The New Japanese Jury System:
An Introduction and Personal View

I. INTRODUCTION

Working at the Embassy of Japan in Washington, DC, there are frequent opportunities for me to explain my background to people in the United States. When they hear that I used to be a judge in Japan, people tend to be surprised by my “youthful” (immature) appearance. But this reaction is understandable given the difference between the Japanese and American systems for appointing judges. In America, judges have generally been practicing lawyers for many years before going on the bench. By comparison, in Japan, individuals who pass the bar exam matriculate to something called the “legal training institute.” After a total of 12 to 16 months of training and internship, one can become a private lawyer, prosecutor or judge – before ever practicing law. However, the Japanese judicial system does have a training system in place to supplement their lack of experience. For instance, I was assigned by the Supreme Court to work for a year as an office worker in the HR department of Toyota Motor Company before going on to work in my current position at the Japanese Embassy, which has given me the opportunity to meet exciting new people every day and broaden my point of view. The Japanese judicial system is gearing up for a major change. Soon, persons with an even broader spectrum of experiences and backgrounds will be hearing and ruling on cases.

II. THE SAIBAN-IN SYSTEM

A. OVERVIEW
In May 2004, the law for implementation of the saiban-in system was promulgated. This system will allow for the participation of the general public in criminal court trials, and will be put into practice by May 2009. Public participants in the process are called “saiban-in,” which means “lay jurist.” For most cases, the judicial panel will be composed of six lay jurists and three professional judges. A significant difference between the American jury system and our new system will be that judges and lay jurists will deliberate and decide together around the same table on whether the defendant is guilty, and if so, what the appropriate sentence should be.

B. WHY NOW?
Traditionally, legal professionals that handled criminal cases have received high marks from within the legal system. However, the public complained that legal professionals were placing too much emphasis on specialized knowledge. Some procedures and judgments have clearly been difficult for the public to understand and some cases have taken longer than expected to reach verdict. As a result, the public developed the impression that verdicts in criminal cases were hard to comprehend and were remote from the opinions of ordinary people.

It is expected that legal specialists will try to do their best to make trials easier to understand and shorter, and at the same time, outcomes will reflect the general feelings and opinions of ordinary citizens. Ultimately, it is hoped that through the participation of members of the general public in trials there will be an increased understanding and sense of trust toward the justice system.

C. CASES TO BE HEARD BY LAY JURISTS
Lay jurists will only take part in felony cases, including homicides, robbery resulting in bodily injury or death, and arson of an inhabited building. Given the nature of the issues that may arise in these types of cases, lay jurists may feel burdened by the weight of responsibility to hear and rule on them. Indeed, to be honest, when I first became a criminal judge I felt I had a heavy responsibility and was under stress to the extent that I even sometimes dreamt of the faces of victims in my sleep. However, to help alleviate these pressures, professional judges will be there to support the lay jurist’s understanding of particular cases, especially with fundamental knowledge of laws and basic trial procedure. In this collaboration between lay jurists and professional judges, the lay jurists are required to reach a verdict through their discussions with the five other lay jurists and the three professional judges.

D. LAY JURIST’S DUTIES

1. Participation in Court Trials.
A major distinction between the American jury system and the pending Japanese system is that lay jurists will have the right to directly question witnesses on the stand. From my experience, I felt pressure questioning defendants in organized crime cases when the courtroom gallery was filled with Japanese gang members. But lay jurists will not have to worry since measures are being implemented to protect them. In cases with a significant possibility that lay jurists or their family members will be threatened, trials will be conducted by professional judges only.

2. Deliberation and Reaching a Verdict.
After examining all the evidence, the mixed panel of judges and lay jurists must deliberate and reach a verdict regarding whether the defendant is guilty of the crime charged, and if so, on what sentence is to be imposed. The combined panel will have to strive to reach a unanimous verdict, but in the event a unanimous verdict cannot be reached even after repeated deliberations, the verdict will be decided by a majority vote. The approval of at least one lay jurist and one professional judge will be required for the verdict.

Prior to the new system, felony cases were composed of a panel of three judges, each judge being granted one vote. When I was a junior judge, it was sometimes difficult to object to the opinion of the other more senior judges. However, I knew that if gave blind obedience to the opinion of the senior judges that it would render the panel meaningless. So, for me, I tried to scrutinize the evidence and understand the facts until I felt confident that I was the person who knew the most about the case. I always made the panel deliberate well into the late night until I felt I was completely satisfied and persuaded. Looking back on those days, my presiding judge probably felt frustrated with me, but I appreciated that he let me freely and openly explain my opinions.

Likewise under the new saiban-in system, I believe each lay jurist has one very valuable vote that they must respect and not forget the importance of. It is up to the professional judges to create an atmosphere that draws opinions from these lay jurists that will facilitate active discussion. Judges must not impose their own opinions on the lay jurists, but rather, should be charged with helping them appreciate the importance of their individual and independently exercised right to vote.

3. Judgment.
As a professional judge, I was always tense during the time of judgment. One time I handled a difficult case that had several days of deliberations. In the end, we made a judgment to let the defendant’s sentence be suspended. When the presiding judge announced the judgment, the defendant burst out crying, and I felt as though he looked at me full-of-appreciation. The rendering of the judgment was at once both full of tension and satisfaction for me. It made me realize the extent of my decision’s effect on someone else’s life. According to the new system, once a verdict is reached, the presiding judge will pronounce the judgment in court, and all lay jurists will be released from their duties. Perhaps citizen jurists will understand the gravity of issuing a judgment.

E. LAY JURIST SELECTION PROCESS

1. Selection Process
For selecting lay jurists, a list of candidates will be prepared. Candidates will be selected by lottery in specific cases. After the screening of the candidates at each court, the estimated number of lay jurists that will actually be selected and appointed yearly by the court as candidates is about 1 in 3500 persons.

2. Qualifications
As a rule any citizen 20 years of age or above who has the right to vote for a member of the House of Representatives is considered to be qualified as a citizen jurist. There are a few exceptions, such as those engaged in judicial occupations and persons considered by the court to be incapable of rendering an impartial judgment.

3. Excusal
With a few exceptions, all nominees must accept appointment. However, the nominee may be excused if the nominee: (1) has served as a lay jurist during the past five years; (2) has been summoned to the court as a lay jurist candidate in the past year; or (3) has difficulties in fulfilling duties or going to the court due to “unavoidable circumstances” (i.e., serious illness/injury, caring for a co-habiting family member, endangering a business through prolonged absence, or family member funeral).

III. IMPLEMENTATION AND BENEFITS

The Supreme Court of Japan (www.courts.go.jp and www.saibanin.courts.go.jp), the Ministry of Justice (www.moj.go.jp) and the Japan Federation of Bar Associations (www.nichibenren.or.jp) are all working to make the introduction of the new system a success. However, according to a recent national poll, there are not so many Japanese people willing to serve as lay jurists.

Also in my opinion, there were not that many Japanese judges who strongly supported the introduction of the system. Nevertheless, I am in favor of it. While equality and consistency in judgments is very important, limiting judgments to professional judges may result in a divergence of judicial verdicts and societal trends. Through discussions among citizens of various backgrounds and experience with professional judges, I believe the courts will be reinvigorated so that more appropriate and persuasive decisions will be made. In addition, if Japanese citizens do participate, I believe that they will not only feel closer to their legal system but they will also gain something beneficial for themselves.

[1] Mr. Nonaka is currently a Legal Attaché at the Embassy of Japan in Washington, DC and has served as a former Judge for the Tokyo, Kochi, and Nagoya District Courts in Japan. You may contact Mr. Nonaka at tnonaka@embjapan.org.

 

 

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