Defense in Criminal Cases

Procedures for criminal cases

Arrest and referral to the prosecutor

In the case of an active arrest or warrant arrest, the police must refer the suspect to the public prosecutor within 48 hours of the arrest. During that time, the suspect remains in police custody at the police station, and the police officer will interview the suspect about the incident.

Detention and request for cancellation of detention

The prosecutor is required to file a request for detention or release the suspect from custody to the court within 24 hours. Once a request for detention is filed by the prosecutor, the judge in charge of the case decides whether to grant detention. The criteria for detention are determined by whether the suspect has a fixed address and whether there is a risk of destruction of evidence or escape. If a detention decision is made, the suspect is usually detained in a detention center (or a substitute jail, which is the police station’s detention center) for 10 days. In unavoidable cases, the prosecutor may request an extension of detention, and if the judge deems it necessary, the detention may be extended for another 10 days. If a request for detention is issued by the prosecutor, the defense attorney may file a motion to dismiss the request for detention, and after the decision to detain is made, the defense attorney may file a quasi-appeal to challenge the detention decision or a request for cancellation of detention.

Indictment

Before the period of detention expires, the prosecutor decides whether to request a trial, request a summary order, or drop the case. If the suspect does not object to summary prosecution of a minor case involving a fine or penalty of up to 1,000,000 yen, the family court will institute summary prosecution without trial proceedings. The summary court determines the amount of the fine or penalty based on the results of the investigation. The court issues an order for the payment of the fine or penalty by a specified date, which is called a summary order. The request for a summary order is filed by the prosecutor at the same time as the indictment.

Detention after indictment and request for bail

If a person is indicted while in custody, detention often continues after indictment. Detention after indictment is known as defendant’s detention. In the case of defendant’s detention, there is no time limit and it continues until the trial is completed. If the defense attorney does not believe it is necessary to detain a person after indictment, he or she may request bail. The decision to grant bail is made by the court. If the court grants bail, it is generally conditioned on the payment of a bail bond. On the other hand, if the accused admits guilt or there is no fear of destruction of evidence, criminal proceedings are conducted without arrest, detention, or other physical restraints. Cases in which the accused is prosecuted without being detained are sometimes referred to as home cases. In a case at home, an investigation is first initiated by the police, and once the investigation is completed to some extent, the case is sent to the prosecutor, who conducts further interviews and investigations, and finally the prosecutor decides whether to request a trial, request a summary judgment, or drop the case.

Trial

Upon receipt of a request for trial, the court holds a trial in open court. The trial begins with personal questions, reading of the indictment, notice of rights such as the right to remain silent, and an arraignment to determine whether or not the defendant admits to the facts of the crime described in the indictment. Next, an evidentiary hearing is held to examine the evidence submitted and adopted by the prosecutor and defense counsel. The prosecutor will prove that the defendant is guilty by evidence and witnesses, and the defense attorney will prove circumstances favorable to the defendant. The defendant will also be questioned. After the examination of evidence is completed, the prosecution and defense will make statements of opinion, and the prosecutor will ask for the defendant’s sentence. The sentence will be handed down in the courtroom for sentencing. If the sentence is a suspended sentence, the defendant is released from custody. If the defendant is dissatisfied with the sentence, he/she may appeal the decision and file an appeal within 14 days from the date of pronouncement of the sentence.

Defense on detention

If the prosecutor decides to detain you, you will be detained in a detention center, which will seriously damage your personal life, including your daily work. If you are arrested on suspicion of a crime, whether or not a request for detention is made by the prosecutor and whether or not the court issues a detention decision can make a very big difference. In order to ensure that the suspect is released from custody, we will meet with the suspect, contact his/her family (or superiors at work), secure a guarantor, negotiate a settlement with the victim, interview relevant persons, collect other evidence, and submit a written appeal to the prosecutor. The client is responsible for the following tasks. In the unlikely event that a request for detention is filed by the prosecutor with the court, we will request the court to reject the request for detention with the aim of releasing the person from custody. Specifically, we will submit a written request to the court and meet with the judge to explain that detention is not necessary. Even in the unlikely event that the court makes a detention decision, if there is no reason or need to keep the person in custody, we will file a quasi-appeal against the detention decision or a request for cancellation of detention.

Defense in the prevention of prosecution

If you have not been indicted, it is very important whether or not you are indicted. If you are not indicted, of course you will not go to trial and you will not have a criminal record. Preventing prosecution is one of the most desirable ways to solve a case. We will prepare an environment for a non-prosecution by settling with the victim, securing an underwriter, and meeting with the prosecutor before prosecution, and will conduct defense activities to prevent prosecution. Cases in which indictments are not filed include cases in which there is insufficient suspicion of a crime, or cases in which there is suspicion of a crime but it is considered reasonable to defer prosecution.

Defense activities after indictment (request for bail)

If the defendant is in custody after being appointed as defense counsel, we will first have an interview with the defendant and ask him or her about the circumstances of the case. If the defendant is not in custody, the defendant will come to our office and we will ask him or her about the circumstances of the case. After hearing the circumstances, we will provide specific explanations regarding future court proceedings, etc. We will obtain materials that the prosecution plans to submit to the court to prove the facts of the crime at trial. After reviewing the prosecution’s materials, we will determine the basic policy for the trial. After indictment, the defendant may request bail regarding his/her custody. If bail is granted, a bail bond is required. The amount of this bail can run into the millions of yen, but in some cases it is possible to borrow most of the amount needed for bail from a surety association. We aggressively request bail in consultation with our clients to ensure the early release of defendants from custody.

Defense at trial

We collect appropriate evidence regarding the facts to be proven by the defense and document the defense’s arguments (summary of arguments) at trial. The evidence to be presented at trial includes not only objective evidence, but also testimony by witnesses and settlements with victims. We also represent our clients in pre-trial meetings with witnesses and settlement negotiations with victims. Prior to the trial, we hold preliminary meetings with the prosecutors and the court regarding the trial proceedings. These meetings facilitate the smooth progress of the trial. There are two major issues that will be discussed at trial. One is whether or not a crime has been committed. In other words, whether or not there was a crime as charged and whether or not the crime was committed by the defendant. The other is the circumstantial facts. In other words, the issue is about the fact that the defendant committed the crime, and the fact that the defendant committed the crime affects the severity of the sentence. If the defendant admits that he or she committed the crime, the trial will usually be limited to the issues related to the circumstantial facts described below, and the trial period will be relatively short. In order to provide a high quality defense with respect to these two issues, we conduct thorough interviews and examination of the case and gather evidence prior to trial.