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Published online by Cambridge University Press: 07 May 2025
On May 21, 2009, lay citizens will join professional judges in deciding the fate of suspects of major crimes in Japan's new saibanin or lay assessor system.[1] This system, laudable for pursuing public understanding and reform in a judiciary long criticized for being distant and overly bureaucratized, contains provisions that could do as much harm as good. Among causes for concern, the new law contains a harsh secrecy provision that stands out as a potential source of problems. This provision, which threatens to imprison or fine citizens who speak too freely about their service as lay assessors, will make reporting misconduct difficult and chill the public discourse that the system ostensibly aims to foster. Such secrecy may also inflict significant psychological harm upon those affected by the disturbing details of a criminal trial. These potential ramifications should be taken into consideration as Japan makes its way through this new world of lay participation.
[1] Saiban'in no sanka suru keiji saiban ni kansuru hōritsu [Act Concerning Participation of Lay Assessors in Criminal Trials], Law No. 63 of 2004. For an English translation of a pre-enactment draft, see Anderson & Saint, Japan's Quasi-Jury (Saiban-in) Law: An Annotated Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials, 6 ASIAN-PACIFIC L. & POL'Y J. 233 (Winter 2005). English translations of the term saiban'in include “lay judge”, “lay assessor”, and “jury” system. As explained below, the first two are equally apt, while “jury system” is a misnomer. Although media reports appear to commonly adopt the phrasing “lay judge”, this article adopts “lay assessor” following Anderson and Saint's widely cited translation of the draft legislation.
[2] Japan's judiciary began to take its modern form soon after the Meiji Restoration of 1867 and the process was completed by the Court Act of 1890. The postwar Constitution of 1947 kept intact that essential structure, but exchanged the weak and limited authority of the former Great Court of Cassation with the Supreme Court that remains today. While a robust debate in assessing the autonomy of the judiciary from political control has emerged, the most salient features of the judiciary for purposes of this article are essentially undisputed – the centralized control of the judiciary by the Supreme Court and the concurrent removal of local autonomy over civil and criminal justice mechanisms. In this regard, an important paper by Professor Hiroshi Fukurai forthcoming in the Okinawan Journal of American Studies will present the new saiban'in sytem as beneficial for restoring self-determination and political sovereignty to marginalized local communities in Okinawa. OJAS, no. 5, 2008, pp. 31-42.
[3] See e.g., 70% Don't Want to Serve on Juries in New System, The Japan Times, April 17, 2005; Preparing for Lay Judge System, The Japan Times, April 22, 2008.
[4] Hereinafter, Lay Assessor Act.
[5] The Justice System Reform Council (“Reform Council”) was established by the Cabinet in July 1999 for the purposes of “clarifying the role to be played by justice in Japanese society in the 21st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system, achievement of a legal profession as it should be and strengthening the functions thereof, and other reforms of the justice system, as well as improvements in the infrastructure of that system” (Article 2, Paragraph 1 of the Law Concerning Establishment of the Justice System Reform Council). For the Council's final report, see Recommendations of the Justice System Reform Council – For a Justice System to Support Japan in the 21st Century, June 12, 2001, available in English translation, (hereafter Reform Council, Recommendations).
[6] Lay Assessor Act, Art. 1. It seems striking that notions of improving the fairness of the criminal justice system for the accused are entirely absent from the law's expressed purpose. In conversation, a Japanese criminal law scholar has suggested to the authors that this should not be viewed as a meaningful omission because Article 1 of Japan's Code of Criminal Procedure already enumerates such values and that provision sits above the Lay Assessor Act in the hierarchy of Japan's criminal laws.
[7] Code of Criminal Procedure, Art. 281-6. Although this provision is not limited to trials involving lay assessors, it is anticipated that trials not involving lay assessors may continue to be carried out with non-consecutive sessions.
[8] Code of Criminal Procedure, Arts. 316-2 – 316-32. These procedures became operative in November 2005 as part of the transition to the lay assessor system. They are mandatory for trials involving lay assessors (Lay Assessor Act, Art. 49) and otherwise discretionary such as where the court decides it is needed due to the complexity of the case.
[9] This is simply the Japanese rule for all lower court decisions in criminal cases provided for in Code of Criminal Procedure Art. 351-1 and neither addressed in nor affected by the special enactment of the Lay Assessor Act.
[10] Determinations of law are made solely by professional judges. Lay Assessor Act, Art. 6.
[11] This is apart from concerns that professional judges may be able to unduly influence outcomes through demeanor, body language, or their statutorily designated control over process and deciding interpretations of law.
[12] Lay Assessor Act, Art. 70(1); this duty is also referenced in Art. 9(2). Penalties are provided for in Art. 108.
[13] The sole exception from lay assessors' threat of imprisonment is that ex post leaks of non-core deliberation secrets (i.e., not the opinions shared or vote tallies during deliberation or the lay assessors sentiments with regard to the results, but other factual aspects of the deliberations) are subject only to fines of up to ¥500,000. (Art. 108(3))
[14] The Judicial System Reform Council, The Points at Issue in the Judicial Reform, December 21, 1999. English translation available at http://www.kantei.go.jp/foreign/judiciary/0620reform.html.
[15] Reform Council, Recommendations, p 86, stating, “The possibility of introducing the participation system for proceedings other than criminal cases should be considered as a future issue, keeping watch on the circumstances of the introduction and operation of the new participation system in criminal proceedings.”
[16] Reform Council, Recommendations, p 88, noting that these are “cases in which the general public has a strong interest and that have a strong impact on society.”
[17] These are not unanimity requirements, but requirements beyond a simple majority. In Malta, a conviction requires six-out-of-nine votes, in Norway, seven-out-of-ten, and in Spain, seven-out-of-nine.
[18] Contempt of Court Act, 1981, c.49, §8(1) (Eng.).
[19] Id. at §8(2)(a-b).
[20] Gregory v. UK (1997) 25 EHRR 577 at para. 44.
[21] Department for Constitutional Affairs, Jury Research and Impropriety: A Consultation Paper to Assess Options for Allowing Research Into Jury Deliberation and To Consider Investigations into Alleged Jury Impropriety, 9 (2005).
[22] Reform Council, Recommendations, p 88.
[23] Court Act (No. 59 of April 16, 1947), states, “Article 75 (Secrecy of Deliberation) (1) Deliberations of decisions in a panel shall not be disclosed; provided, however, that the presence of legal apprentices may be permitted. (2) Deliberation shall be commenced and regulated by the presiding judge. Except as otherwise provided for in this act, strict secrecy must be observed with respect to the proceedings of deliberations, the opinions of each judge and the number of opinions constituting majority and minority.
[24] Reform Council, Recommendations, p 86.
[25] Reform Council, Recommendations, p 93.
[26] Feldman, T. B. & Bell, R. A., Crisis Debriefing of a Jury After a Murder Trial, 42 HOSP. & COMMUNITY PSYCHIATRY 79 (1991).
[27] Feldman, T. B. & Bell, R. A., Juror Stress: Identification and Intervention, THE BULL. OF THE AMERICAN ACADEMY OF PSYCH. & THE LAW, Vol. 21, No. 4, p. 414 (1993).
[28] The First Amendment to the U.S. Constitution prevents courts from imposing restraints on jurors from discussing their experiences in the jury room, once the trial has ended. See N. Vidmar, WORLD JURY SYSTEMS 38 (Oxford, 2000), stating, “Under special circumstances some courts [in the US] have placed limitations on the press, what individual jurors may say to the press, and even limitations on what jurors are permitted to disclose, but in general, there are few restraints on jurors.”
[29] The procedure is called Critical Incident Stress Debriefing (CISD). For more information, see Davis, J., Providing Critical Incident Stress Debriefing to Individuals and Communities in Situational Crises, AMERICAN ACADEMY OF EXPERTS IN TRAUMATIC STRESS, http://www.aaets.org/article54.htm. Such debriefing was crucially important for the first responders after the tragedy on September 11, 2001.
[30] Kim Wessel, Jury Flipped Coin to Convict Man of Murder, The Courier-Journal, Apr. 26, 2000.
[31] “In 1994 insurance broker Stephen Young was granted a retrial after it emerged that a jury at Hove Crown Court had consulted a ouija board during their deliberations.” Jury Deliberations May Be Studied, BBC News Channel, Jan. 22, 2005.
[32] John Schwartz, As Jurors Turn to Web, Mistrials are Popping Up, The New York Times, Mar 18, 2009.
[33] Presumably, lay participants and junior judges can report improprieties to judicial officials. However, those officials' response would likely be itself secret and free from any public oversight.
[34] This failing also appears to rub against the Reform Council's expressed hopes for the system. The Reform Council argued that, “it is essential to ensure that the opinions of saibanin could influence the results of verdicts. In this connection … matters such as the manner in which trial hearings are conducted and the method of deciding the verdict are also relevant.” Reform Council, Recommendations, p 88. Nonetheless, the Act's strict secrecy makes opaque the method of deciding the verdict.
[35] Again, lay participants and junior judges may presumably report improprieties to judicial officials, but those officials' response would likely be itself secret and free from any public oversight. The safeguards in the system are inadequate.
[36] Reform Council, Recommendations, p 8.
[37] Reform Council, Recommendations, p 92.
[38] Reform Council, Recommendations, p 12.
[39] The essential nature of the values raised here has been recognized by Japan's Supreme Court in Repeta v. Japan: Judgment of the Supreme Court of Japan, Grand Bench, March 8, 1989, available in Law in Japan, vol. 22, p. 29 (Chafee trans.).
[40] The Juries Act, 2000, No. 53 (Vic.).
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