Testing Japan's convictions: the lay judge system and the rights of criminal defendants.

• Author: Soldwedel, Arne F.

ABSTRACT

Japan has endured considerable international and domestic criticism over the way its criminal justice system treats criminal defendants. The system shows little regard for defendants' constitutional rights, and media reports about forced confessions and wrongful convictions are creating grassroots pressures to uphold the right to counsel, the right to silence, and the presumption of innocence.

Japan has begun to reform its legal system in order to increase public participation in government, and to create more public trust in the justice system. To achieve these aims, Japan will reintroduce jury trials in May of 2009. However, current Japanese justice reforms ignore police practices and specifically reject the promotion of defendants' rights.

As a result, current reforms are unlikely to achieve their ambitious goals. Instead, they may trigger a governmental legitimacy crisis. Japan must modify its criminal procedures so that they agree with the constitutional rights of criminal defendants if it truly hopes to increase participation in government and to instill faith in the justice system.

TABLE OF CONTENTS I. INTRODUCTION II. THE SAIBANIN SYSTEM: DRESSING UP THE WINDOW OR LAYING THE GROUNDWORK FOR REAL REFORM? III. JAPAN'S CONSTITUTION AND THE SEARCH FOR "THE TRUTH" A. Modern Constitution and the Japanese Concept of Individual Rights B. Competing Views of Justice C. Rights of the Accused and the Constitution 1. Beatings Will Continue Until Morale Improves: Obtaining Confessions in Japan 2. Japan Has a Right to Counsel, but What Happens in Detention Stays in Detention 3. Japan Has a Right to Silence, but Defendants Are Questioned Anyway 4. Would You Mind Coming with Us? 5. Double Jeopardy: If at First You Don't Convict, Try, Try Again! 6. The Presumption of Innocence D. Japan's Commitment to International Human Rights E. Japan's Approach to Criminal Justice: Rationale or Rationalization, and Does It Matter? IV. THE IMPACT OF JAPANESE JUSTICE REFORM ON DEFENDANTS' RIGHTS A. Increasing Adversarial Nature of Japanese Criminal Justice 1. Fear Factor: The New Orthodoxy 2. The Government Surfs the "New View" of Crime Wave B. The Lay Judge System: Gateway to Fuller Reform? V. SUPPLEMENTS TO REFORM A. Videotaping Confessions B. The Right to Counsel Must Be Truly Upheld C. Victims and Their Families Should Not Be Allowed to Question Defendants at Trial D. Acquittals Should Be Final VI. CONCLUSION Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people.

Constitution of Japan, May 3, 1947, from the Preamble

1. INTRODUCTION

   Japan experienced an extended economic downturn in the 1990s that forced the country to implement creative solutions to promote recovery. (1) To meet these economic pressures and the perceived need to "compete internationally," Japan embarked on a massive program of governmental reform (2) aimed at streamlining bureaucracy and cutting costs on a grand scale. (3) As part of this change, reformers also sought to revise the legal system. (4) Japan's legal system has been broadly criticized as an insular bureaucracy that is detached from the needs of the people. (5) In particular, both foreign and domestic observers have vilified Japanese criminal justice. (6) The conviction rate in Japan stands at over 99%, (7) and some methods of handling and processing the accused have drawn the attention of diverse bodies such as the Japan Federation of Bar Associations, (8) human rights groups, (9) and the United Nations. (10) Media reports about wrongful convictions are mobilizing the Japanese citizenry, and public sentiment may also be contributing to the movement to revise the criminal justice system. (11)

   In 1999, the government established the Justice System Reform Council (JSRC) to recommend appropriate modifications of the legal system. (12) The JSRC deliberated for two years and, in June 2001, issued its recommendations to the Cabinet. (13) The JSRC proposed

   three main elements to guide Japanese legal reform: construction of a justice system meeting the people's needs, reform of the judicial community, and establishment of a "popular base." (14)

   More specifically, the first element involved changing the civil procedure system in order to create greater access to the Japanese justice system. (15) The second element focused on modifying the training and education of judges, and it included changes in legal education. (16) The third element of legal reform was the introduction of a lay judge system or saiban-in seido, requiring citizen participation in serious criminal trials. (17) The JSRC proposed the lay judge system in order to achieve greater citizen participation in government (18) and to instill faith in the justice system. (19) Public involvement in the adjudication of crime is expected to improve public perceptions of the Japanese criminal justice system's legitimacy. (20) Scholars have noted that motives for implementing this new system also include promoting democracy, (21) and contributing to the perception that disputes in Japan are resolved fairly. (22) However, Japan's "specific motives ... d[id] not include [the] promotion of defendants' rights." (23) Moreover, current reform initiatives do not modify Japanese police procedures, which some observers believe to be the essential element of any true reform. (24)

   To date, the Japanese government has not adopted any reform measures that go substantially beyond those recommended in the JSRC Report, (25) and in May 2009, Japan will reintroduce jury trials after a sixty-three-year absence. (26) The JSRC Report leaves the impression that Japan is committed to increasing citizen participation. (27) Yet because current initiatives do not address defendants' constitutional rights, and because they ignore police practices, Japan may be missing its best opportunity to achieve truly meaningful reform, and the lay judge system may not support the reformers' ambitious goals. Some critics argue that the lay judge system is actually a deliberate obfuscation designed to give the appearance of legitimacy. (28) As a result, questions remain about the scope and efficacy of the proposed reforms.

   This Article will focus on the implementation of citizen participation through jury trials and on what current Japanese legal reforms will mean for the rights of criminal defendants. Japanese society is becoming more adversarial in nature, (29) and as public awareness of current law enforcement practices grows, Japanese people may demand more complete reforms in order to uphold the constitutional rights of criminal defendants. By providing an infrastructure for citizen participation, the new lay judge system could provide a gateway for that to happen. Part II sets forth the basic framework and goals of the proposed lay judge (saibanin) (30) system. Part III introduces the Japanese approach to criminal justice, contrasts it with the U.S. approach, and compares Japanese constitutional and procedural protections for criminal defendants with current Japanese law enforcement practices. Part IV addresses the potential impact of recent legal reforms on the Japanese criminal justice system, to assess whether the lay judge system is likely to meet the goals of reform. Part V provides supplemental recommendations to support more extensive and meaningful reform.

2. THE SAIBANIN SYSTEM: DRESSING UP THE WINDOW OR LAYING THE GROUNDWORK FOR REAL REFORM?

   There is considerable debate as to what the lay judge system will actually achieve. (31) On May 28, 2004, the Japanese Diet promulgated the Lay Assessor's Act, (32) which codified many of the recommendations of the JSRC Report and set forth the structure of the new system. The lay judge system is heavily modeled on European mixed jury or lay judge systems, (33) which feature private citizens sitting alongside professional judges on adjudicatory panels. (34) Panels for contested cases will consist of six lay judges and three professional judges. (35) In uncontested cases--cases in which a confession has been obtained--panels will consist of four lay judges and one professional judge. (36) Decisions in either situation will require a majority vote that includes the vote of at least one professional judge. (37) Lay judges will help to determine not only the guilt or innocence of defendants, but also the sentences of those who are convicted. (38) Lay judges will participate in trials featuring serious cases punishable by death, life imprisonment, imprisonment for an indefinite period, and imprisonment with hard labor, as well as trials of crimes involving an intentional act that resulted in the death of a victim. (39) Lay judges will also be able to ask questions of victims directly, (40) and indirectly of witnesses (41) and defendants at trial. (42)

   Prospective lay judges will be selected from lists of registered voters (43) and must undergo questioning by the court as to their capacity for fair decision making and their involvement with the events at issue in the case. (44) They may be ineligible for various reasons such as advanced age, criminal history, failure to complete mandatory Japanese education, membership in government, mental or physical incapacity, and employment status. (45) In addition, those with serious illnesses, those who need to care for family members, those who will suffer severe financial difficulty, and those who must attend a family funeral may also be excused from service. (46)

   The JSRC Report recommended that lay judges serve in cases involving serious crimes to which heavy statutory penalties apply, because these are the cases "in which the general public has a strong interest and that have a strong impact on society." (47) The Lay Assessor's Act upheld this recommendation by providing that lay judges will consider cases involving grave...