are a matter of curiosity. While Japan’s fundamental law was proposed by the United States following the defeat of the former in the Second World War, the two countries’ legal systems remain distinct in a number of respects.
Japan prides itself of having a very high conviction rate of 99.9% compared to the United States federal courts’ 85.1%. (Bloom) [It is believed that due to the shortage of prosecutors in Japan, the government brings only very strong cases. Out of the 919,000 people arrested for criminal code crimes in 1995… prosecutors brought charges against only 161,000 (17.5%). Even of the 1,822 people arrested for murder, they tried only 781 (42.9%).[i]]
Confession usually forms the basis for conviction. Japan allows suspects to be detained for up to 23 days before charging. (Code of Criminal Procedure, Articles 203, 205 and 208) It is alleged that during this time when confessions are obtained. A Fullbright Scholar in Japan, Lester W. Kiss, noted in his paper “Reviving the Criminal Jury in Japan” that “Under the Japanese System, police often have unrestricted power to interrogate a suspect, and many cases of abuse have been reported. Japanese authorities often demand detailed, corroborated confessions. Such confessions may then be presented at trial, and although they may be attacked by the defendant and defense counsel in court, their corroboration gives judges a basis to accept them even if they are procedurally questionable,” which props up the popular notion that police resort to torture because of the strong pressure to prosecute.
In May 2004, the Diet passed a Judicial Reform Bill instituting a Jury Trial System which is to take effect by May 2009 (Japan Times Weekly Editorial, June 5, 2004) to address the diminishing confidence in the Japanese Judicial System.
Law Number 63 of 2004, “Saibain’in no sanka suru keiji saiban ni kansuru houritsu” (Act Concerning Participation of Lay Assessors in Criminal Trials), constructs a mixed jury system composed of six lay persons (saiban’in) and three professional judges to hear:
Cases involving crimes punishable by death or imprisonment for an indefinite period or by imprisonment with hard labour [Art. 2, (i)] ; and
Cases involving crimes in which the victim has died due to an intentional criminal act and those cases noted in Courts Act article 26 (2) (ii) which provides that crimes with a penalty of death or imprisonment over one year will be heard by judicial panel of three judges. (Anderson and Saint)
The Law for Implementation of the Saiban-in System in Criminal Court Procedures was promulgated to bring forth a more reliable justice system- in the 80s, convictions involving confession were overturned which caused public uproar and distrust in the judiciary.
In Government v. Akabori (Shimada Case) 1316 HANREI JIHO 21 (Shizuoka Dist. Ct., January 31, 1989), defendant Masao Akabori was held for rape and murder of a school girl in Shimada City. He confessed to the charges after intense questioning by the police and was convicted in May, 1958. On a new trial, after 25 years, Shizuoka District Court acquitted Akabori for lack of evidence linking him to the charges other than his own confessions, which were shown to be of little reliability. (Kiss)
In another case, Sakae Menda was charged with the murder of a 76 year old prayer reader and his wife in Kumamoto Prefecture (Government v. Menda, 1090 HANREI JIHO 21, Kumamoto District Court, July 15, 1983). Menda confessed to the crime and was sentenced in March 1950. In 1983, Menda was acquitted of both murders due to the unreliability of his confessions. (Kiss)
These cases gravely diminished the reliability of the legal system. The reintroduction of the Jury System aims to address this issue of wrongful prosecution.
Japan’s Jury System in 1928 until 1943 was guaranteed for cases in which the maximum penalty was death or imprisonment for life, unless waived by the accused. For cases where the maximum penalty was imprisonment for greater than three years and the minimum penalty was imprisonment for not less than one year, the accused can request for a trial by jury.
Jury consisted of twelve jurors who did not pass on a “guilty” or “not guilty” verdict. Rather, they reply to the judge’s specific questions. However, these responses are not binding. The judge could discount if s/he found them unjustifiable, and call on another jury to try the case de novo. Jurors are restricted to literate male citizens over thirty years old. In its 15 years of existence, there were only 611 cases tried by jury. In 1942, only two jury trials were held. (Kiss)
In the US, on the other hand, the Constitution in Article III, Section 2, provides that “[T]he trial of all crimes, except in cases of impeachment, shall be by jury…” This right to a jury trial is reiterated in the Fifth Amendment which stipulates that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…” and in the Sixth Amendment that states “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” Petty offenses though are not covered by jury requirement.
Jury System is a pillar of democracy. [Apodaca v. Oregon, 406 US 404, 407 (1972)] In an American Jury Trial, the jury decides the case. The Jury determines the facts of the case. The Judge tells the Jury through Jury Instruction what the law is, and the Jury applies the facts to the law during secret deliberations.
Jurors function as a democratic check, a further protection against any arbitrary law enforcement. Jury System serves as a way to ensure direct citizen participation in the administration of justice. The right of the accused to be tried by a jury of his peers manifests reluctance to entrust authority to decide over the life and liberty of the citizen to one judge and functions as a safeguard against overzealous prosecutor. [Duncan v. Louisiana, 391 US 145, 156 (1968)]
In a Jury Trial, a group of 6-12 jurors are selected from a list called the venire. Automatic elimination occurs depending on the jurisdiction and occupation (e.g. firefighters, policemen, public officials are exempted). In California, the Trial Jury Selection and Management Act qualifies American citizens who are residents of the court district, at the age of majority, not convicted of a felony, can understand English, not on another jury and legally capable of handling their affairs as potential jurors. There is no automatic excuse but there is a provision for “hardship” excuse.
Counsel for either side can use peremptory challenge without specifying a reason to eliminate a potential juror.
The United States has always been revered as a country with the highest regard for individual rights and freedoms. In contrast, Japan has been considered to give more primacy to coherence, rigid social structure and hierarchy. Considering the stark cultural difference, it is not difficult for one to see that it will manifest in both countries’ legal systems. The law after all is a social construct in the sense that societal values and aspirations define it.
It was deemed that Japan introduced the Mixed Jury System in its legal system during the term of Premier Takashi Hara in a move toward greater democratization (Taisho Democracy). Now, it is being reintroduced for the same purpose- to regain the people’s faith in the Judiciary by getting them more involved in the administration of justice.
Japan has always been defined by its homogenous culture which was successfully preserved through time. Its stiff hierarchical structure has not worked favorably towards giving more respect to the participation of the lay people in the adjudication of criminal cases. More- than-necessary-consciousness of one’s place in society particularly by lay people likewise does not encourage more openness in expressing their opinion in litigation which defeats the very purpose of sitting as lay-judge. Japan may need a little bending in those respects which can be attained through greater education by the people about the importance of making their voices heard.
The law is not only an instrument which the state can utilize to hammer a restive population. Foremost, it exists to institute harmony through valuation of freedom and justice- to ensure fairness in adjudicating disputes. It is a social contract necessary for a more orderly society, but it does not mean that the law would be more effective if imposed from the top down. More often, laws are implemented more successfully if the full cooperation of the people is solicited in its dispensation. Bias is avoided if decision is entrusted to more people than one all-knowing judge.
The United States can continue to inspire other nations to adopt its system by sticking to its judicial exemplar. However, it may learn from the mixed-jury system of Japan once the latter proves it is capable of transcending cultural limitations that might hinder the successful attainment of the aims of its Mixed Jury System.
Unpopular decisions of the Jury may be evaded if the US can employ a system similar to what Japan will implement in 2009 that requires at least one affirmation from the panel of both the lay and professional judges to decide on a case. In this way, decisions may gain more reverence since both the professional judge’s and the lay juror’s voices are heard. And there is more guarantee that law and reason are the bases of decision and not the dramatic presentation of evidence or personal biases. This set-up should avoid Rodney-King-verdicts.
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References:
[i] Bloom quoting RAMSEYER and NAKAZATO, Japanese Law an Economic Approach (University of Chicago Press, 1998).
Bloom, Robert M. “Jury Trials in Japan.” Sited at http://law.bepress.com/cgi/viewcontent.cgi?article=2584&context=expresso
“Criminal justice system of Japan.” Wikipedia, the free encyclopedia. Sited at http://en.wikipedia.org/wiki/Criminal_justice_system_of_Japan
Kiss, Lester W. “Reviving the Criminal Jury in Japan.” Sited at http://www.duke.edu/journals/lcp/articles/lcp62dSpring1999p261.htm
Maruta, Takashi. “The Criminal Jury System In Imperial Japan And The Contemporary Argument For Its Reintroduction.” Sited at http://www.cairn.be/article.php?ID_REVUE=RIDP&ID_NUMPUBLIE=RIDP_721&ID_ARTICLE=RIDP_721_0215
“The role of law in Japanese society Library of Congress Country Studies.” sited at http://lcweb2.loc.gov/cgi-bin/query/r?frd/cstdy:@field(DOCID+jp0216)
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