The Japanese government is in the
process of transforming the nation’s criminal procedure from its traditional
system whereby a judge unilaterally determines verdict and sentence to a new
system whereby such decisions are to be made by a collective of a judge and
jury, or ‘Saiban-in.’ The new system, which will take effect in 2008, is
believed by many to be a middle ground between the Franco-German juryless
system and the Anglo-American system, in which a group of ordinary citizens
determine the fate of a defendant without judicial interference. However, the
proposed procedural change will without doubt render the jury powerless and
continue the de-facto monopoly that judges have when it comes to making
judgments in criminal cases, as they will retain tremendous influence over the
decisions of the jury. The establishment of a working jury system has the
potential to bring about numerous benefits for the Japanese government;
assuring that the decisions rendered in criminal cases are made in accord with
democratic precepts, encouraging civic participation in government, and
restoring public trust in the judiciary. Accordingly, it would be advantageous
for Japan if it were to wholeheartedly adopt the Anglo-American jury system so
as to provide criminal defendants with a fair trial and to promote civil
involvement in judicial proceedings.
A plethora of arguments can be made as to why it would be in
the best interest of Japan to establish a jury-based system of criminal
procedure. Decisions in Japanese criminal trials have traditionally been
determined unilaterally by a judge, and many have been reluctant to modify this
system. They cite foreign incidents such as the Rodney King case in the United
States, where a jury found white police officers to be innocent of a clearly
racially motivated heinous crime, to be evidence as to why Japan should not
adopt a jury system. However, judges themselves are not any less prone to
making mistakes than are juries. When single political actors are enthroned
with the ability to make judicial decisions without substantial oversight, they
are prone to lackadaisical or purposeful errors in judgment. Two prominent
Japanese cases that evidence fallacious judicial decision-making are Government v. Akabori and Government v. Menda; wherein defendants
were found guilty of committing murder and were sentenced to extensive prison
sentences; only to be released on appeal after spending twenty-five years
behind bars. (Wakulat, 2005, 1) These incidents threaten to propagate
widespread public distrust of the Japanese criminal justice system and attest
to the need for change. (Cho, 1998, 1)
In
addition to blatant judicial error, the traditional arrangement of the Japanese
criminal justice system is such that judges have tended to decide cases on
paper before testimony is rendered. An inextricable bond exists between the
judiciary and the prosecutor’s office and police departments. (Asahara, 2004,
1) This is evidenced by the fact that judges often accept law enforcement
claims of a defendant’s “voluntary confession” without looking into whether the
defendant was coerced into making an admission of guilt (Kiss, 1999, 2).
Defendants, whom can be imprisoned for up to twenty-three days without access
to attorney representation, are likely to make such confessions under duress;
and the processes by which police officers extract them often goes unchecked.
(Richardson, 2004, 1) In addition, Japanese judges have tended to trust
prosecutors, effectively affixing a “rubber stamp” to their decisions without
considering the potential for falsities (Kiss, 1999, 2). This in part has
resulted in an unfathomable ninety-nine percent conviction rate of Japanese
criminal defendants; which many see as evidence of improper procedure.
(Wakulat, 2005, 1) The institution of a jury system will serve to increase
scrutiny into the previously unsupervised methods of prosecutors and law
enforcement officials. Also, the nature of jury participation affords the
justice system with protections that insure that each criminal defendant is
given a full and honest opportunity to defend themselves against allegations.
The “laymen” that comprise juries do so only temporarily, and as such, are not
subject to the scheduling or monetary constraints that have fostered in judges
a need for maximizing efficiency and speed. A group of citizens working
together to come to decisions as a jury would be perhaps less prone to missing
important details, affording them a better appreciation of the facts
surrounding a particular case. In addition, as a group of actors working
together, jury members can serve an oversight function, and their very
appearance will force the judiciary to follow proper procedure at all times. A
transition to a jury system will likely serve to strengthen public confidence
in an ailing criminal justice system and government.
Some say that the only characteristics juries share is common
outrage, stereotypes, and uneducated judgment. In fact, the infamous Rodney
King case also pointed out the impact that racial biases can have on the
outcome of a jury trial. However, the
homogeneity of Japanese society in terms of race, culture, religion and
language may reduce the commonly perceived biases associated with jury trials
in the West (Kiss, 1999, 7). Opponents of the jury system argue that it is
fallacious to assume that a group of uneducated commoners can make
well-informed judgments. However, as elite members of society, judges may find
themselves distanced from the moirés and customs of the average citizen. By
virtue of the scholastic rigor associated with joining the judiciary, judges
can become disconnected from Japanese public opinion and sentiment, and are
therefore less able to render judgments in accord with contemporaneous societal
views. Judges must undergo extensive training and must pass the difficult
National Legal Examination before attaining a judicial post, and in effect,
their education serves to propagate in themselves elitist viewpoints that do
not correspond with those of the general public. (Kiss, 1999, 2) On the other
hand, the “ordinary people” that compose juries will render their decisions
based on “common sense and human experience;” the knowledge more applicable to
understanding the context within which criminal allegations arise (Belli, 1959,
180).
Also, the existence of a jury system encourages civic
participation in government. Although many may feel as though their government
operates as a foreign entity having little to do with one’s personal
involvement, serving on a jury can give each citizen the opportunity to
participate in the workings of their government in a truly meaningful way. Some
scholars make the assertion that a jury system is a disguised form of “direct
democracy,” where each citizen actively participates in the workings of their
government. They argue that such a system was never intended to be instituted
in Japan due to the obvious coordination process that such a system would
propagate. Although the practice of establishing juries resembles “direct
democracy” as it existed in Ancient Greece, the commitment each citizen is
required to make to the process is limited. Unlike in Ancient Greece, citizens
are not asked to vote on every issue that arises and at all times; but rather
each individual will take part in the process within a small subset of the
total number of cases and within limited amounts of time. In addition to
educating the Japanese populace about the strictures of their legal system,
serving on a jury will engrain in each participant feelings of
interconnectedness to one’s country, thus instilling a sense of nationalism.
The jury system will strengthen Japanese democracy and reinforce the notion of
“popular sovereignty,” or the understanding that Japan is ruled by its people. (Richardson,
2004, 2) These measures may help restore public trust in the Japanese legal
system. In addition to strengthening democracy at home; the establishment of a
jury system in Japan may have the potential to encourage and advance the spread
of democracy throughout all of Asia. (Myers, 2006, 1) In fact, the recently
adopted changes in Japan have already spurned a “ripple effect” in Asia, as
South Korea, the Philippines, and even China have begun to reexamine their
existing judicial systems (Fukurai, 2005, 1). Clearly the affording of Japanese
criminal defendants a jury has significant implications for the development of
democracy both at home and abroad.
Japan is also well positioned and amenable to allowing for
the change. During the period of Taisho Democracy, the Japanese government
experimented with limited jury system whereby the jury was to provide
nonbinding guidance to the judge, who would himself make final decisions. (Von
Mehren, 1963, 22) Although this system was gradually eliminated with the onset
of totalitarianism, the notion of serving on a jury has been accepted and
ingrained into the socio-cultural framework of Japanese society. (Fukurai,
2005, 2) Also, in the latter half of the twentieth century, Japanese citizens
have become more willing to bring their quarrels to trial than in the past,
thus rendering citizen involvement in the court system less of a “foreign”
activity (Kiss, 1999, 7). Given the advantages of the jury system discussed
above and the mindset of the Japanese citizenry, the time for change is now.
It has thus been determined that Japan has the potential to
benefit from restructuring its justice system so as to afford criminal
defendants a jury of their peers. However, the recently established “mixed
system” must be examined so as to determine its appropriateness given the
Japanese socio-cultural context. This system, which is set to be adopted in
2008, will allow for decisions as to verdict and sentence to be made by a panel
of six “Saiban-in,” or jury members, and three judges in cases when there is
uncertainty as to guilt; and four “Saiban-in” and one judge in those cases
where there is no substantial doubt as to guilt (Anderson, 2005, 233). By virtue
of its very design, this system has the potential to bias the outcome of a
case. The flaws of this system can be prominently seen if one considers the
unique strictures of Japanese culture. As a collectivist society, the Japanese
often maintain higher levels of trust and subservience to figures of authority
than do those in the West. (Kiss, 1999, 5) This cultural difference makes it
likely that in Japan, jury members would be unwilling to confront and disagree
with judges of higher relative power and authority. In such a system, it would
be more likely that jurors would yield to the opinions of judges in an effort
to “maintain harmony” and to “avoid confrontation” (Kiss, 1999, 5). For these
reasons, the mixed system is unwarranted, and its establishment will merely
continue the de-facto monopoly judges have on decision-making power. If the
Japanese government is serious about adopting the jury system it must consider
instead the Anglo-American model, wherein decision-making capabilities are
transferred in their entirety to a jury; absent of judicial interference. In
this setup, jury members would be less inclined to yield to the decisions of
co-equal jury members than in if they were working under the de-facto authority
of a professional judge. (Kiss, 1999, 6) Only without judicial interference in
the decision-making process of juries can the Japanese government insure that
each criminal defendant is given a fair opportunity to defend himself, face
judgment from an impartial point of view, and receive justice as due him.
In conclusion, Japan stands to greatly benefit from infusing
a jury system into its criminal procedure. Juries can help to ensure that
trials are conducted fairly; break the previously inextricable bond between
judges, prosecutors, and police officers; and utilize their collective common
sense to garner an understanding of the context surrounding cases so as to come
to objective conclusions. The change can also serve to the benefit of the
nation, as the newfound civic participation will allow each and every Japanese
citizen to feel as though they play an important role in the decision-making
processes of their country. This sentiment will encourage the advancement of
democracy both at home and in neighboring countries as they bear witness to the
benefits of the jury system. As explained in the foregoing arguments, the
“mixed system” recently adopted by the Japanese Diet will promulgate a
continuance of judicial authority and render the opinions of the jury
meaningless. Ensuring that decisions are made fairly and democratically
requires the institution of the Anglo-American jury system, whereby judges are
to be removed from the decision-making process in their entirety. Without
question, the establishment of a full-fledged jury system would serve to the
advantage of Japan.
Works Cited:
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Kent, and Emma Saint. "Japan's Quasi-Jury (Saiban-in) Law: an Annotated
Translation of the Act Concerning Participation of Lay
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Shoko. "Reform Reaches the Courts." The Economist 6 Mar. 2004:
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