Before 2005 some of Japan’s 47 prefectures were collecting and storing DNA from some convicted offenders or suspects, but there was no national system or set of guidelines in place to share DNA profiles across jurisdictions. The 2005 regulation created a centralized system, operated by the NPA, for collecting and sharing suspect DNA profiles and comparing them with stored crime-scene profiles.
Japan’s database is operated and managed by the NPA’s Criminal Bureau. Responsibility for the profiles and accompanying information, including prevention of leakage, disappearance, or destruction of the data, rests with the director for criminal identification. In addition to the DNA profiles, the database contains the name, sex, and date of birth of the suspect, the date of arrest, the name of the offense, the type of sample collected (blood or saliva), and “other useful information.”7
According to Dr. Kazumasa Sekiguchi, assistant director of the Criminal Identification Division at the time at which the database was established, DNA is taken from suspects only in cases where it is necessary for the investigation of the crime.8 So although the database can be used to profile and register DNA from an individual for any criminal act, as a matter of current practice, only those suspects in cases where DNA was collected at the scene of a crime have their DNA collected and uploaded to the system. This marks a significant difference from the practices of the United States and Britain, where the determination whether DNA is collected is based on crime classification (e.g., felony, misdemeanor, sex offenses).
Suspect DNA profiles are generally retained regardless of whether an individual is convicted of a crime. The regulations require expungement in cases where the suspect has died, or where the director determines that there is no longer a need to retain the said profiles. Although the 2005 regulations do not require the police to routinely destroy biological samples collected from suspects after a profile has been obtained, the Japanese police assert that they do so9 in accordance with a set of internal guidelines established by the NPA.10
The regulations also allow for the expungement of crime-scene profiles where cases have been adjudicated and closed, or where it is determined that the profiles are no longer needed. There is no regulatory requirement that the crime-scene samples be retained, and defendants appear to have had difficulty obtaining access to samples for retesting. According to Hikaru Tokunaga, professor of law at Konan University in Osaka, defendants are almost never given an opportunity to reanalyze a sample.11 In addition, in five cases where the entire portion of a DNA sample was exhausted by initial testing, the Japanese courts ruled that the evidence was admissible, even though there was no possibility for retesting.12
Access to the database is restricted to the director for criminal investigation. Although there are no known uses of the database to date for research purposes, the 2005 regulations do not explicitly prohibit access to the database for these purposes.13
There is no restriction on the age of individuals in the DNA database, although Japanese law stipulates that a person less than 14 years of age is not punishable for a crime. The Japanese database is not currently used to conduct familial searches.14 The 2005 rule appears to limit DNA analysis to the 15 specified loci.
Japan’s DNA database is extremely small in comparison with those in the United States and the United Kingdom. As of June 2007 Japan’s DNA database contained 9,964 DNA profiles from suspects, or less than 0.008 percent of the population (compared with more than 2.7 percent of the U.S. population and approximately 7 percent of the U.K. population).15 The number of suspect files approximately doubled from the prior year. Of the nearly 10,000 profiles, 1,313 were from rape suspects; 1,908, theft; 969, robbery; 795, homicide; 873, sexual assault; and 577, illicit drug use. There were 6,750 crime-scene samples on file at this time. About one-third (2,375) of these were from theft crimes; 996 from rape; 577, sexual assault; 525, robbery; 568, property destruction; 366, trespassing; and 184, homicide.
Questions About the Legality of the Database and a Call for Reform
Absent specific legislative authority, the regulations that established Japan’s DNA database have been met with fierce criticism by several legal authorities in Japan.16 In December 2007 the Japan Federation of Bar Associations (JFBA), consisting of 52 local bar associations and over 24,000 member attorneys, released a biting opinion, referring to the regulations as illegal and unconstitutional and calling for their immediate repeal and the development and enactment of legislation in this area.17
Japan’s NPA appears to claim its authority to retain DNA profiles by likening them to fingerprints both in function and in quality.18 The JFBA points out, however, that the fingerprint database that was authorized by legislation—specifically, Article 218, Section 2, of the Code of Criminal Procedure—was clearly intended to be limited to fingerprints. Furthermore, the JFBA points out that DNA is fundamentally different from fingerprints in that far more information about an individual may be revealed by DNA analysis. Finally, the difference between fingerprints and DNA is well recognized in the law, since the taking of DNA from a suspect requires a court order, whereas the taking of fingerprints does not.19
The JFBA opinion outlined specific recommendations for legislation in the areas of registration (who should be included in the database), retention, use, and expungement on the basis that DNA information is of “utmost individual privacy.” In the area of registration, or inclusion, the JFBA suggests that DNA collection from suspects be limited to cases where there is a specific need to investigate a specific crime and that those cases be further limited to those crimes that constitute a felony against life and physical integrity. In considering the U.S. and U.K. models for DNA collection, the JFBA found that taking DNA without individualized suspicion of a specific crime is contrary to Article 35 of Japan’s Constitution. Furthermore, the JFBA concluded that obtaining a DNA profile in cases where the DNA profile is not necessary for investigating the crime in question (in other words, collecting DNA merely for future forensic investigations) violates the due-process protections guaranteed by Article 31 of the constitution.20 The JFBA also recommended that DNA collected voluntarily from individuals not be included in the database absent secondary consent from those individuals, and that juveniles generally be barred from inclusion in the database, especially those under the age of 14.
In the areas of retention, use, and expungement the JFBA recommended strict access limitations to the database and that any illegal use of the database constitute an imprisonable offense. The opinion suggests that retention of DNA profiles from suspects be limited to a period of 5 or 10 years, and that the database be used only when there is a need to investigate a specific case. It also recommends that expungement be obligatory in cases where a defendant is acquitted or a person is cleared of suspicion, and that persons wrongly registered in the database have a right to request expungement of their information.
Japan does not currently have an accreditation system of experts and laboratories. The JFBA opinion recommended increased monitoring and improved quality-assurance measures for operation of the database and the use of DNA by law enforcement. Some legal scholars have suggested the development of an accreditation system.21 Box 10.1 describes the first case in Japan (known as the “Ashikaga case”) of a person whose sentence was overturned on the basis of postconviction DNA testing.
BOX 10.1 The Ashikaga Case
In May 1990 a 4-year-old girl was found dead on the bank of the Watarase River in Ashikaga, Japan. The corpse was naked, saliva was found on her body, and semen was found on her underwear. A suspect by the name of Toshikazu Sugaya was tailed on the basis of a neighbor’s comment that “his behavior was suspicious.” The police collected bathroom tissues with semen from his garbage. The National Research Institute of Police Science performed an MCT 118 DNA profile analysis and found that the semen on the tissues “matched.”a Sugaya was arrested and indicted in December 1991. Using the test results as leverage, investigators extracted a confession from Sugaya. During his tri
al before the Utsunomiya District Court he repeatedly denied the accusation and stated that he had been forced to make a false confession as a result of the DNA testing. He was convicted of murder in July 1993 and sentenced to life imprisonment.
Sugaya’s defense attorneys appealed his case. They claimed that the DNA tests were inadmissible for two reasons. First, they argued that the DNA analysis method was not scientifically reliable. In particular, they argued that most of the sperm stain was consumed when the police analyzed it to determine whether it was human sperm. In addition, they argued that the remaining part of the sample was not analyzed for a full 15 months after the victim’s body was found. Second, the defense argued that the defendant’s DNA was illegally obtained from the garbage without a warrant.
The case went to the Supreme Court. On July 17, 2000, the court ruled that the DNA evidence was admissible and upheld the decision of the lower court. The court was silent on the issue of inadvertent DNA collection, but the Appeals Court held that there is no illegality in collecting DNA from garbage.
Sugaya’s lawyers continued to question the reliability of the DNA tests that were carried out in 1991 and repeatedly requested, and were denied, additional DNA testing. They requested a retrial in December 2002, submitting evidence that a DNA analysis of Sugaya’s hair did not match the results of the analysis that was conducted in 1991, as well as expert testimony from two forensic scientists who pointed out that a fine white foam had been found in the air passage of the victim in an autopsy, and it was therefore rational to assume that the cause of death was drowning rather than strangulation. The Utsunomiya District Court rejected the retrial request in February 2007.b
On June 4, 2009, Sugaya was released from prison following a reexamination of the DNA evidence in the case that was ordered by the Tokyo High Court. The DNA testing revealed that the DNA of the crime-scene samples did not in fact match Sugaya’s DNA. Sugaya was released after spending more than 17 years in prison, and the prosecutor’s office requested that the court open a retrial, stating that the results were “likely to serve as clear evidence to absolve [Sugaya].”c A formal apology was issued to Sugaya by the Tochigi prefectural police chief, and on June 23, 2009, the Tokyo High Court ruled to retry the case.d On March 26, 2010, Sugaya was acquitted of all charges. He urged the court to ascertain the causes that led to his wrongful conviction.e
The “Ashikaga case,” as it is referred to, is the first case in Japan to be overturned as a result of postconviction DNA testing. It has called into question the judicial decisions and interrogation tactics of Japanese investigators and has prompted significant public attention to the need for establishing a right of convicted individuals to postconviction DNA testing, particularly in cases where those individuals were convicted on the basis of outdated DNA testing methods or other unreliable forensic techniques.
a Hosokai (Lawyers’ Association), Admissibility of Expert Evidence based on MCT 118 DNA Analysis-Ashikaga Case, Adjudicated on July 17, 2000 (2003), summarized and translated by E. Omura, January 2008.
b “Court Rejects Retrial Request from Man Convicted of Killing Girl Through DNA,” GaijinPot.com, February 13, 2007, http://gaijinpot.com/search/index/lang/en?q=court+rejects+retrial+request (accessed May 18, 2010).
c See Japanese Law Blog, “DNA and the Criminal Justice System,” June 6, 2009, http://japaneselaw.blogspot.com/search?q=sugaya (accessed April 15, 2010).
d “Retrial of 1990 Murder Certain to Acquit Sugaya,” Japan Today, July 2, 2009, http://www.japantoday.com/category/crime/view/retrial-of-1990-murder-certain-to-start-to-acquit-sugaya (accessed April 15, 2010).
e Asahi Shimbun, “Sugaya’s Ordeal Finally Ends in Acquittal,” Asahi.com, March 27, 2010, http://www.asahi.com/english/TKY201003210138.html (accessed April 15, 2010).
Source: Authors.
Future Expansion?
There appears to be an interest on the part of at least some Japanese law-enforcement representatives in expanding the scope of the database along the lines of the British model.22 The Japanese government points to security threats, the need for improved efficiency in the criminal justice system, and increasing crime rates as justifications for the existence and expansion of the database.23 Foreigners are commonly cited as the cause of alleged increases in violent crime24 compared with 20 to 30 years ago, despite at least some evidence to the contrary.25
In 2004 an article published in Nature indicated that the National Research Institute of Police Science was planning to develop a four-year, $1.4-million project to develop ethnic profiles of all the crime-scene samples stored in its crime-scene database. The plan was to generate data on ethnicity, blood type, metabolic enzymes, hair and skin pigment proteins, mitochondrial DNA, and signs of asymptomatic viral infections that can be used to distinguish ethnicities.26 All this information would be included along with the DNA profile information for all the crime-scene samples. The head of Amnesty International’s Tokyo office described the project as a “sign of moral panic.” Koichi Hamai, a criminologist at Ryukoku University in Kyoto, expressed concern that the project would perpetuate a tendency in Japan to scapegoat foreigners for Japan’s social and economic problems.27 It is unclear whether this plan has since been initiated.28
Japan’s policy to collect DNA from individual suspects only in cases where it is useful for the investigation at hand—where DNA evidence is available at the scene of the crime for which the individual is suspected—has resulted in a database that has a far more limited reach than those in the United States and the United Kingdom. Nonetheless, the establishment of the database by means of an administrative rule under the NPA rather than through a legislative process has brought with it intense scrutiny. For example, the JFBA has questioned the constitutionality of Japan’s database and has lobbied for reform of the current criteria used by police to acquire and retain forensic DNA profiles. The JFBA’s call for reforms that respect the privacy of citizens who are not charged with a crime or who have not been convicted of a serious offense echoes ongoing efforts in the United States and the United Kingdom to limit or roll back the databases to exclude innocent people. In Japan there is also uncertainty whether phenotypic information will be contained in the forensic DNA database beyond the STR profile numbers used exclusively for identification. Whatever limits and restrictions there are on collecting and storing forensic DNA in Japan, they are either self-imposed by the NPA or they arise from the requirement for warrants, which police must obtain when they want to check crime-scene DNA with the DNA of a suspect. Japan’s transition to a mixed-jury system for serious crimes in 2009 means that its system of forensic DNA will have to be transparent to a broader sector of society if it is to gain the confidence of the public as the Japanese society decides whether and how to build a legal foundation that balances collecting DNA and incorporating it into its judicial proceedings, and protecting the privacy of its citizens.
Chapter 11
Australia: A Quest for Uniformity in DNA Data Banking
Privacy and respect for human dignity need not be abandoned when balancing civil liberties with community safety. In many ways, privacy principles will enhance the integrity and legitimacy of DNA profiling by limiting collection to the minimum necessary to achieve the legitimate aims of law enforcement agencies, requiring its use to be in accordance with these aims, demanding secure storage of DNA material, and requiring its destruction or de-identification when the information is no longer needed. . . . Transparency and accountability reassure the community that what is sacrificed for greater safety and security is done so legitimately.
—Office of the Victorian Privacy Commissioner,
August 8, 20021
Soon after DNA evidence was first introduced into the criminal justice system as an investigatory tool, the Australian government began a process to develop a comprehensive legislative scheme for collecting DNA for its use by law enforcement. In 1990 the Standing Committee of Attorneys-General established the Model Criminal Code Officers Committe
e, which was tasked with developing a Model Forensic Procedures Bill. After 10 years the committee produced a final draft of a model bill that gave authorization and specified procedures for the collection and use of DNA (as well as fingerprints, photographs, impressions, and other forensic materials) by law enforcement.
The Australian government recognized early on that it had limited capacity to influence state and territory laws on DNA collection because of the nature and structure of Australia’s commonwealth and criminal justice systems. At the same time, it was clear that national harmonization in forensic procedures would be essential both for the sharing of DNA and for ensuring the protection of individual rights across state and territorial jurisdictions.
It is important to note that the development of the Model Bill, particularly its provision concerning the exchange and matching of DNA samples between jurisdictions, was predicated on the expectation that it would be uniformly enacted by all States and Territories as well as the Commonwealth Government. Unless the Model Bill is adopted uniformly, the arrangements for the DNA system as a whole would allow an agency in one State to obtain information collected in another jurisdiction in circumstances that would not be allowed in its own State. This would be a diminution of the rights of the citizens of that State as established under that State’s laws.2
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