Abstract
In Japan, lay judges deliberate with professional judges and decide not only whether the defendant is guilty or not guilty but also the punishment to the convicted defendant in certain serious cases. When lay judges formulate sentencing opinions, they can refer to materials on previous sentencing trends. On the one hand, since lay judges have not experienced sentencing decisions, such materials will help them determine the appropriate punishment for the defendant. On the other hand, if such materials are emphasized too much, it will hamper lay judges’ participation in sentencing decision processes. This chapter focuses on the impact of the timing of reference to previous sentencing trends. To assess this impact, a psychological experiment was conducted. About half of the participants in the experiment had an opportunity to state their own concrete sentencing opinions before referring to a fictional sentencing trend. The remaining half of participants were not asked to state their own concrete sentencing opinions until after they had referred to the fictional trend. The findings from this experiment are reported, and possible interpretations of the results and limitations of the experiment are discussed.
While drafting the scenario for the mock trial video that was used in the experiment introduced in this chapter, Mr. Hiroshi Kawatsu (attorney-at-law) provided many useful comments based on his experience and knowledge. The authors would like to thank him for his helpful and important comments.
The translation of Japanese law into English here is not an official legal translation. The Ministry of Justice’s database that compiles translation of Japanese law was consulted. For the Web page of that database, see http://www.japaneselawtranslation.go.jp/?re=01 [Accessed 10 March 2017].
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Notes
- 1.
- 2.
To translate the word Ryokei-Souba, Shiroshita (2010) was consulted.
- 3.
However, in practice, some factors that are not categorized as the circumstances of the crime have a significant impact on sentencing decisions (Endo, 2011).
- 4.
It is reported that top court officials in Japan said “they should not hesitate in showing material on past sentences as long as they emphasize that it is only meant for reference and not binding criteria” (Fukue & Kato, 2009).
- 5.
- 6.
As for the judicial attitude on previous sentencing trends in the context of the lay judge system, see also Koike (2016).
- 7.
First, confidentiality requirements (Articles 9(2), 70(1), and 108, ACTPS) may prevent disclosure of information inside deliberation rooms. Second, currently researchers do not have any method to contact experienced lay judges systematically.
- 8.
This way seems common in actual practices (see Nagoya Chiho Saibansho Keiji Practice Kento Iinkai, 2016).
- 9.
Taguchi (2013) compiles impressions from 14 experienced lay judges. Although it is not guaranteed that these 14 experienced lay judges are representative, this book is important for providing a first glimpse into actual lay judges’ impressions. Taguchi (2013) introduces experienced lay judges’ impressions that citizen participation would not be useful if the punishment was decided based on prior sentencing trends.
- 10.
However, this manipulation is not related to the topic of this chapter. Therefore, the analyses on this first manipulation are not reported in this chapter. For the analyses on this manipulation, see Saeki (2017).
- 11.
Both first and second factors were manipulated by randomly assigning various sets of questionnaires to the participants.
- 12.
This question was introduced to make the burden of the experimental task equal between the two conditions.
- 13.
This question was asked in the post-guilt-phase questionnaire. In the fictional trial video that was shown to the participants, whether the defendant’s act is self-defense or not is contested. The participants were asked to choose the issue of the fictional trial among three options, and only two participants were not able to answer to this question correctly.
- 14.
In this experiment, the first manipulation that was done during the post-guilt-phase questionnaire created two conditions, and the second manipulation, which was done during the post-sentencing-phase questionnaire, also created two conditions. Therefore, in total there are four conditions in the experiment. Since only a few participants did not find the defendant guilty, no statistically significant relationship between the rate of finding the defendant guilty in the post-sentencing-phase questionnaire and the four conditions was detected using Fisher’s exact test (p = 0.552).
- 15.
Due to the existence of missing data, some analyses were conducted based on a sample of fewer than 94 participants.
- 16.
It is arguable whether the participants who admitted that they did not concentrate on the experimental task or whose questionnaires had a blank answer on more than one page should be excluded from the analysis. The participants who admitted their lack of concentration might concentrate on the task enough, but their assessment criteria might be too high. The participants who did not fill in more than one page of the questionnaire might be fully involved with the task during the other parts of the questionnaire. Therefore, the analyses were also conducted including those participants. It became apparent that this inclusion did not affect the basic findings shown below. However, where slight differences between the analyses with and without those participants were found, these are also reported at the appropriate places.
- 17.
With regard to the first question, “one” means that they consulted the graph, “three” means that it is difficult to say whether they consulted the graph or not, and “five” means that they did not consult the graph. For the second question, “one” means that they thought the graph should be respected, “three” means that it is difficult to say whether they thought the graph should be respected or not, and “five” means that they thought the graph should not be respected.
- 18.
As mentioned, there were two manipulations in the experiment, and this chapter focuses on only second manipulation. However, it is possible that the first manipulation affected the answers to the question. For this reason, a two-way ANOVA was also conducted, and the result of this analysis was very similar to that of the one-way ANOVA. Neither the two main effects nor the interaction was statistically significant (main effect of the first manipulation, F(1, 89) = 2.033, p = 0.157; main effect of the second manipulation, F(1, 89) = 0.365, p = 0.547; interaction, F(1, 89) = 0.440, p = 0.509).
As for the remaining results of the one-way ANOVA, which are introduced below in this chapter, there was no difference between the one-way and two-way ANOVA in terms of the main effect of the second manipulation. Therefore, only the results of the one-way ANOVA are shown below.
- 19.
When the participants who admitted that they did not concentrate on the experimental task or whose questionnaires had a blank answer on more than one page are included in the analysis, the difference between opinion first condition and graph first condition is statistically significant at 0.10 level of significance (F(1, 119) = 3.234, p = 0.075).
- 20.
In this chapter, incarceration means imprisonment with required labor, not imprisonment without work.
- 21.
As shown in Fig. 15.2, a few outliers are present for answers about appropriate punishments. Therefore, the analysis excluding outliers was also conducted. Outliers were defined as more than M + 2SD (there were no responses below M − 2SD). To identify the outliers, the calculation was conducted using all participants’ valid answers. For answers to the questions about sentencing decisions/estimations both in the post-sentencing-phase questionnaire and in the post-graph questionnaire, outliers were defined as 14 years of incarceration and longer. In addition, nonparametric analyses were also conducted while including these outliers because there is the matter of arbitrariness about exclusion of outliers. These additional analyses did not yield the results that contradicted this chapter’s conclusions. Since the results of the analyses without the outliers are quite similar with the results of the nonparametric analyses, the latter results are also reported where slight differences between the parametric analyses with outliers and these two additional analyses were found.
- 22.
As to this difference, the nonparametric analysis (Mann-Whitney U test) yielded the similar result at 0.05 level of significance (p = 0.014). Contrarily, when the participants who admitted that they did not concentrate on the experimental task or whose questionnaires had a blank answer on more than one page were included in the analysis, the difference between the two conditions was not statistically significant (F(1, 119) = 2.747, p = 0.100). Therefore, it should be noted that this result is not stable.
- 23.
When the participants who admitted that they did not concentrate on the experimental task or whose questionnaires had a blank answer on more than one page were included in the analysis, the difference between sentencing decisions in the opinion first condition before and after referring to the graph was statistically significant at 0.05 level of significance (t(53) = 2.614, p = 0.012).
- 24.
It is emphasized that professional judges do not show a Frequency Distribution Graph but that professional and lay judges construct a search condition for the case in cooperation and derive previous sentencing trends according to that search condition (Shihokenshujyo, 2012). If such collaboration is materialized in actual deliberations and lay judges can indeed understand the purpose of such collaboration, they may not feel any pressure from professional judges.
- 25.
In addition, even if there is no opportunity to express their own sentencing opinions before referring to the graph like the graph first condition, they can feel the pressure to change their sentencing opinions when they are asked to reconsider sentencing opinions that are expressed after referring to the graph. Since such a dynamic was not replicated in the simple experiment, this task should be explored in the future.
- 26.
It should be noted that this chapter does not intend to claim that the subjective satisfaction of experienced lay judges outweighs preservation of equality of punishment among cases with similar seriousness of criminal acts. Shihokenshujyo (2012) states that previous sentencing trends should be shown to lay judges even if lay judges do not want to refer to them. Behind this statement, there seems to be a value judgment that it is important to ensure equality of punishment at the expense of having some negative effects on lay judges’ evaluations about their experience and the lay judge system as a whole. This chapter intends to provide basic findings to evaluate the lay judge system, especially the materials about previous sentencing trends, not to conduct normative evaluation itself. In addition, professional judges seek to explain how lay judges should make sentencing decisions and try to make them accept such a way of thinking (e.g., Shihokenshujyo, 2012). If this persuasion succeeds, lay judges may accept the importance of previous sentencing trends and still evaluate their participation in criminal trials positively. This possibility remains to be explored.
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Acknowledgement
This work was supported by Grants-in-Aid for Scientific Research (KAKENHI) of Japan Society for the Promotion of Science (JSPS), grant numbers 24101502 and 26101701.
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Saeki, M., Watamura, E. (2018). The Impact of Previous Sentencing Trends on Lay Judges’ Sentencing Decisions. In: Liu, J., Miyazawa, S. (eds) Crime and Justice in Contemporary Japan. Springer Series on Asian Criminology and Criminal Justice Research. Springer, Cham. https://doi.org/10.1007/978-3-319-69359-0_15
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