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CronoDAS comments on Rationality & Criminal Law: Some Questions - Less Wrong
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If this were the real explanation though, then it would mean that the vast majority of criminals go free, since in the real world there is rarely "slam-dunk" evidence. Though one could certainly make a good case for this being morally justifiable ("better 1000 guilty men go free than 1 innocent man go to jail"), it seems to me highly implausible that this is actually what's going on - the crime rate would be sky-high if criminals knew they would almost certainly never be punished. In reality, Japan's crime rates are rather low.
So to my mind, a 99+% conviction rate is, in and of itself, proof of a highly flawed system, as there are really only two ways to explain it:
Most criminals go unprosecuted
Many innocent people get sent to jail
And the latter seems much more likely.
From what I've read, the idea is that the prosecutors, who tend to work with the same judges over and over, know what level of evidence it takes to convince them to convict, so they can accurately predict the outcome of each trial before it happens and, if they think they might lose, simply don't bring the case. (In other words, "certain to win" doesn't imply "slam-dunk evidence".)
Interesting.
The first question that comes to mind though is how do they come to know exactly what level of evidence a given judge requires to convict, if they virtually never see an example of the judge not convicting?
Well, one way would be to ask the judge.
It could be that the whole system operates according to established rules, whether formal or informal, that are acknowledged by everyone involved. The prosecutors have to satisfy a certain well-defined bureaucratic procedure when preparing the case, and the judge merely rubber-stamps their papers if this job has been done correctly. Many things in all sorts of bureaucratic institutions work this way, and if the people involved are highly conscientious and not suffering from significant perverse incentives, the results may well be far from terrible.