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The new Japanese ‘jury’ system

August 6, 2009

The Guardian Comment is Free site asked me to do a (very quick) comment piece on the new Japanese ‘jury’ system and it’s now online here. I had to cut my original down to around 600 words and they edited it a little more to fit, and added an awful photo (where on earth they got it I am not quite sure…). Here’s the full version…

Disorder in the Court

Japan’s courts are not usually the subject of massive popular interest in the country. Salacious details of criminal cases fill the pages of the popular weekly magazines and provide fodder for cheap TV shows, but the court system itself is seen as distant, formal and, above all, dull.

The courts have long been seen as a a rubber-stamping exercise for cases already decided by confession in police cells. Japan’s 95% confession rate has been attributed to a cultural sense of shame, or to the thorough and minutely detailed dossiers of public prosecutors, but according to Amnesty International, the psychological pressure of up to 23 days of isolation and constant questioning (not to mention intimidation and physical violence) might provide a better explanation. In recent years, the issue of coerced confessions has been increasingly recognised in Japan, and the most recent example was the freeing in June this year of Toshikazu Sugaya, a man who DNA evidence has now shown could not have been guilty of the killing of a 4-year old girl, a crime that he confessed to in police cells and of which he was consequently convicted of in 1990.

Added to this is a growing feeling that the courts were too remote from people. So in 2004, a new law was passed to introduce a new method of adjudication for some criminal trials beginning in May 2009. Now the first trial using this new system, a case of murder involving elderly neighbours, has just started in Tokyo. Some have characterised this saiban-in as a ‘jury’ system, but it is actually a ‘lay-judge’ system. Whereas in the UK, twelve ordinary people are called by the courts to hear evidence and make a judgement on the guilt of the accused, in the new Japanese system six citizens join three professional judges. They not only hear evidence, but are also able to question witnesses and help decide the sentence. Verdicts are majority decisions but have to include at least one of the professional judges.

It seems an onerous task. So it is not surprising that many who were originally short-listed for lay-judge duty but did not make the final six for the first trial, are relieved to have escaped not because, as is so common in the UK, they found it inconvenient, but because of the burden of responsibility they felt. This has particular cultural components. Strongly-stated opinions and absolutes are not favoured in Japan, and people like to keep options open. The selection process itself was remarkably complex and involved summoning an initial 100 candidates, some of which were excused on grounds of infirmity or age, and more were then deselected after detailed questioning on their views and attitudes. Even court officials are now admitting that they may have overdone it.

But why this particular, strange, hybrid system? The answer is that it had form. Japan had an almost identical system from 1928 to 1943. During the Taisho period that saw a brief flowering of a more democratic culture in Japan, progressives had tried to introduce a full Anglo-American style twelve-person jury, however, judges, and conservative and nationalist politicians opposed this initiative and forced a compromise: the saiban-in system.However according to research by Takashi Maruta, the lay-judges still actually challenged the professional judges in many serious cases refusing to accept the confession and dossiers of evidence and preferring to rely on oral testimony of the accused and witnesses in court. Even in its compromised form such a volatile system offended traditionalist judges (who like many state representatives saw their power as deriving from the Emperor and therefore ultimately, divine sources), lawyers and was hardly suited to the militarist regime that gained control in the 1930s, and was eventually stopped.

But opposition seems rather different this time around. In the UK, civil libertarians have been fighting to defend jury systems, but in Japan civil liberties arguments have been marshalled by protestors against the new system. Opponents argue that the selection process violates privacy by forcing citizens’ personal views to be exposed, and is also authoritarian because citizens cannot refuse to serve unless they have health reasons. Some have even likened the system to a lynch-mob, because of course Japan still uses the death penalty.

However dig deeper, and underlying these arguments are reactionary and conservative concerns and the once-again rising influence of nationalists, in other words very similar conditions to those of the late 1920s: defence of the ‘professionalism’ of judges, and the arguments about the quasi-sacred integrity and necessary distance of courts from popular influence. More generally though, even though this system is the result of a bill passed five years ago, it seems part of an air of populist desperation from the increasingly unpopular ruling Liberal Democratic Party that faces defeat for the first time in decades in the general election at the end of this month.

However, if nothing else, the controversy over the system has excited Japanese people about the court system, and not just in bloody tales of murder and mayhem, and whatever happens in the future, any disorder in the court that results in interest and engagement in criminal justice has to be a good thing.

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