Abstract
Some thoughts are necessary about the apparent success, on many levels, of the lay judge system compared to the failure of the 1928–1943 jury system, which was the first time that Japanese citizens participated as decision makers in criminal law.
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- 1.
Interviewed on 14 August 2014.
- 2.
Principally because of the discovery of the Jury Guide, published by Japan Jury Association in 1931. A surviving copy of this book, a valuable historical document, complete with photographs and illustrations of jury courtrooms of great rarity, was received by Professor Satoru Shinomiya, of Waseda University Law School and the law firm Gendaijinbun-sha Co, from descendants of a pre-war juror. It was reprinted in 1999 and translated into English by Anna Dobrovolskaia.
- 3.
Foote (2014: 769).
- 4.
Conjecture did exist that a few judges may have tried to use ‘clever’ methods in the secrecy of the deliberation room to lead lay judges to their preferred conclusions (David T. Johnson, “War in a Season of Slow Revolution: Defense Lawyers and Lay Judges in Japanese Criminal Justice”, The Asia-Pacific Journal, Vol. 9, Issue 26 No. 2, 27 June 2011).
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International research , summarised by Zachary Corey and Valerie Hans in “Japans New Lay Judge System: Deliberative Democracy in Action”, Asian-Pacific Law & Policy Journal, Vol. 12:1 (2010), pp. 87–89, indicates that the most important factor in determining the amount and quality of lay judge participation is the support and guidance given by professional judges in mixed tribunals. If professional judges encourage lay judges to participate they will play a greater role.
- 6.
General Secretariat, TheSupreme Court of Japan, “Report on Evaluation ofthe Circumstances ofImplementation ofSaiban’in Trials”, p. 20; quoted by Foote (2014: 771).
- 7.
Saiko Saibansho [Sup.Ct.], 1st Petty Bench, Judgment of Feb. 13, 2012, 2011 (A) No. 757, 66 KEISHU 482;cited By Foote (2014: 772).
- 8.
Saiko Sainbasho [Sup.Ct]. Grand Bench , Judgment of Nov. 16, 2011, 2010 (A) No. 1196, 65.
- 9.
Shimada Niro, “Saiban’in saibannitaisurukokumin no rikai to shinrai” [“The People’s Understanding of and Trust in Saiban’in Trials”], 2RONKYU JURISUTO, Summer 2012, at 97. See Foote (2014: 775).
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Foote (2014: 772). The evaporation of the initial doubts held by some professional judges about the saiban-in court system was also reported by the First Secretary (Legal), Embassy of Japan, interviewed on 14 August 2014. A retired High Court judge, of Doshisha Law School, interviewed on 13 July 2015, said that before its introduction he was “lukewarm” about the new system, but now favoured it on the philosophical grounds that all should participate in criminal justice.
- 11.
The chairman of the panel of prosecutors and attorneys employed by the Ministry of Justice assembled to assist the author’s research , held at the Tokyo District Public Prosecutors Office on 24 July 2015.
- 12.
Foote (2014: 775).
References
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Takayanagi, K. (1963). A century of innovation: The development of Japanese law 1868–1961. In A. Von Mehren (Ed.), Law in Japan: The legal order in a changing society (pp. 5–40). Cambridge, MA: Harvard University Press.
Toshitani, N. (1966). Minshi to Hōritsuka (The populace and lawyers). Gendai no hōritsuka, 6, 387–389.
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Watson, A. (2016). Successes of Lay Judges and Failures of 1928–1943 Juries. In: Popular Participation in Japanese Criminal Justice. Palgrave Advances in Criminology and Criminal Justice in Asia. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-35077-6_10
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