Early jury system tests fell short

KYOTO — The first trials under the new lay judge system are expected to take place sometime after May 21 and speculation in mounting over how ordinary people will handle this new obligation.

Although the “saibanin” system is unique in form and scope, it actually marks the third time Japanese citizens have played roles in court trial decisions, first via a fledgling jury system attempted between 1928 and 1943, and then, in a lesser-known instance, in Okinawa under American occupation after the war.

The first, limited attempt to include citizens in the judicial process, starting in 1928, was modeled on the American jury system. Unlike the upcoming lay judge system, in which six ordinary people will sit with three professional judges and form a nine member panel, the prewar system consisted of 12 jurors.

Then, as now, the government hoped that giving people a voice in trial decisions would increase public support for the judicial process. But scholars say the Taisho and early Showa Era governments also viewed the jury system as a propaganda ploy to encourage participation in government affairs.

In fact, the first jury system was barely worthy of the name. Juries were selected from men 30 years and older who were literate and taxed at a certain level of income. They were not allowed to decide a verdict, and any determination they made was not legally binding.

In many ways, the first jury system, although involved in criminal trials, was barely distinguishable from the current system of “choteiin,” or conciliatory commissioners, who serve as advisers at family and civil court sessions.

And under the early system, a jury could be dismissed and replaced if the judge did not like its attitude or makeup. The role of jurors was basically to be present to answer factual questions put to them by the judge.

Jury trials were optional under the first system, and defendants could choose to be tried by professional judges only. During the time the jury system was in effect, only 484 people, fewer than 2 percent of those eligible, chose to be tried by their peers.

Given the reality of jurors who were legally powerless, the growing atmosphere of fascism and government control in play in the runup to war, a lack of precedent for a jury system, and paternalistic social and cultural norms that discouraged ordinary people from reaching decisions those in power did not want, there was little incentive on the part of anyone to ask for a trial by jury.

By 1943, as the Pacific War was turning against Japan, the nation’s leaders came to view the jury system as an extravagance, and it was suspended. Although there was some discussion by the Occupation forces to force a reinstatement of the system, the Diet elected not to do so and the system remains suspended.

But in Okinawa, under the 1945-1972 U.S. rule, the situation developed differently. The U.S. Civil Administration of the Ryukyu Islands (USCAR) was headed by a serving U.S. lieutenant general and by the 1960s had decided to introduce a jury system.

USCAR had jurisdiction over trials involving U.S. service members in Okinawa and their dependents, as well as civilians employed by the military. A separate body called the Government of the Ryuku Islands was headed by an Okinawan and had jurisdiction over legal matters not handled by USCAR. But those under its jurisdiction did not have jury trials.

What made the Okinawa jury system unique was that anybody could serve as a juror, regardless of nationality. As Chihiro Isa, an Okinawan who participated in jury trials, notes in his award-winning memoir “Gyakuten: Amerika shihai-ka Okinawa no Baishin Saiban” (“Turnaround: Jury Trials in Okinawa Under American Rule”), juries included Japanese from the mainland, Americans, Filipinos, Chinese and, of course, Okinawans. All that was required to be a juror was a certain undefined literacy and fluency in English and a minimum three-month residency in Okinawa.

In her study of the Okinawa jury trials, Anna Dobrovolskaia notes the U.S. decided to institute them after it realized it would not be leaving Okinawa anytime soon.

“Once it became clear that the American presence on Okinawa was to continue for an extended period of time, the U.S. recognized the need to ensure that the constitutional rights of U.S. citizens stationed on the islands were protected. Specifically, the Sixth Amendment of the U.S. Constitution guarantees defendants the right to a ‘speedy and public trial,’ ” she writes in “An All-Laymen Jury System Instead of the Lay Assessor System for Japan? Anglo-American Style Jury Trials in Okinawa under the U.S. Occupation.” The paper appeared in the Winter 2007 edition of Journal of Japanese Law, a German publication.

There were even fewer jury trials in postwar Okinawa under American rule than in the earlier Japanese experiment, probably only around 10, according to Dobrovolskaia’s estimate.

Isa notes there were numerous problems with the system, starting with the fact that because the trials were conducted in English, many non-English-speaking witnesses were misunderstood or could not express themselves. And he suspects Japanese and Okinawan defendants found guilty received harsher sentences than would have likely been given to U.S. citizens charged with the same crimes.

What both the initial jury system and Okinawa jury system had in common was that they were attempts to involve ordinary citizens in the judicial process. In the first instance, jurors were little more than advisers. In the second they handed down verdicts, but only in a very few cases.

Whether the new lay judge system overcomes the limitations of the two earlier attempts remains to be seen.