examination of Witnesses via Closed-Circuit Television

The Supreme Court of Japan, Judgment of April 14, 2005 (hereinafter "the 2005 judgment")^[2] mentioned that the purpose of the amendment is, "when examining a victim of a sex-related crime as a witness," to "prevent the witness from feeling mental pressure when forced to give a statement before the judges and other[s]" in the courtroom, and held that "the defendant can see and hear the witness giving a statement at the same time and can also question the witness by him/herself, although this is accomplished through the transmission of images and sounds, and therefore, the defendant's right to question a witness is not infringed." It also held, regarding the use of it in conjunction with shielding measures to prevent the defendant from seeing the witness, "the defendant still can hear the statement given by the witness and can also question the witness by him/herself, although this is accomplished through the transmission of images and sounds, and the defense counsel will not be prevented from observing the witness's attitude while giving a statement. Therefore, the defendant's right to question a witness is not infringed," either.

The right to confront witnesses ensures that they are cross-examined under oath in court and that the court, as the factfinder, observes their demeanor, which provides an opportunity to question the credibility of their testimony, and eventually, an opportunity to hear the defendant. These factors "impress [witnesses] with the seriousness of the matter and guard against the lie by the possibility of a penalty for perjury," and through cross-examination, "permit the [factfinder] to observe the demeanor of the witness[es] in making [their] statement[s], thus aiding the [factfinder] in assessing [their] credibility."^[3] The author concludes that the examination of witnesses via closed-circuit television would not violate the right of the defendant as long as such effects of face-to-face confrontation, based on the specific finding of necessity in the particular case, can be substantially ensured through virtual face-to-face confrontation.^[4]

Wave of the Future

As the 2005 judgment pointed out, the primary focus of the examination of witnesses via closed-circuit television is to prevent them from feeling mental pressure. Thereafter, the said amendment in 2016 expanded its coverage to include witnesses who live remotely, which attracted attention for its utilization during COVID-19 pandemic. Since there may be cases where the appearance in court would cause significant difficulties even though witnesses do not "live remotely," the Legislative Council of the Ministry of Justice, in accordance with the Consultation No.122 of its Minister, recommended to further enhance the system in February 2024.^[5] There will be some movement toward revision in the near future, and the necessity of its use should be deliberately judged in each individual case.

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[1] Toyo ATSUMI, "The Cardinal Points of Criminal Procedure," Chuo University Press (1974) at 230-231.
[2] Keishu Vol. 59, No. 3, at 259. The English version can be found at https://www.courts.go.jp/app/hanrei_en/detail?id=744, last accessed on May 30, 2024.
[3] See Maryland v. Craig, 497 U.S. 836, 845-846 (1990). Takayuki SHIIBASHI, Shonin Hogo Tetsuzuki no Shin Tenkai [New Developments in Procedures of Witness Protection], Morikazu TAGUCHI, et al. (eds), "Multiple-Angle Approaches to the Crime," Yuhikaku (2006) at 193-198.
[4] Mariko NAKAMURA, The Constitutionality of Cross-Examination through the Use of a Screen and Closed-Circuit Television, Comparative Law Review 48 (4) 241, 265-266 (2015).
[5] See Legislative Council of the Ministry of Justice, the 199th meeting held on February 15, 2024, handout 3 (https://www.moj.go.jp/content/001413269.pdf, last accessed on May 30, 2024) at 21.

Mariko NAKAMURA／Associate Professor, Faculty of Global Informatics, Chuo University
Area of Specialization: Criminal Law

Mariko NAKAMURA graduated from the Faculty of Law, Chuo University. She completed the Master’s and Doctoral Programs in Criminal Law at the Graduate School of Law, Chuo University, and holds a PhD in Law. After working as an Assistant Professor at the Faculty of Law, Tokyo Metropolitan University, she assumed the current position in 2019.

Her research themes are the right of defendants to confront witnesses and the protection of crime victims, and the cybercrime investigation, etc.

Her main works include The Significance of Face-to-Face Confrontation in Cross-Examination, Journal of Criminal Law 63 (2), scheduled to be published in June 2024, and The Admissibility of Children's Statements during Forensic Interviews, Tokyo Metropolitan University Journal of Law and Politics, 62 (1) 381 (2021).

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