With notices having already gone out to the randomly selected citizens who may have to serve as lay judges (saibanin) in serious criminal trials starting later this year, authorities are concerned that yakuza gangsters may end up being chosen. Oh well, at least they made sure to exclude law professors.
This prohibition is interesting given one aspect of the media debate about the new system, which goes something like this: Citizens: “How can average people like us possibly participate in criminal trials, help to find criminals guilty and decide their punishment when we know nothing about law?” Government: “Not to worry! Professional judges will be there to explain the law, so you don’t need to know anything about it!”
In fact, the system is designed so that having no legal knowledge is effectively a requirement, since a variety of people are prohibited from serving as lay judges. Roughly categorized, these include: (a) politicians; (b) certain government employees; and (c) a variety of legal professionals. This means not only that everyone who participated in creating the system of lay judges will never have to be one, but that people with legal knowledge are intentionally excluded from the pool of potential candidates (also prohibited from serving are people with criminal records, meaning the ineligible will consist mainly of lawyers, politicians and criminals — distinguished company indeed!).
Media debate has also focused on the system’s purpose. The conventional explanation is that conscripting average people to help decide trials will introduce some common sense into the rarefied domain of the courts. This may be true, but the law says differently. According to the system’s implementing statute, Japanese people will supposedly develop a greater understanding of and greater faith in their country’s judicial system by serving as lay judges. As written, therefore, the law implies that the fault lies with an ignorant, needlessly distrustful public; the courts are fine but people just need to understand them better through compulsory participation (hopefully the same rationale will never be used with the Self-Defense Forces!).
How the lay judges are supposed to participate is also interesting. Unlike jury systems in the U.S. and elsewhere, in which jurors deliberate among themselves and interact with judges only in the courtroom, in Japan, panels composed of lay and professional judges will consider evidence presented in open court, but will reach a verdict through secret deliberations (the idea of judges interacting with jurors in secret would make most American lawyers cringe, since it renders it impossible to detect and appeal mistaken explanations of law or prejudicial comments regarding the evidence).
Also, unlike the unanimity which is usually required for criminal verdicts in a jury system, the Japanese panels need only a majority to convict. On this point the law is almost deliberately misleading, in that it states that a verdict must be reached by a majority of the entire panel that includes at least one professional and one lay judge. However, since panels will consist of three professional judges and six lay judges (or one and four, as discussed below), a majority that does not include a lay judge is simply impossible. The disguised significance of this provision is that it gives a veto power to the professional judges, possibly so they can protect defendants from “runaway juries” (though, with the conviction rate under the current system running at over 99 percent, one wonders how often this will ever happen). And while the law only requires one professional judge to join a majority of lay judges, given that Japanese judges are career bureaucrats who have to work together for much of their careers, the professionals will likely vote as a bloc in all but exceptional cases. Thus, absent open dissent among the professionals, only two out of six lay judges will be needed for a conviction.
What happens if this “simple” majority is not achieved (i.e., the professional and lay judges split completely, or only one lay judge votes with the professionals)? The law is interestingly silent on this point, but apparently basic principles of criminal procedure dictate that in such cases the defendant is not guilty.
Another difference from jury systems is that lay judges will participate not just in convicting or acquitting defendants, but in sentencing the guilty as well. By contrast, most U.S. juries are generally not supposed to even know about, let alone consider, the punishment that might result from a guilty verdict. Since lay judges will only participate in trials of crimes punishable by death or life in prison, sentencing decisions may involve a serious emotional burden.
Citizen participation in sentencing rather than findings of guilt may actually prove to be the principal role of lay judges. Although crafted as an exception, the law provides for panels of one professional judge and four lay judges that can be used when there are no significant disputes over facts. Since the majority of criminal trials involve defendants who admit their guilt (a fact which partially accounts for the country’s high conviction rate), this panel could end up being the one used predominantly.
How will Japanese citizens take to their new role in the criminal justice system? We may never know, since one controversial feature of the system is that lay judges are subject to a lifetime secrecy obligation. Backed by criminal penalties, this secrecy requirement is an odd thing: If the system’s purpose is to educate the public about trials and have their views reflected in the criminal justice system, gagging participants for life seems counterproductive. Various reasons have been given for the secrecy obligation, including the need to protect privacy, encourage free deliberations and help defendants to “accept” guilty verdicts by keeping them from learning about those that are not unanimous (since defendants will generally know whether or not they committed the crime, this last explanation seems almost quaint).
Speaking of accepting verdicts, one less-publicized aspect of the lay judge system is that even after it commences, prosecutors will still be able to appeal a not-guilty verdict or insufficiently severe sentence, and a panel of high court judges will still be able to overturn the lower court’s decision, nullifying the lay judges’ efforts. There are calls for prosecutors and appellate courts alike to refrain from taking such actions, but it remains to be seen whether such self-control will prevail.
Viewed cynically, these features together suggest that the system is designed to ensure that the criminal justice system continues to generate the same “correct” results as always, while at the same time deflecting some of the criticism currently directed at the courts: that the judges heavily favor prosecutors to the extent of finding innocent people guilty on scant evidence, or that they are too lenient in sentencing. In this light, a system which maximizes the appearance of citizen participation while giving lay judges only a minority role in terms of actual influence makes sense. Excluding people who know something about law also makes sense since it ensures that judges will not be subject to any credible second-guessing. Imposing a lifetime confidentiality obligation on lay judges may also have the benefit of ensuring that only professional judges and other legal system insiders will be able to talk authoritatively about how the system is functioning. The government is supposed to review the system after three years and, thanks to the secrecy obligation, it will probably be able to do so with a minimum of troublesome unfiltered input from people who have actually been lay judges.
On the positive side, one expected benefit of the system is that prosecutors, lawyers and judges who have traditionally conducted trials focused heavily on impenetrable legalese-laden documents will have to learn how to communicate with the average person. Trials that have dragged on for months or years will now have to be conducted in a short period of time in order to minimize the disruption to the lives of the lay judges. With the government already promising that most trials will take a few days at most, there is the danger that the pressure to get the lay judges home quickly will take precedence over the rights of the defendant. Since most defendants are locked up for the entirety of the proceedings, however, most will probably welcome a speedier resolution nonetheless (and from the standpoint of concluding trials quickly, the exclusion of argumentative lawyers and talkative law professors also makes sense!).
A more subtle (and probably unintended) benefit may be the most important. One of the great things about a jury in the U.S. system is that it provides a nexus of blame for the results of a trial yet ceases to exist at the same time that the result is known. While it may not have been the intent, lay judges may provide a similarly useful blame-avoidance mechanism that judges can use to disagree with each other about verdicts, and prosecutors can use to refrain from appealing.
Which brings us to one other question about the lay judge system: Who is it for? Certainly not criminal defendants, since they do not have the option to avoid a trial by lay judges (in the U.S. system, the right to a jury trial is generally understood to be a right of the defendant that he or she can and often does waive through the plea bargain process). By contrast, since the professional judges do have the discretion to forgo using lay judges in some cases, the system is probably not for the benefit of the general public either (one purpose of the jury system is, after all, to protect defendants, and by extension the general public, from judges). Furthermore, if the lay judge system was intended as any sort of public right, the odd ban on certain categories of people from serving would seem untenable.
One possible conclusion, therefore, is that the system is for the professional judges and other legal system bureaucrats, since so many of its special features seem to have been designed to retain their control and flexibility over criminal trials while diminishing their responsibility for the results. Regardless of who the system is for, how it actually functions will depend to a large extent on the good conscience and common sense of the average Japanese person. From that perspective, the lay judge system will be a positive development indeed.
Colin P. A. Jones is a professor at Doshisha University Law School in Kyoto. His recent book “Amerikajin Bengoshi ga Mita Saibanin Seido” (“An American Lawyer’s View of the Lay Judge System”) is available in Japanese from Heibonshinsho. Send comments on this issue to firstname.lastname@example.org