¹ As of May 21, 2011—the second birthday of Japan's lay judge system—2126 defendants had been tried by the new system, of which 2118 had been convicted on all charges. This is a conviction rate of 99.6 percent. Sankei Shimbun, “1man 1889nin ga Taiken: Muzai 8nin,” May 21, 2011, p.22. On the reasons for Japan's high conviction rates, see David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), ch.7.

² One lawyer in Osaka believes Judge Higuchi should not be singled out for special criticism because the problem of pro-prosecution judges is pervasive in Japan (author's interview). He is right about the general point—Japanese judges defer to prosecutors all too often—but in my view, the critical comments about Higuchi merit mention because many lawyers in Osaka seem to share this censorious assessment and because (as the quotation from Jeremy Bentham that opens this article suggests) judges must be held accountable one judge at a time.

³ Founded in 1992, the Miranda Association aims to protect the rights of criminal suspects and defendants, much as the U.S. Supreme Court's 1996 Miranda v. Arizona decision attempts to do. Attorneys in the Association employ three main strategies: they advise suspects to refuse to be interrogated; they advise suspects to refuse to sign any written statements (chosho) that are made during interrogation; and, when written statements have been made by police and prosecutors, they resist their introduction as evidence at trial. Japan's Miranda Association has had little success recruiting lawyers to participate in the organization or influencing lawyers to adopt these tactics (author's interviews with Takano Takashi, and David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.77-79).

⁴ Here are some of the phrases in the Supreme Court's guidelines for lay judges that were omitted on the whiteboard in Osaka: “ですから、検察官が有罪であることを証明できない場合には、無罪の判断を行うことになります…裁判では、不確かなことで人を処罰することは許され ません…逆に、常識に従って判断し、有罪とす ることについて疑問があるときは、無罪としな ければなりません” (link). Translation by the author: “Thus, when the prosecution cannot prove guilt, a judgment of not guilty must be rendered…In a trial, it is impermissible to punish a person who is not certainly guilty…Conversely, when there is doubt about guilt after making judgments based on common sense, the defendant must be acquitted.”

⁵ Jeff Kingston, “Justice on Trial: Japanese Prosecutors Under Fire,” The Asia-Pacific Journal, Vol. 9, Issue 10, No. 1, March 7, 2011.

⁶ Ibusuki Makoto, Higisha Torishirabe to Rokuga Seido: Torishirabe no Rokuga ga Nihon no Keiji Shiho o Kaeru. (Tokyo: Shojihomu, 2010).

⁷ Asahi Shimbun, “Kenji 26% ‘Shiji Sareta Keiken’: Jissai no Kyojutsu to Kotonaru Chosho no Sakusei,” March 11, 2011, p.38.

⁸ Daniel H. Foote, “Policymaking by the Japanese Judiciary in the Criminal Justice Field,” Hoshakaigaku, No.72 (2010), p.18.

⁹ Niben Frontier, “Kisha wa Ko Miru Saibainin Saiban,” March 2011, pp.21-34.

¹⁰ David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.71-85.

¹¹ Hirano Ryuichi. “Diagnosis of the Current Code of Criminal Procedure.” Law in Japan. Vol. 22 (1989), pp.129-142.

¹² The same survey found that 66 percent of lawyers had never demanded that a witness testify in court when prosecutors sought to rely on a written statement (chosho), and 75 percent had never requested a court order compelling disclosure of evidence.

¹³ For more analysis of the challenges faced by defense lawyers in Japan, see The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.71-85; “Early Returns from Japan's New Criminal Trials,” The Asia-Pacific Journal, vol. 36-3-09 (2009), pp.1-17; and “Capital Punishment without Capital Trials in Japan's Lay Judge System,” Asia Pacific Journal, Vol. 8, Issue 52 (2010), pp.1-38.

¹⁴ In some ways, the United States is a poor model for reform of criminal defense in Japan. See, for example, The Constitution Project, “Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel: Report of the National Right to Counsel Committee,” April 2009, pp.1-219, link. But the quality of American defense lawyering also varies from place to place. For a description of serious problems in Detroit's public defender system, see Ailsa Chang, “Not Enough Money or Time to Defend Detroit's Poor,” August 17, 2009. For a portrait of more aggressive and effective public defenders working in the South Bronx, see David Feige, Indefensible: One Lawyer's Journey Into the Inferno of American Justice (New York: Little, Brown, & Company, 2006).

¹⁵ Alan Dershowitz, The Best Defense (New York: Vintage, 1983).

¹⁶ Shinomiya Satoru, “Defying Experts' Predictions, Identifying Themselves as Sovereign: Citizens' Responses to Their Service as Lay Judges in Japan,” Social Science Japan, No. 43 (2010), p.13.

¹⁷ In addition to the lay judge system and miscarriages of justice, two other causes are encouraging recording reforms in Japan: the international movement towards recording (Japan is riding this wave, albeit less rapidly than South Korea, which has a similar criminal justice system), and the movement towards increased transparency in Japanese society. In this context, it is doubly disappointing that the Kensatsu Arikata Kento Kaigi did not recommend recording interrogations in their entirety, and that Minister of Justice Eda Satsuki has not imposed a meaningful recording requirement on prosecutors (though he has encouraged them to start “experimenting”). Police resistance to recording reforms is similarly stubborn. See Kensatsu Kento Kaigi, “Kensatsu no Saisei ni Mukete: Kensatsu no Arikata Kento Kaigi Teigen,” March 31, 2011.

¹⁸ In a national survey of 1444 prosecutors, 82 percent of them said “it has become more difficult to obtain statements from suspects and witnesses.” Tokyo Shimbun, “26% ga ‘Shiji Sareta’: Kyojutsu to Chigau Kenji Chosho Sakusei,” March 11, 2011, p.1.

¹⁹ Shinomiya Satoru, “Saibaninho wa Keiji Jitsumu no Genba ni Nani o Motarashite Iru ka,” Hogaku Semina, No.644 (2008), pp.1-3.

²⁰ Lay judge panels preside in about 3 percent of all criminal trials. The other 97 percent of criminal trials are heard by a single professional judge or a panel of three professional judges.

²¹ Prosecutors in Ismail's case have asked the Osaka High Court to do for them what judges in the Tokyo High Court did for prosecutors in the first lay judge acquittal: convict the defendant and sentence him to a long term of imprisonment. In a methamphetamine smuggling case in Tokyo, the Tokyo High Court imposed a sentence of 10 years on a defendant who had been acquitted by a lay judge panel in Chiba. See Sankei Shimbun, “Saibanin Saiban de Muzai no Otoko ni Gyakuten Yuzai: Zenmen Muzai no Haki wa Hajimete: Tokyo Kosai,” March 30, 2011. Some observers hope that this kind of judicial deference to prosecutors at the appellate level will not become the norm, but there is reason to worry. One day before the Chiba methamphetamine acquittal was reversed, a different panel of professional judges on the Tokyo High Court remanded a case to the Tokyo District Court for retrial. In this case, the defendant had been acquitted of arson by a lay judge panel in Tokyo. See Asahi Shimbun, “Kosai, Hajimete no Haki Sashimodoshi: Saibanin Saiban no Muzai Hanketsu,” March 30, 2011.

²² G. K. Chesterton, “The Twelve Men,” in Tremendous Trifles, 1909. Analysis of Chesterton's quotation also appears in David T. Johnson, “Early Returns from Japan's New Criminal Trials,” The Asia-Pacific Journal, Vol. 36-3-09, September 7, 2009.

²³ Mainichi Shimbun, “Kenji Ankeeto,” March 9, 2011, p.25.

²⁴ Alan Dershowitz, Rights from Wrongs: The Origins of Human Rights in the Experience of Injustice (Basic Books, 2005).

²⁵ Mainichi Shimbun, “Seido 2nen Jisshi Jokyo,” May 21, 2011, p.25. In Japan, the defense and the prosecution can appeal both sentence and verdict.