Popular participation in japanese criminal justice

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POPULAR PARTICIPATION IN JAPANESE CRIMINAL JUSTICE FROM JURORS TO LAY JUDGES ANDREW WATSON Palgrave Advances in Criminology and Criminal Justice in Asia Palgrave Advances in Criminology and Criminal Justice in Asia Series Editors Bill Hebenton Centre for Criminology & Criminal Justice University of Manchester Manchester, United Kingdom Susyan Jou School of Criminology National Taipei University Taipei, Taiwan Lennon Y.C Chang School of Social Sciences, Clayton Campus Monash University Clayton, Victoria, Australia Aim of the Series This bold and innovative series provides a much needed intellectual space for global scholars to showcase criminological scholarship in and on Asia Reflecting upon the broad variety of methodological traditions in Asia, the series aims to create a greater multi-directional, cross-national understanding between Eastern and Western scholars and enhance the field of comparative criminology The series welcomes contributions across all aspects of criminology and criminal justice as well as interdisciplinary studies in sociology, law, crime science and psychology, which cover the wider Asia region including China, Hong Kong, India, Japan, Korea, Macao, Malaysia, Pakistan, Singapore, Taiwan, Thailand and Vietnam More information about this series at http://www.springer.com/series/14719 Andrew Watson Popular Participation in Japanese Criminal Justice From Jurors to Lay Judges Andrew Watson Sheffield Hallam University Sheffield, United Kingdom Palgrave Advances in Criminology and Criminal Justice in Asia ISBN 978-3-319-35076-9 ISBN 978-3-319-35077-6 DOI 10.1007/978-3-319-35077-6 (eBook) Library of Congress Control Number: 2016955182 © The Editor(s) (if applicable) and The Author(s) 2016 This work is subject to copyright All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed The use of general descriptive names, registered names, trademarks, service marks, etc in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG Switzerland Acknowledgements Much gratitude is owed to friends and colleagues at Osaka City University, Doshisha University, and Chuo University for their encouragement and valuable assistance Special thanks are due to Professors Masako Wakui, Koji Takahashi, and Ryo Ogiso I am also greatly appreciative of the very considerable help given to me by the Embassy of Japan, London, the Ministry of Justice in Tokyo and by members of the Osaka Bar Association All errors and faults are mine Further, I would like to acknowledge the generosity of the Japan International Cultural Exchange Foundation for an award which enabled me to complete my research in Japan v Contents A New Chapter in Japanese Social and Legal History An Earlier Experience of Lay Involvement in Court Decisions in Japan: The Jury 1928–1943 Disquiet About Japanese Criminal Justice and a Revival of Interest in Juries 35 The Debate About Juries 53 The Judicial Reform Council and Its Recommendations 69 The Saiban-in Law and Intense Preparation for Its Operation 87 Launch and Then Solid Progress 103 Concerns and Challenges 113 vii viii Contents Opinions on the Lay Judge System 145 10 Successes of Lay Judges and Failures of 1928–1943 Juries 153 Conclusion 161 Appendix Judicial System 165 Appendix 2: The Jury Act 1923 167 Appendix 3: Order of Proceedings in a Saiban-in Trial 169 Relevant Additional Sources 171 Index 173 Introduction Lay judge, or saiban-in,1 courts try serious cases in Japan.2 Sitting together, professional judges and lay judges decide guilt and sentence Resembling Anglo-American jurors, and unlike lay judges elsewhere, saiban-in are selected at random and sit in only one case Dissimilar to mixed tribunals in some countries, where they cannot, or not in practice, Japanese lay judges question witnesses directly, giving them a more active role in fact finding than jurors Before their inception, in May 2009, ordinary citizens’ participation in the criminal justice system was very limited.3 A criminal jury system did “Lay judge” and “saiban-in” are used interchangeably henceforth They hear about per cent of criminal trials The remainder are dealt with by a single professional judge, or a panel of three professional judges It was restricted to the largely volunteer probation service and serving on Prosecutorial Review Commissions or Kensatsu Shinsakai As a means of controlling the very wide discretion vested in prosecutors, decisions made by them not to charge suspects may be reviewed by Prosecution Review Commissions on the request of alleged victims of crimes or interested parties or on their own initiative About 200 Commissions exist around the country Each is composed of 11 citizens selected at random from the electoral roll, who serve for one year The Commission’s powers include summoning persons who have initiated the proceedings and others involved in the case, and compelling prosecutors to attend, explain their conduct and produce relevant materials When in agreement, members of the Committee may decide that the prosecutor should prosecute an alleged offender However, their decisions were only advisory and frequently prosecutors did not comply with them After a revision of the Code of Criminal Procedure in 2004,which became effective in 2009, Commissions may now order that prosecutions be commenced See Hiroshi Fukurai, “The Re-birth of Japan’s Petit Lay Judge and Grand Jury Systems: A Cross-National ix x Introduction exist from 1928 to 1943 It was not, however, a success After describing the very public inauguration of the saiban-in system, over six decades later, this book: • Tells of the creation of the jury system in the 1920s and examines reasons for its failure, including the law itself, opposition by the judiciary, cultural elements (taken by some to confirm that under no circumstances could jury trial work in Japan) and political factors such as descent into authoritarianism, militarism and war; • Traces renewed interest, during the last two decades of the twentieth century, in lay involvement in criminal justice, mainly concentrated on jury reintroduction, by academics, lawyers, a small number of judges, citizen groups, sections of the press and some politicians, and which was bolstered by the return of juries overseas in the1990s, notably in Russia and Spain; • Puts arguments by those who favoured restoring the jury including claims that it would be a better determiner of facts than a judiciary increasingly criticised for being socially elite, bureaucratised and remote; that it would be more likely be a safeguard against malpractice by police and prosecutors and less inclined to accept prosecution evidence unquestioningly, especially confessions; and that democracy in society would be much strengthened; • Displays the views of opponents, and those sceptical, of reintroducing juries, which mainly clustered about cultural factors, perceived shortcomings of functioning juries abroad, constitutional obstacles, expense and fears of jury meddling; • Explains how the Judicial Reform Council came into existence in 1999 and sets out its outline recommendations (which were built upon by a government task force in the following two years) for a “mixed court” of judges and laypersons to try serious cases, rather than adopting the Anglo-American model; • Presents the provisions of the Lay Judge Act, passed by the Diet on 21 May 2004, to introduce the lay judge system into Japan in May 2009, Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U.S.”, 40 CORNELL INT’L L. J 315, 323–28 (2007) ... earlier in the day in a procedure closed to the public © The Author(s) 2016 A Watson, Popular Participation in Japanese Criminal Justice, Palgrave Advances in Criminology and Criminal Justice in Asia,... Criminology and Criminal Justice in Asia, DOI 10.1007/978-3-319-35077-6_2 Popular Participation in Japanese Criminal Justice on that of Prussia, and the opening of a Diet, albeit with a tiny... 14 Popular Participation in Japanese Criminal Justice private property (Benson and Matsumura 2001: Chap 2); and other serious offences against the state In spite of liberal inclinations waning
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