Lay participation in the Japanese justice system: a few preliminary thoughts regarding the lay assessor system (saiban-in seido) from domestic historical and international psychological perspectives.

• Author: Anderson, Kent

ABSTRACT

The Authors introduce and critique Japan's proposed quasi-jury of lay assessor system (saiban-in seido). The proposed mixed-court will have judges and lay people deciding together both guilt and sentences in serious criminal cases. Its proponents have promised that the lay assessor system will produce better justice in the courts and a more democratic society for Japan. The Authors first expose the competing interests in the lay assessor drafting process, examining their subtly but importantly varied proposals. Second, the Authors historically review lay participation in Japan, arguing that it has failed to deliver better justice and more democracy because the existing systems have been marginalized by disuse of captured by law specialists. Third, the Authors consider the proposal in light of international psychology research suggesting that early criticism of the system may be circumspect. The Authors conclude with cautious optimism regarding the potential of the new Japanese system and a call for more research to fine-tune the proposal and rightfully introduce it as a comparative global model.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND TO AND RATIONALE FOR THE LAY ASSESSOR SYSTEM A. Background of the Lay Assessor System within Japan's Judicial Reform Movement B. Rationale for Lay Participation in the Judicial System 1. Delivering Better Justice 2. Promoting a More Democratic Society 3. Other Claimed Benefits of Lay Participation 4. Summary of Rationales for Lay Participation III. THE PROPOSED LAY ASSESSOR SYSTEM A. Type and Composition of Mixed Courts B. Powers of Lay Assessors C. Decisions by Mixed Courts D. Claims Covered by Mixed Courts E. Selection of Lay Assessors F. Procedure of Mixed Courts G. Publicity of Mixed Courts H. Costs of the Mixed Court Proposal I. Summary of the Investigation Committee's Proposal IV. DOMESTIC HISTORICAL CONTEXT A. Broad Lay Participation Organs 1. Juries (1923-1943) 2. Prosecutorial Review Commissions B. Narrow Lay Participation Organs 1. Summary Court Judges 2. Supreme Court Justices 3. Conciliators C. Other Lay Organs D. Conclusions Regarding Historical Lay Participation V. INTERNATIONAL PSYCHOLOGY CONTEXT A. Numerical Composition of the Mixed Court B. Voting Rules C. The Relationship between Lay and Expert Factions 1. Effect on Verdict and Perceptions of Experience 2. Japanese Deference, Social Identity, and Collectivism D. Optimistic Conclusions About Psychological Concerns VI. CONCLUSION VII. ADDENDUM I. INTRODUCTION

In the early 1990s, filmmaker Shun Nakahara sat thinking about his next movie. He wanted to make a farcical comedy. He remembered watching the great American classic by Sidney Lumet, Twelve Angry Men (1957) starring Henry Fonda, while he was a student at Tokyo University. What if he took that premise--the solemnity of twelve people sitting in a jury room and deciding the fate of one of their peers--and set it in Japan? Indeed, nothing could be more preposterous than twelve Japanese citizens deciding the late of one of their peers. Japanese are too emotional, non-committal, non-confrontational, and hierarchically bound to be able to judge a fellow, he thought. The result of Nakahara's flash was the movie Twelve Kind Japanese (12nin yasashii nippon-jin) (1991). (1) The movie is played for laughs, and in it every stereotype of Japan's modern milieu is on display, including the salary man (business person), shufu (housewife), chinpira (small-time hoodlum), rodosha (labourer), rojin (senior citizen), komuin (civil servant), freeta (young, under-employed person), interi (sophisticate), and so forth. Yet, in the end, the film, without trying to do so, seems to disprove the idea that Japanese are incapable of rational and independent decision-making. In fact, the verdict that the movie's jury arrives at and the deliberation the jury goes through in coming to its decision is exactly what those interested in the jury system's justice and democratic ideals would hope to see.

Nakahara's premise was not as bizarre as perhaps he thought. Japan had a jury system between 1923 and 1943 and continues to have a number of roles for "lay participants" (2) in today's justice system, (3) Furthermore, just ten years after Nakahara's film, the Prime Minister's blue-ribbon commission on judicial reform has effectively mandated the introduction of a new jury-like scheme. (4) This Article examines that scheme, known in Japanese as the saibanin seido and in English as the "lay assessor system" or "mixed-court."

This article seeks to accomplish a number of goals. One purpose is to inform. In contrast to many of Japan's other current judicial reforms such as increasing the size of the bar and changing the format of legal education, (5) Japan's introduction of the lay assessor system is still relatively unknown in both the English and Japanese literature. Further, the details of the planned system are only now being debated and resolved. Second, this Article explains and critiques the present efforts in light of Japan's historical participation schemes. Past efforts have in practice been marginalized and captured so that they do not achieve the justice and democratic aims sought by the drafters of the lay assessor system. Third, international empirical psychological research is used to demonstrate why ground for optimism exists regarding the proposed lay assessor system. Finally, we conclude by shifting the focus briefly to examine what Japan's lay assessor system might mean to countries other than Japan.

Part II of this Article examines the background of the judicial reform movement of the late 1990s. In particular, it identifies and examines the rationale upon which the call for the lay assessor system has been based. Part III sets out in detail the most recent concrete proposal for the lay assessor system and pays specific attention to suggested alternative options. In doing so, the likely consequences of the design are suggested. Part IV uses domestic historical data to show why previous lay participation systems in Japan have failed to deliver the objectives identified in Part II. Those lessons are then used as a standard by which to test the lay assessor proposal. Based on historical data, this Article argues that for the proposed system to achieve the sought-after objectives, it must rely upon the affirmative support of the prosecutor's office, the judiciary, and the government. In Part V, international psychological data is used to focus on the three primary unresolved issues for the lay assessor system: (1) the mixed court's composition, (2) its voting rules, and (3) the relationship between lay and expert factions of the court. From this alternative perspective, whether the proposed lay assessor system will deliver the desired objectives is considered and the Article comes to an optimistic conclusion regarding the psychological issues involved. The Article closes by considering briefly what Japan's lay assessor system might suggest for legal systems outside of Japan.

2. BACKGROUND TO AND RATIONALE FOR THE LAY ASSESSOR SYSTEM

   1. Background of the Lay Assessor System within Japan's Judicial Reform Movement

      The introduction of a jury system, or more accurately the revival of Japan's suspended jury system, is not a new proposal. In fact, every few years since the end of the World War II some scholar or group has made the proposal in various forms. (6) These proposals, however, had not been taken seriously until the "serendipity of events" that led to the development of the Judicial Reform Council (JRC or shiho seido kaikaku shingikai) in June 1999. (7) In June 2001, when the JRC issued its report, which was adopted by Prime Minister Junichiro Koizumi's Cabinet, the new lay assessor system suddenly appeared to be a foregone outcome of the process. (8)

      The actual implementation of the JRC's recommendations was left to the newly formed Office for Promotion of Justice System Reform (Reform Office or shiho seido kaikaku suishin honbu). (9) The Reform Office is charged with implementing all of the general proposals of the JRC Report by December 2004, including the changes to admission for legal practice, legal education, and the lay assessor system. To execute its duty, the Reform Office has subdivided this work into ten categories. (10)

      Responsibility for the lay assessor system was delegated to the Lay Assessor/Penal Matters Study Investigation Committee (Investigation Committee or saiban-in keiji kentokai) chaired by Tokyo University Professor Masahito Inouye. (11) On March 11, 2003, the Investigation Committee presented its initial discussion paper on the lay assessor system. This discussion paper is a primary focus of this article. (12) The March 11, 2003 draft was supplemented by provisions suggested by Professor Inouye in his personal capacity on October 28, 2003 while the Diet was dissolved for elections. (13) Professor Inouye's revisions appear to be the frontrunners for adoption because his is the most recent draft and his opinions generally take a middle ground. However, in this Article, revisions are treated as further alternatives to those proposed in the first draft because they are still pending Parliamentary approval.

   2. Rationale for Lay Participation in the Judicial System

      To assess critically the Investigation Committee's proposal and the lay assessor system in general, it is essential to identify what Koizumi's Cabinet, the JRC, and the reform advocates sought to achieve by increasing lay participation in the Japanese judicial system. In short, what is the rationale for the lay assessor system in Japan? Answering this question is necessarily difficult because a variety of supporters and critics have asserted contradictory, overlapping, and redundant objectives. Furthermore, the discussion regarding the lay assessor system has taken place within a larger debate about judicial reform in general. Nevertheless, in this section the core...