Abstract
The Prime Minister at the time, Mr Taro Aso , harboured no doubts, at least in public, about the wisdom of change. On the day of its launch, 21 May 2009, he called the new system a “pillar of judicial reform” and said that it would “add a new page in the history of our judiciary”. His prepared statement continued: “It is expected that court procedures will become faster and comprehensible through public participation and through the introduction of their viewpoints and sentiments. I hope people in Japan will understand the significance of the lay judge system”.
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Notes
- 1.
Marked by the issue of two specially designed postage stamps on the theme of the saiban-in system.
- 2.
Pillar of reform, Kyodo News, The Japan Times, 22 May 2009.
- 3.
Supreme Court General Secretariat statistics show a total of 4988 defendants were involved in lay judge trials. A verdict was reached in 4886 of these: 4843 were convicted; 26 were found not guilty; 13 were found guilty on some charges and not guilty on others; and 4 defendants were remanded to the family court. 28,229 citizens served as lay judges and 9722 acted as reserve lay judges. Among those selected for potential jury duty, 55.4 per cent of the citizens were full-time workers, 14.4 per cent were part-time or temporary workers, 9.90 per cent were mothers or fathers who were not in paid employment, and 7.3 per cent were self-employed. For each lay judge trial, approximately 88 lay judges were chosen from the electoral roll and 58.1 per cent of these were excused service. On average, approximately 30 lay judges appeared at court for the process of selection. Over 78 per cent of those citizens summoned for potential selection as lay judges appeared at court. The length of lay judge trials varied: 62.7 per cent (3,134) of all trials were completed in less than five days and 13 trials lasted more than 40 days. The average trial length was 6.2 days, and the longest trial lasted 100 days. (Before the lay judge system, some criminal trials could last years because hearings were only conducted once or twice per month.)
On average mixed court panels deliberated for 9.33 hours to reach a verdict. (Source “Saiban-in Seido no JisshiJoutai Ni Tsuite (Seido Jisshi–12.31.2011—Sokuho)” [“State of Implementation of Lay Judge System from Inception to February 28, 2013”], available at http://www.saibanin.courts.go.jp.
- 4.
See Oda (2009): page 65 who cites K. Takahashi, Rikken—Shugi to Nihon Kenpo ( Constitutionalism and the Constitution of Japan), Tokyo 2006, pp. 230–232.
- 5.
Specifically her argument was that the lay judge system violated the constitution, including: Article 32, the right to access the courts; Article 37, the right to a trial by an impartial tribunal; and the due process requirements of Article 31. This was linked to claims under Chapter VI of the constitution (which deals with the judicial branch) including Article 76, which requires judges to be independent and prohibits special courts, and Article 80 which requires judges of inferior courts to be appointed by the cabinet for a period of ten years.
- 6.
Supreme Court of Japan, Case No 2010 (A) 1196, Keishu Vol. 65, No 8 (16 November 2011).
- 7.
No record exists of any case in which the constitutionality of jury trial was questioned during those years.
- 8.
For summaries and analysis of this case see Takuichi Kawakami, Researcher, Waseda University Institute of Comparative Law, 21 March 2012, www.waseda.jp/hiken/en/jalaw_inf/topics2011/012kawakam. Also Colin Jones, Doshisha University Law School, “Japan’s Supreme Court Finds Lay Participation in Criminal Trials Constitutional”, 21 November 2011, I-COJNNect, Blog of the International Journal of Constitutional Law and ConstitutionMaking.org, www.iconnectblog.com and “Court Ruling Underscores Importance of Lay Judges in Criminal Justice”, Asahi Shimbun, 19 November 2011.
- 9.
Because of restrictions imposed by the Saiban-in Law , Article 70, it is not possible for them to disclose the content of their deliberations to others.
- 10.
In Daniel Foote’s opinion, “one can quite confidently assert that the fear that Japanese are not suited to expressing their views in front of others was off the mark” (Foote 2014: 767).
- 11.
The First Secretary of the Japanese Embassy in Japan, until recently a prosecutor, interviewed on 14 August 2014, expressed a very interesting and plausible personal opinion about lay judges’ willingness to ask witnesses questions and participate in deliberations. He talked about the very many detective and court dramas which have been a staple of Japanese television for decades. Most involve a standard formula in which a particularly observant and often tenacious person notices a tiny, but ultimately decisive, piece of evidence . In his opinion, the effect of these much-watched programmes is to encourage a search for and an analysis of evidence , applying an approach with which lay judges are familiar from television.
- 12.
Setsuko Kamiya, “Lay Judges Handle Pressure of Oshio Trial”, Japan Times, 19 September 2010.
- 13.
Setsuko Kamiya, “Lay Judges Get a Peek at Prison Life: Some Feel a Duty to See Where the Guilty are Sent”, Japan Times, 6 June 2013.
- 14.
“Lay Judges Present Ideas to Make System Better”, Japan Times, 21 January 2012.
- 15.
Lawyers Guide court-watchers, Yomiuri Shimbun, 16 May 2010. Every seat was taken by members of the public of all ages at the part of a lay judge trial observed by the author at Tokyo District Court on 24 July 2015. It was said to be particularly busy because of school holidays.
- 16.
Held on 21 July 2015.
- 17.
For a useful summary, see Outline of Criminal Justice, Supreme Court of Japan, 2009.
- 18.
Interviewed on 6 July 2015.
- 19.
At the Tokyo District Public Prosecutors Office on 24 July 2015.
- 20.
Japanese criminal justice has been described as “anatomical justice” (seimitsushiho) for its close attention to every factual detail, and historically judges have prided themselves on the accuracy of their decisions (Katsuta 2010: 505).
- 21.
Now a professor at Doshisha University Law interviewed on 13 July 2015.
- 22.
Since 2014 the First Secretary (Legal) to the Embassy of Japan who, until very shortly before, was a prosecutor, interviewed on 14 August 2014.
- 23.
It is said that some defence attorneys believed the number of acquittals would rise appreciably after the introduction of the saiban-in courts. This has not happened (Reichel and Suzuki 2015: 4–5). It is possible to suggest, but no more, that some attorneys may have overestimated the power of common law jury advocacy techniques. The Director of Prosecutions, interviewed on 24 July 2015, considered the chief factor why the acquittal rate has not significantly fallen is the strength of cases brought by prosecutors and their detailed preparation for them.
- 24.
Interviewed on 21 July 2015.
References
Foote, D. (2014). Citizen Participation: Appraising the Saiban-in System. 756 Michigan State International Law Review, 22(3), 755–775.
Katsuta, T. (2010). Japan’s rejection of the American criminal jury. The American Journal of Comparative Law, 58, 497–524.
Oda, H. (2009). Japanese law. Oxford: Oxford University Press.
Reichel P. and Suzuki, Y. (2015). Japan’s Lay Judge System : A Summary of Its Development, Evaluation, and Current Status. International Criminal Justice Review, 25(3), 247–262.
Shinomiya, S. (2010). Defying experts predictions, identifying themselves as sovereign: Citizens’ responses to their service as lay judges in Japan. 43 Social Sciences in Japan 8. (Sept, 2010).
Wilson, J. (2013). Prime time for Japan to take another step forward in lay participation: Exploring expansion to civil trials. Akron Law Review, 46(3) 10–12.
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Watson, A. (2016). Launch and Then Solid Progress. 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_7
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