The Anglo-American Jury and Japanese Criminal Justice

      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:

Anderson, Kent, and Emma Saint. "Japan's Quasi-Jury (Saiban-in) Law: an Annotated

Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials." Asian-Pacific Law & Policy Journal 6 (2005): 233-283. JSTOR. JSTOR. Hofstra University, Hempstead. 30 Apr. 2007. Keyword: Japan and jury.

Asahara, Shoko. "Reform Reaches the Courts." The Economist 6 Mar. 2004: 16.

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1. Indianapolis: Howard W. Sams & Co., Inc., 1960. 180.

Cho, Kuk. “The Japanese "Prosecutorial Justice" and Its Limited Exclusionary Rule." The

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Seido (Quasi-Jury System) in Japan." Diss. University of California, Santa Cruz, 2005. Abstract. Comparative Analysis of Civic Legal Participation in Japan and the U.S. 1 (2005): 1-5.

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62 (1999): 1-17. LexisNexis Academic. LexisNexis. Hofstra University, Hempstead. 30 Apr. 2007. Keyword: Japan and jury.

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<http://www.numenware.com/article/551/>.

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1st ed. Vol. 1. Cambridge: Harvard UP, 1963. 22.

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The Contribution of the Samurai to the Establishment of Modern Japan - Brian Safran

The Meiji Restoration that followed the collapse of the feudal order was an era in Japanese history in which Japan sought to abandon its traditional isolationist stance and modernize its economic and political systems, military capability and social order. The efforts undertaken by the Japanese government represent an attempt to shield the country from forces of Western imperialism by strengthening its position relative to Western powers.  The recognition of the distinctive ‘spirit’ of the samurai class fostered their successful reallocation into productive positions in government, agriculture, industry, and commerce and thus served as a major catalyst in allowing Japan to achieve the extensive socio-political modernization and sustained economic vitality that it desired during the Meiji Restoration.

The Japanese samurai emerged as a distinctive social class during the feudal era. The samurai were endowed with the ability to commit acts of violence against commoners who failed to adhere to societal norms, and maintained a monopoly on the bearing of arms; effectively serving to strengthen their power relative to others. (Norbeck, 1967, 8-9; Hayes, 2005, 13) Characterized by their unwavering might and prominent role in protecting the court aristocracy as “military specialists,” they developed their own unique identity and social construct (Ikegami, 1995, 47). In direct competition with the feudal aristocracy, they achieved and maintained their position in society by utilizing their power to subordinate and dominate those of lesser standing. (Ikegami, 1995, 49) The samurai differed from prior military men in ancient Japan by their professionalism both in terms of skill and in the realization of themselves as honorable professional warriors. (Hayes, 2005, 13) During the early stages of feudalism, this identity allowed many of them to enjoy comparable wealth to that of aristocratic society without requiring the attainment of the requisite status afforded them. (Ikegami, 1995, 47-48) Thus, the samurai had succeeded in utilizing their military prowess to escalate their position in society in early feudalistic Japan.

While it is without doubt that the early samurai possessed tremendous military capability, it was the manner in which they portrayed themselves that earned them their special place in history. At the height of their feudal prosperity, the samurai embodied an unwavering sense of self-discipline, loyalty and honor among its members that became recognized as the “spirit of the samurai” (Yamamura, 1968, 153). This ‘spirit’ permeated all actions of the samurai and became the code of ethics under which they not only fought, but lived. A samurai would rather sacrifice his own life than risk a violation of the bushido, or samurai moral code. (Ikegami, 1995, 278) The samurai sense of morality was highly regarded by the lords who capitalized on these qualities during the extensive period of relative peace during the Tokugawa period. A subsequent mutually amicable relationship arose that allowed for the incorporation of the samurai into bureaucratic, landlord-like positions highlighting their abilities. They were placed into administrative and public service posts and were rewarded with economic security as payment for their services (Black, 1975, 47).  For the first time in their history, the samurai were able to achieve recognition and economic self-sufficiency, as a result of their skills and ethical conduct off of the battlefield.

The highly regarded status enjoyed by the samurai was however temporary; challenged by the political and economic transformation experienced by Japan during the mid nineteenth century. Japan came to the realization that Western ideals and tactics threatened the continuance of Japanese independence and way of life, thus prompting the commencement of the Meiji Restoration and a newfound “commitment to social change and political modernization” (Hayes, 2005, 18). The gradual disintegration of the feudal system and the revitalization of imperial power with its concurrent industrialization and economic modernization served to adversely impact the samurai. (Gordon, 2000, 2) A shift from a predominately agricultural society to a commerce-based society destabilized the land-dependent samurai. This, coupled with a plethora of social reforms, resulted in their demotion and the accompanying revocation of their privileged ruling status while the nation was simultaneously undergoing the most miraculous transformation of its history. (Yanaga, 1955, 120; Ikegami, 1995, 360) The “Charter Oath” was declared by Emperor Mutsuhito of the Meiji regime, and it propagated a blending of social classes, encouraged Western learning in an effort to strengthen Japan’s militaristic capabilities, and thus prompted a reorganization of the military (Hayes, 2005, 18). The 1873 introduction of universal male conscription and the corollary increase in military spending reduced the aggregate competency of samurai warriors, who had lived through an extensive period of relative peace during the Tokugawa era and had been trained using outdated forms of armor and military tactics. (Black, 1975, 45-46; Berry, 2006, 227) As a result, the fate of the samurai had been in jeopardy. Thousands found themselves unemployed and facing poverty, having lost their rights to own land and property. (Black, 1975, 55) In short, the Meiji Restoration transformed Japanese society and established a new order in which the military skills of the samurai were no longer needed, and it served to relegate them to a civilian life with no prestige, power or economic security. (Yanaga, 1955, 124)

The samurai however were not ordinary citizens. Many were learned individuals and many had significant leadership abilities. (Hayes, 2005, 19) Their military training, ability to cope with hardships and selfless dedication coupled with their strict code of ethics served to distinguish them from the civilian population. (Yamamura, 1968, 145) Their sense of bushido portrayed their “honor as a cultural representation of their power and independence” (Ikegami, 1995, 34).  Internalization of these sentiments among the samurai evolved into a sense of autonomy and individuality whereby the individual was the “ultimate owner of his mind and soul” (Ikegami, 1995, 34). Their feudalistic origins, where they relied upon their lords for small stipends, endowed them with the merits of frugality and loyalty. (Norbeck, 1967, 20) During the Tokugawa period their position as landlords allowed for their accumulation of financial and administrative experience as well as entrepreneurial capability. (Gordon, 2000, 1) The samurai were far more than simple warriors whose time had past. Their attributes were of great value and their collective spirit eternal. Despite their setbacks, the ‘spirit of the samurai’ would propel them forward into an era of modernization and change.

The Meiji government of 1868 found itself facing the serious dilemma of having to reallocate the 1.8 million displaced samurai. (Harootunian, 1960, 433) The revitalization of Japan required a restructuring of the existing social system, and the changes led to the demotion and virtual annihilation of the samurai as a hereditary military class. (Harootunian, 1960, 433) But having a highly educated, dissatisfied group of people living in the throws of poverty was not conducive to Western ideals, and their frequent uprisings threatened the goals of the Restoration. (Black, 1975, 227) In addition, the government recognized the value of the political, administrative and literary accomplishments of the class to the furtherance of their own economic advancement, and as such absorbed the samurai into their new culture through the “samurai rehabilitation program” (Harootunian, 1960, 435). This program was primarily designed to assist the Meiji government in expanding its agricultural, commercial and industrial programs while secondarily providing a solution to the samurai problem (Hayes, 2005, 19). While there was some doubt as to whether or not the samurai would be able to assume their new role, most were able to adapt the characteristics that had allowed them to prosper during feudal times to their changing situation. The government assisted by enacting laws that provided the samurai with increased job opportunities in industries that fostered economic expansion. Many samurai found themselves financiers, managers and workers. (Harootunian, 1960, 434) A large number of ex-samurai were also assigned to wasteland reclamation projects where the government hoped to stimulate investment and enterprise among them while simultaneously providing them with income and housing. (Haratoonunian, 1960, 436) In an effort to expand their national banking facilities, the government established a mutually beneficial system whereby samurai pensions would be used as securities to allow for the development of bank branches. (Harootunian, 1960, 440)  Keeping with their pursuit of Western industrialization, the Meiji government enacted a capital loan program that granted funding to samurai who chose to invest in industry or commerce that resembled Western practices. (Harootunian, 1960, 442) Between 1876 and 1889, the number of samurai who owned businesses expanded rapidly. (Harootunian, 1960, 444)  Many samurai embraced their altered role in society because it afforded them a new “elite” status and its appeal to nationalism awakened the “sleeping spirit of the samurai” (Ikegami, 1995, 361). The motivations behind the samurai rehabilitation program maybe subject to challenge, but what is clear is that the program did allow an opportunity for many samurai to capitalize on their skills and “together with a growing merchant class, many of whom were themselves samurai, [were able to provide] the human resources that propelled the country politically and economically forward” (Hayes, 2005, 19).

The Meiji leaders engaged the samurai in industries in which they were most likely to reach their full potential. The samurai contributions that followed impacted all major aspects of the Meiji economy and accelerated its growth and development. (Harootunian, 1960, 444) While it can be argued that the samurai had no choice but to accept their fate and resign themselves to their new positions, it is the expertise that they brought and the spirit which they personified that heralded their position as major contributors. The knowledge of agriculture embedded in the samurai from their feudalistic upbringing, combined with their managerial skills allowed them to assist the government in cultivating thousands of acres of previously designated wasteland for commercial, investment and residential purposes. Upon the request of Kuroda Kiyotaka, the Minister of Colonization, the government established a program to develop these lands, and it was uniquely suited to the dual skills of the samurai employing both their peacetime agricultural and industrial skills and their wartime military capabilities. (Harootman, 1960, 439) These endeavors led to the recruitment of 7,500 samurai and the subsequent development of the formerly barren northern area of Hokkaido. (Harootunian, 1960, 444) The samurai were also credited with possessing “strong entrepreneurial spirit,” having channeled their medieval qualities of frugality and self-determination into an intense interest in money and profit; placing them in a position perfectly suited for “advancement of the new nation” (Yamamura, 1968, 145). It is often contended that the development of capitalism in Japan was a by-product of samurai business acumen and their ability to sacrifice self-interest for national interest. (Yamamura, 1968, 153) There were those who believed that the samurai were more suited than either the peasant or merchant class to assume the responsibilities of Western-type industrialization because they were not burdened by traditional business techniques and methods. (Haroootunian, 1960, 442) In fact, Godai Tomoatsu, the leading entrepreneur of the Meiji period was of samurai origin. (Brown, 2003, 1) What is undeniable is the multitude of samurai-owned businesses that arose during this period ranging from small companies to large corporations and their impact on promoting Japan’s modernization. (Harootunian, 1960, 444) Samurai influence was so significant that some interpretations of the modern banking system in Japan credit the samurai with its establishment. (Yamamura, 1967, 199) Samurai leadership abilities led to claims that they were “natural leaders” and that their “participation in government affairs brought to it a polished purity and virtue” (Harootunian, 1960, 433). Noteworthy among the many samurai to assume leadership positions in the Meiji government were Ito Hirobumi who went on to become the countries first prime minister; Okubo Toshimichi who led the revolution against the shogunate; and Saigo Takamori who later assumed command of the imperial army (Beasley, 1957, 91). The samurai of the Meiji Restoration had overcome the loss of their traditional infrastructure but had retained the attributes needed to become major contributors to Japanese expansion and revitalization.

The samurai were a valiant and noble group whose contributions to Japanese prosperity greatly exceeded their military prowess. Their skills in government, agriculture, industry and commerce have left an indelible mark on almost all aspects of the Meiji economy. Far greater than their materialistic contributions was the ‘samurai spirit’ which they embodied. Their code of honor permeated every aspect of their existence and integrated itself into the Japanese way of life. Reaching its height during the feudalistic period, the ‘samurai spirit’ became the propellant that allowed for their survival during the Meiji Restoration and for their emergence as a major contributor to the economic, political and social transformation of Japan. The samurai leave behind a legacy of tradition and legend and a ‘spirit’ that will forever be symbolic of the integrity and drive that characterized the successful Japanese transformation.

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