Prosecutorial Discretion in Japan: A Response

Abstract

Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system. Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards by advocating new legal theories and drawing public attention to a particular issue. Following these initial efforts by practitioners, academics often take up the cause, generating a plethora of different theories. These often turn on fairly fine gradations in approach and on occasion reach exactly the same conclusions on somewhat different grounds. In some cases, such efforts result in adoption of new criminal procedure standards by the courts (with success occurring most often in those cases where the academics have achieved a high degree of consensus). In others, the academic debates seem to become primarily a theoretical exercise with a life of their own. Lower courts may on occasion base a decision on one of the theories. The Supreme Court may even discuss certain basic principles of the reform efforts with apparent approval, but this is typically dictum in a decision rejecting the reformers' position in that particular case. While such Supreme Court dictum is sometimes adopted readily by lower courts as a new controlling standard, in many cases the dictum ends as just that. It may serve as an admonition to police and prosecutors, but it does not create any enforceable rights for