Abstract
Perhaps the strongest criticism of the lay judge system is that, in the absence of major reforms in police and prosecutors’ powers, and of vigilant supervision of the way they are exercised, conscripted citizens become complicit in a system that is still too willing to convict based on coerced confessions. According to this view the participation of lay judges allows criminal trials to produce the same results as before but helps to insulate professional judges from criticism. A number continue to campaign for juries to be reintroduced as an independent bulwark against miscarriages of justice and to increase public understanding of criminal law and the legal system generally. Through confidence gained as jurors, they envisage greater civic involvement in other aspects of society would result.
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Notes
- 1.
Jones (2014) and also see earlier article by Colin Jones, “Prospects for Citizen Participation in Criminal Trials in Japan”, 15 PAC.RIM L.&POL’Y J. 363 (2006).
- 2.
Stephen Landsman and Jing Zhang, “A Tale of Two Juries: Lay Participation Comes to Japanese and Chinese Courts,” UCLA Pacific Basin Law Journal, Vol. 25 (Spring) (2008), p. 220.
- 3.
Ingram Weber, “The New Japanese Jury System: Empowering the Public, Preserving Continental Justice”, East Asia Law Review, Vol. 4, Issue 1 (2009), p. 125.
- 4.
“Top Court Says Lay Judge System Working Well at Five Year Mark”, Japan Times, 21 May 2014.
- 5.
5 May 2014.
- 6.
The survey showed 56 per cent support for continuing the lay judge system with some amendments; 18 per cent considered it should remain as it is. Only 17 per cent of respondents to the survey thought the system should be abolished. The 79 per cent who said that they do not want to participate in trials as lay judges showed a slight increase above the 76 per cent recorded in a similar survey conducted in March 2010. Not having confidence in their ability to judge and sentence properly was the most commonly given reason why (58 per cent). Three thousand eligible voters nationwide were contacted at random for the survey and 1533, or 51 per cent, agreed to be interviewed face to face (“Poll: 74 % say Lay Judge System Should Continue but Few Want to Participate”, Yomiuri Shimbun, 11 July 2014. A professor of law at Doshisha University Law School, and a former High Court judge, was of the opinion that the low subsistence allowance paid to lay judges, difficulties in taking time off work, especially for the self-employed, and worry about some form of retaliation by, or on behalf of, defendants may also strongly discourage citizens from wanting to serve By contrast, he spoke of much enthusiasm amongst law students wishing to be lay judges (Interview on 13 July 2015).
- 7.
The Supreme Court of Japan General Secretariat’s statutory review in 2012 (three years after saiban-in courts were inaugurated) was concerned that the number of those summoned who do not appear was increasing and also by statistics that showed 57 per cent of those summoned were excused from serving after applying to be so on grounds within the Saiban-in Act (Foote 2014: 767–768). The percentage of those excused service during the first quarter of 2014 had risen to 66.1 per cent (“Top Court Says Lay Judge System Working Well at Five Year Mark”, Japan Times, 10 July 2014).
- 8.
Previously, although trials began fairly quickly after defendants were indicted, cases could take months and even years to conclude because of the system of non-consecutive hearings, often with monthly gaps, when points in dispute were gradually narrowed.
- 9.
The author observed part of a trial at the Tokyo District Court on 24 July 2015 of a defendant indicted for robbery resulting in bodily injury. After cross-examination by public prosecutors and brief re-examination by his attorney, the defendant was questioned by all six lay judges. A Director of Prosecutions, who accompanied the author and has supervised more than 50 saiban-in trials, explained that, while there is generally a high level of participation, it was unusual for all lay judges to question a defendant or witness. He explained that sometimes, after discussion beforehand, junior judges will ask questions on behalf of lay judges who are reticent about asking directly.
- 10.
As a journalist put it in 2012: “One positive which has come out of the new system is a slight deterioration of Japan’s strict social hierarchy when it comes time to deliberate…. For several hours, days, weeks, citizens from all walks of life are asked to be on the same social level as judges” (Anna Watanabe, “Japan’s ‘Lay Judge’ System to be Revised”, asiancorrespondent.com, 3 June 2012).
Although cautious of simple explanations, a sociology of law professor at the Graduate School of Law, Kobe University, interviewed on 11 July 2015, believed that the factors limiting discussion in wider society may have been substantially displaced by the cultural characteristic of the importance of performing a duty, which he saw as strong in Japan.
- 11.
Primary and Junior High School Curriculum Guidelines, announced by the Ministry of Education, Culture, Sports, Science and Technology in 2008, to further pupils’ understanding of basic legal concepts and public participation in the criminal justice system were implemented in 2011 and 2012. New High School Curriculum Guidelines, published in 2009, which, inter alia, cover saiban-in trials, started to operate in all high schools in 2013. A prosecutor who formed a panel of prosecutors and Ministry of Justice attorneys kindly assembled to assist the author’s research , at the Tokyo District Public Prosecutors Office on 24 July 2015, had spoken at a school on the previous day. A national mock trial competition for schools, jointly presided over by the Supreme Court , the Ministry of Justice and JFBA, has been introduced recently.
- 12.
Supporters of the jury system, especially in the United States, sometimes claim (although until recently with little empirical evidence) that jury service leads not only to more understanding and knowledge of the law, and greater legitimacy of the legal system, but also to greater involvement by citizens in other civic matters. Zachary Corey and Valerie Hans consider that the lay judge system in Japan has the potential to produce similar effects and call for research on whether they become a reality (“Japan’s New Lay Judge System: Deliberative Democracy in Action”, Asian-Pacific Law & Policy Journal, Vol. 12:1, 2010). On the subject of whether participatory democracy will be strengthened by the saiban-in system, Foote (2014: 769) considers that it is likely to take many years before its impact will be felt because only about 12,000 saiban-in participate in deliberations each year. Also, in his view, restrictions on what they may say about their experiences to members of their family, friends and colleagues at work are “likely to limit any potential multiplier effect”. By comparison, approximately 20 million Americans receive a jury summons each year. According to one survey, 24 per cent of adult Americans report having served at least once on a jury (Nancy J. King, “The American Criminal Jury”, in Vidmar, N. (ed.), World Jury Systems, p. 117).
- 13.
Kazuko Itostated: “Since people have started to participate to the saiban-in system, people’s attention towards the criminal justice system has increased more than ever. People are starting to look carefully at the lessons of wrongful convictions and false charges. No one wants to be a part of decision-making in a fraudulent criminal justice system that could lead to wrongful convictions” (“Wrongful Convictions and Recent Criminal Justice Reform in Japan”, 80 U. Cin. L. Rev. (2012), p. 1273),
- 14.
A survey conducted by Mia Sato, The Death Penalty in Japan. Will the Public Tolerate Abolition? (Springer Books, 2014), is of significance. Of those respondents who favoured retaining the death penalty fewer than half said they would sentence a defendant to death.
- 15.
Judicial Reform Council , “Recommendations of the Justice Reform Council: For a Justice System to Support Japan in the 21st Century”, 21 June 2001, Chapter 4, Part 1(1).
- 16.
To borrow part of a sentence from an authoritative writer “criminal lay judge trials have taken root and started bearing fruit” (Wilson 2013: 15).
References
Foote, D. (2014). Citizen Participation: Appraising the Saiban-in System. 756 Michigan State International Law Review, 22(3), 755–775.
Ibsuki, M. (2010). Quo vadis? First year inspection of the mixed jury trial, 12 Asian –Pac.L. & Pol. J.24.
Jones, C. (2014, 18 June). Still dreaming of a Japan with juries—And without U. S. bases. Japan Times.
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), 14–16.
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Watson, A. (2016). Opinions on the Lay Judge System. 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_9
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