Japan’s Lay Judge System

• Author: Yumi E. Suzuki,Philip L. Reichel
• Published date: 01 September 2015
• Date: 01 September 2015
• DOI: http://doi.org/10.1177/1057567715588948
• Subject Matter: Articles

Article
International Criminal Justice Review
2015, Vol. 25(3) 247-262
Japan’s Lay Judge System:
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DOI: 10.1177/1057567715588948
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Evaluation, and Current Status
Philip L. Reichel1 and Yumi E. Suzuki2
Abstract
In 1999, major changes to Japan’s criminal justice system were proposed, and over the next 10 years,
many were implemented. One of the changes created the lay judge system (saiban-in seido), wherein
citizens serve as fact finders during trials of serious criminal cases. The purpose of the lay judge is to
enhance public trust in the judiciary while improving the quality of justice through the common sense
of the average person. This article reviews how this major change to Japan’s court system was
implemented, describes the process by which lay judges are selected and the requirements of their
service, and then discusses some of the reviews and evaluations that have been completed of the
system itself. The conclusion suggests that an understanding of Japan’s model could be instructive for
other jurisdictions considering justice reform.
Keywords
comparative crime/justice, Far East Asia, juries, courts/law
Changes to a country’s criminal justice system are typically more conventional than dramatic.
New laws are passed and old ones discarded, sentence lengths are modified, policing methods are
adjusted, and other revisions occur. Such changes have important consequences, but seldom do they
rework the way criminal justice business is done. When those more critical changes do occur, it ben-
efits criminal justice educators, researchers, and practitioners to understand the background, process,
and implications of such change.
In 1999, major changes to Japan’s criminal justice system were proposed, and over the next
10 years, many were implemented. Using both English- and Japanese-language sources, this article
describes one of those changes, reports on evaluations that have been conducted, and suggests some
implications of those changes. Specifically, we look at the Act Concerning Participation of Lay
Assessors in Criminal Trials. After placing Japan’s lay judges in the broader context of citizen par-
ticipation in the adjudication process, we provide an overview of the decision to implement a lay
1 University of Northern Colorado, Greeley, CO, USA
2 Wichita State University, Wichita, KS, USA
Corresponding Author:
Philip L. Reichel, University of Northern Colorado, 2506 57th Avenue, Greeley, CO 80634, USA.
Email: p_reichel@yahoo.com

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International Criminal Justice Review 25(3)
judge system and a description of how that system operates. Results of recent evaluations and pro-
posed modifications of the process are then reviewed and implications of this procedural change are
considered.
Citizen Adjudicators
When Americans think of laypeople participating in the court process, they typically picture 12
citizens, sitting in two rows of six, off to one side of the courtroom in a semi-enclosed area. This
panel provides Americans with one of the most cherished features of their criminal justice sys-
tem—a trial by jury. Thomas Jefferson championed such a role for laypeople in the judicial branch
when he argued that the execution of laws is more important than the making of them (Moore, 1973,
p. 159). But juries provide only one option for lay participation in the adjudication process. An alter-
native is the use of lay judges (also called lay assessors or citizen judges). A basic, if imprecise, dis-
tinction is that jurors decide—without a professional judge voting—whether the defendant is guilty,
whereas lay judges vote together with one or more professional judges.
Examples of both juries and lay judges are found across the globe. Although juries are most often
in common law countries using adversarial proceedings, they exist to one degree or another in such
civil law countries as Austria, Belgium, Denmark, Norway, Russia, and Spain (Jimeno-Bulnes,
2004; Thaman, 2000; Vidmar, 2000). Lay judges are typical in countries using inquisitorial proceed-
ings—where the judge’s active role would result in a more confused role for jurors—such as Ger-
many, Finland, France, and Norway. Other countries, such as Mexico and Saudi Arabia, provide no
role for laypeople in the adjudication process (Fukurai & Krooth, 2010; Reichel, 2013).
Both versions of lay participation have their supporters and deriders. Lay participation is praised
as providing a rigorous fact finding process, reducing opportunities for corruption, representing the
community in the courtroom, legitimizing the justice system, and increasing civic engagement.
Detractors point out that jury verdicts sometimes appear inconsistent with the evidence and that lay
judges are little more than puppets nodding in agreement with the professional judges (Hans, 2008;
Machura, 2001; Thaman, 2007). But proponents are prevailing as more countries seek ways to incor-
porate citizens into the adjudication process. One of the newest examples is Japan.
Background to Japan’s Lay Judge System
Between 1928 and 1943, Japan used a jury system for criminal cases. During the 15 years that
juries were active, only 484 cases were tried by jury and defendants in more than 25,000 serious
cases waived their right to a jury trial (Shibahara, 1990). Several conditions are believed to have
contributed to the failure of Japan’s prewar attempt at jury trials. On a cultural level, some suggested
that the jury system did not appeal to the basic national characteristic of the Japanese people who
traditionally were indifferent to the law. Legal experts at the time suggested that the jury system does
not suit Japanese society because Japanese tend to be emotional rather than rational. Or, less provo-
catively, others suggested that Japanese people prefer to be tried by a professional judge rather than
by their neighbor (Dean, 2011; Matsubara, 2003; Shibahara, 1990). But there were also some prac-
tical problems with the jury system as implemented in Japan. The primary one seems to have been
the limited power given the jurors. In its eventual form, the jury consisted of 12 literate male jurors
over 30 years of age. Their verdict did not have to be unanimous—a simple majority was sufficient.
However, their decision was not binding on the judge. Whatever the jury’s decision, if the judge did
not agree, he could put the case before a new jury with newly selected jurors (Ibusuki, 2010). Not
surprisingly, most defense counsels decided that it would make more sense to simply go before the
professional judge at the start.

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Reichel and Suzuki
249
A recent reform to the justice system has once again given Japanese citizens a role in the adju-
dication process. Enacted in 2004 and implemented in 2009, the lay judge system (saiban-in seido)
adds lay judges (chosen by lot from among registered voters) to Japan’s courts. This change was part
of reforms that began in the late 1990s.
The Lay Judge System Law
In 1999, Japan’s Parliament established the Justice System Reform Council (JSRC) and charged
that group to examine the state of Japan’s criminal justice system. In 2001, the JSRC submitted its
recommendations for the following three pillars of justice system reform (JSRC, 2001):
1.
Construction of a justice system responding to public expectations (building a justice system
that meets the needs of the people).
2.
How the legal profession supporting the justice system should be (reform of the judicial com-
munity to support the justice system).
3.
Establishment of the popular base (involving the general public in the justice system).
The Justice System Reform Promotion Act was enacted in response to those recommendations,
and the Office for Promotion of Justice System Reform was established in 2001 to promote reform in
accordance with the recommendations. Throughout the first decade of the new century, a variety of
justice system reforms were implemented. For example, defense counsel reforms ensued with the
implementation of the 2004 Comprehensive Legal Support Law, which essentially created a public
defense system for detained criminal suspects, and changes in the death penalty’s application fol-
lowed a 2005 law on the treatment of prisoners.
Of interest here is the 2004 Act Concerning Participation of Lay Assessors in Criminal Trials (see
the translation by Anderson & Saint, 2005).1 This act responded especially to the third of the three
pillars of justice system reform. The purpose of the lay judge is to enhance public trust in the judiciary
while improving the quality of justice through the common sense of the average person (Brasor, 2007).
The hope was that lay judges would bring common sense to a court system dominated by legal pro-
fessionals as well as help address some of the causal factors leading to wrongful convictions and vio-
lations of defendant’s rights (Fukurai, 2013; Kamiya, 2007a).2
Selecting the Specific Model
When determining what format the new lay judge system would take, the JSRC considered the
classic jury model (e.g., in England and the United States) and the collaborative court model (e.g.,
the mixed benches found in Germany and France). Jackson and Kovalev (2006–2007) remind us that
there are quite a few versions from which to borrow,3 but the model settled on for Japan is actually
rather unique. The mixed bench model—with both professional judges and citizens—often has the
citizens nominated as fixed-term lay judges (e.g., German...