Japan’s Lay Judges and Implications for Democratic Governance
On a sunny January morning in 2010, I sat high above the bustling streets of Tokyo in the central offices of the Japan Federation of Bar Associations (JFBA), speaking with a professor and noted scholar of Japan’s newest judicial incarnation, the saiban-in seido , or “lay judge system.” As I listened and learned more about the Japanese lay judge system that January morning, I found it amazing that it was my position as a Sylff fellow that had led me here.
In May of 2009, Japan began formal operations of the saiban-in seido , a quasi-jury method of trial adjudication that blends elements of the Anglo-American jury and the European lay assessor adjudicatory systems. Mandated by the Lay Judge Act of 2004, this system represents the first time that Japanese citizens have been asked to formally participate in the criminal adjudicatory processes of the state since 1943. At its core, the Lay Judge Act established a form of criminal trial adjudication where citizen jurists serve with and work alongside their professional counterparts on trials where the offense falls within a limited range of high crimes.
Under the saiban-in seido , in cases where the defendant contests his or her guilt, the judicial bench is composed of three professional judges and six lay civilians chosen from the population at random. These mixed tribunals are charged with not only determining the guilt of the defendant but also the sentence to be imposed. Decisions and judgments by the lay judge panel are based on majority vote, although any valid verdict is required to include the votes of at least one professional judge and at least one lay jurist.
As part of my master’s thesis, I decided to investigate this new means of trial adjudication to determine what its central purposes were, how the lay judge system compared to similar systems around the world, and whether it was likely to operate successfully.
Functionally, this system is a hybrid of the two most commonly used lay adjudicatory systems in modern democracies: the Anglo-American jury system and the lay assessor system of continental Europe. Indeed, the Japanese quasi-jury method uses both professional jurists and lay citizens—similar to Europe’s mixed tribunals—who work and deliberate together on the guilt and potential sentence of defendants before the court.
Much like their Anglo-American counterparts, however, Japanese lay adjudicators are selected randomly from the population and serve for only one case. By taking attributes from both the European and the Anglo-American models, the Lay Judge Act created an internationally unique criminal jury system.
Perhaps one of the most surprising discoveries about the lay judge system was that it was conceived and implemented in order to, among other things, strengthen the democratic tendencies of the Japanese people and improve democratic governance within Japan.
According to the Judicial Reform Council, the body appointed and charged by the Japanese Diet in 1999 to recommend juridical reforms, one of the goals of this system was to strengthen democratic governance. According to the JRC, judicial service would help transform the collective consciousness of the Japanese populace from “being a governed object [to that of] a governing subject, with autonomy and bearing social responsibility . . . ” (emphasis added).
Toward that end, citizen service in judicial systems, where individuals are asked to be integral participants in determining the guilt or innocence of their fellow citizens, can play a powerful role in enhancing democratic governance. Indeed, the simple act of discussing one’s time as a juror can have an important impact on how individuals conduct their public lives following the trial:
[T]alking about jury service after the fact represents an effort to bridge the courthouse experience with the rest of one’s life. Regardless of whether one’s experience was triumphant or tragic, this conversational behavior could strengthen preexisting cognitive connections between being a juror and being a democratic citizen more generally. Rather than treating jury duty as an isolated, almost private responsibility performed exclusively while “on duty,” these conversations increase the likelihood that jurors remain jurors in spirit after leaving the courthouse. Still wearing their Jury duty cards with them out of the courthouse, these jurors become more likely than their peers to carry with them a heightened sense of responsibility to continue their public service—in other ways—after being dismissed by the judge. [emphasis original] 1
However, there are serious concerns whether the lay judge system’s design could compromise the very democracy-enhancing ends it was conceived to advance. In particular, the Lay Judge Act severely circumscribes the ability of lay jurists to disclose the trial’s inner workings to others, and it authorizes criminal sanctions and penalties should any lay jurist reveal the contents of the trial to anyone, even years after their service is concluded.
While this confidentiality provision was designed to protect the sanctity of the deliberations and shield lay judges from possible harassment, the negative effects on the lay judges due to these restrictions could have severe repercussions in the system’s ability to transform the Japanese people into the “governing subjects” that the JRC initially envisioned.
This is particularly worrisome given that, as noted above, the sharing of one’s jury experience is an important component in strengthening the ties between judicial service and later democratic enhancement. As one observer mentioned, “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.” 2
Interestingly, although the lay judge system has been operating for just under three years, those who have already served have expressed surprisingly high levels of confidence in its operations. As of 2010, 98% of Japanese citizens who were empanelled as lay judges felt their experience was a positive one, with 75.6% stating that the atmosphere during deliberations was positive and allowed a complete discussion of the case at hand. 3
These positive post-trial assessments are striking, particularly since over 58% of former lay judges polled stated that they initially did not want to serve when first summoned. 4 Such positive early returns are heartening and give rise to the hopes that the system may just be able to achieve its goals of enhancing democratic governance.
All in all, the lay judge system holds great promise and potential; only time and future research will tell whether or not the saiban-in seido will live up to the hopes of its champions or succumb to its structural weaknesses. Regardless, this is an exciting moment in Japan’s jurisprudential and democratic evolution.
Robert Putnam noted, “changing formal institutions can change political practice.” 5 Here, researchers, scholars, Japan watchers, and the Japanese people themselves all are watching whether the lay judge system will live up to that promise and help reshape Japanese society.
During my investigation, I was fortunate enough to travel to Japan as a Sylff fellow and conduct on-the-ground research into this emerging system. In and outside Tokyo, I was able to meet with ordinary citizens and hear their thoughts regarding their new civic responsibilities. While many admitted to being nervous, several also expressed interest in serving as a lay judge, stating they were curious about the system and wanted to participate, if nothing more than just to discover how the system functions.
This year, the Japanese Supreme Court is commanded by the Lay Judge Act to review the effectiveness of the saiban-in seido and suggest any necessary amendments. It is unclear at the moment what potential alterations the Supreme Court might suggest. No matter its future modification or evolution, the lay judge system represents a unique experiment in integrating average citizens into the judicial decision-making process, one that the rest of the world should watch with interest over the coming years.
In the final analysis, Japan’s serious effort over the past decade to reintroduce its citizens into the nation’s criminal processes represents one of the most fascinating efforts in modern judicial reform.
1 John Gastil, et al., The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement and Political Participation, 116 (2010).
2 Colin P. Jones, “Big Winners in ‘Jury’ System May Be Judges, Bureaucrats,” Japan Times , March 10, 2009, http://www.japantimes.co.jp/text/fl20090310zg.html.
3 Saiban-in seido no jisshi jokyo no gaiyou [Brief Overview of the Lay Judge System’s Implementation Status], Supreme Court of Japan, www.moj.go.jp/content/000036266.pdf (May 16, 2010); Setsuko Kamiya, “Lay Judges Off to Solid Start: Legal System Gets a Positive Jolt from Citizen Participation,” Japan Times , February 26, 2010, www.japantimes.co.jp/text/nn20100226f1.html.
4 Kamiya, supra note 3.
5 Robert D. Putnam, Making Democracy Work: Civic Traditions in Modern Italy , 184 (1993).