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An American in Japan under the status of forces agreement has a bit of an edge over other foreigners charged with crimes. The military provides lawyers to consult with SOFA personnel once they are taken into custody.

But the rights of SOFA personnel in Japanese custody are limited, said Capt. David Deitch, assistant staff judge advocate for the 18th Wing on Kadena Air Base.

“They are entitled to an attorney, but they are not allowed to have an attorney present during questioning,†he said. “And they are not entitled to bail.â€

Another major issue is the language barrier. Interpreters are provided by Japanese police and prosecutors and confessions are often written in Japanese. In several recent cases, American defendants have complained that documents they signed misstated what they told their interrogators.

“We tell our Marines and sailors to never give up any of their rights,†said Capt. Dennis Lloyd Hager, Japanese jurisdiction attorney with the Office of the Staff Judge Advocate, Marine Forces Japan. “If you don’t understand a statement they ask you to sign — don’t sign it.

“In most cases, like traffic accidents and minor crimes, you can stop the interrogation at any time to talk to a command rep,†he added. “You have the right to remain silent, but remaining silent can be used against you as a sign of failing to cooperate.â€

Servicemembers arrested by military police for off-base crimes are held in military jurisdiction until they are indicted. Exceptions are made for people suspected of major crimes, such as murder, rape and arson.

If a case goes to trial, a military legal observer and translator will attend with the attorney, Hager said. “We have a list of attorneys with some English skills that the defendant can select. ... The government will pay for any attorney from the list.â€

Contested cases can be lengthy, with a hearing scheduled once or twice a month. Contested cases can take more than a year and a defendant spends much of that time in a cramped solitary cell. Pre-indictment custody can be at a local police station, where the cells are small, consisting of a tatami mat and toilet, Hager said.

“You’re not allowed to lie down during the day and there’s no talking allowed,†Hager said. “They pipe in Japanese radio shows. Visitation is limited to myself and the command representatives. Cells are not climate controlled.â€


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