Assignment: An Ideal Judicial System

Article

Japan’s Lay Judge System: A Summary of Its Development, Evaluation, and Current Status

Philip L. Reichel 1

and Yumi E. Suzuki 2

Abstract In 1999, major changes to Japan’s criminal justice system were proposed, and over the next 10 years, many were implemented. One of the changes created the lay judge system (saiban-in seido), wherein citizens serve as fact finders during trials of serious criminal cases. The purpose of the lay judge is to enhance public trust in the judiciary while improving the quality of justice through the common sense of the average person. This article reviews how this major change to Japan’s court system was implemented, describes the process by which lay judges are selected and the requirements of their service, and then discusses some of the reviews and evaluations that have been completed of the system itself. The conclusion suggests that an understanding of Japan’s model could be instructive for other jurisdictions considering justice reform.

Keywords comparative crime/justice, Far East Asia, juries, courts/law

Changes to a country’s criminal justice system are typically more conventional than dramatic.

New laws are passed and old ones discarded, sentence lengths are modified, policing methods are

adjusted, and other revisions occur. Such changes have important consequences, but seldom do they

rework the way criminal justice business is done. When those more critical changes do occur, it ben-

efits criminal justice educators, researchers, and practitioners to understand the background, process,

and implications of such change.

In 1999, major changes to Japan’s criminal justice system were proposed, and over the next

10 years, many were implemented. Using both English- and Japanese-language sources, this article

describes one of those changes, reports on evaluations that have been conducted, and suggests some

implications of those changes. Specifically, we look at the Act Concerning Participation of Lay

Assessors in Criminal Trials. After placing Japan’s lay judges in the broader context of citizen par-

ticipation in the adjudication process, we provide an overview of the decision to implement a lay

1 University of Northern Colorado, Greeley, CO, USA

2 Wichita State University, Wichita, KS, USA

Corresponding Author:

Philip L. Reichel, University of Northern Colorado, 2506 57th Avenue, Greeley, CO 80634, USA.

Email: [email protected]

International Criminal Justice Review 2015, Vol. 25(3) 247-262 ª 2015 Georgia State University Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/1057567715588948 icj.sagepub.com

judge system and a description of how that system operates. Results of recent evaluations and pro-

posed modifications of the process are then reviewed and implications of this procedural change are

considered.

Citizen Adjudicators

When Americans think of laypeople participating in the court process, they typically picture 12

citizens, sitting in two rows of six, off to one side of the courtroom in a semi-enclosed area. This

panel provides Americans with one of the most cherished features of their criminal justice sys-

tem—a trial by jury. Thomas Jefferson championed such a role for laypeople in the judicial branch

when he argued that the execution of laws is more important than the making of them (Moore, 1973,

p. 159). But juries provide only one option for lay participation in the adjudication process. An alter-

native is the use of lay judges (also called lay assessors or citizen judges). A basic, if imprecise, dis-

tinction is that jurors decide—without a professional judge voting—whether the defendant is guilty,

whereas lay judges vote together with one or more professional judges.

Examples of both juries and lay judges are found across the globe. Although juries are most often

in common law countries using adversarial proceedings, they exist to one degree or another in such

civil law countries as Austria, Belgium, Denmark, Norway, Russia, and Spain (Jimeno-Bulnes,

2004; Thaman, 2000; Vidmar, 2000). Lay judges are typical in countries using inquisitorial proceed-

ings—where the judge’s active role would result in a more confused role for jurors—such as Ger-

many, Finland, France, and Norway. Other countries, such as Mexico and Saudi Arabia, provide no

role for laypeople in the adjudication process (Fukurai & Krooth, 2010; Reichel, 2013).

Both versions of lay participation have their supporters and deriders. Lay participation is praised

as providing a rigorous fact finding process, reducing opportunities for corruption, representing the

community in the courtroom, legitimizing the justice system, and increasing civic engagement.

Detractors point out that jury verdicts sometimes appear inconsistent with the evidence and that lay

judges are little more than puppets nodding in agreement with the professional judges (Hans, 2008;

Machura, 2001; Thaman, 2007). But proponents are prevailing as more countries seek ways to incor-

porate citizens into the adjudication process. One of the newest examples is Japan.

Background to Japan’s Lay Judge System

Between 1928 and 1943, Japan used a jury system for criminal cases. During the 15 years that

juries were active, only 484 cases were tried by jury and defendants in more than 25,000 serious

cases waived their right to a jury trial (Shibahara, 1990). Several conditions are believed to have

contributed to the failure of Japan’s prewar attempt at jury trials. On a cultural level, some suggested

that the jury system did not appeal to the basic national characteristic of the Japanese people who

traditionally were indifferent to the law. Legal experts at the time suggested that the jury system does

not suit Japanese society because Japanese tend to be emotional rather than rational. Or, less provo-

catively, others suggested that Japanese people prefer to be tried by a professional judge rather than

by their neighbor (Dean, 2011; Matsubara, 2003; Shibahara, 1990). But there were also some prac-

tical problems with the jury system as implemented in Japan. The primary one seems to have been

the limited power given the jurors. In its eventual form, the jury consisted of 12 literate male jurors

over 30 years of age. Their verdict did not have to be unanimous—a simple majority was sufficient.

However, their decision was not binding on the judge. Whatever the jury’s decision, if the judge did

not agree, he could put the case before a new jury with newly selected jurors (Ibusuki, 2010). Not

surprisingly, most defense counsels decided that it would make more sense to simply go before the

professional judge at the start.

248 International Criminal Justice Review 25(3)

A recent reform to the justice system has once again given Japanese citizens a role in the adju-

dication process. Enacted in 2004 and implemented in 2009, the lay judge system (saiban-in seido)

adds lay judges (chosen by lot from among registered voters) to Japan’s courts. This change was part

of reforms that began in the late 1990s.

The Lay Judge System Law

In 1999, Japan’s Parliament established the Justice System Reform Council (JSRC) and charged

that group to examine the state of Japan’s criminal justice system. In 2001, the JSRC submitted its

recommendations for the following three pillars of justice system reform (JSRC, 2001):

1. Construction of a justice system responding to public expectations (building a justice system

that meets the needs of the people).

2. How the legal profession supporting the justice system should be (reform of the judicial com-

munity to support the justice system).

3. Establishment of the popular base (involving the general public in the justice system).

The Justice System Reform Promotion Act was enacted in response to those recommendations,

and the Office for Promotion of Justice System Reform was established in 2001 to promote reform in

accordance with the recommendations. Throughout the first decade of the new century, a variety of

justice system reforms were implemented. For example, defense counsel reforms ensued with the

implementation of the 2004 Comprehensive Legal Support Law, which essentially created a public

defense system for detained criminal suspects, and changes in the death penalty’s application fol-

lowed a 2005 law on the treatment of prisoners.

Of interest here is the 2004 Act Concerning Participation of Lay Assessors in Criminal Trials (see

the translation by Anderson & Saint, 2005). 1

This act responded especially to the third of the three

pillars of justice system reform. The purpose of the lay judge is to enhance public trust in the judiciary

while improving the quality of justice through the common sense of the average person (Brasor, 2007).

The hope was that lay judges would bring common sense to a court system dominated by legal pro-

fessionals as well as help address some of the causal factors leading to wrongful convictions and vio-

lations of defendant’s rights (Fukurai, 2013; Kamiya, 2007a). 2

Selecting the Specific Model

When determining what format the new lay judge system would take, the JSRC considered the

classic jury model (e.g., in England and the United States) and the collaborative court model (e.g.,

the mixed benches found in Germany and France). Jackson and Kovalev (2006–2007) remind us that

there are quite a few versions from which to borrow, 3

but the model settled on for Japan is actually

rather unique. The mixed bench model—with both professional judges and citizens—often has the

citizens nominated as fixed-term lay judges (e.g., German lay judges are assigned to multiple trials

over a 4-year period), whereas jurors are randomly selected from a pool for each trial and are sub-

jected to a voir dire process. Japan’s model is a hybrid in that it uses lay judges, but they are chosen

at random for one trial and undergo a version of voir dire. Sitting with professional judges, the sai-

ban-in (lay judges) hear from witnesses, examine evidence, and determine sentences in the most

serious criminal cases. The specifics by which this is accomplished are described in the next section.

An Overview of Japan’s Lay Judge System

A change of this magnitude cannot occur without significant preparation. 4

The period between

the 2004 passage of the act and its 2009 implementation was used to explain to citizens what their

Reichel and Suzuki 249

service obligation would be and to prepare them for the specific duties required during the trial and

the guilt/sentence deliberation. With polls showing 80% of the population dreading the change and not wanting to serve as jurors (Onishi, 2007), the need for preparation was obvious.

Education and promotional efforts by the courts, bar associations, and government agencies made

liberal use of advertising (e.g., posters, billboards, and pamphlets) and the media (e.g., television

programs, cartoons, and animation), but mock trials were especially popular. In most of the mock

trials (which were held all across the country), legal professionals or court staff members played the

roles of judges, prosecutors, defense attorneys, and witnesses. The mock lay judges were chosen

from citizens who applied for the opportunity to participate (Kamiya, 2006; Wilson, 2014b).

The mock trials were intended to inform citizens about their upcoming role as citizen judge, but

they also helped legal professionals understand how the new system would work and how they

would need to modify their conduct and language under the saiban-in system. For example, new trial

advocacy techniques that could persuade lay persons as well as professional judges would be

needed. Courtroom proceedings at the time relied mostly on written documents, but the new format

would inevitably give way to oral arguments becoming more important. Similarly, new roles for

both citizens and professionals would require the development of new criminal procedures and ethi-

cal guidelines, and professional judges would have to find ways to cultivate an atmosphere that

encourages citizen judges to participate fully and actively in the process (Nagano, 2007; Onishi,

2007). Finally, the first saiban-in trial was held in Tokyo on August 2009.

Cases Heard by the Lay Judges

Only serious criminal cases are heard by the lay judges. The Japanese Criminal Code does not

formally classify crimes into categories such as felony and misdemeanor, so seriousness is deter-

mined instead by the level of punishment that can be applied for a particular offense. As such,

saiban-in trials hear cases involving (1) crimes punishable by death or imprisonment for an indefi-

nite period or by imprisonment with hard labor, and those involving (2) crimes in which the victim

has died due to an intentional criminal act (Anderson & Saint, 2005, p. 237). Specific crimes meeting

these criteria are homicide, robbery resulting in bodily injury or death, bodily injury resulting in

death, unsafe driving resulting in death, arson of an inhabited building, kidnapping for ransom, and

abandonment by a person responsible for protection resulting in death (Ibusuki, 2010).

The law does not give defendants the right to waive a lay judge panel, but the court does have

discretion to determine that a case qualifying for a lay judge trial may be heard instead by a tradi-

tional panel of three professional judges. That might happen, for example, when privacy issues arise

in a sex offense case or the defendant is a gangster who might intimidate lay judges (Johnson, 2009).

Selecting the Lay Judges

Potential lay judges are selected by lottery from the voter registration list and, as such, all will be

Japanese citizens at least 20 years old. 5

As potential cases come up, another lottery is held wherein

about 50–100 names to be considered for the specific case are drawn from the initial pool. The pro-

spective lay judges for that case are notified about 6 weeks before the trial date and will receive a

questionnaire to determine their qualifications.

When the case is to be heard, each lay judge candidate is interviewed individually by the panel of

professional judges to determine whether there are reasons he or she cannot serve. Prosecutors and

defense lawyers are also present—as well as the accused, if the court finds it necessary—but the

selection process is not be open to the public. Prosecutors and defense lawyers may not question the

potential lay judges directly, but they are able to ask questions through the professional judges as

long as those professional judges find the proposed question to be necessary.

250 International Criminal Justice Review 25(3)

Some of the candidates are disqualified because they have not finished compulsory education, are

currently charged with a crime, have been imprisoned, have a direct involvement with the current

crime, or have serious mental or physical disabilities that make it too difficult for them to serve. Oth-

ers may be excused because they are in such occupations as Diet member, judges, lawyers, law pro-

fessors, police officers, and so on. Still others may excuse themselves from duty if they are over 70

years of age, are students, or have served as a citizen judge in the past 5 years. Also, on a case-by-

case basis, the judge may excuse people whose business might be damaged by their absence or

persons who are care givers for elderly or young family members. Finally, prosecutors and defense

attorneys are able to dismiss up to four candidates each without giving a reason (Dean, 2011; Ibu-

suki, 2010; Johnson, 2009; Kamiya, 2007b).

Duties of the Lay Judges

The citizen judges sit at the judicial bench with the professional judges. For most cases, there are

three professional judges and six citizen judges. When the defendant is not disputing the facts of the

case, the panel consists of one professional judge and four lay judges. The panel of judges reviews

the evidence, examines relevant documents, and questions both defendants and witnesses. Upon

completion of this trial stage, the professional and lay judges deliberate and decide if the defendant

is guilty or not guilty. The verdict is by majority vote, although a guilty verdict must include the vote

of at least one professional judge. 6

For persons found guilty, the professional and citizen judges

determine the sentence—including the death penalty (Anderson & Saint, 2005).

Since the first saiban-in trial in 2009 and through January 2015, more than 42,000 people had

served as lay judges—with another 14,000 having been called as backup lay judges. Nearly 7,500

defendants had been tried under the lay judge system and 7,300 were found guilty, including 22 who

received the death sentence (Supreme Court of Japan, 2015). This 97% conviction rate is actually lower than the 99% conviction rate that was typical prior to implementation of the lay judge system (Ukawa, 2011). The high conviction rate is explained in part by noting that a trial is required even in

cases where defendants have admitted guilt—with the admission simply being another piece of evi-

dence to consider.

Evaluation of the Lay Judge System

When established, it was hoped that the lay judges system would (1) positively affect key aspects

of Japan’s criminal justice legal proceedings, (2) provide a way to reflect the views of the general

public in the sentencing process, and (3) help improve public perceptions of the criminal justice sys-

tem (Dean, 2011; Foote, 2014; Fukurai, 2013). 7

We consider the system’s success in each of those

areas and then summarize findings from the first formal evaluation of the lay judge system.

Change in Legal Proceedings

Prior to the lay judge system, Japanese courts were criticized as having more of a guilt confirma-

tion role than a guilt determination role. Also, Japanese criminal procedure traditionally relied heav-

ily on written documents at trial, rather than oral evidence. Introducing lay participants into the

process changed the dynamics of the proceedings—especially in terms of the relationship between

prosecutors and judges—and with more reliance on oral testimony than on written documents. The

lay judges were intended, in other words, to make trials more adversarial and transparent in nature

(Dean, 2011).

To the degree that increasing adversarial proceedings are indeed desirable, the lay judge system

seems to be successful. Wilson (2014a, 2014b) describes Japan’s contemporary trial process as

Reichel and Suzuki 251

having moved from a lengthy, disjointed, and largely opaque system to a more transparent, accoun-

table, and cohesive one that includes more oral testimony. This change benefits the defendant since

prosecutors now disclose more information in advance of trial and testimony given during trial can

be more easily challenged, but it has also brought greater professionalism to the attorneys them-

selves. Ibusuki (2010) and Wilson (2014a) explain that prosecutors have refined their performance

skills and courtroom proficiency through systematic training programs and both prosecutors and

defense attorneys have learned new techniques (e.g., power point presentations and useful oratory

skills) that enable effective communication with the lay judges.

Proponents of incorporating lay participation also hoped it could help discourage miscarriages of

justice and provide greater support for defendant’s rights. Success in this area is more difficult to

assess, but Foote (2014) notes that the number of indictments for cases that would go before lay

judges has dropped significantly. He suggests a primary reason for that decline may be that prose-

cutors are being more careful in borderline cases and could be dropping marginal cases or reducing

the severity of charges so as to avoid going before lay judges.

Statistics in murder cases seem to support that assessment. In 2006, a total of 1,769 murder

cases were handed over to prosecutors, with 734 (41%) leading to indictment on murder charges. In 2010, the rate dropped to 26%, with only 424 indictments out of 1,619 cases. A similar trend is reported for death or injury stemming from robbery. Cases of that type fell from an indictment rate

of 39% to 27% over the 4-year period from 2006 to 2010. Rape indictments dropped to 40% from 56% (‘‘Murder indictments declined with lay judge debut,’’ 2012). The argument is that lay judges are closely examining circumstantial evidence in cases without a confession. Senior officials with

Supreme Public Prosecutor’s Office rejected that assessment but did not offer anything that the

news media considered to be a better explanation (‘‘Murder indictments declined with lay judge

debut,’’ 2012).

Improvement in defendant rights can be measured, in part, by access to counsel. As the lay judge

system was being established, a 2004 law established a National Public Defender System that allows

indigent suspects to obtain defense counsel during the pre-indictment stage of the criminal process.

As a result, there now exists a systematic process for ensuring sufficient meetings between indigent

suspects and defense counsel during the criminal process (Fukurai, 2013).

Reflecting the Public View During Sentencing

As noted earlier, 97% of the cases appearing before lay judges have resulted in convictions— slightly lower than the 99% conviction rate traditionally achieved by Japan’s courts (e.g., see the 2003–2012 data at Ministry of Justice, 2013). That 3% acquittal rate in lay judge courts continues the traditionally low acquittal rate, although lay judges acquit more defendants in drug trafficking

cases. For example, since inception in 2009 to January 2015, lay judge courts acquitted 2.9% (n ¼ 18) of the 626 drug defendants tried compared with only 0.6% (n ¼ 1) of the 178 drug cases tried between 2006 and 2008 by professional judge courts (Supreme Court of Japan, 2015).

Sentences handed down by lay judges were expected by some observers to be harsher than those

handed down by professional judges alone. The result is actually a bit mixed. In comparison to ear-

lier trials with only professional judges, lay judge trials have resulted in harsher sentences for

persons found guilty of sex-related offenses such as rape and sexual assault causing injury. Prior

to the introduction of lay judges, the most common sentences for sexual assault resulting in injury

were for up to 3 years imprisonment. Since lay judges began hearing those cases, the typical sen-

tences have been for 3–5 years. Similarly, cases of rape resulting in injury increased to 5–7 years

under lay judge trials compared with the typical 3–5 years imposed in professional bench trials

(Foote, 2014; Hirayama, 2012; ‘‘Lay judges’ voices should be heard to improve system,’’ 2012;

‘‘Lay judges tougher on sex offenders,’’ 2012).

252 International Criminal Justice Review 25(3)

Sentences for murder are not as clearly measured. Generally, there has been a modest increase,

but the median sentence remains about the same. However, the level of variability has increased,

with lay judge sentences being more widely distributed when compared with the professional judge

only sentences that tended to fall within a rather narrow range (Foote, 2014).

Improving Public Perceptions of the Criminal Justice System

As the lay judge system was being considered, public opinion polls consistently reported that

Japanese citizens did not want to participate. Rather remarkably, the initial hesitancy by citizens and

concerns of government officials proved unwarranted. To date, Japan’s experience with the lay

judge system has been extremely positive. Citizen participation in serious criminal trials has seam-

lessly become an integral part of the Japanese criminal justice system and citizens serving as lay

judges overwhelmingly characterize their actual courtroom experience as positive or extremely pos-

itive (Wilson, 2014a). In addition, the general public’s interest in criminal justice has increased with

the implementation of saiban-in. It was especially high immediately after implementation (about

half of those surveyed indicating increased interest), but recent polls show about one third of the

general public having that same enthusiasm (‘‘Saibaninseido gonen: Kenshow to kaizen no shisei

wasurezuni,’’ 2014).

Especially important, citizens have come into contact with the justice system in ways never

before possible. The preparation period from 2004 to 2009 provided initial information, but that

information continues as games, books, movies, and media reports about the lay judge system

become common. The direct exposure to the justice system of tens of thousands of people has gen-

erated an increasing amount of information in the form of official surveys, media coverage, and

scholarly analysis that has been disseminated publicly. The result is a substantial amount of goodwill

and excitement (Wilson, 2014a).

According to annual surveys by the Supreme Court, in each of the last 3 years, 95% of those who have served as lay judges considered it to be a positive experience. Many lay judges indicate that that

their civic service enabled them to learn much and to seriously reflect on important issues facing

Japanese society (‘‘Lay judge system reviewed after auspicious start,’’ 2012; ‘‘Looking at the lay

judge system,’’ 2012; Wilson, 2014a). The goal of improving public perceptions of the criminal jus-

tice system seems well on its way to being accomplished.

Formal Evaluation of the Lay Judge System

The Committee on the Lay Judge System (Saiban-in Seido ni Kansuru Kentokai) was launched in

2009 as the result of a supplementary provision to the Lay Judge Act of 2004. That provision man-

dated a government review of the lay judge system after 3 years of operation. The committee, under

the leadership of the Ministry of Justice, was an 11-member panel consisting of lawyers and repre-

sentatives from citizens’ groups and media organizations. Committee meeting minutes are available

in Japanese at www.moj.go.jp/shingi1/keiji_kentoukai_saibaninseido_top.html. The Committee

completed its work in June 2013 and our summary is taken from those minutes (translated by the

second author) and from reports in the media and academic publications.

Although the committee members decided as a group the particular issues for their official dis-

cussion (S. Shinomiya, personal communication, September 22, 2012), the media, lawyer organiza-

tions, and former lay judges all suggested topics they hoped the committee would address. For

example, a Japan Times editorial said discussion should be on ways to strengthen procedures for

preventing false charges and to ensure fair trials. Specifically, police officers and public prosecutors

should be required to electronically record the entire interrogation process and prosecutors should be

required to present all evidences (or at least a list of all the evidences) to lay and professional judges

Reichel and Suzuki 253

and defense lawyers prior to the start of trial. Failure to do so, the editorial argued, should result in

punishment of the prosecutor or dismissal from the profession (‘‘Looking at the lay judge system,’’

2012).

That latter suggestion is consistent with one made in January 2012 by representatives of a group

of persons who had served as lay judges. Those former lay judges felt neither they nor the defense

were given access to the full range of evidence that could be used at trial. They recommended that

prosecutors be required to disclose to defense lawyers all evidentiary materials and that lay judges

should have access to the records from the pretrial process where attorneys on both sides narrow

down the admissible evidence (S. Kamiya, 2012a, 2012b; ‘‘Lay judge system reviewed after auspi-

cious start,’’ 2012).

Other recommendations from the former lay judges group reflected a desire to understand the

consequences of their decisions. For example, they suggested that the courts provide opportunities

for lay judges to tour correctional facilities prior to them serving as saiban-in, so they will better

understand the repercussions of their decisions. Further, they noted the physical and mental stress

resulting from lengthy periods of service (the longest case to date lasted 100 days) and from having

to make life and death decisions in death penalty cases (S. Kamiya, 2012a, 2012b; ‘‘Lay judge sys-

tem reviewed after auspicious start,’’ 2012). Concern for the well-being of lay judges had led the

Japan Federation of Bar Associations (JFBA) to recommend the system be enhanced by providing

mental health care to lay judges to mitigate their anxiety over convicting and sentencing defen-

dants—especially capital punishment cases (Hirano, 2012).

The JFBA also proposed expanding the scope of criminal cases handled by lay judges. Currently,

the lay judges serve only on serious cases, but JFBA says even minor cases should be tried under

saiban-in procedures if the defense counsel wants to contest the prosecution’s argument. Of partic-

ular concern for the JFBA is wrongful accusation of train groping (Hirano, 2012).

Those are important topics and several ended up as part of the committee’s official discussion.

But there were three topics that many people believed to be especially important for the committee

to discuss: (1) the obligation of confidentiality placed on lay judges, (2) the type of cases that should

be examined under saiban-in procedures, and (3) the procedures that should be followed in cases

punishable by death (‘‘Lay judge system reviewed after auspicious start,’’ 2012). We consider each

of these individually before discussing the committee’s findings.

The Confidentiality Obligation

Criminal sanctions and penalties are authorized, should any lay judge reveal the contents of the

trial to anyone—even years after their service is completed (Anderson & Saint, 2005, Article 79).

This confidentiality provision was designed to protect the sanctity of the deliberations and to shield

lay judges from possible harassment. However, it has also caused emotional/psychological problems

for some ex-lay judges and it seems to be counterproductive to some of the initial reasons for the

saiban-in. For example, if the saiban-in system was to educate the public about the justice system

and to have the public’s views reflected in that system, gagging participants for life seems

counterproductive.

Such gag orders, many observers argue, should be loosened and ex-lay judges should be allowed

to speak more freely after trials as a way to expand public discussion on the shape of the saiban-in

system (‘‘Looking at the lay judge system,’’ 2012). The JFBA, for example, recommends lay judges

who violate the duty of confidentiality be punished only if the violation is malicious (‘‘Lay judge

system reviewed after auspicious start,’’ 2012). The Japan Times recommends easing the gag order

but having it remain in effect to the extent necessary to assure professional and lay judges feel free to

discuss issues during deliberation. Specifically, editorial recommends that lay judges should be

allowed to disclose to some extent opinions expressed by judges but in a manner that makes

254 International Criminal Justice Review 25(3)

impossible the identification of the judge expressing those opinions (‘‘Review of the lay judge sys-

tem,’’ 2012).

Cases Appropriate for Lay Judges

As noted earlier, trends associated with indictment rates, acquittal rates, and sentencing practices

have resulted in calls for discussion regarding the types of cases best suited for lay judge processing.

Regarding drug cases, the acquitting of defendants by lay judges has sparked criticism that ordinary

citizens are unfamiliar with drug-related offenses. Evidence presented in drug-trafficking cases has

proved difficult to examine for the lay judges and not guilty sentences handed down in three such

saiban-in trials were overturned by higher courts and are currently on appeal to Supreme Court

(‘‘Lay judge system review set to begin,’’ 2012).

Regarding sex crimes, citizen involvement may pose a threat to the protection of victims’ pri-

vacy. At least one organization supporting victims has demanded that the victim be allowed to

decide whether their case will be subject to lay judge trials as a way to protect the privacy sex crime

victims (‘‘Lay judge system review set to begin,’’ 2012; ‘‘Lay judge system reviewed after auspi-

cious start,’’ 2012). On the other hand, as noted earlier, sex offenders are receiving harsher sentences

under lay judge trials. This point suggests that the citizens’ voice is being injected into Japanese jus-

tice (something that was intended when the lay judge system was established) and that sex-offense

sentencing under the earlier professional judge system had not accurately reflected public opinion.

Hirayama (2012) suspects that the male-dominated legal profession may have provided a culture that

saw women victims as partly to blame for the sex crimes committed against them. Now, with the

addition of citizens—especially women—to the trial process, there may be a better balance of per-

spectives. Hirayama’s research suggests professional judges are accepting this idea that sentencing

prior to saiban-in seido trials was not reflecting public opinion. As several of the professional judges

she interviewed said, sentences for sex-offenses had previously been too lenient and now, under the

lay judge system, commonsense judgments of the people are being incorporated (see Hirayama,

2012, pp. 134–135).

Procedures in Capital Punishment Cases

Japan provides the death penalty as a sentencing option for the most serious crimes. With the

advent of the lay judge system, the decision as to when it will be imposed is made by regular citizens

in deliberation with professional judges. This has resulted in two issues that may require modifica-

tion of how the lay judge system operates. First, is a concern for the lay judges themselves. The men-

tal (deciding who should live or die) and physical (long court proceedings) burden that lay judges

bear when hearing death penalty cases has become a focal point in the review of the saiban-in system

(‘‘Lay judges torn by death penalty,’’ 2012). Many of the lay judges involved in death penalty cases

report the psychological burden actually increased as time passed rather than being highest during

the proceedings (‘‘Lay judge system review set to begin,’’ 2012).

In addition to concerns about the well-being of lay judges themselves, death sentence trials under

saiban-in seido have been criticized as unfair to the defendants. Specifically, death sentences under

the lay judge system require a ‘‘conditional majority’’ that must include at least one professional

judge voting in favor of the death penalty. The argument, from a variety of sources, is to change the

requirement to be a unanimous decision by the entire panel. The JFBA has proposed in March 2012

that death sentences be handed down unanimously in lay judge trials and Japan Times editorials

have supported this call for a unanimous decision when issuing a death sentence (Looking at the lay

judge system, 2012; Review of the lay judge system, 2012). The goal would be to make lay judge

panels more cautious and restrained in issuing death sentences (Hirano, 2012).

Reichel and Suzuki 255

The Formal Review

A review of the committee minutes shows that discussions were general in nature rather than pro-

posing any specific modifications to the system (Committee on the Lay Judge System, 2014). How-

ever, there were interesting comments regarding sexual assault cases. As noted earlier, some victim

advocacy groups believe that having sex-offense cases heard by panels that include citizens may vio-

late victim privacy rights. In addition, there are reports that some victims choose not to report the

crime to the police, whereas others ask for reduced charges (e.g., rape instead of rape with bodily

injury) in order to avoid a lay judge trial. As a result, there have been proposals to eliminate sexual

assault cases from the lay judge system. In opposition to that point, one committee member noted

that a similar concern regarding privacy issues could be raised for surviving members of homicide

victims (Committee on the Lay Judge System, 2012a). In addition, the member noted that a rationale

for having lay judge trials was to increase the trust and confidence in the criminal justice system.

Eliminating cases of homicide and sexual assault from saiban-in trials would mean that citizen

judges could not understand the impact of these crimes on victims, families, or the general public.

Essentially, the committee member argued, citizens would not be aware of how the criminal justice

system handles these cases if these crimes were not saiban-in eligible. By the last meeting (June 21,

2013), the majority of committee members had agreed to keep sex offenses as part of the lay judge

eligible crimes, since giving sexual violence victims an option to try their case before lay or

professional-only judges may be an additional burden on those victims.

Regarding the confidentiality obligation, committee members have been told that lay judges who

participated in a monthly follow-up meeting at the Tokyo district court were less likely to view con-

fidentiality as being a burden than were those lay judges who did not take advantage of those meet-

ings. But in general, even though a presiding judge explains confidentiality of court proceedings to

lay judges, the lay judges are still unsure about the extent to which they must restrict comments

about their experiences. One panelist suggested that in cases of scholarly interest, lay judges should

be able to discuss their experiences in order to further intellectual discussion. Based on our review of

the transcripts, revision of the confidentiality obligation is likely and will take the form either of

making it clearer or by loosening the restrictions (Committee on the Lay Judge System, 2012b).

Regarding death penalty cases, a suggestion was made for a separate expert panel that would

reexamine death sentences issued under lay judge trials as a way to avoid wrongful convictions. Also

discussed was the pressure or burden of being involved as lay judges in death sentences. Having

mental health professionals on call was suggested as one solution to this problem. Legal groups and

some media suggested that death sentences be required to be unanimous rather than by simple major-

ity. The committee concluded, however, that lay judges cannot avoid facing the death penalty and

must consider it a part of their civic duty. Committee members also noted that family members of the

victim also suffer a mental and physical burden, so lay judges should not be excused from capital

trials. Eliminating capital cases from the group of lay judge eligible crimes would avoid addressing

the challenges that the death penalty present to the nation (Committee on the Lay Judge System,

2013).

Future Research

Citizen perceptions of their experiences when serving as lay judges may provide interesting data

for future research. Aggregate-level data are provided by the Supreme Court (see www.saibanin.

courts.go.jp/vcms_If/saibanin_kekka201312.pdf), but researchers might find intriguing the actual

comments made at de-briefing sessions after the trial. Many of the district courts are posting to the

Internet—in Japanese only—these meeting transcripts. Since most of the prefectures are repre-

sented, a content analysis of the transcripts from district courts in several prefectures may be useful

256 International Criminal Justice Review 25(3)

for examining regional differences or engaging in an in-depth analysis of the opinions and experi-

ences of lay judges. 8

Another fruitful source for interested researchers is the annual data from Japan’s Supreme Court

(www.saibanin.courts.go.jp). Those data are provided in various categories (e.g., verdict by crime

type), so scholars able to read Japanese can engage in a trend analysis on such topics as acquittal

rate by crime type, sentence lengths, average time of deliberations, public perceptions of the lay

judge system, and so on.

One important topic that has not received attention from researchers concerns possible reduction

in miscarriages of justice with the introduction of citizen judges. Ito (2013) provides a good review

of the problems with, and concerns about, wrongful convictions specifically. She notes that some of

the root causes for such miscarriages are custodial interrogations, forced confessions, concealment

of exculpatory evidence by prosecuting attorneys, and the preeminence of statement evidence. Citi-

zen involvement on the Prosecution Review Commission (see Note 2) is designed to address some of

those issues, but statistics on sentencing patterns could support arguments that acquittal trends, for

example, suggest fewer (assuming increased acquittals) instances of wrongful convictions than

occurred when reliance was on confession and written statements. To that end, interested researches

could make good use of the annual Supreme Court data on guilty/not guilty decisions (www.saiba-

nin.courts.go.jp/topics/saibanin_jissi_jyoukyou.html).

Conclusion

Enacted in 2004 and implemented in 2009, Japan’s lay judge system (saiban-in seido) adds citi-

zen judges (chosen by lot from among registered voters) to Japan’s courts. This change is consistent

with resurgence over the last two decades of lay participation in the adjudication process. Russia

(1993) and Spain (1995) introduced jury systems most recently in Europe (Thaman, 2000), but

Huang and Lin (2013) note that such changes have also occurred in Central Asia (e.g., Azerbaijan,

Georgia, Kazakhstan, Russia, Tajikistan, Ukraine, and Uzbekistan) and in East Asia, including

Japan, South Korea, and Taiwan. This embracing of lay participation (whether as jurors or lay

judges) has been described as similar to that occurring in 19th-century Europe under the influence

of the 1789 French Revolution and is being used as a means of democratizing the countries’ legal

system (Fukurai, Chan, & Miyazawa, 2010a, 2010b).

Japan’s lay judge system was established to enhance public trust in the judiciary while improving

the quality of justice through the common sense of the average person (Brasor, 2007). More specific

goals included (1) positively affecting key aspects of Japan’s criminal justice legal proceedings, (2)

providing a way to reflect the views of the general public in the sentencing process, and (3) improv-

ing public perceptions of the criminal justice system (Dean, 2011; Foote, 2014; Fukurai, 2013).

Our analysis suggests that that the saiban-in system is in fact meeting those goals. Criminal jus-

tice proceedings have been rather dramatically—and positively—changed, with greater reliance on

oral testimony and more transparency. Prosecutors now disclose more information in advance of the

trial and testimony can be more easily challenged. The extent to which lay judges have provided a

way to reflect public views in the sentencing process is most clearly seen in the harsher sentences

given by lay judges for persons found guilty of sex-related offenses. Finally, public perceptions of

the criminal justice system have improved—especially among persons who have served as lay

judges, but also among members of the general public.

After 6 years of operation, the lay judge system receives positive reviews from many sources.

Japan’s Supreme Court found it to be constitutional (Lay judge system OK: Top court, 2011). Prac-

titioners and newspaper editorials make suggestions for improvement—but do not call for its elim-

ination, and the formal review under the leadership of the Ministry of Justice had some general

recommendations but gave an overall positive assessment.

Reichel and Suzuki 257

So, what lessons might there be from an understanding of Japan’s judicial reform efforts? Three

seem especially worth noting. The first concerns the way Japan’s lay judge system combines inqui-

sitorial mixed bench features with aspects of the adversarial jury. By having citizens selected at ran-

dom for a single case (c.f. adversarial jury) then sitting with professional judges to find facts and

determine sentence (c.f. mixed bench), the saiban-in system provides a unique model. Understand-

ing the process by which Japan has been able to successfully adapt those mixed bench and jury fea-

tures to its own circumstances may be instructive for other countries. This is especially true as more

jurisdictions consider blending aspects of adversarial and inquisitorial procedures. For example, the

procedural rules used by the International Criminal Tribunal for the Former Yugoslavia contain a

mixture of adversarial and inquisitorial elements, with the adversarial elements dominating the trial

(Kutnjak Ivkovich and Hagan, 2011).

Another point raised in discussing Japan’s lay judge system concerns expansion of the system to

other venues. Wilson (2014a) argues for its expansion to civil and administrative disputes such as

those involving governmental misconduct, administrative dispositions, environmental disasters, and

other disputes having the greatest impact upon society. Others wonder if citizen judges could be

appropriate for juvenile cases when rehabilitation is the primary focus (‘‘Saibaninseido gonen: Ken-

show to kaizen no shisei wasurezuni,’’ 2014). Such musings seem especially pertinent as some

adversarial systems consider whether they should adapt certain inquisitorial procedures. For exam-

ple, in light of government cutbacks being imposed on the justice system of England and Wales, the

Lord Chief Justice suggested that an inquisitorial system that results in a greater role for the judge

regarding evidence brought forward might be worth considering (Bowcott, 2014). That suggestion

was for family and civil cases and did not specifically include a role for lay judges. However, the

already established use of lay magistrates (justices of the peace) in England and Wales could lead

to an interesting amalgam for which Japan’s experiences might be instructive.

Finally, it is important to note that Japan’s experiment with citizen adjudicators is being closely

watched in other Asian countries. The Japanese model may reflect Asian cultural values more

closely than does the American jury system and, as a result, other Asian countries may find the

saiban-in system to be a more accommodating way to improve the quality of justice while enhancing

public trust in the judiciary. For example, in 2013, South Korea’s National Assembly gave official

status to an advisory jury system that had been in an experimental stage since 2008. When the defen-

dant agrees to this procedural addition, randomly selected civilian participants hear testimony then

deliberate on their own before consulting with professional judges regarding guilt and, as necessary,

punishment (Kim, Park, Park, & Eom, 2013; J.-H. Lee, 2009, 2010). Similarly, Taiwan is consider-

ing a proposal wherein a group of five randomly chosen citizens would sit with and advise three

professional judges in serious criminal trials (Huang & Lin, 2013, 2014). To the extent, Japan is able

to set an Asian model for ordinary citizens to participate in deciding criminal cases, the saiban-in

system could be a major event of the early 21st century.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship,

and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this

article.

Notes

1. When specific sections of the Act are cited here, reference will be to Anderson and Saint (2005) with the

particular section of the Act also identified.

258 International Criminal Justice Review 25(3)

2. The Justice System Reform Council also proposed a revised grand jury system or Prosecution Review Com-

mission (Kensatsu Shinsakai) wherein 11 randomly chosen Japanese citizens examine the appropriateness of

prosecutors’ non-indictment decisions. This article focuses on the adjudication process in criminal trials

rather than the potential for lay persons to influence prosecutor decisions. For an excellent review of how

legal reform has affected the Prosecution Review Commission, see Fukurai (2013).

3. Their survey of lay participation in Council of Europe countries identified five distinct approaches that

included (1) the all-citizen jury (e.g., England), (2) the German mixed bench model (e.g., typically one pro-

fessional judge and two lay judges), (3) the French mixed bench model with a greater ratio of lay to profes-

sional judges (e.g., three professional to nine lay), (4) the expert collaborative court wherein community

members with special expertise sit with professional judges (e.g., lay judges for juvenile defendant cases

in Croatia must be teachers or others with relevant experience in juvenile education), and (5) a pure lay judge

model with citizens only sitting individually or in small groups (e.g., lay magistrates in England). See also,

Hans (2008).

4. Korea implemented its new jury system in 2008, less than 1 year after the authorizing legislation was enacted

by the Korean National Assembly. However, it was established as a 5-year experimental phase with jury

verdicts being only advisory during that period (J.-H. Lee, 2009).

5. Dean (2011, fn. 81) points out that this restriction on citizenship means that permanent residents from minor-

ity communities such as Korean and Chinese are not eligible for jury service.

6. The Act specifies that all majority opinions shall include at least one vote of a professional judge and one

vote of a lay juror. As Plogstedt (2013) points out, the panel’s size means that lay juror votes will always be

contained in a majority vote. The Act does not specify what the verdict would be if a majority vote failed to

include a professional judge vote, but it seems reasonable to assume that a majority vote to acquit without a

professional judge vote would result in an acquittal verdict. However, a majority vote to convict without a

professional judge vote would result in an acquittal verdict.

7. Although outside the range of this discussion, Wilson (2014a) provides an interesting analysis of how legal

reform—including incorporation of lay participants—was an important step toward economic development

and toward giving Japan a more important role in global affairs (prior to implementing the lay judge system,

Japan was the only Group of Eight nation without substantive public participation in trials).

8. By using the court map at www.saibanin.courts.go.jp/access/index.html (or clicking on that page to see a

text version), one can go to each district court and—when available—find a link to the transcripts. Or, from

a Google search page, do a site search on the term saiban-in by entering the following in the search box:

saibanin site: www.courts.go.jp/

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Author Biographies

Philip L. Reichel is emeritus professor at the University of Northern Colorado and adjunct professor at the Uni-

versity of New Hampshire School of Law. He is the author of Comparative Criminal Justice Systems (6th ed.)

and co-editor of the Handbook of Transnational Crime and Justice (2nd ed.). His current research interests

include mock trials as a pedagogical technique, comparative juvenile justice systems, and assuring quality in

distance learning courses.

Yumi E. Suzuki is assistant professor in the School of Community Affairs at Wichita State University and also

a member of multidisciplinary teams to address sexual exploitation of minors and human trafficking in Kansas.

Her research interests include sexual violence, violent victimization, etiology of violence, comparative crimin-

ology, and criminal justice education. Her works appear in the Journal of Criminal Justice Education and the

Sexual Assault Report.

262 International Criminal Justice Review 25(3)