COMPARATIVE CRIMINAL JUSTICE

SYSTEM & PROCESSES

Japan and United State of America

ROLITO U OROSCO
PHD. CRIM CANDIDATE

August 31,2019
 INTRODUCTION
 BODY OF THE REPORT/DISCUSSION
• On Legal System
• On Sources of Law
• On the Pillars of Criminal Justice System
• On the Court System
• On the Criminal Justice Process
 FINDING/CONCLUSION
 RECOMMENDATION
 The study will focus on the differences
and similarities of the Criminal Justice
Systems of United State of America and
Japan including their constitutive
elements. How they differ and how their
elements combine into a good system.
The various ways their political units
attempt to maintain social order and
accomplish justice.
Continuation ….

 This research attempts to examine the

ways in which the system is affected by
the changes wrought by globalization,
and in particular the challenges which
such changes imply for the
methodological agenda of comparative
legal studies and for its ideological
commitments.
Continuation ….

 It may also be useful to envisage the

impact of increased access to
information on foreign laws, and the
growth of trans- or international sources
of uniform law, on the practical
usefulness of it.
 A. On Legal System
United State Of America
 The form of government of USA is Federalism
 The national government has specific, enumerated
powers, and all the sovereign states retain substantial
autonomy and authority.
 Both the national government and each state
government is divided into executive, legislative and
judicial branches.
 Written constitutions, both federal and state, form a
system of separated powers, checks and balances
among the branches.
United States Legal System
Legislative Checks and Balances
 Constitutional Monarchy

 The new Japanese Constitution was enacted in

1946
 It declared that sovereignty resided in the people,
and that the Emperor was nothing more than the
symbol of the state and the unity of the people.
Both the Civil Law concepts and the more recent
Common Law influences are all affected by
traditional Japanese values.

The National Diet is the sole law-making organ of

the State.
 UNITED STATE OF AMERICA
In the United States, the law is derived from the
following sources:
Constitutional law
 International Treaties
Federal Statutes
Agency Rules and Executive Orders
Judicial Opinions and State Constitutions and
Statutes.
 Is the "supreme law of the land;"
 It provides the basis for the U.S. government, and guarantees the
freedom and rights of all U.S. citizens.
 No laws may contradict any of the Constitution's principles and
no governmental authority in the U.S. is exempt from complying
with it.
 The federal courts have the sole authority to interpret the
Constitution and to evaluate the federal constitutionality of
federal or state laws.
 State constitutions are the supreme law within the state.
 State statutes must conform to the respective state's constitution.
 All state constitutions and legislation can be pre-empted by
federal legislation or the federal Constitution.
 Treaties made by the United States are the
Supreme law of the land and under the U.S.
Constitution, as are federal.

 In the case of a conflict between a treaty and a

federal statute, the one that is later in time or
more specific will typically control.

 Treaties are often implemented by federal

statutes.
 Federal Statutes are published first in Slip Law,
then in the Statutes at Large and subsequently
in the United States Code.

 Legislative enactment-statute is the second key

source of law and usually takes priority over
sources of law other than the Constitution.

 Federal statutes may be challenged in federal

court.
 Federal administrative bodies issue rules and regulations of a
quasi- legislative character;

 Valid federal regulations have the force of law and preempt state
laws and rules.

 Rules and regulations may only be issued under statutory

authority granted by Congress.

 The President also has broad powers to issue executive orders. An

executive order is a directive from the President to other officials
in the executive branch.

 Proposed and final rules, executive orders and other executive

branch notices are published daily in the Federal Register.
 Judicial decisions are authoritative and develop
into a source of law known as “case law”.

 Case law may extend the application of legislation

and is deemed to form part of the law.

 In other jurisdictions (mainly civil law

jurisdictions) judicial decisions are formally only
deemed to interpret the existing law and are not a
binding source of law, although in practice they are
often treated as authoritative.
 State constitutions are the supreme law within the state.

 State statutes must conform to the respective state's

constitution.

 All state constitutions and legislation can be

preempted by federal legislation or the federal
Constitution.

 National-Sub national Relations. Municipal charters,

ordinances, rules, and regulations apply only to local
issues; they typically can be preempted by either state
or federal law.

In Japan, the law is derived from the
following sources:
Constitution
Treaties and International Agreements
Codes and Laws/well-established customs
Cabinet Orders
Ministry Ordinances and Ministry
Notifications.
 The present Constitution lays down three fundamental
principles.

 Sovereignty resides in the people, and no longer in the

Emperor

 Respect for fundamental human rights, that "these fundamental

human rights guaranteed to the people by this Constitution
shall be conferred upon the people of this and future
generations as eternal and inviolate rights"

 The last principle is pacifism. Under Article 9 of the

Constitution declares that "the Japanese forever renounce war
as a sovereign right of the nation and the threat or use of force
as means of settling international disputes”, and that "land, sea,
and air forces, as well as other war potential, will never be
maintained"
 Inaddition to the Constitution and
statutory laws enacted by the Diet, (the
sole law-making organ of the State) formal
sources of law include the following.

Rules and regulations enacted by the

Cabinet, ministries, and agencies belonging
to the executive branch. These rules and
regulations are valid only insofar as they are
enacted within the authorities specifically
delegated to respective organs by statutes.
Rules enacted by the Supreme
Court, concerning judicial
procedures, matters related to
lawyers, the internal discipline of the
courts, and the administration of the
judiciary.
 The third source is international
treaties. The Cabinet is
empowered to conclude
international treaties, but it has to
obtain Diet approval beforehand
or, depending on circumstances,
subsequently.
A fourth source of laws is ordinances
enacted by local governments. The
Constitution grants local governments
the rights to enact their own ordinances
insofar as they are not incompatible with
statutory laws enacted by the Diet.
 Unlike in most countries, the United States criminal
justice system is not represented by a single, all-
encompassing institution.

 Rather, it is a network of criminal justice systems at the

federal, state, and special jurisdictional levels like
military courts and territorial courts.

 Criminal laws at these levels vary, although these are

all based on the US Constitution.
 The federal criminal justice system handles cases that
are national in scope: treason, espionage, assassination
of top-level government officials, among others.

 Meanwhile, state criminal justice systems handle

crimes that have taken place or, in certain situations,
have evident involvement in the state. The same
process goes for the criminal justice systems within
special jurisdictions.

 The three components of the criminal justice system

are: Law Enforcement, Adjudication and Correction
3 basic features of Criminal Justice System of
Japan characterize its operations.

• 1) The institutions—police, government prosecutors'

offices, courts, and correctional organs;

• 2) Citizens are encouraged to assist in maintaining

public order, and they participate extensively in crime
prevention campaigns, apprehension of suspects, and
offender rehabilitation programs; and

• 3) Officials who administer criminal justice are allowed

considerable discretion in dealing with offenders.
 THECOURT SYSTEM OF THE UNITED STATE
OF AMERICA

 Every state has two court systems:

the federal court system, which is the same in
all fifty states, and the state court system, which
varies slightly in each state.

1) Federal courts are exclusive; they adjudicate

only federal matters. This means that a case can go
through the federal court system only if it is based
on a federal statute or the federal Constitution.
2) State courts are nonexclusive; they can
adjudicate state or federal matters. Thus an
individual who wants to sue civilly for a
federal matter has the option of proceeding
in state or federal court. In addition,
someone involved in a lawsuit based on a
federal statute or the federal Constitution
can remove a lawsuit filed in state court to
federal court (28 U.S.C. § 1441, 2010). All
state criminal prosecutions take place in
state courts.
 US legal system is divided up to conform
to the principle of federalism, so a
potential exists for conflict between
federal law and state law.

 Whenever a conflict occurs between

federal and state law, courts must follow
the federal law. This is called federal
supremacy
 US SUPREME Federal Matters and State High
COURT Wait of certiorari Court
Granted

US Courts of
Intermediat
Appellate
e Appellate
(Circuit
Court
Courts)
State
Federal
Court
Court
State
Only US District
and State Trial
Federal Court
Federal Courts
Matters
Matters

Small
Claims
Court
(1) Summary Courts,
(2) Family Courts,
(3) District Courts,
(4) High Courts, and
(5) The Supreme Court.
 1. Summary Courts

 The summary courts handle, in principle, civil

lawsuits involving claims which do not exceed
\1.4 million. The summary courts also handle
civil conciliation cases and demands for
payment.

 2. Family Courts

 The family courts handle lawsuits related to

personal status, adjudications and conciliations
for family affairs cases, adjudications for
juvenile cases, and other similar cases.
 3. District Courts
 The district courts handle the first instance of
most types of civil, criminal, and administrative
cases, as well as koso appeals against a final
judgment of the first instance of civil cases
rendered by summary courts.
 Most civil cases are normally deliberated by a
single judge, except for cases for which the court
has decided that it shall be tried by three judges,
and certain other cases.
 Regarding criminal cases, generally a single
judge handles a case, except for certain serious
crimes which are tried by three judges. (the
Saiban-in (lay judge) system)
4. High Courts

The high courts mainly handle appeals filed against a final

judgment rendered by a lower court, such as the first instance at a
district court, a final judgment rendered by a family court, and the
first instance of a criminal case at a summary court.

5. The Supreme Court

The Supreme Court is the highest and final court and handles
appeals against judgments rendered by high courts and certain
special appeals that are prescribed under the procedural laws.

It is composed of the Chief Justice and 14 Justices, with a Grand

Bench comprised of all 15 Justices and three petty benches each
comprised of 5 Justices. The cases are first assigned to one of the
three petty benches, and those cases that involve constitutional
questions are transferred to the Grand Bench for examination and
adjudication.
 THE CRIMINAL JUSTICE PROCESS IN THE UNITED STATE OF
AMERICA

 Law Enforcement
 The wheels of law enforcement start grinding when a crime is
detected. Detection takes place when the concerned law
enforcement body (police force or specialized agency) receive a
report from the victim or a witness, or catch the crime perpetrator.
Thereafter, the law enforcers verify the information furnished and
proceed with the investigation.

 Law enforcement duties include: arresting suspected offenders,

gathering and preserving evidence, establishing the motive, and
completing police/arrest reports by stating results of the
investigation. Responsibilities include: upholding the rights of
offenders, victims, and witnesses; and conducting police
procedures within rules prescribed by law.
 At the federal level, there is a law enforcement
body designated to cover particular areas of
criminal law. One example would be the US
Department of Homeland Security, which
addresses the problem on human trafficking.
Another would be the US Department of Justice
(DOJ), which is made up of agencies like the FBI
that has police powers over crimes of significant
nationwide impact like terrorist acts.
 Meanwhile, state and other local-government
police organizations vary in structure, as well as
in names. However, the mission is the same as the
others': to enforce laws, maintain peace and
order in the communities they serve, and provide
their constituencies’ safety and security.
 The adjudication of a criminal case involves
court processes. In plain terms, adjudication
refers to the legal process by which a judgment
is pronounced by the court to the parties in a
case.

 Aswith the law enforcement component of the

criminal justice system, the courts are
organized at federal, state, and special-
jurisdiction levels.
 Pretrial
services- The adjudication
process starts when the law enforcement
body has submitted the police/arrest
report to the prosecutor.

 Arraignment- If the prosecutor decides to

press charges against a suspected
offender, the adjudication process
advances to arraignment.
 Trial- The arraignment progresses into trial to
determine the guilt of the suspect (if the not-
guilty plea was not entered). In the event of a
guilty verdict, the offender is convicted and the
court will determine the sentence. A trial is
characterized by an argument that has two sides:
the prosecution and the defense.

 Sentencing- A court conviction corresponds to a

sentence, which is the penalty imposed on the
offender who has been found guilty as a result of
the preceding trial. The sentence is meted out by
the judge, who follows prescribed guidelines,
standards, and limitations in punishing convicts.
 Correction
 The third component of the criminal justice system is
corrections. While it implies reform and
rehabilitation, a correction encompasses all
sentenced offenders, including those who are on
death row.
 Federal and state criminal justice systems hold
“corrections” as the replacement for “penology” that
many find harsh and unforgiving. In any case, the
corrections component manages incarcerated
convicts and those who are conditionally released, as
well as those who are merely slapped with
punishments that do not require imprisonment but
who need supervision anyway.
 Under the Saiban-in (lay judge) system, lay judges
who are randomly chosen from the electorate, serve
alongside professional judges (six lay judges and
three professional judges in principle) in examining
cases in district courts involving certain serious
crimes such as (i) any crime which is punishable by
the death penalty, indefinite penal servitude, or
imprisonment; or (ii) an intentional criminal act
causing the death of a victim which is subject to
examination by a panel of judges.
 The system is similar to a jury system in that lay
judges are chosen at random from voter lists and
appointed to serve on specific cases. It also
resembles a lay judge system in that citizens
participate in trials alongside professional judges.
 Juvenile cases are cases involving juveniles
aged 14 to 19 who have committed a crime
(juvenile offenders), and those cases
concerning juveniles under 14 who have
violated a criminal law or ordinance but are
not considered offenders under the Penal
Code because of their young age (juveniles
who have committed illegal acts), and cases
concerning juveniles under 20 who are
likely to reoffend (pre-delinquents).
1) That legal system and source of law of USA
and Japan are closely similar but differ in
manner of implementation and form of
government wherein Federalism for USA and
Constitutional Monarchy for Japan. However,
sovereignty of the people resides in both
countries.
2. That the Criminal Justice System of two (2)
countries is distinct with each other. The United
States Criminal Justice System is not represented
by a single, all-encompassing institution. Rather, it
is a network of criminal justice systems at the
federal, state, and special jurisdictional levels like
military courts and territorial courts hence,
Criminal laws at these levels vary. There are only
three (3) components of CJS in USA, the Law
Enforcement, Adjudication and Correction. The
ideal result is making offenders pay for, and
repent, their criminal acts while delivering
recompense to the victims.
 In Japan, there are three (3) basic features
of Criminal Justice System;
 (1) the institutions—police, government prosecutors'
offices, courts, and correctional organs maintaining
close and cooperative relations with each other with
objective and shared goals of limiting and
controlling crime,
 (2) citizens are encouraged to assist in maintaining
public order, and they participate extensively
in crime prevention campaigns, apprehension of
suspects, and offender rehabilitation programs, and
 (3) officials who administer criminal justice are
allowed considerable discretion in dealing with
offenders.
3. As to the court system, in USA every state has two court
systems: the federal court system, which is the same in
all fifty states, and the state court system, which varies
slightly in each state. Federal courts are fewer in
number than state courts.

Federal courts are exclusive; they adjudicate

only federal matters. This means that a case can go
through the federal court system only if it is based on a
federal statute or the federal Constitution while State
courts are nonexclusive; they can adjudicate state or
federal matters. Thus an individual who wants to sue
civilly for a federal matter has the option of proceeding
in state or federal court.
 InJapan there are five types of ordinary
courts: (1) Summary Courts, (2) Family
Courts, (3) District Courts, (4) High
Courts, and (5) The Supreme Court. Japan
utilizes a three-tiered judicial system and,
in most cases, a summary, family, or
district court will be the court of first
instance depending on the nature of the
matter.
4. As to the Criminal Justice System Process,
Japanese criminal justice system has various
problems in light of the Constitution and
international human rights law. Interrogations at
the investigation stage are conducted in “closed
rooms” where the attendance of an attorney is
not permitted. It is not uncommon that illegal and
unreasonable interrogation tactics such as
coercive pressure and dispensation of favors are
used by investigators, resulting in suspects
unintentionally confessing crimes they have not
committed
 The period of detention before indictment in Japan is
relatively long, which can extend for up to 23 days
after arrest. In theory any unsentenced person shall
be detained at a penal institutions (detention center)
under the jurisdiction of the Ministry of Justice, but in
reality many are detained in detention facilities
(detention rooms in police stations, daiyo-kangoku)
operated by the investigating authority. The
unsentenced persons are kept in the custody of the
police night and day for interrogation.

 In USA, although the Criminal Justice System is not

represented by a single encompassing institution
and has only three (3) components, the law
enforcement, adjudication and correction, but the
process is more compliant on the standard of
international human rights law.
 Philippine Government to adopt or
replicate the identified best procedural
process and practices on implementation
of law and criminal justice system of both
countries to enhance our own system for
the good of the Filipino people.

 https://ppp.worldbank.org/public-private-
partnership/about-ppplrc-ppp-legal-resource-center;
 https://en.wikipedia.org/wiki/Sources_of_law;
 https://www.translegal.com/lesson/7990;
 https://www.oxfordlawtrove.com;
 https://saylordotorg.github.io/text_introduction-to-the-
law-of-property-estate-planning-and-insurance/s04-
introduction-to-law-and-legal-.html;
 https://mrdevin.files.wordpress.com/2009/06/.pdf
 https://plato.stanford.edu/entries/rule-of-law/
 https://www.nawj.org/uploads/files/programs/ivp/def
ending_justice_protecting_citizens_primer.pdf
 Thank You
Have a Good Day!!!