Japan has reintroduced a system involving lay participation in serious criminal trials. As discussed in several Australian Network for Japanese Law (ANJeL) events over recent years, this saiban’in system involves randomly selected ‘Lay Judges’ and professional career judges jointly assessing the facts to reach a verdict, as well as deciding on sentences. The model is more Continental European than Anglo-American, but a shared concern is to bring the justice system closer to citizens’ everyday life – a guiding principle in the Judicial Reform Council’s Final Recommendations issued in 2001. Diverse dimensions to greater popular participation throughout Japan’s legal process, including also my study of how the Japanese government organizes its litigation services beyond the criminal justice sphere, will be the subject of ANJeL’s third book from Edward Elgar (forthcoming around December 2010, co-edited with Leon Wolff and Kent Anderson).
Legislation establishing this saiban’in system was enacted in 2004, but implementation was delayed for five years to allow all stakeholders to get used to the idea and many practical implications. (For example, many of the ANJeL Judges-in-Residence sent to Australia by the Supreme Court of Japan have carefully compared how this country manages jury trials, especially in connection with the media.) The enactment illustrates my previous point that the former Liberal Democratic Party (LDP) led coalition had already shifted away from more conservative stances even before its dramatic loss of power in the general election on 30 August this year. Even more ironically, although the first saiban’in trial took place without apparent mishap earlier that month, campaigns by the Democratic Party of Japan (DPJ) and other then-Opposition parties drew on growing concerns among the general public about actually having to serve as Lay Judges. Hopefully, however, Japan’s experience will become similar to Australia’s – where the general public is quite negative about serving on juries, but individual jurors afterwards report that it was a worthwhile experience. (A similar pattern is also observed in the US.)
Below I first reproduce translations of DPJ policy statements promising to make the new saiban’in system more user-friendly in various ways. Then I add its related policy statements about video-recording of interrogations of suspects undertaken by police or prosecutors in Japan. (Both are slightly edited from translations kindly prepared by Glenn Kembrey, Sydney Law School student intern for our Centre for Asian and Pacific Law [CAPLUS] who is also assisting with ANJeL activities.)
As explained in the attached paper by Professor Makoto Ibusuki, a frequent visitor and a Program Convenor – ANJeL in Japan, the new DPJ-led government is now bound to enact legislation mandating full video-recording. Some politicians within the LDP anyway may have been open to this sort of reform too, but the pace should pick up. This particular law reform is bound to please NSW’s Director of Public Prosecutions Mr Nicholas Cowdery QC, a key person behind the IBA’s 2004 Report on ‘Interrogation of Criminal Suspects in Japan’ that recommended precisely this change.
(a) Smooth Implementation of the Lay Judge System
In May 2009, a Lay Judge system came into effect. While working towards to increase citizens’ understanding of the system by continuing to disseminate public information, making the process visible through audio and visual recording, and disclosure of the entirety of evidence held by the public prosecutor etc, we will quickly introduce the necessary environment for having fair trials while preventing an increase in the length of lay-judge trials.
In particular, the system will be quickly reviewed so as to decrease the burden on citizens who become lay judges. This will be achieved by adopting a flexible approach to those randomly selected citizens who present reasons for declining to serve as lay judges; by limits on the application of penal regulations for the breach of confidentiality obligations imposed on lay judges; by reviews of means for discussing the imposition of a death sentence; and by increasing the daily allowance paid to lay judges.
(b) Visualising Criminal Examinations, and Preventing False Charges through the Proper Disclosure of Evidence
Reforms will be carried out to achieve a fair and highly transparent criminal justice system, by aiming to achieve visualization through video recording of the entire examination process of a suspect by police, prosecutors and others.
The need for this has recently has become clear through a succession of false accusations, such as the “Toyama Himi Incident”, “Shibushi Incident” and “Ashikaga Incident”. However, this large problem is still dealt with in closed-off rooms. To prevent false accusations on the basis of coerced confessions in [suspect] examinations, we will (1) require investigating authorities to use audio and visual recording of the entire process of suspect examinations so as to be able to determine the voluntariness of confessions, if in dispute at trial; (2) to obtain thorough disclosure of evidence at criminal trials, we will implement an amendment to the Criminal Procedure Code requiring the creation and disclosure of a table listing evidence held by the prosecutors, and so on.”