Law of Criminal Evidence in Japan

Abstract

and general words do really mean。And,as will be metioned later, the Japanese courts,which have been accustomed to Continental European law where any evidence is a(imissible,tend to interpret those abstract and general words extensively an(1to make Japanese law of evidence dif壬erent from that of the common law. As I have just mentioned,it was inevitable to use general and abstract words in the Code,but those who drafted it were sometimes not so wise in choosing such words.The same expression,“circumstances which show that the statement is specially trustworthy,”2is used both in Article323, Item3,an(i in Article321,Subsectiou1,Item3,but their meaning must be(iifferent to each other,For,if they mean the same thing,since“a document.....,prepared under circumstances which show that the statement is specially trustworthy’,is admissible as evidence by Article323,Item3, without any further con(iition to be fulfilled,the other conditions in Article 321,Subsection1,Item3,namely“where the person who has made the 2Besides,similar expression,“special circumstances which show that the statemeΩt ls more trustworthy than__,”is used in Article321膨Sub3ection1,Item2、 19521 LAW OF CRIMINAL EVmENCE IN JAPAN 1所 statement ca亘testify neither at the preparatory proceeding nor at the trial because of his death,mental or physical illness,missing or staying abroad, and his previous菖tatement is indispensable for the proof of the existence or non-existence of the ofモence indicted,”would be nothing but nonsense. So we must conclude that the words“circumstances which show that the statement is specially trustworthy”in Article323,Item3,mean a higher degree of trustworthiness than that in Article321,Subsection1,Item3。 It is inappropriate to use the same words to denote two different things。 Furthermore we can find some defects in these provisions,which probably have been caused by the drafters’ignorance of the Anglo-American rules of evidence. In the first place, no exception to the hearsay rule as to an oral statement made by the accused,is recognized in these provisions,while it is recognlzed as to an oral statement made by a person other than the accused in Article324.In America where the accused testi丘es as a witness when he wishes to offer evidence by means of his oral statement at the tria1,the rule as to an oral statement made by a witness includes the rule as to that made by the accused. In Japan,however,as the accused,being(iisqualifie(1 for a witness,makes his oral statement at the trial in his status as the accused,it(10es not dispense with the provision relating to the exceptions of the hearsay rule as to an oral statement by the accused,Without such a provision a discordance would ensue between the rule as to an oral statement made by a witness and the rule as to that made by the accused・ It is unreasonable that&hearsay statement made by the accused is never admissible as evidence,because it is included in‘‘an oral statement which conta玉ns a statement of another made outside of the court,’provided in Article320,and no exception is provided to it,while that made by a witness is admissible in some exceptional cases. The drafters,having found that the exceptions of the hearsay rule as to an oral statement at the trial were written in American textbooks only as to that made by a witness,wouldhavedraftedtheseprovisionsdiscordanttoeachotherby simply converting the wor(i“witness”in the American rule into the words“a person other than the accuse(1,”3without paying any attention to the fact that the accused testifies as a witness in America when he wishes to offer evidence by means of his oral statement at the triaL Secondly, as to impeaching evidence, i.e., evidence to (iispute the trustworthiness of other evidence,Article328provides as follows: “Any document or oral statement,which shall not be use(1as evidence according to Articles321to324,may be used as evidence for the purpose of disputing the trustworthiness of a statement made by the accused,witness or other persons,either at the preparatory proceeding or at the tria1。” 3Thls lengthy expression is used here in order to include both a witness and an expert witness,who ls treated in Japan&s a(iif王erent specles from the other・ 198 THE ANNALS OF THE HITOTSUBASHI ACADEMY [Apr重 According to the letters of this article,any hearsay evidence whatsoever would be admissible to discre(iit a statement made by a witness,etc. According to the American rules of evidence,however,such a rule is recognized only in case of self-contradiction,i.e.,when the opponent o{fers as evidence&contradictory statement made previously by the witness outside of the court in order to discredit his own statement at the tria1. And we can safely guess that the drafters of the Code di(i not intend to allow such a broad exception to the hearsay rule as the letters of Article 328 may suggest,but carelessly drafted this article without sufacient knowledge of the American rule on self-cpntradiction.FQr,the AttomeyGenera1’s O伍ce translate(i this article as follows: “Any document or oral statement,which shall not be used as evi(ience by virtue of Articles321to324,may be used as a method for the purpose of (ietermining4the credibility of the statement made on the date either for the preparation for pub1宝c trial or for public trial by the accused,witness or other persons(who have g玉ven the statements outside of the court).” According to these trαnslated letters,Article328applies clearly only in case of self-contradiction.According to the Japanese text,a very broad exception to the hearsay rule is recognized,in consequence of omitting the phrase,“(who have given the statements outsi(ie of the court)”.Although mistranslation sometimes occurs in translation,it is unthinkable that a translator adds to the translation a phrase which is not found anywhere in the originaL It probably shows that some of the drafters intended to adopt the American rule as regards self-contradiction in Article328,but other drafters,who couldn,t understand the problem we11,0m玉tted the above-mentioned phrase from the Japanese text which has remained unomitte(1in the English translation. These failures were almost inevit&ble,however,in重he enactment of the new Code of Criminal Procedure which hurriedly adopted many common law rules into the system of law that had been under the overwhelming influence of Continental European law l because it is a very di伍cult task to fuse these two systems of law,entirely different,and it cou1(i not be expected that all the drafters of the Code had su伍cient knowledge of the