Juries in Japan
Encyclopedia
Lay judges in Japan were first introduced to in 1923, led by Prime Minister Kato Tomosaburo
. Although the system generated relatively high acquittal rates, it was rarely used, in part because it required defendants to give up their rights to appeal of the factual determinations made. The system lapsed by the end of World War II
. In 2009, as a part of a larger judicial reform project, laws came into force to introduce citizen participation in certain criminal trials by introducing lay judge
s. Lay judge
s comprise the majority of the judicial panel. They do not form a jury
separate from the judges, like in a common law
system, but participate in the trial as inquisitorial
judges in accordance with civil law
tradition.
passed a law requiring selected citizens to participate as judges (and not juries) in trials for certain severe crimes. Citizens chosen for such service, called “saiban-in” (裁判員; "lay judge"), are randomly selected out of the electoral register and, together with professional judges, conduct a public investigation of the evidence in order to determine guilt and sentencing. In most cases, the judicial panel is composed of six saiban-in and three professional judges. In cases where there is no substantial dispute over guilt, the panel is composed of four saiban-in and one professional judge. Unlike under the older jury system, the defendants are not allowed to waive trial by saiban-in. The saiban-in system was implemented in May 2009.
of common law but one that involves a (lay) "judge" found in inquisitorial system
s of civil law
countries, such as those in continental Europe and Latin America. In a common law adversarial system, the judge acts as a referee over the contest between the defence attorney and the prosecutor, in which the two sides present the facts of their case to the panel of jurors; the judge in this system is mainly the referee of court procedure and decides only the applicable law.
In the civil law inquisitorial system, the entire panel of judges conduct a public investigation of the crime at the trial, and pass the verdict and sentence those found guilty. For this reason, each member of the panel can initiate the examination of evidence and witnesses, and by a majority (including at least one professional judge, as explained below) can pass a guilty verdict and impose a penalty. Lay judges roles are nevertheless constrained; notably, legal interpretations and determinations remain with the professional judges. Unlike the Anglo-American rule for criminal jury trials, both convictions and acquittals as well as sentence remain subject to appeal by the prosecution and the defence.
The Japanese system is apparently unique in that the panel consists of six lay judges, chosen randomly from the public, together with three professional judges, who come together for a single trial (like an Anglo-American jury) but serve as lay judges. As with any jury or lay judge system, it places a large amount of judicial power on randomly chosen members of the public with the aim of democratizing the judicial process. In this, Japan's law states its purpose explicitly as seeking “the promotion of the public’s understanding of the judicial system and . . . their confidence in it.”
A guilty verdict requires a numerical majority of nine judges that includes at least one professional judge. Accordingly, the three professional judges as a collective have a de facto veto on any conviction that would be delivered by the lay judges. The Ministry of Justice
specifically avoided using the term "jury" (Baishin-in) and use the term "lay judge" (Saiban-in) instead. Therefore, the current system is categorically not a jury system though this misunderstanding persists in common law countries due to lack of understanding of civil law criminal procedure.
A majority not guilty vote by the jurors can proceed, but a majority guilty vote by the lay judges needs a corresponding vote from a minimum of one professional judge. The citizen judge or lay judges are allowed to directly question the defendant during the course of the trial and decide on the sentencing corresponding to the verdict. The trial was open to the media. The previous system relied only on a panel of professional judges, and the majority of cases brought forward by prosecutors were those where conviction was high. Citizens chosen who do not serve in their role would be fined 100,000 yen.
Another issue is that some Japanese criminal trials used to take years if the charge was serious and the defence contested the charge. After the system moved to include lay judges, the trial period was fixed to maximum of few weeks. Some commentators feel justice is compromised for the convenience of lay judges and that cases are not examined in enough detail.
Kato Tomosaburo
Viscount was a career officer in the Imperial Japanese Navy, cabinet minister, and Prime Minister of Japan from 12 June 1922 to 24 August 1923.-Biography:...
. Although the system generated relatively high acquittal rates, it was rarely used, in part because it required defendants to give up their rights to appeal of the factual determinations made. The system lapsed by the end of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. In 2009, as a part of a larger judicial reform project, laws came into force to introduce citizen participation in certain criminal trials by introducing lay judge
Lay judge
A lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009....
s. Lay judge
Lay judge
A lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009....
s comprise the majority of the judicial panel. They do not form a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
separate from the judges, like in a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system, but participate in the trial as inquisitorial
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
judges in accordance with civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
tradition.
Saiban-in (lay judges) in Japan
On May 28, 2004, the Diet of JapanDiet of Japan
The is Japan's bicameral legislature. It is composed of a lower house, called the House of Representatives, and an upper house, called the House of Councillors. Both houses of the Diet are directly elected under a parallel voting system. In addition to passing laws, the Diet is formally...
passed a law requiring selected citizens to participate as judges (and not juries) in trials for certain severe crimes. Citizens chosen for such service, called “saiban-in” (裁判員; "lay judge"), are randomly selected out of the electoral register and, together with professional judges, conduct a public investigation of the evidence in order to determine guilt and sentencing. In most cases, the judicial panel is composed of six saiban-in and three professional judges. In cases where there is no substantial dispute over guilt, the panel is composed of four saiban-in and one professional judge. Unlike under the older jury system, the defendants are not allowed to waive trial by saiban-in. The saiban-in system was implemented in May 2009.
Process
In many respects, the new system is very different from a common law jury system. It is not a (lay) jury of an adversarial systemAdversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
of common law but one that involves a (lay) "judge" found in inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
s of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries, such as those in continental Europe and Latin America. In a common law adversarial system, the judge acts as a referee over the contest between the defence attorney and the prosecutor, in which the two sides present the facts of their case to the panel of jurors; the judge in this system is mainly the referee of court procedure and decides only the applicable law.
In the civil law inquisitorial system, the entire panel of judges conduct a public investigation of the crime at the trial, and pass the verdict and sentence those found guilty. For this reason, each member of the panel can initiate the examination of evidence and witnesses, and by a majority (including at least one professional judge, as explained below) can pass a guilty verdict and impose a penalty. Lay judges roles are nevertheless constrained; notably, legal interpretations and determinations remain with the professional judges. Unlike the Anglo-American rule for criminal jury trials, both convictions and acquittals as well as sentence remain subject to appeal by the prosecution and the defence.
The Japanese system is apparently unique in that the panel consists of six lay judges, chosen randomly from the public, together with three professional judges, who come together for a single trial (like an Anglo-American jury) but serve as lay judges. As with any jury or lay judge system, it places a large amount of judicial power on randomly chosen members of the public with the aim of democratizing the judicial process. In this, Japan's law states its purpose explicitly as seeking “the promotion of the public’s understanding of the judicial system and . . . their confidence in it.”
A guilty verdict requires a numerical majority of nine judges that includes at least one professional judge. Accordingly, the three professional judges as a collective have a de facto veto on any conviction that would be delivered by the lay judges. The Ministry of Justice
Ministry of Justice (Japan)
The is one of Ministries of the Japanese government.-Meiji Constitution:The Ministry of Justice was established under the Constitution of the Empire of Japan in 1871 as the .-Constitution of Japan:...
specifically avoided using the term "jury" (Baishin-in) and use the term "lay judge" (Saiban-in) instead. Therefore, the current system is categorically not a jury system though this misunderstanding persists in common law countries due to lack of understanding of civil law criminal procedure.
First lay judge trial under new law
Katsuyoshi Fuji, 72, was found guilty in the stabbing to death of a 66-year-old neighbour and sentenced to 15 years in jail at the first lay-judge trial held in the Tokyo District Court. On August 3, 2009, six Japanese citizens were chosen, to serve as “saiban-in,” to join three judges at the trial attended by 2,500 people queing to get into the sixty-seat public gallery. Because Fujii had entered a guilty plea, the lay judges' role was primarily pertaining to the severity of the sentence to be handed down. According to the selection process, the judges selected must be a minimum age of 20 and be listed on the election lists. Jurors must also have completed a secondary level education.A majority not guilty vote by the jurors can proceed, but a majority guilty vote by the lay judges needs a corresponding vote from a minimum of one professional judge. The citizen judge or lay judges are allowed to directly question the defendant during the course of the trial and decide on the sentencing corresponding to the verdict. The trial was open to the media. The previous system relied only on a panel of professional judges, and the majority of cases brought forward by prosecutors were those where conviction was high. Citizens chosen who do not serve in their role would be fined 100,000 yen.
Controversy
As in most common law countries where people are reluctant to serve as jury members, many Japanese have expressed reluctance to serve as a lay judge. Polls taken in Japan suggest that, similar to other developed jury systems, 70% of the population of Japan would be reluctant to serve as a judge. Some Japanese have been introduced to mock trials over recent years to overcome their reluctance to express public opinion, debate and defy authority figures. Others have written with concern regarding the harsh secrecy provision in the statute which includes the risk of criminal penalties for lay judges who would share publicly deliberation room confidences even after trial proceedings are complete.Another issue is that some Japanese criminal trials used to take years if the charge was serious and the defence contested the charge. After the system moved to include lay judges, the trial period was fixed to maximum of few weeks. Some commentators feel justice is compromised for the convenience of lay judges and that cases are not examined in enough detail.
External links
- Saiban-in (Lay Judge) System, Ministry of JusticeMinistry of Justice (Japan)The is one of Ministries of the Japanese government.-Meiji Constitution:The Ministry of Justice was established under the Constitution of the Empire of Japan in 1871 as the .-Constitution of Japan:...
- Government video explaining new jury system (Japanese)