Japan’s criminal trials due to change

by Catherine Glenn Foster, 1L
Law Weekly
April 7, 2009

On Tuesday, March 31, Hideaki Gunji presented Japan’s new saiban-in system to students and faculty at Georgetown Law. Sponsored by Law-Asia, the event focused on the purpose, procedures, and issues of the saiban-in system.

The saiban-in, or “lay judge,” system is a revolutionary rethinking of an entire justice system, instituted to “establish a popular base for the justice system” (one of the three pillars of Japan’s Justice System Reform program). The saiban-in system enables the general public to take part in criminal court trials in a way that they have not since the intensification of World War II, when Japan suspended its fledgling jury system. It was created by the “Law for Implementation of the Saiban-in System in Criminal Court Procedures,” promulgated in May 2004 and will be exclusively enforced starting in May 2009.

Traditionally, a judicial panel in Japan consists of three professional judges; under this new system, it consists of three professional judges and six saiban-in, ordinary citizens who will take on decision-making powers. This system will be used in District Courts for serious criminal cases: crimes punishable by death or imprisonment for an indefinite period (whether with or without labor), or crimes in which the victim has died due to an intentional criminal act. The only exception to the use of saiban-in in these cases is where there is concern for the safety of the saiban-in or that person’s family, though the number of decision-makers can be reduced to one judge and four saiban-in if a defendant does not contest charges.

A 2005 report indicated that 3,629 cases – 3.2 percent of total criminal cases – had already been decided under the saiban-in system, of which 690 were homicide cases. Approximately two thirds of the defendants in these cases admitted to the alleged facts.

The saiban-in are afforded a real voice in these cases, both in the deliberation process and the verdict, addressing such issues as admissibility and reliability of confessions. Fact findings, application of law, and sentencing are all discussed with the saiban-in, and the majority rules. Procedural matters, on the other hand, are usually reserved to discussion by judges, though they can defer to the opinions of the saiban-in. Saiban-in are afforded a vote equal in weight to that of the career judges, though a conviction requires that at least one professional judge find guilt.

There is a special procedure for sentencing: the sentence is the least sentence that at least five – the majority – agree upon. For example, if four of the nine vote for a prison term of eight years, two for seven years, and three for six years, the sentence will be seven years since the majority (here, six) agree that the defendant should serve a sentence of at least seven years.

Under the saiban-in system, trial proceedings require the intense and critical examination of evidence (which will focus more on witnesses and less on investigators’ documents detailing their interviews with witnesses, which had resulted in establishing guilt or innocence in chambers rather than in a courtroom), weighting it according to its relevance. Further, a conviction must be established in a court trial through this examination of evidence.

The court must be open on consecutive days to speed the trial process; lengthy trials are a traditional weak point of the Japanese judicial system. Finally, pretrial arrangement proceedings are much more important under the saiban-in system. Traditionally, between an indictment and a trial, preparation was made without the input of judges. The new system includes judges in the arrangement proceedings, which include the arrangement of points at issue, the admission of evidence, and the creation of a Trial Proceedings Schedule.

Saiban-in are assigned on a case-by-case basis, similar to the U.S. jury system, but there are key differences. At the end of each year, the Japanese Supreme Court sends notifications to all those who are in the pool to be selected as saiban-in for the following year. Then as cases arise, saiban-in are selected from the pool and notified by something similar to a summons. Gunji reports that in Japan, they are trying to avoid the U.S.-style strategic approach to jury selection, while at the same time excluding those who could be prejudiced.

Why introduce this new system? According to Gunji, the saiban-in system is built to improve criminal procedure by reflecting the general feelings and opinions of the Japanese public, thus increasing the public’s understanding and trust of the justice
system, and also by improving the speed of trials and the clarity of proceedings.

The people, however, are still uncertain about the saiban-in system. As in the U.S., they don’t look forward to “jury duty.” Saiban-in are not sequestered, though, and they do have access to newspapers, television, and other media outlets.

In the end, despite lingering questions and issues (for example, judge influence on the saiban-in, how judges should answer saiban-in questions, and the structure of written judgments and Courts of Appeal), most seem to be optimistic about the saiban-in system.

Gunji is a visiting scholar at Georgetown Law. He is representing the Supreme Court of Japan and is an Associate Judge for the Tokyo District Court. His research at Georgetown will focus on the criminal pre-trial procedure in the United States, and his visit will continue through July 9, 2009.