[Special Feature: 10 Years of the Lay Judge System] Has the Lay Judge System Changed Criminal Procedure?

2019/10/05

Ryuichi Hirano, a leading authority on criminal law, once "diagnosed" Japanese criminal trials as being "fairly hopeless" (Ryuichi Hirano, "Diagnosis of the Current Code of Criminal Procedure," in Yasuji Hiraba et al., eds., *Essays in Celebration of Dr. Shigemitsu Dando's 70th Birthday [Vol. 4]* (1985), p. 407 et seq.).

Hirano criticized every stage of criminal procedure, noting that "detailed, corroborated confessions are required," "Japanese trials are often called 'trial by dossier (chosho saiban)'," and "in Japan, the review of factual findings through documents is carried out [in appellate courts] as if it were perfectly normal."

Hirano concluded, "Is there a way to break away from this kind of litigation? Perhaps not, unless we adopt either a lay assessor system or a jury system. ... Japanese criminal trials are fairly hopeless." While expressing "despair," he saw a glimmer of hope in a "lay assessor or jury system."

In later years, Hirano stated that a lay assessor system (sanshin-sei) would be "more appropriate in Japan" than a jury system, saying the following (Hirano, "Toward 'Core Justice' through the Adoption of a Lay Assessor System: Trends and Directions of Criminal Justice Reform," *Jurist* No. 1148 (1999), p. 5):

"Under a lay assessor system, both professional judges and lay assessors must form their convictions based solely on evidence presented in open court. ... They have no choice but to form their convictions only from what is read aloud in court. To achieve this, investigation records must be concise, hitting the mark and striking at the core of the case. This may, in turn, affect the methods of interrogation and the length of detention. Furthermore, witness examinations and cross-examinations in court may become focused on the core issues rather than being overly minute."

Hirano envisioned that a lay assessor system would reform every stage of criminal procedure.

The Lay Judge System (Saiban-in system) differs from a pure lay assessor system. However, they share the same underlying principle in the sense that citizens and professional judges work together to judge specific matters.

In this article, on the 10th anniversary of the Lay Judge System, I will overview and examine the extent to which Hirano's vision of transforming the entire criminal procedure through citizen participation has been realized. I will refer to the summary report published by the General Secretariat of the Supreme Court (General Secretariat of the Supreme Court, "Summary Report on 10 Years of the Lay Judge System" (2019); hereinafter, page numbers cited without further specification refer to this report).

According to the Summary Report, traditional criminal trials were characterized by "what is called 'precise justice' or 'trial by dossier'," but over the past 10 years, the concept of "core justice"—conducting trials and making judgments within the scope necessary to determine the existence of criminal facts and sentencing—has become generally shared. Furthermore, based on the principle of trial-centeredness, "court proceedings have undergone a dramatic change" (p. 6).

Regarding trial preparation, the report points out that "there is now an awareness that the parties' arguments (statements of planned proof and planned arguments) should be narrowed down to the necessary points," and "the need for evidence arrangement from the perspective of what constitutes the 'best evidence' for judging the organized issues has also become recognized" (p. 7).

If the trial preparation stage has changed in this way, it is expected that the impact will extend not only to the subsequent trial proceedings but also to the preceding investigation stage. If focused arguments are required at the trial preparation stage, it should be sufficient at the preceding investigation stage to collect evidence only to the extent necessary for making those focused arguments later.

Regarding the trial itself, it is noted that "concentrated trials are being conducted through consecutive court dates," "the practice of giving concise opening statements is spreading," "evidence regarding the main parts of the crime is being presented primarily through witness testimony," and "efforts to strictly select or significantly compress documentary evidence have become completely established" (the time spent examining documentary evidence to prove criminal facts in confession cases decreased from 83.4 minutes in 2011 to 62.9 minutes in 2018). It is also noted that "in closing arguments and defense arguments... arguments are now developed in accordance with the framework for judgment organized in the pre-trial conference procedure, in anticipation of deliberations and the verdict" (p. 8 et seq.).

The focus on witness testimony and the strict selection or significant compression of documentary evidence is proof that traditional evidence examination ("precise justice"), which Hirano criticized, has transformed into the "core justice" that was aimed for.

Regarding deliberations, for the sake of substantive cooperation between lay judges and professional judges, it is stated that for sentencing, "the framework for sentencing judgments based on act-responsibility has been made clearer." For points other than sentencing, "recommendations were made to organize legal concepts such as the framework for judging mental capacity and intent to kill by returning to their essence. ... Even in cases requiring an understanding of such legal concepts, an environment is being prepared where lay judges can substantially express their opinions" (p. 13 et seq.).

Regarding verdicts, the report states that the perspectives and sensibilities of citizens are reflected in sentencing, and "compared to the era of trials by professional judges, the range of sentencing judgments has widened in both directions (lighter and heavier)." It also notes an increase in concise written judgments and that exhaustive listings of sentencing reasons have become rare, with "care being taken to show the process leading to the specific sentence" (p. 17 et seq.).

The above is an overview, based on the Summary Report, of how cases subject to lay judge trials have changed since the introduction of the system.

In the next chapter, let us look at the impact the Lay Judge System has had on appellate trials and the trial of cases not subject to the Lay Judge System.

Under the subheading "Ripple Effects of the Efforts and Philosophy of Lay Judge Trials," the Summary Report also discusses the impact on appellate trials and the proceedings of cases not subject to lay judge trials.

Specifically, according to the report, the character of the appellate court as a post-trial review (ji-go shin) has been thoroughly implemented. Both the reversal rate and the percentage of cases where evidence was examined in the appellate court have decreased (the reversal rate, which was 17.6% for cases concluded in appellate courts between 2006 and 2008 [where the first instance was a trial by professional judges], dropped to 10.9% for cases concluded between June 2012 and the end of December 2018 [where the first instance was a lay judge trial]. Similarly, the percentage of cases where evidence was examined dropped from 78.4% to 53.6%; p. 21 et seq.).

Furthermore, the report states that even in cases not subject to lay judge trials, "trials that return to the true purpose of the Code of Criminal Procedure... should be realized." It suggests that based on the "thinking of what the true issues—the turning points for judgment—are in a given case, and what the best procedures and evidence are for that judgment," it is necessary to "fully examine whether there is a need or appropriateness to utilize the practices of lay judge trials in non-subject cases, while keeping the purpose of those practices in mind" (p. 23).

Furthermore, bail rates are on an upward trend both in cases subject to lay judge trials and in all cases (including non-subject cases).

In the former, the rate was 4.5% between 2006 and 2008 (the era of trials by professional judges), but it rose to 10.7% between June 2012 and the end of December 2018 (the era of lay judge trials). In the latter, it also rose from 14.4% in 2008 to 32.5% in 2018.

Regarding the pre-trial conference procedure in cases subject to lay judge trials, the Summary Report states that "flexible and broad disclosure of evidence has come to be conducted at an early stage" (p. 7; for judicial precedents reflecting this stance, see Supreme Court Decision, Dec. 25, 2007, Keishu Vol. 61, No. 9, p. 895; Supreme Court Decision, Sept. 30, 2008, Keishu Vol. 62, No. 8, p. 2753).

Active disclosure of evidence is not only being conducted for cases subject to lay judge trials.

The pre-trial conference procedure is an indispensable prerequisite for conducting a lay judge trial and is always performed in cases subject to lay judge trials, whereas it is only performed optionally for other cases. Furthermore, while the Code of Criminal Procedure provides detailed regulations for evidence disclosure in the pre-trial conference procedure, it contains no explicit provisions for cases where the pre-trial conference procedure is not conducted.

However, "flexible and broad disclosure of evidence" is being carried out not only in cases subject to lay judge trials and non-subject cases that were referred to the pre-trial conference procedure, but also in cases that were not referred to the pre-trial conference procedure (see Hiroaki Saito et al., "Roundtable Discussion between Judges and Lawyers: Special Feature on Recent Criminal Trial Practice—Seven Years Since the Start of the Lay Judge System," *LIBRA* Vol. 16, No. 6 (2016), p. 3 [statement by Hiroshi Kamiyama]; see also statements by Mamoru Yamamoto and Saito on p. 5).

The introduction of the Lay Judge System has not only transformed the first-instance trial proceedings of cases subject to the system, but also the trial proceedings of cases not subject to it, as well as the preceding investigation and trial preparation, and the subsequent appellate trials.

This transformation is in a direction that can be positively evaluated. Hirano's vision of reforming the entire criminal procedure through citizen participation is becoming a reality—albeit through the Lay Judge System rather than the lay assessor system he advocated.

However, there are also challenges associated with the Lay Judge System. In concluding this article, let us organize these challenges based on the report.

Regarding the pre-trial conference procedure, a trend toward longer durations has been pointed out (the average duration of the pre-trial conference procedure was 2.8 months in 2009, but reached 8.3 months in 2017, the longest year; p. 38). If the pre-trial conference procedure becomes longer, the various burdens on the defendant increase accordingly. Therefore, a sufficient response is required.

A trend toward longer durations is also pointed out for trial periods, court session times, and deliberation times (p. 38 et seq.). Specifically, the average trial period increased from 5.0 months in 2009 to 10.1 months in 2018. Furthermore, the average court session time increased from 526.9 minutes in 2009 to 640.3 minutes in 2018, and the average deliberation time increased from 397.0 minutes in 2009 to 778.3 minutes in 2018.

Regarding the deliberation time among these trends, the Summary Report states that, in light of the fact that many former lay judges in the three-year review felt the deliberation time was short, "one factor may be that judges are setting longer deliberation times," and "this should be seen as an expression of the sincerity with which lay judges approach cases, wanting to discuss them fully until they are satisfied, and should not be viewed negatively" (p. 15).

However, if these become longer, the burden not only on the lay judges but also on the defendant increases. Furthermore, as the report points out, "it is not inconceivable that discussions during deliberations may spread to points other than the turning points for judgment, and that time is being spent there" (p. 15). Necessary and sufficient deliberation time for lay judges should be set more appropriately.

The trends in the refusal rate and attendance rate of lay judge candidates are also somewhat concerning. While it is stated that "from the implementation of the system to the present day, there have been no cases where specific obstacles arose in the selection of lay judges," it is also pointed out that the "trend of increasing refusal rates and decreasing attendance rates" has continued (p. 2 et seq.; however, the attendance rate began to improve in 2018).