Japan’s New Citizen Judges: How Secrecy Imperils Judicial Reform (裁判員の守秘義務：裁判員制度にかくされた陥穽)

Abstract

The Act Concerning Participation of Lay Assessors in Criminal Trials was enacted by the Japanese parliament in 2004. Beginning in May 2009, mixed panels of professional judges and lay assessors have been deciding both guilt and sentence for major crimes in Japan’s new saiban-in or lay assessor system. This system, laudable for pursuing public understanding and reform in a judiciary long criticized for being distant and overly bureaucratized, contains a secrecy provision that could do as much harm as good.

While there are several areas of concern within the new regime that have garnered international attention, this paper focuses on the potential problems the secrecy provision poses for citizens obligated to participate as lay judges. This provision, which threatens to imprison or fine citizens who speak too freely about their service, makes reporting misconduct difficult and may 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. This paper offers an attractive model for Japan that addresses the issues with which Japan’s secrecy provision is seemingly concerned, that would protect the citizens called to serve as well as aid the success of the new saiban-in system in achieving better public understanding and confidence in Japan’s judiciary.

This article was co-authored with Virginia Tice, William S. Richardson School of Law class of 2009. The SSRN posting includes the article in English as well as Japanese translation (translation by Prof. Masaki Enomoto, Meijo University Law School, Nagoya, Japan). The Japanese translation was published in Japan in Quarterly Keiji-Bengo, No. 60, pp. 91-99, Winter 2009.

Keywords: Japan, Lay Assessor Act, Lay Judge, Jury Secrecy, saiban-in, Japanese Legal Reform