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2. Ibid, p 27.

3. Merryman, Jh The Civil Law Tradition (Stanford: Stanford University Press, 1969);Google Scholar David, R and Brierley, J Major Legal Systems of the World Today (London: Stevens, 1968)Google Scholar.

4. Dean, M Japanese Legal System (London: Cavendish Publishing, 2002)Google Scholar ch 2; Noda, Y ‘A Angelo (transl & ed)’ Introduction to Japanese Law (Tokyo: Tokyo University Press, 1976)Google Scholar.

5. Watson considered culture irrelevant to the possibility of a legal transplant and that a transplant would bring the recipient jurisdiction closer to the donor jurisdiction regardless of cultural differences. However, Watson's later work acknowledges the role culture plays in determining what happens to a transplanted rule. See Watson, A ‘Legal change, sources of law and legal culture’ (1983) 131 U Pennsylvania L Rev 1121 CrossRefGoogle Scholar; Watson, A Law Out of Context (Athens: University of Georgia Press, 2000)Google Scholar

6. Friedman, L Law and Society (Englewood Cliffs NJ: Prentice-Hall, 1977) p 76 Google Scholar.

7. Legrand, P ‘the impossibility of legal transplants’ (1997) Maastricht Journal of European and Comparative Law 111 CrossRefGoogle Scholar; Teubner, G ‘Legal irritants: good faith in British law or how unifying law ends up in new divergences’ (1998) 61 MLR 11 CrossRefGoogle Scholar. Watson's work continues to provoke discussion among socio-legal comparativisits as seen in Nelken, D and Feest, J (eds) Adapting Legal Cultures (Oxford: Hart Publishing, 2001)Google Scholar.

8. Takeyoshi Kawashima introduced the term ‘legal consciousness’ (ho-ishiki) as a cultural factor in explaining the way Japanese view the law and used it to explain, in particular, low levels of litigation in Japanese society. Kawashima, T ‘Dispute resolution in contemporary Japan’ in von Mehren, A (ed) Law in Japan: The Legal Order in a Changing Society (Cambridge: Harvard University Press, 1963)Google Scholar . However, he later expressed a preference for the French term mentalité which he felt more accurately reflected the socio-cultural aspect of his theory. See Miyazawa, S ‘Taking Kawashima seriously: a review of Japanese research on Japanese legal consciousness and disputing behaviour’ (1987) 21 Law and Society Review 219 CrossRefGoogle Scholar. What became the Kawashima orthodoxy was challenged, in particular by John Haley and Frank Upham who argued that, rather than legal culture, state structures and social forces could explain Japanese approaches to law: Haley, J ‘the myth of the reluctant litigant’ (1978) Journal of Japanese Studies 359 CrossRefGoogle Scholar; Haley, J ‘Sheathing the sword of justice in Japan: an essay on law without sanctions’ (1982) Journal of Japanese Studies 265 CrossRefGoogle Scholar; Upham, F Law and Social Change in Postwar Japan (Cambridge: Harvard University Press, 1987)Google Scholar.

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10. Palmer, above n 9; E Örücü‘Law as transposition’ (2002) ICLQ 205.

11. A Ogus ‘The contribution of economic analysis of law to legal transplants’ in Smits, above n 9; Ogus, ‘Competition between national legal systems: a contribution of economic analysis to comparative law’ (1999) ICLQ 405 CrossRefGoogle Scholar; Miller, J ‘a typology of legal transplants: using sociology, legal history and Argentine examples to explain the transplant process’ (2003) 51 Am J Comp Law 839 CrossRefGoogle Scholar. Miller identifies four types of legal transplants: (i) the Cost-Saving Transplant; (ii) the Externally-Dictated Transplant; (iii) the Entrepreneurial Transplant and (iv) the Legitimacy-Generating Transplant.

12. The law reforms which led to the reintroduction of jury trial in 2009 resulted from recommendations made by the Judicial Reform Council Recommendations of the Justice System Reform Council – For a Justice System to Support Japan in the 21^st Century (2001), available at http://www.kantei.go.jp/foreign/judiciary/2001/0612report.html (hereafter JRC Report).

13. Jury Law, Law no 50 of 1923.

14. Japan had been a closed country until the mid-nineteenth century Dean, above n 4. The reception of Western law in nineteenth and early twentieth century Japan adheres to the third class of hybrid countries which Ogus identifies in his analysis of legal transplants using economic law, namely a country which experienced industrial and commercial development relatively late and where rulers recognised the need to look elsewhere for more sophisticated legal input than the domestic legal system could provide. Ogus, above n 11.

15. K Takayanagi ‘A century of innovation: the development of Japanese law 1868–1961’ in von Mehren, above n 8.

16. Watson, above n 1, p 79.

17. Örücü, above n 10, p 212.

18. Japan joined the League of Nations in 1920 as one of the 42 Charter members and one of the four permanent members of the Council of the League. Until its withdrawal in 1933, following criticism of its occupation of parts of Manchuria, Japan was active in the humanitarian and judicial affairs activities of the League. In 1938 it severed all ties with the League. Burkman, Tw Japan and the League of Nations (Honolulu: University of Hawai'i Press, 2008)Google Scholar.

19. Örücü, above n 10, p 214.

20. Thaman, S ‘Europe's new jury systems: the cases of Spain and Russia’ (1999) 62 L & Contemporary Problems 233 CrossRefGoogle Scholar. Inga Markovits' work on law reform in Eastern Europe also offers insights into the Russian experience of transplanting a jury system and, arising out of this, she identifies five types of transplant: (i) self-executing reforms; (ii) potted transplants; (iii) novel culturally embedded transplants; (iv) hybrids and (v) ill-grounded transplants. Markovits, I ‘Exploring law reform – but will it travel?’ (2004) 37 Cornell Int'l L J 95 Google Scholar.

21. Dean, M ‘Trial by jury: a force for change in Japan’ (1995) ICLQ 379 CrossRefGoogle Scholar at 386.

22. Dobrovolskaia, A ‘the jury system in pre-war Japan: an annotated translation of the jury guidebook’ (2008) 9 Asian Pacific Law & Policy Journal 231 Google Scholar. In the period leading up to the passing of the 2004 Lay Judge System Law the government adopted a similar approach to educating the public including holding some 500 mock trials across the country which received widespread media coverage. Anderson, K and Ambler, L ‘the slow birth of Japan's quasi-jury system (Saiban-in Seido): interim report on the road to commencement’ (2006) 21 ZJapanR 55 Google Scholar at 68–78.

23. The Guidebook was published by the Japan Jury Association. Dobrovolskaia, above n 22, at 240.

24. Ibid, at 248.

25. Ibid, at 277–278.

26. Watson, above n 1, p 79. Watson's later work acknowledges the role culture plays in determining what happens to a transplanted rule, above n 5. Nevertheless, the idea of grafting still challenges his theory.

27. Jury Law 1923 Arts 2, 3 and 6.

28. July Law 1923 Art 103.

29. Dobrovolskaia, above n 22, at 244.

30. Hirano, R ‘Professional judges and lay judges’ (1957) Horitsu Jiho 435 Google Scholar in Tanaka, H (ed) The Japanese Legal System: Introductory Cases and Materials (Tokyo: Tokyo University of Tokyo Press, 1976)Google Scholar.

31. 484 jury trials were held over the 15 years of its operation. In 1929 there were 143 jury trials but by 1942 the figure had fallen to two. M Okahara ‘On the act to suspend the operation of the jury’ in Tanaka, above n 30, 482 fn (a); M Urabe ‘A study on trial by jury in Japan’ in Tanaka, above n 30, pp 483, 485–488.

32. Gessner, V ‘Global legal interaction and legal cultures’ (1994) Ratio Juris 132 CrossRefGoogle Scholar.

33. Oppler, Ac Legal Reforms in Occupied Japan: A Participant Looks Back (Princeton: Princeton University Press, 1976) pp 146–147 Google Scholar. Oppler comments ‘[we] did not feel that we ought to adopt, against the opposition of the Japanese, institutions historically grown, after all, on a very different soil’, p 147. Indeed, he is critical of the attitude he sometimes met ‘that what is all right for Ohio, Florida or California must work well in Japan’ and found it ‘particularly unsound’, p 37. Oppler had been a lawyer and judge in Prussia and moved to America before the Second World War. His personal and professional experiences gave him particular insights into law reform and he was sensitive to the role he played and to the charge of imposing concepts and institutions on another nation, pp 36–38. Nevertheless, balanced against this is the fact that the Japanese position was often resistant to the proposed law reforms because they were externally dictated and ‘imposed’ by an occupying force. Furthermore, there was an historical preference for professional judges, above n 30.

34. Ogus, above n 11 and n 14; this is the second of Ogus' three categories.

35. Chiba, M Legal Pluralism: Towards a General Theory Through Japanese Legal Culture (Tokyo: Tokai University Press, 1989)Google Scholar. Chiba claims that the immigration of people from the Korean peninsular in the third century AD was ‘probably the first transplantation of foreign law to Japan’. Chiba, M Legal Cultures in Human Society (Tokyo: Shinzansha International, 2002) pp 20 21 Google Scholar.

36. Oppler, above n 33, pp 309–315.

37. Hook, G and Siddle, R (eds) Japan & Okinawa: Structure and Subjectivity (London: Routledge London, 2003)CrossRefGoogle Scholar.

38. Dobrovolskaia, A ‘an all-laymen jury system instead of the lay assessor system for Japan? Anglo-American style jury trials in Okinawa under Us occupation’ (2007) 24 ZJapanR 57 Google Scholar, Appendix 6.

39. Ibid, at 68.

40. Berkowitz, D, Pistor, K and Richard, J-F ‘Economic development, legality and transplant effect’ (2003) 47 European Economic Review 165 CrossRefGoogle Scholar.

41. Dobrovolskaia, above n 38, at 69.

42. Japan Federation of Bar Associations Jury Trials in Okinawa: an Investigative Report on the Jury System in Pre-Reversion Okinawa (Tokyo, 1992).

43. Dobrovolskaia, above n 38, at 74.

44. The cultural barrier argument grew out of the work of Kawashima which argues that Japanese citizens had a cultural preference for informal mediation and alternative dispute resolution. This was challenged by Haley who argued that low litigation rates had very little to do with cultural values and ideology but were the result of ‘institutional incapacity’ which included insufficient courts and lawyers. The traditionalist view of Japanese legal culture was relied upon by the Japanese Supreme Court and the Ministry of Justice for many years to argue against lay participation in the criminal justice system. T Kawashima ‘Dispute resolution in contemporary Japan’ in von Mehren, above n 8; Haley, J ‘the myth of the reluctant litigant’ (1978) 4 J Japanese Stud 359 CrossRefGoogle Scholar; Sato, I ‘Survey article: judicial reform in Japan in the 1990s’ (2002) 5 Soc Sci Japan J 71 CrossRefGoogle Scholar.

45. Prosecution Review Commission Law, Law No 147 of 1948.

46. Oppler, above n 33, pp 105, 227 and 248. Meyers, H ‘the Japanese inquest of prosecution’ (1950) 64 Harv L Rev 279 CrossRefGoogle Scholar.

47. Foote, D ‘the benevolent paternalism of Japanese criminal justice’ (1992) 80 Calif L Rev 317 CrossRefGoogle Scholar.

48. Japan does not confer citizenship on a foreign person born in the country; therefore permanent residents and others without citizenship do not have the right to vote and are thereby excluded from the electoral register. Thus, the definition of those eligible under the under Public Election Law No 100 of 1950 means that permanent residents in Japan, including the substantial Korean and Chinese minorities who are descendants of earlier immigration, are not eligible to participate in the saiban-in system.

49. Prosecution Review Commission Law, Art 2(3).

50. Art 27.

51. Art 40.

52. West, M ‘Prosecutorial review commissions: Japan's answer to the problem of prosecutorial discretion’ (1992) 92 Colum L Rev 684 CrossRefGoogle Scholar; Dean, M ‘Prosecution review: a Japanese solution to the Lawrence's dilemma’ (1999) 98 The Criminal Lawyer 5 Google Scholar; Fukurai, H ‘the rebirth of Japan's petit quasi-jury and grand jury systems: a cross-national analysis of legal consciousness and lay participatory experience in Japan and the Us’ (2007) 40 Cornell Int'l L J 315 Google Scholar.

53. ‘General situation of criminal cases in 2000’, available at http://www.kantei.go.jp/jp/singi/sihou.kentoukai.saibanin/dai2/03.pdf. See West, above n 40, for comparable figures during the 1980s.

54. Oppler, above n 33, p 105; West, above n 52; Meyers, H ‘the inquest of prosecution’ (1950) Harvard L Rev 279 CrossRefGoogle Scholar.

55. In 2003 the conviction rate in the Summary Courts was 99.85% and in the District Courts it was 99.91%. D Yasuda, ‘One aspect of criminal justice in Japan: confession’, available at http://www.law.usyd.edu.au/anjel/documents.23Feb2005Conf/Yasuda2005_OneAspectOfCriminalJusticeInJapan.pdf.

56. Oppler, above n 33, pp 227 and 248.

57. Fukurai, above n 52, at 333–344.

58. Arts 4 and 14.

59. JRC Report, above n 12, ch IV.

60. Law for Justice System Reform Promotion, Law no 119, 2001. The Investigation Committee of the Office for the Promotion of Justice System.

61. Law No 62 of 2004. Haley, J Authority Without Power: Law and the Japanese Paradox (Oxford: OUP, 1991)Google Scholar ch 6; Foote, D ‘Prosecutorial discretion: a response’ (1986) Pac Bas L J 99 Google Scholar.

62. Johnson, D The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford: OUP, 2002)Google Scholar; Foote, above n 47.

63. Haley, J The Spirit of Japanese Law (Athens: University of Georgia Press, 1998) pp 64–69 Google Scholar.

64. Johnson, above n 62, p 279.

65. Oppler, above n 33, p 105; Fukurai, above n 52. This author proposes the idea of an ‘implant’ because, whereas a graft is added on to an existing body of law, an implant is inserted in a new corpus of reformed law and, in this case, transplanted as part of the post-war Occupation reform of criminal law.

66. Watson, above n 1.

67. Legrand, above n 7; Örücü, above n 10, pp 207–208.

68. Watson, above n 1; Örücü, above n 10.

69. Law for the Establishment of the Judicial Reform Council, Law No 68 of 1999.

70. JRC Report, above n 12.

71. Law for Justice System Reform Promotion, Law No 119, 2001. The Investigation Committee for the Study of Lay Assessor/Penal Matters.

72. The Law Concerning Participation of Lay Assessors Participation in Criminal Trials (Saiban-in no sanka suru keiji saiban ni kan suru horitsu) Law No 63 of 2004 (hereinafter referred to as the Lay Judge System Law). For a full translation of the Law see: K Anderson and Saint, E ‘Japan's quasi-jury (Saiban-in) law: an annotated translation of the Act concerning participation of law assessors in criminal trials’ (2005) 6 Asian-Pacific Law & Policy Journal 233 Google Scholar.

73. Vidmar , N (ed) World Jury Systems (New York: OUP, 2000)CrossRefGoogle Scholar; Delmas-Marty, M and Spencer, J European Criminal Procedures (Cambridge: CUP, 2005)Google Scholar; Vogler, R and Huber, B (eds) Criminal Procedure in Europe (Berlin: Dunker & Humblot, 2005)Google Scholar.

74. Art 2 Lay Judges Law.

75. At least one professional judge and one lay judge must consent to the majority. Art 67 Lay Judges Law.

76. Art 2(1)(i)and (ii).

77. Vidmar; Delmas-Marty and Spencer; Vogler and Huber, above n 73; JRC Report, above n 12, ch IV.

78. Dean, above n 21; Haley, J ‘Judicial independence in Japan revisited’ (1995) 25 Law in Japan 1 Google Scholar; Kiss, L ‘Reviving the criminal jury in Japan’ (1999) 62 Law & Contemporary Problems 261 CrossRefGoogle Scholar; Lempert, R ‘a jury for Japan’ (1992) 40 Am J Comp L 37 CrossRefGoogle Scholar; Foote, D ‘from Japan's death row to freedom’ (1992) 1 Pac Rim L & Pol'y J 11 Google Scholar.

79. JRC Report, above n 12, ch IV.

80. Arts 13 and 20–23.

81. The restrictions on citizenship mean that permanent residents from the large minority Korean and Chinese communities, as well as other permanent residents, are not eligible for jury service.

82. Arts 14 and 15. Japan has a substantial number of so-called quasi lawyers consisting mainly of judicial scriveners, patent and tax attorneys together with paralegals working in companies. Dean, above n 4, pp 269–271 and 309.

83. Art 16(i)–(vi).

84. Art 18.

85. Art 16(vii).

86. Art 41.

87. Delmas-Marty and Spencer; Vogler and Huber; Vidmar, above n 73.

88. Anderson, K and Nolan, M ‘Lay participation in the Japanese justice system: a few preliminary thoughts regarding the lay assessor system from domestic historical and international psychological perspective’ (2004) Vand J Transnat'l L 935 Google Scholar at 988.

89. Lawson, C and Thornley, S ‘Translation: perceptions of the current state of the Japanese legal system’: Interview with Koji Sato, Chairman of Japan's Judicial Reform Council’ (2002) 4 Austl J Asia L 76 Google Scholar at 80.

90. Anderson and Nolan, above n 88, at 986–989. A lay juror in the first saiban-in trial gave a press conference expressing his reservations upon being summoned but indicating positive views of his experience. Yomiuri Shimbun ‘Lay judge felt burden of duty and says jury service made him realize crime, not criminal, to be shunned’Yomiuri Daily Tokyo 10 August 2009.

91. Art 3(2) and (3).

92. The early indications are that the new Minister of Justice is in favour of the saiban-in system. Kyodo News ‘Chiba urges death penalty debate’Japan Times Tokyo 18 September 2009.

93. Haley, J ‘Judicial independence in Japan revisited’ (1995) 25 L in Japan 1 Google Scholar.

94. This provision reflects similar safeguards provided in the Criminal Justice Act 2003 which allows for non-jury trial in cases of jury tampering (ss 44 and 46). Concern to protect juries in Northern Ireland led to the introduction of non-jury trial in the context of terrorism cases but which extended to cases involving organised crime. Jackson, J and Doran, S Judge Without Jury: Diplock Trials in the Adversary System (Oxford: OUP Clarendon Press, 1995)Google Scholar . The so-called Diplock Courts eventually ceased operation in 2007 but the protection of juries and the functioning of jury trials in the context of terrorist cases are of continuing concern. Donohue, L ‘Terrorism and trial by jury: the vices and virtues of British and American criminal law’ (2007) 59 Stan L Rev 1321 Google Scholar.

95. Arts 59, 56 and 58.

96. Art 66(5).

97. One study of the German mixed jury system concluded that ‘the influence of lay judges on court decisions of guilt and punishment is minimal’. Herrmann, J ‘Models for reform of the criminal trial in Eastern Europe: a comparative perspective’ (1966) St Louis-Warsaw Transatlantic L J 127 Google Scholar at 133.

98. Art 2.

99. Art 67(2).

100. Dean, above n 4, p 372.

101. JRC Final Report, above n 12, ch IV.

102. Feeley, M and Miyazawa, S (eds) The Japanese Adversary System in Context: Controversies and Comparisons (Basingstoke: Palgrave Macmillan, 2002)Google Scholar.

103. JRC Report, above n 12, ch IV.

104. Örücü, above n 10 and 67. In the context of the transplantation of a single rule to Japanese company law, Kanda and Milhaupt use the concept of ‘fit’ to evaluate the conditions for the success or failure of a legal transplant. They accept that it is ‘virtually impossible’ to discuss the success or failure of wholesale transplants of entire bodies of law and propose that each legal rule or institution must be examined individually. They argue that the ‘fit’ between an imported rule and the host jurisdiction is crucial to the success of a transplant. H Kanda and C Milhaupt ‘Re-examining legal transplants: the director's fiduciary duty in Japanese corporate law’ (2003) 51 Am J Comp L 887 at 901. Kanda and Milhaupt's concept will be a useful analytical tool when evaluating the saiban-in system after it has been in operation for a number of years, particularly in the light of it already being recognised that adjustments may need to be made. JRC Report, above n 12, ch IV; Interview with Koji Sato, Chairman of Japan's Judicial Reform Council, above n 89.

105. Dean, above n 4, ch 5; Miyazawa, S ‘Reform in Japanese legal education: the politics of judicial reform in Japan: the rules of law at last?’ (2001) 2 Asian-Pacific Law & Policy Journal 89 Google Scholar.

106. In 2001 there were 18,246 lawyers in a country with a population of 126 million. In addition there were 2294 Public Prosecutors and 3049 judges. Dean, above n 4, p 267. The aim is to have 50,000 legal professionals by 2018. JRC Report, above n 12, ch III, Part 1.

107. Johnson, above n 62; Haley, above n 61; Ishimatsu, T ‘Are criminal defendants in Japan truly receiving trials by judges’ (1989) 22 L in Japan 143 Google Scholar; Maslen, S ‘Japan and the rule of law’ (1998) 16 UCLA Pac Basin L J 281 Google Scholar.

108. Hirano, R ‘Diagnosis of the current criminal procedure’ (1989) 22 L in Japan 129 Google Scholar at 129.

109. Hodgson, J French Criminal Justice: A Comparative Account of Investigation and Prosecution of Crime in France (Oxford: Hart Publishing, 2005)Google Scholar.

110. Ishimatsu, above n 107.

111. The move from the traditional inquisitorial system to one which is more adversarial is an identifiable trend in Europe which reflects changing attitudes about the relationship of the individual to government and society. G van Kessel ‘European trends towards adversary styles in criminal procedure and evidence’ in Feeley and Miyazawa, above n 102. This is particularly so in France where in January 2009 the President announced plans to abolish the investigating magistrate (juge d'instuction) in order to bring the French criminal justice system in line with the Anglo-American system. J Lichfield ‘Sarkozy goes to war with Napoleon's legal legacy’The Independent London, 7 January 2009. The Committee set up by the President to consider reform of the criminal justice system was chaired by a former senior judge, Philippe Léger, and has recommended the abolition of the investigating magistrate. Following extensive consultation the reform process will culminate with an overhaul of the Penal Code and the Code of Criminal Procedure. ‘Mis en place par Nicholas Sarkozy pour réfléchir sur la réforme de la procédure pénal, la comité Léger a rendu ses positions. Il préconise notamment la suppression du juge d'instruction, une mesure déjà annoncée en janvier par le chef de l'Etat’. La Tribune Paris, 1 September 2009.

112. Code of Criminal Procedure Art 292–2. The Law on Crime Victims was passed in 2004 Law no 161 of 2004.

113. Arts 58 and 59 of the Lay Judge System Law.

114. Foote, above n 47.

115. Johnson, above n 62.

116. D Johnson ‘Justice system reform in Japan; where are the police and why does it matter’, available at http://www.law.usyd.edu.au/anjel/documents/ResearchPublications/Johnson2004_JusticeSystemReform.pdf 7. Police coercion is facilitated by the absence of defence lawyers during questioning and no provision for police interviews to be recorded. A Murayama ‘The role of the defence lawyer in the Japanese criminal process’ in Feeley and Miyazawa (eds), above n 102; for its part the JRC only proposed that there should be written records of interviews. Art 38 Constitution of Japan.

117. Art 37(3) of the Constitution states that ‘At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State’.

118. Murayama, above n 116; T Takano ‘The Miranda experience in Japan’ in Feeley and Miyazawa (eds), above n 102.

119. The new Chairman of the National Public Safety Commission has indicated a willingness to move towards introducing the tape-recording of police interviews. Kyodo News ‘Crime tools backed’Japan Times Tokyo, 18 September 2009.

120. Miyazawa, above n 8; Maxeinerand, J and Yamanaka, K ‘the new Japanese law schools: putting the professional into legal education’ (2004) 13 Pac Rim L & Pol'y J 303 Google Scholar. Jackson and Doran's research into both jury and non-jury trials in the Northern Ireland Diplock courts concluded that counsel clearly directed different arguments towards judges and juries, although there was no marked difference in the way they chose to present the evidence, above n 94, p 289. This suggests that legal education and training in Japan will in future need to take account of the need to ensure lawyers develop new advocacy skills attuned to the requirements of the new saiban-in trial procedure.

121. Murayama, above n 116.

122. Johnson, D ‘Japan's secretive death penalty policy: contours, origins, justifications and meanings’ (2006) 7 Asian-Pacific Law & Policy Journal 62 Google Scholar.

123. Schmidt, P Capital Punishment in Japan (Leiden: Brill, 2002)Google Scholar.

124. A v Japan 2 Keishu 3 191 (Sup Ct 1948); Schmidt, above n 123, pp 91 and 99.

125. A former Supreme Court judge has spoken of opposition to the death penalty, while at the same time acknowledging that it remains on the statute books and therefore impossible to avoid when requested by the prosecution. Dando, S ‘towards the abolition of the death penalty’ (1996) 72 Ind L J 7 Google Scholar.

126. Anderson and Nolan, above n 88, at 963–964; Maruta, T ‘the criminal jury system in imperial Japan and the contemporary argument for its reintroduction’ (2001) 72 Rev Int'l Droit Penal 215 Google Scholar at 216.

127. In her first news conference after the elections, the newly appointed Minister of Justice indicated that there now needs to be a wide-ranging public debate on the possible abolition of the death penalty, Japan Times, above n 92.

128. Örücü, above n 10; Ogus, above n 11; Miller, above n 11; Kanda and Milhaupt, above n 104.

129. The first jury trial took place in August 2009. The defendant was convicted of murder and sentenced to 15 years imprisonment. Kyodo News ‘First lay judges hand killer 15-year term’Japan Times Tokyo, 7 August 2009; S Kamiya ‘First lay judge trial kicks off in Tokyo’Japan Times Tokyo, 4 August 2009.