A new day for Japanese justice

TOKYO — In a radical change to Japan's modern justice system, lay judges will now be involved in trials of serious crimes: Six lay judges will sit on the bench alongside three professional judges at trials.

Reaction is mixed. While many welcome the change, some Japanese are expressing a reluctance to decide the fates of their fellow citizens. Still others, including some legal professionals, have voiced concerns about the plan.

Unlike jurors, these “saiban-in” will actually deliberate with the regular judges on matters of factual evidence and sentencing, in addition to assessing guilt or innocence. But the most groundbreaking element of the change may be the power these "saiban-in" will have to question defendants and witnesses.

Japan has long faced criticism from international groups, including Amnesty International, for its legal system: They've highlighted prolonged detention without access to lawyers, alleged forced confessions and almost 100 percent conviction rates at trial. But few in Japan believe that this was the catalyst for change.

“Outside pressure was not so important to the current reforms; defense lawyers here have long been critical of the trial system,” said Hiroshi Kawatsu, a trial attorney who heads the Japan Federation of Bar Associations’ (JFBA) Research Office for Judicial Reform. Kawatsu studied trial advocacy in the U.S., and has been training young Japanese lawyers to prepare them for the new system.

One beneficial side effect of the changes will likely be a faster criminal justice process, as the current practice of spreading trials out over months, and sometimes years, will end.

“Judges sometimes work on dozens of cases at a time, sitting one day a month on each trial, spending the time between reading case documents,” Kawatsu explained. The need for lay judges to return to their normal lives will make this impractical, and Japan is thus adopting a more focused approach to pre-trial procedures and evidence.

Some observers have raised the specter of lay judges being dominated by the professionals, but Kawatsu said trials will be closely monitored with this in mind.

According to opinion polls, many ordinary Japanese are concerned about serving as lay judges.

“I’ve been notified that I will be called up to serve as a lay judge, but I’m nervous about making a decision that will have such a big impact on someone’s life. There’s always a chance I could be wrong,” said a company manager who can’t be identified because of the strict secrecy rules that apply to lay judges.

“These very strong confidentiality requirements are a somewhat disturbing issue,” said Professor Lawrence Repeta, formerly of Omiya Law School in Japan and currently a visiting professor of Asian law at University of Washington, Seattle. “People can be fined 500,000 yen ($5,000) or imprisoned for six months for disclosing details of a case."

Repeta added: “These trials will involve some of the most serious and violent crimes, which could be very stressful for the lay assessors."

The government recently announced the creation of a 24-hour helpline that will provide counseling to lay judges, in response to concerns.

The company manager who is now a potential lay judge candidate has another understandable concern: “I’d also be nervous about sitting on a Yakuza (mafia) trial; I’d be worried about sending one of them to prison.” Japan’s 80,000-plus organized crime group members operate with a certain degree of impunity, and while they have no history of intimidating the judiciary, lay judges may present an easier target.

“I think that strategy would backfire for the Yakuza, in terms of harsher sentences,” Kawatsu said. He conceded, though, that their very presence may be enough to scare some members of the public. So far, there are no plans to keep lay judges hidden from mobsters during trials.

Unknown to many, there is actually some history of jury systems in Japan. Between 1928 and 1943 there were juries — of 12 men over 30 years old and above a certain income level — that defendants could elect to be tried by, though very few chose the option. Then in U.S.-occupied post-war Okinawa, juries were used with mixed results in trials involving American forces and their families until the island returned to Japanese jurisdiction in 1972.

Whether the reintroduction of lay participation will lead to a drop in Japan's notoriously high conviction rates is a question that should be answered by July or August, when the first trials under the new system will likely conclude.

“Actually, since the law passed through parliament in 2004, the conviction rate has already dropped very slightly,” Kawatsu said, “though it’s still 99 point-something-something percent.”

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