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Watson, Andrew (2016)
Publisher: German-Japanese Association of Jurists
Languages: English
Types: Article
Lay judge, or “saiban-in”, courts try serious cases in Japan. Sitting together, professional judges and lay judges decide guilt and sentence. Resembling Anglo-American\ud jurors, and unlike lay judges elsewhere, saiban-in are selected at random and sit in only one case. Dissimilar to mixed tribunals in some countries, where they cannot, or do not in practice, Japanese lay judges question witnesses directly, giving them a more active role in fact finding than jurors. Before their inception, in May, 2009, ordinary citizens’ participation in the criminal justice system was very limited. A criminal jury system did exist from 1928 to 1943. It was not, however, a success. This article tells of the creation of the jury system in the 1920s and examines reasons for its failure including the law itself, opposition by the judiciary, cultural elements (taken by some to confirm that under no circumstances could jury trial work in Japan) and political factors such as descent into authoritarianism, militarism and war.
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    • Code of Criminal Procedure in 2004, which became effective in 2009, Commissions may now order that prosecutions be commenced. See H. FUKURAI, The Re-birth of Japan's Petit Lay Judge and Grand Jury Systems: A Cross-National Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U.S., in: Cornell Int'l L. J. 40 (2007) 315, 323-328.
    • W. BEASLEY, The Modern History of Japan (Weidenfeld and Nicholson 1973).
    • 16 This publication was established in 1900 by the lawyer Masutarō Takagi with the principal object of spreading legal information of benefit to the general public.
    • 17 “Celebrating the Passage of the Jury Bill”, Hōritsu Shinbun, 28 March 1923.
    • 18 J. HALEY, The Spirit of Japanese Law (University of Georgia Press 1998) 52.
    • 19 Baron Ki'ichirō Hiranuma (1867-1952) later served on the Great Court of Judicature (1921-1923), and subsequently as Minister of Justice and eventually Prime Minister. He was a prominent right wing leader and remembered for his role in establishing the Kokuhonsha nationalist society in 1924 which aimed to combat the spread of liberal and foreign ideas and to promote what it saw as Japan's traditional national spirit. In office he did much to develop the thought police. After the Second World War he was sentenced to life imprisonment.
    • 20 Kisaburō Suzuki (1877-1940) became prosecutor for the Court of Cessation in 1912, Prosecutor General in 1921, Minister of Justice in 1924 and Home Minister between 1927-1928 and again in 1932. Very much associated with Ki'ichiō Hrianuma at the Ministry of Justice, he was also very active in the Kokuhon-sha nationalist society.
    • 21 “Celebrating the Passage of the Jury Bill”, Hōritsu Shinbun, 28 March 1923. It is worthy of observation that both Ki'ichirō Hiranuma and Kisaburō Suzuki participated in the foundation of the Japan Jury Association in 1928 with its goal of educating the general public about the jury system. It can at least be speculated that their conversion to the cause helped to soften demands for the most democratic aspects of the jury including non-interference by judges with its verdict. The conjecture arises that they may have decided to join the movement to limit the attainment of its objectives.
    • 22 Jury Act, Artt. 12, 23 and 27. It was calculated that between 1.7 and 1.8 percent of the population were eligible for jury service.
    • 23 Jury Act, Art. 88. See JAPAN JURY ASSOCIATION, Jury Guide (1931) section 19, for an explanation of the meaning and significance of the three types of questions that a judge could ask the jury: “main questions” (shumon), “supplementary questions”(homon), and “other questions” (betsumon). A. DOBROVOLSKAIA, The jury system in pre-war Japan: an annotated translation of the jury guidebook, in: Asian Pacific Law & Policy Journal 9 (2008) 269-270.
    • 24 T. KATSUTA, Japan's Rejection of the American Criminal Jury, in: American Journal of Comparative Law 58 (2010) 504 and JAPAN JURY ASSOCIATION, supra note 23, section 6, 251-252.
    • 25 Jury Act, Art. 2.
    • 26 Jury Act, Art. 3.
    • 27 M. URABE, A Study on Trial by Jury, in: Tanaka (ed.), The Japanese Legal System (University of Tokyo Press 1968) 482-491.
    • 28 Jury Act, Art. 4.
    • 29 J. BENSON / T. MATSUMURA, Japan 1868-1945: From Isolation to Occupation (Longman 2001) Chapter 2.
    • 30 See subsection on Historical Explanations, infra.
    • 31 T. MARUTA, The Criminal Jury System in Imperial Japan and the Contemporary Argument for its Reintroduction, in: International Review of Penal Law 72 (2001) 216.
    • 32 DOBROVOLSKAIA, supra note 23, 234, 235.
    • 33 DOBROVOLSKAIA, supra note 23, 236, 237.
    • 34 For a clear explanation of this procedure see DOBROVOLSKAIA, supra note 23, section 8, 258.
    • 35 The Japan Jury Association was formed in 1928 to educate the public about the jury system and its key importance. At its height in the early 1930s it had some 50,000 members. The Association distributed pamphlets and other materials about the jury system amongst its members. For their benefit, and of other potential jury members, it arranged visits to courts, in Tōkyō, Chiba, Yokohama, Urawa, Maebashi, Niigataand other areas, and prisons, organised lectures and seminars and viewings of promotional films, DOBROVOLSKAIA, supra note 23, 279. During 1931, the Association published the Jury Guidebook. In addition to providing, in plain language, a summary of the main points of the Jury Act and a record of the Association's activities and aspirations, it also contained impressions about how the new system was functioning.
    • 36 Mr. Kameji Fujioka, charged with attempted murder of his mistress, was the first defendant to be tried by a jury. His trial took place between the 23 adn 25 October 1928 in the Ōita Prefecture district court. The Hōritsu Shinbun reported the case in an edition published on 3 November and declared it a success. Jurors were earnestly involved in the trial and asked questions during the hearing. In reply to the judge's first question whether the defendant had an intention to kill they answered “No”, but answered “Yes” to his second question: “Did the defendant inflict injury without the intention to kill?” Upon this the judge found him guilty of bodily injury (under Art. 204 of the Penal Code) and imposed a sentence of six months imprisonment.
    • 37 The Japan Jury Association noted that at the start of the jury system jurors exercised their right to ask questions, the pertinence and acuity of which often surprised judges, prosecutors and attorneys, but fewer were doing so by 1931, the time the Jury Guidebook was published. Reminding them that they were not mere observers, the Association strongly urged jurors to fully participate in trials by asking questions, which it described as their unique weapon, see DOBROVOLSKAIA, supra note 23, 267, 268.
    • 38 DOBROVOLSKAIA, supra note 6, 16, 17.
    • 39 The number of cases tried each year by jury was as follows: 1928: 31; 1929: 143; 1930: 66; 1931: 60; 1932: 55; 1933: 36; 1934: 26; 1935: 18; 1936: 19; 1937: 15; 1938: 4; 1939: 4; 1940: 4; 1941: 1; 1942: 2. From M. OKAHARA, Baishin-hō no teishi ni kansuru hōritsu ni tsuite [On the Act to Suspend the Operation of the Jury Act], Hōsō-kai Zasshi 10 (1943) 21-24.
    • 40 J. NOMURA, Nihon no bengoshi [Japanese Lawyers] (Tōkyō Waseda Keiei Shuppan 1992) 248.
    • 41 The most striking comparison lies in murder and arson cases. Juries gave answers to judges that led to a murder acquittal rate of 63 percent. During the same period, not guilty verdicts were recorded in 0.07 percent of murders before judges only. Maruta, a prominent advocate for the restoration of jury trial in Japan, interpreted this huge disparity as showing juries placed less weight on confessions by defendants, obtained by police, and much more on other evidence presented at court: Where criminal intent was not clear, stricter proof was required by them from prosecutors, MARUTA, supra note 31, 218. The detailed report by the Hōritsu Shinbun of the first jury trial in Tōkyō, in 1928, referred to earlier, shows how the prosecution's case, which was principally based on confession evidence, collapsed in the face of determined questioning.
    • 42 N. TOSHITANI, Minshi to Hōritsu-ka [The Populace and Lawyers], in: Gendai no Hōritsu-ka 6 (1966) 11.
    • 43 M. HAYASHI, Sendai no baishin ni tsuite [Sendai Juries], in: Hanrei Taimuzu (1987) 17.
    • 44 MARUTA, supra note 31, 218.
    • 45 TAKAYANAGI, supra note 8, 22.
    • 46 For an account of the history of Jury trial in Japan, especially its political background, see T. MITANI, Kindai Nihon no shihō-ken to seitō [Judicial Power and Political Parties in Modern Japan] (Hanawa Shobō 1980).
    • 47 Jury Act, Art. 95. This occurred in only 24 cases (5.2 percent of the total number of jury trials). All of them concerned answers that would have led to not-guilty verdicts. However, in eight of these cases, new jurors still returned answers against the judges' wishes, MARUTA, supra note 31, 221. Although rejection of answers and putting cases before a new jury was rare, the fact it could happen weighed seriously on defendants and their attorneys.
    • 48 Writing in 1936, Professor Yukitoki Takigawa, an eminent legal scholar at Kyōto Imperial University, concluded the main reason why juries were chosen little was the jury's limited power in trials, rendering the role of lay people little more than a formality. Prophetically, he predicted, with sadness, the disappearance of the Jury Act. Y. TAKIGAWA, Baishin-hō [The Jury Act ] (Nihon Hyōron-sha 1936) 42, cited by DOBROVOLSKAIA, supra note 6, 16.
    • 49 URABE, supra note 27, 490.
    • 50 Grounds for appeal included: procedural errors in the course of trial; where an ineligible person served as a juror and if a judge expressed in his instructions to them an opinion about
    • 69 F. AOYAGI, Baishin-sei sanshin ni tsuite no ichi kōsatsu [A View on the Jury System and Assessor System], in: Jōchi Hōgaku Ronshū 4-1 (1960) 27.
    • 70 BEASLEY, supra note 4, Chapters 7 and 8.
    • 71 There is a view that, due to their close relationship with the Ministry of Justice, public prosecutors were regarded as having even more status than judges, ODA, supra note 10, 53.
    • 72 Including C. A. FORD, The Indigenisation of Constitutionalism in the Japanese Experience, in: Case Western Reserve Journal of International Law 28 (1996) 3.
    • 73 See, for example, R. YASUSHI, The Defects of the Jury System, Hōritsu Shinbun, 3 August 1931, cited by DOBROVOLSKAIA, supra note 6, 16.
    • 98 Also a draft Constitution written by SCAP early in 1946 did include an article that capital offences be tried by a jury and that jury trial be available on request by those charged with felony. This was removed from later drafts. See translation by DOBROVOLSKAIA, supra note 6, 18.
    • 99 H. QUIGLEY / J. TURNER, The New Japan (University of Minnesota Press 1956) 138.
    • 100 C. OPLER, Legal Reform in Occupied Japan: A Participant Looks Back (Princeton University Press 1976).
    • 101 APPLETON, supra note 93, 404.
    • 102 The strength of opposition to a jury system is a notable exception to the general conclusion of immediate post war history that the Japanese were seldom reluctant to accept measures advocated by the occupying powers.
    • 103 OPLER, supra note 100, 146-148.
    • 104 Saiban-sho-hō [Court Organisation Law], 1947, Art. 3 para. 3.
    • 105 BENSON / MATSUMURA, supra note 29, Chapter 7.
    • 106 SCAP released many leading communists from gaol in 1945 and in the same year legalised the Japanese Communist Party.
    • 107 APPLETON, supra note 93, 407.
    • 108 FUKURAI, supra note 3, 323-328.
    • 109 JAPAN FEDERATION OF BAR ASSOCIATIONS, Jury Trials in Okinawa; An Investigative Report on the Jury System in Pre-Reversion Okinawa (Takachiho Chobō 1992). Chihiro Isa gave an account of being a juror in Okinawa in 1964. A prolific author and critic of criminal justice in Japan, Isa wrote, with much praise about the considerable debate that took place between members of the jury on which he sat, in an award winning narrative of his trial experience, entitled “Gyakuten” (“Reversal”), editions of which sold in great numbers. It was also made into an NHK drama. See C. JONES, Still dreaming of a Japan with Juries - and without U.S. Bases, in: Japan Times, 18 June 2014. From a historical perspective a comparison between Okinawan juries with those created by the Jury Act 1923 would be of great interest.
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