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Published online by Cambridge University Press: 16 April 2015
This article considers the reactions in Japan to the newly introduced quasi-jury system. It illustrates how first-hand experience with jury justice has transformed Japan from a country hostile to that institution to one where it is widely endorsed. This finding undermines the popular notion that Japan's legal culture is incongruous with this democratic institution, and thus augurs well for analogous transitions being made in other East Asian countries with legal traditions similar to that of Japan. Furthermore, it underlines the reasons why those countries in the West that are letting jury trial erode should perhaps think twice about doing so.
1 Note that, throughout this article, I will use the terms ‘jury’ and ‘jury justice’ to refer not only to the systems comprised of exclusively lay judge panels, but also to those of mixed tribunals.
2 Act No. 118 of 1991, amending Section 92(1) of the Magistrates' Courts Act No. 32 of 1944.
3 For the cases of Russia and Spain respectively, see Zakon Rossiyskoy Federatsii o vnesenii izmeneniy i dopolneniy v Zakon RSFSR o sudoustroystve RSFSR, Ugolovno-protsessualnyy kodeks RS-FSR, Ugolovnyy kodeks RSFSR I Kodeks RSFSR ob administrativnykh pravonarusheniiakh [Amendment to the Law of the Russian Federation regarding the structure of the courts, 1993], and Ley Orgánica 5/1995, de 22 de mayo, del Tribunal del Jurado [The Organic Law of 22 May 1995 concerning Jury Tribunals]Google Scholar.
4 Here, East Asia is taken to mean Eastern Asia (China, Hong Kong, Macao, Democratic People's Republic of Korea, Japan, Mongolia, Republic of Korea) and Southeastern Asia (Brunei Darussalam, Cambodia, Indonesia, Lao People's Democratic Republic, Malaysia, Myanmar, Philippines, Singapore, Thailand, Timor-Leste, Viet Nam), as per the UN geographical classification scheme. See: unstats.un.org/unsd/methods/m49/m49regin.htm.
5 Kuhnin eui hyeongsachaepan chamyeo e kwanhan beopryul [Act for Civil Participation in Criminal Trials], Law No. 8295 of 1 June 2007.
6 Saiban-in no sanka suru keiji saiban ni kan suru hōritsu [Law Concerning the Participation of Lay Judges in Criminal Trials] of 28 May 2004. For an English translation of this law see Anderson, K., and Saint, E., ‘Japan's Quasi-Jury (Saiban'in) Law: An Annotated Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials’ (2005) 6 Asian-Pacific Law & Policy Journal 1, 233 Google Scholar.
7 All are bomb-related terrorism cases.
8 The latest such official recommendation was issued only a few months ago (Justice Ministry's VictimCommissioner, Louise Casey, 3 November 2010). This latest suggestion was that 30 million pounds a year could be saved if the roughly 70,000 Crown Court annual cases of theft in which the amount is less than 5,000 pounds are heard by magistrates' courts instead ofa full jury.
9 Criminal Justice Act 2003 (s.44). This legislation has allowed the first-ever Crown Court trial to be held without a jury.
10 In Australia, for example, calls for abolition of or restriction on the application of the jury have been made on the grounds that they lack accountability and are deficient in handling complex cases (see comments made by leading barrister McCusker, Malcolm QC in ‘QC's verdict: abolish juries forjudge trials’, The Australian, 9 October 2009 Google Scholar, and Tasmania's, Attorney-General and former premier Bartlett, David, The Mercury, 23 February 2011)Google Scholar. Similarly, in New Zealand, the government announced a bill that would lower the threshold for the availability of jury trials so that jury is reserved only ‘for the most serious and complex cases’, listing amongst the benefits savings of court time and costs (Criminal Procedure (Reform and Modernisation) Bill; see also press release by Justice Minister Simon Power on 15 November 2010). As for the United States, a discussion of the pressures on the jury there is contained in Lempert, R., ‘The Internationalization of Lay Legal Decision-Making: Jury Resurgence and Jury Research’ (2007) 40 Cornell International Law Journal, 477 Google Scholar.
11 To name a few: The Jury in the Twenty-First Century: An Interdisciplinary Conference, New York, 2001 Google Scholar; The Rising Tide: Citizen Participation in Leal Decision Making: A Cross-Cultural Perspective, Cornell, 2007 Google Scholar; The Resurgence of Lay Adjudicatory Systems, Hong Kong, 2010 Google Scholar; and Jury Research Symposium 2010, Glasgow, 2010 Google Scholar.
12 Anderson, K., and Nolan, M., ‘Lay Participation inthe Japanese Justice System: A Few Preliminary Thoughts regarding the Lay Assessor System (saiban-in seido) from Domestic Historical and International Psychological Perspectives’ (2004) 37 Vanderbilt Journal of Transnational Law 935 Google Scholar; Maruta, T., ‘Prospects for Citizen Participation in Criminal Trials in Japan’ (Heibonsha, Tokyo, 2004)Google Scholar; Fukurai, H., ‘The Rebirth of Japan's Petit Quasi-Jury and Grand Jury Systems’ (2007) 40 Cornell International Law Journal 315 Google Scholar; Wilson, M., ‘The Dawn of Criminal Jury Trials in Japan’ (2007) 24 Wisconsin International Law Journal 835 Google Scholar; Soldwedel, A., ‘Testing Japan's Convictions: The Lay Judge System and the Rights of Criminal Defendants’ (2008), 41 Vanderbilt Journal of Transnational Law 1417 Google Scholar; Weber, I., ‘The New Japanese Jury System: Empowering the Public, Preserving Continental Justice’ (2009) 4 East Asia Law Review 125 Google Scholar.
13 Corey, Z., and Hans, V., ‘Japan's New Lay-Judge System: Deliberative Democracy in Action?’ (2010) 12 Asian-Pacific Law & Policy Journal 11 Google Scholar; Ibusuki, M., ‘ “Quo Vadis?”: First Year Inspection to Japanese Mixed Jury Trial’ (2010) 12 Asian-Pacific Law & Policy Journal 1 Google Scholar.
14 More detailed accounts of the Japanese legal system's historical development could be found in, for example: Dean, M., Japanese Legal System (2002), London: Routledge Google Scholar; Röhl, W. (Ed.), History of Law in Japan since 1868 (2005), Boston: Brill Google Scholar.
15 These are the so-called bugyō, the most famous historical example of whic is Ōoka Tadasuke, also known as Ōoka Echizen.
16 Ishii, R., Japanese Legislation in the Meiji Era (1958), Tokyo: Kasai Publishing & Printing Co Google Scholar.
17 Ikeda, M., ‘French legal advisor in Meiji Japan (1873-1895): Gustave Émile Boissonade de Fontarabie’ (1996) Ph.D. thesis, University of Hawaii Google Scholar.
18 Dobrovolskaia, A., ‘Japan's Past Experiences with the Institution of Jury Service’ (2010) 12 Asia-Pacific Law & Policy Journal Google Scholar.
19 Full title: ‘The Act Concerning the Suspension of the Jury Act [Baishin hō no teishi ni kan suru hōritsu]’, Law No. 88 of 1943.
20 Dean, M., ‘Trialby Jury: A Force for Changein Japan‘ (1995) 44 International and Comparative Law Quarterly 2, 379 CrossRefGoogle Scholar.
21 Maruta, T., ‘The Criminal Jury System in Imperial Japan and the Contemporary Argument for its Introduction’ (2001) 72 International Review of Penal Law 215 Google Scholar.
22 Oppler, A., Legal reform in occupied Japan: Aparticipant looks back (1976) Princeton: Princeton University Press Google Scholar.
23 Such was the response towards the question of why the system was introduced of three judges, two lawyers and one prosecutor interviewed.
24 ShihōSeido Kaikaku Shingikai [The Justice System Reform Council], established through Law No. 69 of 1999, Art. 2.
25 For a more detailed account of these particular developments, see Foote, D., ‘Introduction and Overview: Japanese Law at a Turning Point’, in Foote, D., (Ed.), Law in Japan: A Turning Point (2007), Seattle: University of Washington Press Google Scholar.
26 Interview with staff member of the Tokyo branch of the Japan Legal Support Centre (Nihon Shihoō Shien Sentā), 13 December 2009.
27 Representatives ofwhich were calling for as many as 11 lay judges.
28 These figures are those used in cases where the defence disputes the facts of the indictment, while in undisputed cases there are only four jurors and one judge.
29 A vivid documentation of the way in which both the Supreme Court and the Ministry of Justice tried desperately to prevent the introduction of a lay participation judicial system could be found in Maruta, T., Saiban-in Seido [The Quasi-jury System] (2004) Tokyo: Heibonsha Shinsho.
30 Whilst these figures are high, perhaps even staggeringly so for those encountering them for the first time, it would be a misrepresentation to omit to mention that a body of scholarship on this topic has suggested that these statistics, when considered in the context of the entire system of criminal justice, make the Japanese reality with regards to the percentage of criminal cases which result in conviction not so different from that of many other countries. In particular, the argument has been made that before reaching the court room, criminal cases in Japan have already once undergone a round of rigid screening by prosecutors, and it is at this stage that a great number of cases are dropped. (See, for example: Ramseyer, J. and Rasmusen, E., ‘Why Is the Japanese Conviction Rate So High?’ 2001, 30 Journal of Legal Studies 53 CrossRefGoogle Scholar; Johnson, D., ‘The Japanese Way of Justice: Prosecuting Crime in Japan’, 2002, New York: Oxford University Press.)Google Scholar
31 Kōdansha, 2006
32 Shinchōsha, 2008.
33 For more information on their activities see: no-saiban-in.org.
34 See ‘Lay judge conviction rate 99.8% so far’, Japan Times (online), 22 May 2011 Google Scholar.
35 Interview with Yoshio Urushibara, New Komeito, 11 December 2009.
36 See supra note 13, Ibusuki.
37 ‘Saiban-in nado keikensha ni tai-suru anketo: Chōsa kekka (Heisei 21 Nen-do) [Questionnaire of the Individuals with Experience as Jurors, etc.: Report of the Results (The Year 2009)]’, issued by the Supreme Court, March 2010.
38 ‘Saiban-in nado keikensha ni tai-suru ankēto: Choōsa kekka (Heisei 22 Nen-do) [Questionnaire of the Individuals with Experience as Jurors, etc.: Report of the Results (The Year 2010)]’, issued by the Supreme Court, March 2011.
39 70.9% of respondents in 2009 and 63.1% in 2010 expressed this view, whilst only 4.0% and 7.1%, respectively, thought it had been difficult.
40 83.1% of respondents in 2009 and 77.3% in 2010 agreed with this statement, with only 0.8% and 1.6% instead reporting they had found it difficult.
41 75.8% of respondents in 2009 and 71.4% in 2010 were of this opinion, with only 5.9% and 7.1%, respectively, expressing the opposite view.
42 Interview with a juror, Tokyo, 8 December 2009.
43 By contrast, the percentage of those whose awareness dropped for the two years specified was only 1.1% and 1.6%. ‘Saiban-in no unei ni kan suru ishiki chōsa [Survey on the awareness regarding the operation of the quasi-jury system]’, Supreme Court, March 2011.
44 ‘Lay judges relieved case over but enthusiastic about experience’, Japan Times (online), 7 August 2009 Google Scholar.
45 Around seven years on the average.
46 Personal communication with a judge, 3 January 2010.
47 Personal communication with a judge, 3 January 2010. Furthermore, similar views were expressed by two other judges from the TokyoDistrict Court, interview, 30 November 2009.
48 ‘Recommendations of the Justice System Reform Council – For a Justice System to Support Japan in the 21st Century’, 12 June 2001.
49 Hirano, R., ‘Diagnosis of the Current Code of Criminal Procedure’ 22 Law in Japan 129 (Foote, D. trans., 1989)Google Scholar.
50 ‘Year one of lay judge system: all convicted’, Japan Times, 21 May 2010 Google Scholar.
51 74.5% of the 2,010 respondents in 2009, and 63.0% of the 2,013 respondents in 2010, said that the quasi-jury system has made it easier for the public sentiment to be reflected in the judgments, whilst only 5.8% and 5.6% disagreed with that statement in the two respective years. ‘Saiban-in no unei ni kan suru ishiki chōsa [Survey on the awareness regarding the operation of the quasi-jury system]’, Supreme Court, March 2011.
52 Interview with a senior prosecutor from the Supreme Prosecutor's Office in charge of quasi-jury trials, Tokyo, 27 January 2010.
53 Supra note 50.
54 This is an interpretation of the Constitution, as there is no clause in it explicitly stating that trials cannot be adjudicated by laymen. Even the most vociferous critics of the lay assessor system (such as, for example, Kaoru Inoue), have themselves been attacked, for not being able to clearly explain how exactly a lay assessor system violates the Constitution.
55 Perhaps the most famous article arguing this point is: supra note 49. Another important article treating the issue of the prominence of confessions in Japan is: Foote, D., ‘Confessions and the Right to Silence in Japan’ (1991) 21 Georgia Journal of International and Comparative Law 415 Google Scholar.
56 Interview, Tokyo, 2 December 2009.
57 This is a system of remand detention whereby the police authorities detain suspects for a total of 23 days in their cells, as opposed to facilities that are independent of the investigation, such as the detention centres (kōchisho) at the Ministry of Justice.
58 Formerly judge and director of the Okayama Branch of the Hiroshima High Court.
59 ‘Saiban-in kara shigeki henka no kizashi [A sign of change stimulated by the lay judges]’, Asahi Shimbun, 16 December 2010.
60 Interview, Tokyo, 20 November 2009.
61 See e.g., Shigeru, M., ‘ Saibain-in no shuhi gimu [The obligation forsecrecy of the lay judges]’, Yomiuri Shimbun, 8 October 2009 Google Scholar.
62 This is the so-called kōhan zen seiri tetsuzuki (‘procedure for arrangement prior to the trial’), introduced in 2005 in anticipation of the quasi-jury system as an amendment to the Code of Criminal Procedure, Article 316, Chapter 32, paragraphs 1 and 2.
63 For an introduction to the debates in this area, see Davis, M., ‘The political economy and culture of human rights in East Asia’ in Joseph, S. and McBeth, A. (Eds.), Research handbook on international human rights law (2010), Cheltenham: Edward Elgar Publishing Google Scholar.
64 Early discussions regarding this system can be found in, for example: Han, I., ‘Hangukui baes-imwonjaepan’, [Criminal Jury Trials in South Korea: Issues and Initial Experiments] (2009) 50 Seouldaehakgyo Beophak [Seoul Law Journal] 681 Google Scholar. Lee, J., ‘Korean Jury Trial: Has the New System Brought About Changes?’ (2010) 12 Asian-Pacific Law & Policy Journal 58 Google Scholar.
65 Chieh, K., ‘Citizen Involvement in Taiwanese Criminal Procedure’ (2007), National Cheng Kung University (Master's Thesis)Google Scholar. For more up to date developments, see ‘Taiwans quasi-jury system gets review council OK’, Taiwan Embassy press release, 27 July 2011, and also ‘Taiwan s quasi-jury system inches toward balancing judges power’, United Daily News, 1 August 2011.
66 Munger, F., ‘Constitutional Reform, Legal Consciousness, and Citizen Participation in Thailand’ (2007) 40 Cornell International Law Journal 455 Google Scholar.