[Special Feature: 10 Years of the Lay Judge System] Japanese Trials Changed by Lay Judges: The Future of Criminal Justice That Can No Longer Turn Back

2019/10/05

The establishment of the law school system (2004) and the introduction of the lay judge system (2009) were the greatest achievements brought about by the judicial system reforms of the Heisei era. It can be said that these were epoch-making events in history in that they were endogenous reforms realized by the Japanese people's own initiative, without being triggered by external pressure. However, the reform of the legal training system with law schools at its core cannot be evaluated as successful even by flattering standards, and is currently in a state of continuous wandering. While the lay judge system can be said to have finally gotten on track after ten years of operation, there are circumstances that do not necessarily allow for optimism regarding its "sustainability."

In the following, I would like to take up and discuss the lay judge system.

In order for this system to take root completely in our country, the understanding and support of the public are indispensable. If the public's feelings drift away from this system, it will be futile no matter how much legal experts examine the current status and problems of lay judge trials and make proposals for operational improvements. Therefore, out of a desire to seek the understanding and support of the general public for the lay judge system, I would like to narrow down and describe two matters that I definitely want you to know about this system. These two points seem to me to be extremely important for gaining public understanding, but for some reason, legal experts do not emphasize them very much. I feel a daily sense of dissatisfaction that attention is not directed there.

First, let's start with the first point. Most people probably imagine participating in a trial as a lay judge as engaging in something entirely unrelated to their daily lives. I believe that such an image does not fit the facts. To be sure, terms like "criminal trial" or "judging people" make it feel like something special, but the criminal trials conducted by courts are an extension of what ordinary people do on a daily basis. Acts identical in nature to what is called a trial are actually practiced by all of us every day, and I think they can even be said to be familiar to everyone.

A parent scolds a child who has misbehaved and imposes a punishment (for example, taking away a toy). This is likely to make the child understand and acquire the rules of social life through communicating a negative evaluation that the behavior was wrong. Without a mechanism for making people acquire basic rules that must be observed by imposing a certain punishment for rule violations (the "rule violation → punishment" mechanism), social order could not be realized at all, and society would lack the prerequisite conditions for its existence. The "rule violation → punishment" mechanism is firmly embedded not only in various scenes of home education and school education (from reprimands by teachers to disciplinary action), but also in relationships with friends, between spouses, and human relationships at work. Sociologists call the process by which people acquire the rules of their society during growth "socialization," and adults who commit crimes can be said to be people who failed to learn basic rules during the socialization process. Imposing punishment through a criminal trial can be understood as something that presupposes and complements the social mechanism of rule learning called socialization.

If we think this way, scolding a child, reproaching a friend, pointing out each other's wrong actions between spouses, giving a warning to a subordinate at a company, and conducting disciplinary procedures at a school or company are essentially identical in the form and content of their judgment to a court imposing punishment on a perpetrator of theft, injury, or murder; both are positioned continuously within the social mechanism of "rule violation → punishment." While trials by a court have strict procedures, what is performed by the court is also substantially an extension of the daily actions that any of us perform.

From this, it becomes possible to understand the content of the judgments that lay judges are required to make. Lay judges constitute a judicial body as a collegial body together with professional judges and share the responsibility for criminal trials. Looking at the "Act on Criminal Trials with the Participation of Saiban-in (Lay Judges)" (the so-called "Lay Judge Act"), which is the law providing for the lay judge system, it distinguishes between three tasks performed by the court: "interpretation of laws and regulations," "finding of facts," and "application of laws and regulations." Among these, "interpretation of laws and regulations" is to be performed exclusively by professional judges, whereas for "finding of facts" and "application of laws and regulations," lay judges are also to join the deliberations and work together with the judges (see Article 6, Paragraph 1, Items 1 and 2, and Paragraph 2, Item 1 of the Lay Judge Act). That sounds very difficult, but it is actually not that hard, and I think you can understand it as a matter of course once it is explained.

If criminal trials are also positioned within the social mechanism of "rule violation → punishment," then what is presupposed there is the existence of rules. Those rules are defined by a law called the Penal Code. The Penal Code is a law whose application is limited only to particularly malicious acts that cannot be overlooked socially. What kind of acts it selects as targets for punishment and what kind of penalties it faces them with are matters belonging to the professional knowledge of lawyers, and knowing them is not required of lay judges. "Interpretation of laws and regulations" is the exclusive prerogative of judges. For example, Article 199 of the Penal Code concerning the crime of murder stipulates, "A person who kills another shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than five years." The technical details of how to read this article can be left to the experts.

What is required of lay judges is, first, to confirm through evidence (the remaining traces of the incident) whether the facts corresponding to this provision—that is, the fact of "killing a person"—really existed. This is called fact-finding. In order to apply a rule, the facts it anticipates must really exist. In order to scold a child who threw a baseball in a room and broke a vase despite being forbidden to do so, it must be a prerequisite that the ball-throwing really took place in the room and the vase was broken by the ball. If there was no fact of ball-throwing and the vase was broken because the pet cat knocked it to the floor, the child cannot be scolded. The prerequisite for scolding is to correctly clarify the factual relationship by inferring from the remaining traces. This can be said to be a matter of course (something even a child understands) in light of our daily life experiences.

Fact-finding is not the only thing required of lay judges. The application (fitting) of legal rules such as the Penal Code is also the role of lay judges. In the case of the ball-throwing mentioned above, even if the vase fell and broke due to a thrown ball, if it broke because a friend playing together in the room suddenly took the ball and threw it, whether the child should be scolded immediately would be an issue. Even if the existence of the rule "one must not throw balls in the room" is clarified, problems regarding the application of the rule arise when applying it to a specific case. Solving this together with professional judges is also the job of lay judges.

Thus, the work required of lay judges is to clarify the facts of the case based on evidence together with judges who are legal experts (= fact-finding), and then apply the law as a rule to those facts to clarify whether it can be said that the crime anticipated by the law was definitely committed (= application of laws and regulations). (Furthermore, although it cannot be mentioned here, deciding what kind of sentence is appropriate [sentencing] is also included in the work of lay judges.)

The fact that "interpretation of laws and regulations" is left exclusively to judges, and lay judges have "finding of facts" and "application of laws and regulations" as the content of their work, merely means the above. That should be immediately understandable even in light of the daily experiences of ordinary people (such as scolding a child or criticizing a friend's behavior). You can probably see that the work required of a lay judge is by no means unrelated to daily life, but rather is an extension of what is practiced there every day.

I would like to move on to the second point. What I want to say here is that Japanese trials have become "trials" of international standards thanks to the participation of lay judges. This change due to the participation of lay judges was truly epoch-making in the history of criminal trials in our country. To exaggerate slightly, former Japanese trials were not something that could be called trials, but over the past ten years, they have finally become something that can be called trials. This has an importance so significant that it cannot be overemphasized. It sounds like a paradox, but that is precisely why there are persistent opponents who oppose the lay judge system and argue that it should be returned to the way it was. When a major reform is carried out, the existence of old-guard people who feel nostalgia for the previous way of doing things is exactly what comes with it.

In a "trial" of international standards, various pieces of evidence are examined in an open courtroom, and the judge should form a conviction of guilt or innocence there. The Constitution of Japan stipulates, "In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal" (Article 37, Paragraph 1). The reason a public trial is guaranteed in this way is because evidence is scrutinized on the spot and the judge's conviction is formed on the spot, and precisely because that process of conviction formation should be placed under public scrutiny and supervised by everyone. However, Japanese criminal procedures prior to the introduction of lay judge trials were not necessarily like that. In the courtroom, documents created at the investigation stage were handed over (from the prosecutor to the court), and the judge obtained a conviction of guilt or innocence regarding the case not in the courtroom, but while reading investigation documents in the judge's private office.

Therefore, it was also called a "trial by dossiers." If the courtroom is not a place for forming a conviction about a case but merely a place for handing over investigation documents, there would be no point in making it public. Foreign lawyers, looking at Japanese criminal procedures, sometimes evaluated that the interrogation dossiers created at the investigation stage had decisive meaning, and the court had become a hollowed-out institution that merely read those documents and rubber-stamped the prosecutor's judgment; rather, the prosecutor had become the judge who decided guilt or innocence (from which it followed that Japanese people were being deprived of the right to a trial by a court).

It was the participation of lay judges that changed these procedures drastically. Under the lay judge system, the members of the judicial body (judges and lay judges) came to form a conviction of guilt or innocence right on the spot based on evidence they examined together in an open courtroom. The "trial by dossiers," where a conviction was obtained by reading investigation documents in the judge's private office, was overcome. At the foundation of the concept of a "trial" based on international common understanding is the conviction that the truth of a case must and can be clarified through the interaction between the parties (prosecutor and defendant/defense counsel) in the courtroom. If it is a witness, if they are questioned in an open courtroom and subjected to the test of cross-examination, correct fact-finding can be done through that. In contrast, documents recording the results of investigators unilaterally interrogating suspects or witnesses in a closed room at the investigation stage cannot be trusted as evidence. Such things are, in principle, not supposed to be evidence. It is necessary to note that there, the ideas that the truth of a case can only be precisely clarified through the collection of evidence and documentation of testimony by investigators immediately after the incident, or that a judge can get closer to the truth of the case by carefully reading investigation documents in their private office, are basically rejected.

The introduction of lay judge trials also contributed greatly to resolving another problem of Japanese criminal procedures that could be called a chronic malady. Namely, in Japan, the primary purpose of criminal investigation has been placed on obtaining confessions from suspects. It goes without saying that torture or similar violence or intimidation must not be used when interrogating suspects, but harsh pursuit methods that apply pressure hollowing out the guarantee of the right to remain silent should also not be taken. However, because interrogations are conducted in closed rooms, it was not clear whether propriety was being maintained, and fierce disputes often unfolded later in court over the presence or absence of coerced confessions. In order to make it possible to supervise the interrogation process from the outside and examine its legality ex post facto (= to increase the visibility of the interrogation process), recording and filming were proposed, but they did not easily reach realization.

This problem also met a dramatic change with the introduction of the lay judge system. This is because it became impossible to unfold a mud-slinging match before lay judges, where the prosecution and defense fiercely dispute over confession dossiers in court, saying there was an unreasonable interrogation, or torture or something close to coercion in the interrogation room, or no, there wasn't. Therefore, for cases subject to lay judge trials, the entire process of suspect interrogation came to be recorded and filmed. This should also be called one of the major innovations brought about by the introduction of lay judge trials.

It was said that Japanese criminal trials were becoming "Galapagos-ized." Just like the Galapagos Islands, where rare animals seldom seen in the world live, it was said that Japan is where rare and strange "trials" seldom seen in the world are conducted. However, thanks to the participation of lay judges, Japanese criminal justice has finally been able to escape from this Galapagos state.

Of course, it should be asked anew why such a large burden had to be placed on the public for that purpose, and whether it was not possible to overcome the trial by dossiers through the efforts of only the courts, the public prosecutors' offices, and the bar associations (the three legal professions). However, interests were complexly intertwined among the three legal professions and they were not monolithic, and for a fundamental reform that costs money, it was absolutely necessary to have the support of society as a whole by raising the "banner of justice" of increasing trust in trials through public participation in justice. It could also be said that the lay judge system was the Noah's Ark for escaping from the Galapagos Islands with the cooperation of the public.

Criticism of the lay judge system is also strongly raised from within legal experts. They say, "The truth of a case cannot be clarified by the exchange between the parties (prosecutor and defendant/defense counsel) in court after a considerable amount of time has passed, but can only be elucidated through thorough collection of evidence and documentation of testimony from those involved by investigators immediately after the incident," "It is better for getting closer to the truth of the case for a judge to read investigation documents thoroughly in their private office than to obtain a conviction from the interaction of the parties or witness testimony in court," "Japanese people state more accurate facts in dialogue with investigators at the interrogation stage than in an open courtroom," and so on.

However, we cannot return to the method of trials by dossiers conducted in the judge's private office now. It is the international common sense that striving to clarify the truth of a case within the interaction in an open courtroom is precisely what constitutes a fair procedure. Even if one resists the universal sense regarding gender equality and asserts fixed roles for men and women based on Japan's unique culture, it would have to be called anachronistic now. The same is basically true for trials. We should accumulate our experience and ingenuity based on the universal way of conducting trials that relies on conviction formation through the interaction of the parties at trial, which became possible for the first time through the participation of lay judges. This path opened up by lay judge trials is a path that can no longer be turned back.