Japan’s New Criminal Jury Trial System: In Need of More Transparency, More Access, and More Time
Fordham International Law Journal, Vol. 33
79 Pages Posted: 7 Sep 2009 Last revised: 5 Jan 2015
Date Written: September 4, 2009
For over sixty years, meaningful public participation in criminal or civil trials has been a foreign concept in Japan. In August 2009, this drastically changed as Japan conducted its first trial involving lay judges. As part of its new “saiban-in seido” or quasi-jury trial system, Japan now conscripts registered voters to serve on mixed tribunals, comprised of professional and lay judges, which hear serious criminal cases. Citizen participation in criminal trials is one of many revolutionary legal reforms intended to transform Japan from a society with excessive regulatory control to a global model based on transparent, after-the fact review. Based on these changes, it is expected that Japanese citizens will be converted from governed objects to governing subjects. Citizen participation in Japanese criminal trials is specifically geared to increase common understanding of the judicial process, promote civic responsibility, and enhance the tools of democracy available to society. Reformists also hope that citizen participation will infuse sound common sense into the judicial process as well as ensure justice, due process of law, and prosecutorial accountability. However, many see the new quasi-jury system as an expensive exercise in futility. Without significant public debate, Japan has spent hundreds of millions of dollars preparing for a ground-breaking system that runs counter to Japanese tradition as well as faces considerable doubt and opposition among many members of society and the legal community. Notwithstanding, the new system has considerable potential to improve the criminal justice system and increase the public’s awareness of important social issues, including the recent rash of wrongful convictions based on involuntary confessions. It also stands as a powerful vehicle for potentially ensuring justice and solidifying the democratic processes fostered by citizen participation in government. Going forward, Japan’s new quasi-jury system will not only be closely scrutinized on a domestic scale, but it may also offer valuable lessons on an international scale to established and emerging democracies, both in its initial form and in subsequent iterations. In its initial form, the new quasi-jury trial system is imperfect and faces many challenging hurdles. To realize its full potential, the system needs to be fine-tuned in several respects. By statute, Japan has the opportunity to make adjustments to the quasi-jury system in three years. This paper takes an in-depth look at three important areas that require immediate attention and reform by 2012 at the latest. More specifically, for the quasi-jury system to achieve its stated goals of judicial transparency, public education, preservation of justice, and increased credibility in the criminal justice system, Japan needs to: (i) increase transparency by eliminating punitive measures against lay judges for exercising their freedom of speech to discuss criminal trials; (ii) improve access by opening the doors to the interrogation of suspects and defendants; and (iii) limit the active participation of victims or victims’ families to the sentencing phase of criminal proceedings. Unless these steps are taken, the effectiveness of the quasi-jury system will be significantly hampered. As such, this paper will analyze the above three issues as they affect the quasi-jury system and explore potential solutions that balance the interests and concerns of all parties.
Keywords: Japan, jury trial, saiban-in seido, criminal trials, criminal justice system, citizen participation
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