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Published online by Cambridge University Press: 07 May 2025
On August 3, 2009, Japan began a new trial system in which ordinary citizens sit with professional judges in order to adjudicate guilt and determine sentence in serious criminal cases. This change injects a meaningful dose of lay participation into Japanese criminal trials for the first time in 66 years. Japan had a jury system of sorts from 1928 to 1943, but it was suspended during the Pacific War for various reasons: because defendants who chose a jury trial had to give up rights to appeal; because the jury only answered a set of interrogatories framed by a judge who could reject its findings of fact; because jury trials were expensive and difficult to administer; and because (some analysts claim) a Japanese cultural preference for hierarchy caused defendants to prefer judgment by professionals rather than peers. Notably, the old jury system generated much higher acquittal rates than those that prevailed before or since—15 percent for the nation as a whole, and more than 60 percent in some cities—leading some prosecutors and judges to welcome the demise of an institution that made it more difficult for the state to convict.
1 For a brief summary of the rise and demise of Japan's prewar jury, see David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.42-43; and Masahiro Hayashi, “Sendai no Baishin Saiban ni Tsuite,” Hanrei Taimuzu, 1987, pp.17-24. In the 1990s and 2000s, Japan's acquittal rate in contested cases has been about 3 percent—one-fifth as high as the acquittal rate under the prewar jury system. In the United States, too, juries are more likely to acquit than professional judges are; the classic study is Harry Kalven Jr. and Hans Zeisel, The American Jury (Boston: Little, Brown, & Co., 1966). Russia reintroduced jury trials in 1993, but research showing that juries were nine times more likely to acquit than judges sitting alone led to a decision to revert to non-jury trials for all cases except murder. In South Korea as well, the jury trials that started in 2008 have led to an increase in acquittals; see The Economist, “The Jury Is Out,” February 14, 2009, p.70.
2 Daniel H. Foote, “Introduction and Overview: Japanese Law at a Turning Point,” in Daniel H. Foote, editor, Law in Japan: A Turning Point (Seattle: University of Washington Press, 2007), p.xx.
3 Daily Yomiuri, “Start of Lay Judge System: Candidates Anxious Over Dispensing Justice,” May 21, 2009; and Norimitsu Onishi, “Japan Learns Dreaded Task of Jury Duty,” New York Times, July 16, 2007.
4 In many particulars, the Japanese lay judge system differs from the forms of lay participation practiced in the United States and Europe, leading some analysts to describe it as “a new species” that is “as isolated as the Galapagos”; see Asahi Shimbun/International Herald Tribune, “Editorial: Citizen Judges in Action: System Should Change the Way Trials Are Conducted,” August 5, 2009, p.5. For a more detailed description of the rules of Japan's new trial system, see Kent Anderson and David T. Johnson, “Japan's New Criminal Trials: Origins, Operations, and Implications,” in Andrew Harding and Penelope Nicholson, editors, New Courts in Asia (London: RoutledgeCurzon, forthcoming); and Kent Anderson and Emma Saint, “Japan's Quasi-Jury (Saiban-in) Law: An Annotated Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials,” Asian-Pacific Law & Policy Journal, Vol.6, Issue 1 (Winter 2005), pp.233-283.
5 Article 66 of the Lay Judge Act says that in deliberations, “the chief judge shall consider matters such as conscientiously explaining the necessary laws or ordinances to the lay judges, making arrangements so that deliberations are easily understandable for the lay judges, providing sufficient opportunity for the lay judges to voice their opinions, and so forth, so that lay judges are sufficiently able to execute their duties.” See Kent Anderson and Emma Saint, “Japan's Quasi-Jury (Saiban-in) Law: An Annotated Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials,” Asian-Pacific Law & Policy Journal, Vol.6, Issue 1 (Winter 2005), p. 273.
6 Asahi Shimbun, “Hyogi ‘Iken Iiyasukatta’; Ryokei ‘Kore de Yokatta no ka,‘” August 7, 2009, p.1.
7 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.194.
8 Mark Levin and Virginia Tice, “Japan's New Citizen Judges: How Secrecy Imperils Judicial Reform,” The Asia-Pacific Journal, Vol. 19-6-09, May 9, 2009.
9 Kamiya Setsuko, “First Lay Judge Trial Kicks Off In Tokyo,” The Japan Times, August 4, 2009, p.1; Kiyotaka Iwata, “Citizen Judge Sentence ‘Somewhat Harsh,'” The Asahi Shimbun/International Herald Tribune, August 8-9, 2009, p.21; and Mainichi Shimbun, “‘Yoso yori Omoi' 15nen,” August 7, 2009, p.3.
10 Saeki Masahiko, “Hanzai Higaisha ni yoru Iken Chinjutsu ga Ryokei ni Oyobosu Eikyo: Jissho Kenkyu no Rebyu to Kongo no Kadai.” Master's Thesis, Tokyo University Faculty of Law, December 2008, pp.1-97.
11 The Japan Times, “Saitama Lay Judges Hear Attempted Murder Plea,” August 11, 2009, p.1; and The Japan Times, “Lay Judges Rule after Victim Testifies,” August 13, 2009, p.1.
12 Takayama Shunkichi, Saibanin Seido wa Iranai (Tokyo: Kodansha, 2006).
13 Philip E. Tetlock, Expert Political Judgment: How Good Is It? How Can We Know? (Princeton: Princeton University Press, 2005); and Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable (New York: Random House, 2007).
14 The Asahi Shimbun/International Herald Tribune, “Citizen Judges Hear Their 1st Case,” August 4, 2009, p.19.
15 Kamiya Setsuko, “Foreigners Size Up Lay Judge System,” The Japan Times, August 16, 2009. In some American jurisdictions, “as many as two-thirds of the people who receive jury-related notices simply ignore them”; see Stephen J. Adler, The Jury: Trial and Error in the American Courtroom (New York: Times Books, 1994), p.220. Japanese lay judges are paid better than some of their juror counterparts in America. In Japan, lay judges receive 8000 yen (about $80) for each day of duty preceding the start of trial (for lay judge selection and the like), and 10,000 yen ($100) for each day of service at trial. In Orange County, Florida (where the city of Orlando is located), jurors make $15 a day for the first three days of service and $30 thereafter, while in Manhattan the daily check is $40. See John Schwartz, “Call to Jury Duty Strikes New Fear: Financial Ruin,” New York Times, September 2, 2009.
16 Yomiuri Shimbun, “Saibanin Kisha Kaiken no Shoho: Shinri Wakariyasukatta,” August 13, 2009, p.31. Citizens who observed the Tokyo and Saitama trials “with great interest and anxiety” also reported that “watching the new system in action helped alleviate some of their concerns.” See Setsuko Kamiya, “Citizens Find Their Place on the Bench: Lay Judge Duties Weigh on Candidates,” Japan Times, September 3, 2009.
17 Mainichi Shimbun, “Tainin Hatashi Ando,” August 7, 2009, p.31; The Daily Yomiuri, “Lay Judge Felt Burden of Duty,” August 10, p.2; and International Herald Tribune, “Citizen Judge System: The Lay Judges Took Their Work Seriously,” August 8-9, 2009, p.22.
18 Mainichi Shimbun, “Saibanin Saiban Saishujitsu: Hotei-Kaiken Shoho,” August 7, 2009, p.28; and Asahi Shimbun, “Hyogi ‘Iken Iiyasukatta’; Ryokei ‘Kore de Yokatta no ka,‘” August 7, 2009, p.1.
19 For similar statements from the Saitama lay judges, see Yamamoto Ryosuke, Ichikawa Miako, and Numata Chikako, “Trial Weighs Heavily on Citizen Judges,” Asahi Shimbun/International Herald Tribune, August 14, p.19.
20 G. K. Chesterton, “The Twelve Men,” in Tremendous Trifles, 1909. Reprinted as “G. K. Chesterton Empanels a Jury,” in Lapham's Quarterly, June 5, 2009.
21 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), p.242.
22 Shinomiya Satoru, “Saibaninho wa Keiji Jitsumu no Genba ni Nani o Motarashite Iru ka,” Hogaku Semina, No.644 (2008), pp.1-3.
23 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), p.218.
24 Toyo Shimbun [Aomori edition], “Taisho Jiken: Kiso ga Ohaba Gen,” July 24, 2009, p.1.
25 Takano Takashi, “Nihon no Kensatsu wa Hetare na no ka,” in Keiji Saiban o Kangaeru: Takano Takashi@burogu, June 14 and June 23, 2009.
26 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), p.98.
27 Tsuchimoto Takeshi, “‘Saiban Sho’ no Insho Nuguezu,” Mainichi Shimbun, August 12, 2009, p.25.
28 Email from a Japanese professor of criminal law (name withheld), August 7, 2009.
29 John H. Langbein, “Torture and Plea Bargaining,” The University of Chicago Law Review, Vol.46 (1978), pp.1-22.
30 David T. Johnson, “Plea Bargaining in Japan,” in Malcolm M. Feeley and Setsuo Miyazawa, editors, The Japanese Adversary System in Context: Controversies and Comparisons (New York: Palgrave Macmillan, 2002), pp.140-172.
31 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.243-275.
32 Japan Times, “Lifer's DNA Retested, Erasing Link to Girl Slain in ‘90,” April 22, 2009.
33 Shinomiya Satoru, “‘Hotei de Shinsho’ Honrai no Sugata ni,” Mainichi Shimbun, August 11, 2009, p.23.
34 Japan Times, “Stronger Case for Videotaping,” August 8, 2009, p.13.
35 On lessons from the United States and South Korea for recording interrogations in Japan, see David T. Johnson, “Kazemuki o Shiru no ni Otenki Kyasta wa Iranai: Nihon ni okeru Torishirabe Rokuon-Rokuga ni tsuite Gasshukoku to Kankoku kara Manabu koto,” Ho to Shinri, Vol.5, No.1 (August 2006), pp.57-83. Some Japanese observers believe that with the election of the DPJ, the question will shift from whether interrogations will be recorded to what “gifts”—such as the legal authority to plea bargain and offer immunity—will be given to police and prosecutors in exchange for imposing the recording obligation on them (author's interviews with Japanese legal professionals, August 2009).
36 A more colorful way of saying something similar was expressed by a criminal suspect from New Zealand who told me that his own attorney in a hashish possession case—one of the most respected defense lawyers in a major Japanese city—was “as good as tits on a bull.” See David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.72-73, 77.
37 Shinomiya Satoru, “Saibaninho wa Keiji Jitsumu no Genba ni Nani o Motarashite Iru ka,” Hogaku Semina, No.644 (2008), pp.1-3.
38 Author's interviews with Japanese attorneys, August 2009.
39 Malcolm M. Feeley and Setsuo Miyazawa, editors, The Japanese Adversary System in Context: Controversies and Comparisons (New York: Palgrave Macmillan, 2002).
40 Japan Times, “Language in Court to be Simple,” August 4, 2009, p.2.
41 Nonami Asa, “Taion ga Kanjirareta Hotei,” Mainichi Shimbun, August 6, 2009, p.1.
42 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.119-143.
43 See Jiyu to Seigi, May 2009, and the “Bengoshi to Tatakau” blog, May 18, 2009.
44 A typical law office in Tokyo charges low-income clients 315,000 yen ($3200) as a retainer fee in addition to a contingency fee that depends on the outcome of the case, and 26,250 yen ($260) per hour of work for moderate or high-income clients (author's interview, September 2, 2009). On the economics of criminal defense in Japan before the lay judge system started, see David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.79-82.
45 Of course, to point out these potential problems in the Japanese system for compensating state-appointed attorneys is not to say that the American system of indigent defense is much better. Unlike Japan, America has an active defense bar and organized public defender offices, but in many American jurisdictions defense attorneys are grossly underpaid and overworked. See, for example, David Feige, Indefensible: One Lawyer's Journey Into the Inferno of American Justice (New York: Little, Brown, and Company, 2006); and Alisa Chang, “Not Enough Money or Time to Defend Detroit's Poor,” National Public Radio's “All Things Considered,” August 17, 2009; available here.
46 Nonami Asa, “Taion ga Kanjirareta Hotei,” Mainichi Shimbun, August 6, 2009, p.1.
47 Su-Hyun Lee, “Justice Is Swift for Novice Korean Jurors,” New York Times, July 17, 2008; and Stephan 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), pp.197-216.
48 Shinomiya Satoru, “Saibaninho wa Keiji Jitsumu no Genba ni Nani o Motarashite Iru ka,” Hogaku Semina, No.644 (2008), pp.1-3; Katayama Yoshihiro, Kuniya Hiroko, and Shinomiya Satoru, Koko dake wa Kiite Okitai: Saibanin Saiban 31 no Gimon ni Kotaeru (Tokyo: Nihon Hyoronsha, 2009); and Asahi Shimbun/International Herald Tribune, “Editorial: Citizen Judges in Action: System Should Change Way Trials Are Conducted,” August 5, 2009, p.20.
49 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.
50 Ingram Weber, “The New Japanese Jury System: Empowering the Public, Preserving Continental Justice,” East Asia Law Review, Vol.4, Issue 1 (2009), p.125.
51 Takayama Shunkichi, Saibanin Seido wa Iranai (Tokyo: Kodansha, 2006); Hirano Keiji, “Lay Judge System Rife With Problems: Opponents,” Japan Times, July 28, 2007; and Colin P. A. Jones, “Big Winners in ‘Jury’ System May Be Judges, Bureaucrats,” Japan Times, March 10, 2009.
52 David T. Johnson and Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia (New York: Oxford University Press, 2009), pp.45-101.
53 David T. Johnson, “Criminal Justice in Japan,” in Daniel H. Foote, editor, Law in Japan: A Turning Point (Seattle: University of Washington Press, 2007), pp.343-383.
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