Alex posted a comment in Lessig's blog that since Japan has an over 90% conviction rate, it didn't matter that you are guilty until proven innocent. ToastyKen else said it was because the government prosecutes only when they know they are right. Both have some truth. The problem is that judges are reviewed by the bureaucrats and their careers depend on not rocking the boat. It is NOT an independent judiciary.

I found an interesting paper about this. Too bad I can't download the whole thing.

Ramseyer & Rasmusen
Why Is the Japanese Conviction Rate So High?

J. Mark Ramseyer (Harvard Law School)

Eric Rasmusen (Indiana University)

Abstract:
Conviction rates in Japan exceed 99 percent -- why? On the one hand, because Japanese prosecutors are badly understaffed they may prosecute only their strongest cases and present judges only with the most obviously guilty defendants. On the other, because Japanese judges can be reassigned by the administrative office of the courts if they rule in ways the office does not like, judges may face biased career incentives to convict. Using data on the careers and opinions of 321 Japanese judges, we conclude that judges who acquit do indeed have worse careers following the acquittal. On closer examination, though, we find that the punished judges are not judges who acquitted on the ground that the prosecutors charged the wrong person. Rather, they are the judges who acquitted for reasons of statutory or constitutional interpretation, often in politically charged cases. Thus, the apparent punishment of acquitting judges seems unrelated to any pro-conviction bias at the judicial administrative offices, and the high conviction rates probably reflect low prosecutorial budgets instead.

5 Comments

The high conviction rate is actually good.

Assuming the judgements to be correct, the number of innocent people indicted is very low. If someone is innocent, that person obviously should not be indicted in the first place.

Probably no one would like to have a 1 percent conviction rate, meaning 99 percent innocent people indicted.

Other countries, which have very high conviction rates, are Russia and China.

However, according to NY times on 1/5, 2003, Russia is changing from old Soviet system to jury system. Good for them.

Not too long ago, the prosecutor sat next to the judge facing the defendant. Recently that changed that so that the prosecutor sits to the side across from the defendant with the judge facing down the middle. If you watch old Japanese movies, you can get the image. The defendant on his knees, hands bound behind his back sitting in the courtyard facing the lord flanked by the prosecutors...

As for the argument that conviction rates are high... It's interesting to note that most often, these conviction are based on confessions. Confessions are based on the idea that they will lead to lighter sentencing. Sort of pre-plea bargaining. It would be interesting to see whether these people are actually innocent, but have given up the fight.

At least we don't kill as many people for petty crimes as the Chinese. I remember a pair of hackers being sentenced to death. I think kidnappers of famous people have also been executed without a real trial...

I do agree with Masat that the common law jury system appeals to me pesonally, having testified in Japanese courts where it feels quite unfair. I once testified on behalf of a guy who was being charged with running a pornography site just because he had linked to porno sites. (He was the author of a mosaic software). Being the chairman of Infoseek at the time, it was obviously partially self-interest. I think our arguments were quite convicing. I explained that having links was just publishing addresses, which magazines and other media were allowed to do in Japan. The court ruled that the fellow was guilty for the operational of a non-physical pornography establishment and that the links constituted the delivery of illegal pornography to Japanese citizens. Does this guy sound guilty to you?

Linking to illegal material has been treated as illegal by courts around the world, see

http://directory.google.com/Top/Society/Law/Legal_Information/Computer_and_Technology_Law/Internet/Linking_Law/Linking_to_Illegal_Material/

Not that I agree with that.

To clarify on my other post: Having a 99 percent conviction rate is _not_ good if many of those convictions are wrong, for example based on a wrong confession. But the ideal should still be a 100 percent conviction rate combined with a zero percent rate of mistakes, since everyone not guilty should not be indicted in the first place.

Trying to achieve 100% efficiency is a good idea for engineering. That is how Japanese engineering excells. But, when it is applied to social systems, it tends to hit a wall. Jury system provides check-and-balance and also empowers average poeple. These aspects are crucial for well functioning democracy.

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