Apologies and payments go a long way when you're pursuing justice in Japan
CAMP FOSTER, Okinawa â€” In Japan, what happens to a defendant charged with a crime often depends on just how sorry he is.
The custom of apologizing to a victim, called jidan, typically is accompanied by a hefty cash gift. It's just one of the major differences between the legal systems of Japan and the United States.
In the period between an arrest and indictment, lawyers for Americans charged with crimes scurry to get letters of apology from the defendant â€” if not admitting guilt, then expressing condolences for the trouble the victim has gone through. It's the stage of the legal process at which being sorry â€” and paying â€” for your mistakes is paramount.
"When there is a risk of being sent to prison, it's sometimes better to settle with the victim â€” to say youâ€™re sorry and pay damages," said Masanori Takeda, a Japanese defense attorney on Okinawa.
"The prosecution has wide discretion to indict or not, so the period prior to indictment is an important period," he said. "Apologizing and getting the victim to write a letter on your behalf can help.
"Although the conviction rate is high in Japan, the indictment rate is lower" than in the U.S., he said.
Jidan is so important that itâ€™s routine for military lawyers assigned to counsel servicemembers of their rights under the U.S.-Japan Status of Forces Agreement to help with the apologies. A sincere apology also can help get a servicemember in Japanese custody back into U.S. military hands.
"Itâ€™s our job when they are being held under Japanese jurisdiction to try to get them out before indictment," said Capt. Dennis Lloyd Hager, Japanese jurisdiction attorney with the Office of the Staff Judge Advocate, Marine Forces Japan. "A command representative or someone from the SJA office will go to the victimâ€™s home and take them flowers, a pizza, or gomen (apology) money in an envelope and apologize. Once accepted, it increases the chances to get the servicemember out of custody and back to the military."
The concept of apologizing is different in Japan than in the U.S., Takeda said.
"In Japan, when someone does something that hurts others, we apologize, even if we do not acknowledge any fault or responsibility act," he said. "Weâ€™ve been taught this since childhood. It is ingrained in our society as a way to maintain harmony."
Once a defendant is indicted, the odds are so heavily in the prosecutionâ€™s favor for a conviction that the main line of defense is to show just how much remorse the defendant feels, Takeda said.
Depending on the seriousness of the crime, indictments can be averted if the victim accepts the jidan and the prosecutor is convinced that the apology and remorse are sincere. And in minor cases, the police themselves may well decide justice is best served by a sincere apology â€” and substantial jidan â€” and elect not to refer a case to prosecutors in the first place.
Takeda said that even though jidan is an informal mediation between the victim and accused, it can lead to lenient sentences. Thatâ€™s why the defense often seeks a letter of forgiveness from the victims to present to the court.