What causes the conviction rates in North America and Japan to be so high? Are the cases usually strong where this happens? And what happens to weaker cases, do they result in an acquittal or do they generally not get cleared at all?
26For what it is worth, the answer in North America and the answer in Japan have almost nothing to do with each other.– ohwillekeMar 30 at 16:34
9Grammar-school math says that you get a high conviction rate by dropping weak cases.– RonJohnMar 30 at 18:47
5The “conviction rate” is not a uniform measure across jurisdictions - it means different things in different places. While the numerator is the same (person convicted) the denominator varies wildly.– Dale M ♦Mar 30 at 21:26
7Wikipedia says about Japan: "The conviction rate is 99.3%. By only stating this high conviction rate it is often misunderstood as too high—however, this high conviction rate drops significantly when accounting for the fact that Japanese prosecutors drop roughly half the cases they are given." Doesn't it answer your question?– TaladrisMar 30 at 22:47
6Adding to @ohwilleke's comment, it would be better if this question was split into two: one for the USA, one for Japan. There's a good answer here for Japan that says nothing about the USA and one for the USA that ignores Japan. Which one should be accepted?– SQBMar 31 at 10:10
Japan's justice system is sometimes called hostage justice
In general, the Japanese justice system has a more than 99% conviction rate! In part, this is because the number of state attorneys is super low - on about half the population of the US, there were only 2000 State attorneys out of 35000 lawyers in Japan, whereas the USA has a five-to-six digit number of state/district/... attorneys and 1.5 million lawyers in total. Or in other words: each state-employed attorney is responsible for more than 10 times the people and the caseload they create, and lawyers are prohibitively expensive.
This leads to a two-pronged result: on the one hand, only the best cases should be followed up on and brought to court. Depending on the statistics, about every other case (~50%) that the police investigators hand to the prosecution is not followed up on by the prosecution. The other result is, that the Japanese justice system relies heavily on confessions obtained from the defendants.
As I elaborated when comparing the detention time without charges, the Japanese justice system is unlike almost any other modern justice system in the world in some regards, even though it is a civil law system and most of the same principles can be found. The Japanese prosecution can detain people for up to 23 days without bringing the case, you can't have your lawyer present when talking to the police, and by clever tactic, the prosecution can hold a person nigh-indefinitely without even filing a case. As a result, the prosecution can often get confessions, and with a confession, the actual court case can become super fast: charges are brought, the confession is read, a little extra evidence is presented, and to spare the victim a lengthy trial with the confession in the room, the judge comes down with a guilty verdict.
This is compounded by how the rules of evidence are laid out: investigation and the court case are allowed to happen at the same time! As a result, the case of the prosecutor tends to become better the longer the case drags on, resulting in the defendant either settling or giving a (partial) confession to some of the charges just to get it over because lawyers are crazy expensive. By giving a confession, they throw themselves at the mercy of the court for a mild verdict.
And it's very much stacked
As shown above, the Japanese justice system is already stacked against the defendant. But it is even more stacked than what is shown up there. As ohwilke noted in excellent comments, I want to preserve them here:
Also the vast majority of Japanese criminal cases are tried without lay judges,
This is by the way a result of the Japanese legal system that was set up in the Meiji era being based on the Prussian branch of the german Civil Law school. That was one of the dominant systems of the Meiji era next to the French and Spanish schools of Civil Legal Systems - and after WW2 they did not swap to a Common Law system but stayed with their own take on this Prusso-German branch of the Civil Legal System. This means there are no juries like in the common law system, and since 2009 lay judges in japan are increasingly used, but not in every case. Those lay judges are very much akin to the Schöffen in Germany, being allowed to question the evidence and such - the German school is based on an inquisitorial system after all - but it is not used in every case. And the whole system is lived extremely differently from the inspiring Prussian system, such as this part of the comment shows:
and from my experiences talking with several Japanese judges at length about the issue (back in the early 1990s, maybe it is different now), the institutional mindset is for judges to believe that all of the prosecution evidence is true and all of the defense evidence is lies unless the evidence to the contrary is overwhelming and unshakable. The level of judicial bias towards the prosecution is greater than in any other common law or civil law legal system, that is not in an authoritarian regime, in the world.
This for example shows in the 23 days without charge. Technically, 23 days is not the initial time, but the police has 72 hours. But they can extend this time by 10 days with a judge's order, and then again by another 10 days on the same charge offered on the paperwork. According to a statistic, 99.8% of these requests are granted, meaning they are almost rubberstamped. Legally, people that are detained are not yet defendants, they are suspects and kept in Substitute Prisons which are located in police districts - which further helps to get confessions.
And this plays directly into another factor that differentiates the Japanese system from other countries: There's a huge cultural factor, which is what makes the Japanese system so different from others.
Additional factors are that police officers in Japan have much more authority to handle minor cases outside the court system and routinely do so, that a certain level of criminal conduct from organized crime and by authority figures is tolerated, that there is much less crime per capita in Japan than most places, and that Confucian values re deference to hierarchy and the Japanese specific high cultural obligation to apologize influences how Japanese people interact with the criminal justice system as defendants and as implementers of that system.
This has its problems too: Because the prosecution is notoriously overworked, citizens with problems are often more reluctant to bring cases to their attention. Further, the shame culture works against not just the perpetrators, but also the victims and the people that report certain crimes - for example, a female police officer was groped on a train, and when she reported it, she became the target of shunning.
Further reading & Research papers
- US Department of Justice: Toward a Balancing Approach: The Use of Apology in Japanese Society.
- US Department of Justice: Confession, Apology, Repentance and Settlement Out-of-Court in the Japanese Criminal Justice System -- is Japan a Model of Restortative Justice? (From Restorative Justice in Context: International Practice and Directions, P 173-196, 2003, Elmar G. M. Weitekamp and Hans-Jurgen Kerner, eds. -- See NCJ.
- Hiroshi Wagatsuma, Arthur Rosett: The Implications of Apology: Law and Culture in Japan and the United States, Law & Society Review, Vol. 20, No. 4 (1986), pp. 461-498 (38 pages).
- John O. Haley: Comment: The Implications of Apology, Law & Society Review, Vol. 20, No. 4 (1986), pp. 499-508 (9 pages).
- DAVID ALLEN CHIYOMI SUMIDA: Japanese tradition of apology, Western worry about admitting guilt can clash, (2002).
- HOSOI, YOKO AND HARUO NISHIMURA: The Role of Apology in the Japanese Criminal Justice System (1999).
- Ernils Larsson: Confucianism as a Religion in Japan’s Courts of Law (2022).
- Joseph I. Lieberman: CONFUCIUS'S LESSON TO LITIGANTS New York Times (1984).
- Lynn Berat: The Role of Conciliation in the Japanese Legal System American University International Law Review (1992).
- Nicholas Lassi: A Confucian Theory Of Crime, Dissertation, University of North Dakota (2018).
- Graham Mayeda: [Appreciate the Difference: The Role of Different Domestic Norms in Law and Development Reform; Lessons from China and Japan] (2006).
- Katrina Tran: How Japan How Japan’s Cultur s Cultural Norms Aff al Norms Affect Policing: A Side-By-Side olicing: A Side-By-Side Comparison with the United States Themis: Research Journal of Justice Studies and Forensic (2017).
- David Brooks: The Shame Culture New York Times (2016).
- Dan Carlin: Hardcore History 62 – Supernova in the East I (2018).
5Also, the vast majority of Japanese criminal cases are tried without lay judges, and from my experiences talking with several Japanese judges at length about the issue (back in the early 1990s, maybe it is different now), the institutional mindset is for judges to believe that all of the prosecution evidence is true and all of the defense evidence is lies unless the evidence to the contrary is overwhelming and unshakable. The level of judicial bias towards the prosecution is greater than in any other common law or civil law legal system, that is not in an authoritarian regime, in the world. Mar 30 at 16:20
5Additional factors are that police officers in Japan have much more authority to handle minor cases outside the court system and routinely do so, that a certain level of criminal conduct from organized crime and by authority figures is tolerated, that there is much less crime per capita in Japan than most places, and that Confucian values re deference to hierarchy and the Japanese specific high cultural obligation to apologize influences how Japanese people interact with the criminal justice system as defendants and as implementers of that system. Mar 30 at 16:32
5About that German-derived justice system... I was listening to Dan Carlin's Supernova in the East podcast series recently, and he made the point that during the Meji era they sent people to major western countries to see what they could best copy from each, and as a more authoritarian group themselves, a lot about how the reactionary Prussians ran things just seemed a better fit for them than how the Brits or the Americans did.– T.E.D.Mar 30 at 21:11
6@T.E.D. Almost every country without an English colonial history, given the choice, chose a civil law system. It is much easier logistically to adopt without a corps of common law trained lawyers to run it. The main models for civil law systems were Germany, France, and Spain. German's code was more detailed so it made sense to someone coming to it cold relative to the France or Spanish civil codes. The Prussians were authoritarian, but not Nazi class totalitarian. Mar 30 at 22:58
3@FreeMan There are no juries in Japan, but there are layman judges, which are selected randomly and sit in on low-level cases that are presided by a professional judge. They can not make judgements without a professional judge's oversight. However, as Ohwilke elaborated, only in very few cases they are called upon. All cases are held in front of professional judges, some have additional lay judges to increase the panel size. en.wikipedia.org/wiki/Lay_judges_in_Japan– TrishMar 31 at 14:18
What causes the conviction rate in North America . . . to be so high?
Relative to what? What would you expect the conviction rate to be?
The conviction rate in the U.S. is not particularly high across the board, and is quite low in some U.S. states (59% in Florida), even though it is high in the federal courts (93%). As the cited link notes:
In the United States federal court system, the conviction rate rose from approximately 75 percent to approximately 85% between 1972 and 1992. For 2012, the US Department of Justice reported a 93% conviction rate. In 2000, the conviction rate was also high in U.S. state courts. Coughlan, writing in 2000, stated, "In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida."
In 2018, the Bureau of Justice Statistics reported that among defendants charged with a felony, 68% were convicted (59% of a felony and the remainder of a misdemeanor) with felony conviction rates highest for defendants originally charged with motor vehicle theft (74%), driving-related offenses (73%), murder (70%), burglary (69%), and drug trafficking (67%); and lowest for defendants originally charged with assault (45%).
There are frequent "guilty acceptance" plea deals in the United States. That said, the ostensible "conviction rate" may not be accurate because the charges are dropped.
Federal courts handle only a small share of U.S. criminal cases and the kind of cases it handles are highly atypical:
As of 2019, about 1,255,689 people currently behind bars in the United States—or 87.7% out of a total of 1,430,805 prisoners—had been convicted in state court for violating state criminal laws, rather than in federal court for violating federal criminal laws.
The proportion of criminal cases brought in state court rather than federal court is higher than 87.7% because misdemeanor and petty offense prosecutions are disproportionately brought in state courts and most criminal prosecutions involve misdemeanors and petty offenses. The number of trials conducted in each system is another way to illustrate the relative size of the two criminal justice systems. In Colorado, in 2002, there were approximately 40 criminal trials in federal court, and there were 1,898 criminal trials (excluding hundreds of quasi-criminal trials in juvenile cases, municipal cases and infraction cases) in state courts, so only about 2% of criminal trials took place in federal court. Most jury trials in the United States (roughly five out of six jury trials conducted in any U.S. Court) take place in criminal cases in state courts.
State courts do not have jurisdiction over criminal cases arising on Indian reservations even if those reservations are located in their state. Less serious crimes on Indian reservations are prosecuted in tribal courts. A large share of violent crimes that are prosecuted in federal court arise on Indian reservations or federal property, where state courts lack jurisdiction, since tribal court jurisdiction is usually limited to less serious offenses. Federal crimes on federal property in a state are often defined with reference to state criminal law.
Federal courts disproportionately handle white-collar crimes, immigration-related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket). Federal courts have the power to bring death penalty charges under federal law, even if they arise in states where there is no death penalty under state law, but the federal government rarely utilizes this right.
Conviction rates are high in federal court because due to the overlap of the state and federal court system, federal prosecutors can choose to prosecute predominantly open and shut cases. Also, high mandatory minimum penalties for many federal crimes make the benefit of a lower sentence outweigh the modest probability of acquittal in all but the closest cases.
Conviction rates are frequently lower in state courts because they have to handle pretty much all criminal cases presented to them, the sentencing penalty for going to trial is often weaker causing fewer cases to be resolved by plea bargains, and the levels of resources and professionalism is lower in some (but not all) state courts relative to federal courts.
In a world with no procedural biases and near perfect information, most cases would result in plea bargains at modest discounts from the sentence that would be imposed at trial reflecting the cost of the trial process to the prosecutors, and cases that go to trial would have close to a 50% conviction rate among cases that go to trial, but a very high guilty plea rate, because the cases that go to trial would be only those cases where the outcome is hardest to predict.
We don't live in such a world, however. Indigent defendants are entitled to government paid public defenders at trial and on a direct appeal (and most criminal defendants are indigent). And, most criminal offense by number of cases (which is how conviction rates are calculated) have fairly modest maximum penalties, so the sentencing penalty for going to trial can be modest in a lot of low to medium level offense criminal prosecutions. And, as a practical matter, juries reach incorrect verdicts in cases close enough to go to trial at least about 10% of the time under normal state criminal court conditions, which is a nearly irreducible uncertainty involved in going to trial. So, even criminal defendants with a very high risk of being convicted will "roll the dice" and result in a more than 50% rate of conviction at trial (but a lower plea bargaining rate).
Ultimately, conviction rates for plea bargains and trials combined are a function of how well prosecutors and law enforcement prepare and screen their cases. The higher their standards, the higher the conviction rate will be, because close cases won't be prosecuted at all. The lower their standards, the lower the conviction rate will be, because even very weak cases will go to trial and result in acquittals. Ultimately, how strict those standards are ends up being a matter of institutional culture and the quirks of how minor differences in resources and formal rules between different criminal justice systems play out in practice.
In addition to institutional culture, the behavior of jurors in different places varies greatly.
For example, African American jurors are, on average, according to well designed studies including one from Florida, more skeptical of prosecutors and law enforcement, and hence, more likely to acquit criminal defendants at trial than other jurors (on average). So, jurisdictions in which African Americans make up a larger share of the jury pool tend to have higher acquittal rates at trial than jurisdictions with low percentages of African American jurors.
This is often a significant enough effect to significantly influence the overall conviction rate and jurisdictions with high percentages of African American jurors also often have fewer resources for prosecutors and law enforcement per crime prosecuted, which can reduce the quality of presentations that are made to juries in trials and the quality of criminal investigations, of all kinds, in those jurisdictions.
is it also true that most of the cases that go to trial have overwhelming evidence against the defendants which is also why conviction rate is high ? Mar 30 at 18:28
5@OldAccount2005 Close cases go to trial. Easy cases plea bargain. Mar 31 at 1:57
1in easy cases where a plea bargain is non favourable , is a trial futile ? Mar 31 at 2:04
3@KevinKeane Plea bargains technically start the trial, but end with the bargain the moment the trial begins. so on a technicality, you can not discount them. Also, conviction for the statistics is found guilty of any of the charged crimes. If you are charged with the whole book and one section sticks, you are a +1 on convictions, not a +N on the non-guilty count.– TrishMar 31 at 8:48
3@OldAccount2005 - Not futile, but inefficient for both parties. Plea bargain is a mutual discount on the time spent in the court / in the jail - assuming that the result of the trial is well predictable. Mar 31 at 14:07
In the case of the United States, Plea Bargaining is an accepted practice and is not stigmatized against, such that prosecutors are likely to cut deals with defendant and charge them for lesser charges than what they would have taken them to court for. This means less work (and less expense) to the prosecutor's office and a lesser sentence for the convicted (It's a high chance that most of the people convicted of simple drug possession in the U.S. were going to be charged with Possession with intent to Sell but had it reduced in exchange for avoiding going to trial. Simple Possession is a slap on the wrist compared to "Possession with intent to Sell" and is easier to convict (Do you have drugs on your person?) where as intent is much more difficult).
In Japan, the high conviction rate seems to be due to the fact that unless the police witness the defendant committing a crime, they must get judicial approval to make an arrest, meaning, they have to be pretty close to indicting the person already.
someone stated that majority of the convicts had outstanding evidence against them out of the 80% conviction rate , is this true ? Mar 30 at 11:44
@TDUsolarcrownHype Can you specify jurisdiction? Japan and U.S. Criminal systems are very different.– hszmvMar 30 at 11:51
America of course Mar 30 at 12:18
4On that example of "simple possession" it may be worth pointing out that it also leads to many innocent people pleading guilty simply because they can't afford the time off work for weeks in pretrial detention until the lab tests come back to show that the "crack cocaine" found in their car actually was a pebble of road dirt. Add to that the extreme penalty for a trial (plead guilty and you'll get probation, or go on trial and risk 40 years in prison), and a false guilty plea can be the rational choice. Mar 31 at 5:59
@KevinKeane Kinda like the Alford plea. "I didn't do it, but I know I look guilty so I might as well just take the blame."– pipeMar 31 at 14:48
In british-columbia prosecutors are directed to not bring a charge unless there is a substantial likelihood of conviction (or, in exceptional cases, a mere reasonable prospect of conviction), considering the anticipated evidence, its reliability, and viability of any defences or constitutional impediments. See the Crown Counsel Policy Manual's Charge Assessment Guideline.
This standard applies throughout the proceeding. If evidence comes to light that changes the assessment, such that there is no longer a substantial likelihood of conviction, the Crown should request a stay of proceedings.
1how do prosecutors know weather a case will secure a conviction or not ? Mar 30 at 11:13
4@TDUsolarcrownHype they don't know, but they can estimate because they have functioning brains (most of them...) Mar 30 at 11:20
2@TDUsolarcrownHype Prosecutors have experience. You don't make decisions fresh out of law school, you work years either as an assistant crown (district) attorney or a defense attorney before you get the position where you can make the final say. Mar 30 at 18:40
In the US, part of the reason is political and an outgrowth of the "tough on crime" culture.
Local prosecutors, as well as judges, are usually elected officials, and at reelection time, voters tend to look at their conviction rates. There have been some cases where a fair but unpopular verdict led to an attempt to recall the judge.
So judges will tend to be biased towards the prosecution. Of course, the trials are usually jury trials, but judges still have a lot of influence, for instance by their jury instructions, and simply by how they run the trial.
3The places where "tough on crime" culture is strongest often have the lowest conviction rates, while places where this is less true often have higher conviction rates, so taking the premise as true (the U.S. has high conviction rates - which isn't really true), this post is opposite and indeed backward in explaining it. There is also essentially no evidence that different judicial behavior accounts for any meaningful part of the difference. Prosecutors and jurors are far more relevant players in the differences. Mar 31 at 14:26
why is that ? @ohwilleke Apr 1 at 2:35
Yikes. I cannot imaging a judge running for re-election bragging about his/her conviction rate. That would amount to an admission that he is biased towards the prosecution, and does not hold fair trials.– WastrelApr 2 at 14:37