JURIST Guest Columnist Raneta Lawson Mack of the Creighton University School of Law says that while Japan's establishment of a jury trial system is a bold effort to democratize its criminal justice process, it's yet to be seen how the new system deals with the inevitable "bumps" in the road….

Japan’s first jury trial in more than 60 years apparently went off without a hitch earlier this month. The defendant, a 72 year-old man charged with murdering his 66 year-old neighbor, had already confessed to the killing, explaining that he attacked his neighbor with a knife because she knocked over some bottles of water on his property. Thus, the jury of six laypeople and three professional judges had only to decide the level of culpability and the severity of punishment, not whether the defendant was guilty of committing the act. The jury ultimately convicted the defendant of murder and sentenced him to 15 years in prison.

Prior to the reinstitution of jury trials in Japan in 2004 (known as “saiban in"), there was a great deal of skepticism about adding citizen participation to the criminal justice process. The Japanese culture of deference to authority was thought to be a significant impediment to impaneling lay jurors who would be willing to participate in the process. Additionally, the lack of transparency in the criminal justice system had left much of the population in the dark about the operations of criminal justice in Japan.

In an attempt to address these concerns, Japan instituted a jury system based upon a model used in many inquisitorial systems of justice, i.e., lay jurors deliberating with professional judges. Although this is not a jury of one’s peers in the purest sense, there are some advantages to having individuals skilled in the law in the deliberation room, especially if the lay citizenry has been effectively shielded from the criminal justice process for a prolonged period. Of course, there is also significant concern that the professional judges may dominate the proceedings, and this concern is particularly acute in Japan with its culture of deference to authority.

To combat the potential for judicial dominance, Japan established a voting system that could reduce such influence. Each of the nine jurors has a vote, but even if all three professional judges vote guilty, five of the lay jurors can essentially “veto” the judges by voting not guilty. However, if all six lay jurors vote guilty, they need at least one professional judge on board to prevail.

Allowing jurors to directly question the defendant and witnesses during the trial is another feature that enhances citizen participation in Japan’s jury trial process. This is dramatically different from the process in the U.S., in which jurors are, for the most part, seen but not heard from until the verdict. This is also quite different from many inquisitorial systems in which lay jurors are allowed to question the defendant and witnesses, but must often do so through the presiding judge who acts as a “filter.”

In Japan’s recently concluded jury trial, lay jurors demonstrated their understanding of the core issues by asking questions about the particular knife used by the defendant (why a survival knife instead of a kitchen knife?) and questioning why the defendant didn’t seek help for the victim even though he thought she could die (the defendant claimed that he thought another neighbor would call for help). Although this particular jury trial appeared to go smoothly and the lay jurors took an active role as expected, this is a process that is still in its infancy, which means there will inevitably be some bumps in road.

For example, this was a trial about the level of culpability as opposed to a question of guilt or innocence. What will happen when lay jurors are confronted with a trial in which the actual guilt or innocence of the defendant is in question? As anyone familiar with the U.S. criminal justice system knows, when those types of questions are left in the hands of jurors, the results can be unpredictable and cause for heaping copious amounts of criticism on the U.S. jury trial system.

Additionally, Japan has an exceptionally high conviction rate (> 99% by most estimates). While this can certainly be attributed, in part, to prosecutorial selectivity, it is also clear that most of the criminal cases in Japan are presented to the courts wrapped neatly with confessions by defendants. In most instances, these confessions are obtained without the benefit of counsel and within the secret confines of the interrogation room. Japan has so far resisted repeated calls for general audio- or videotaping of interrogations explaining that recording could impede the interrogation process.

This situation will present two challenges to the newly established jury system. First, what will happen when jurors are presented with a challenge to the credibility of a confession? Can Japan continue to resist calls for recorded interrogations when the voluntariness of confessions becomes key to determinations of guilt or innocence? Second, what will happen if, or when, the conviction rate drops? Perhaps Russia’s “experiment” with jury trials might be instructive in this regard. Russia reestablished jury trials in 1993, only to eliminate them for some cases in 2008 due to a perception of excessive acquittals and leniency by jurors.

Finally, will Japan be able to maintain the requisite level of citizen participation in the jury trial process? During the first trial a lay juror withdrew and had to be replaced due to illness. As mentioned above, Japanese culture exhibits strong deference to authority. This inclination is in sharp conflict with the responsibilities of jury service, which will sometimes require challenging the prosecutor’s evidence and might require debating with the professional judges. Will lay jurors come to accept these challenges as a natural part of the process or will jurors simply seek to avoid jury service altogether?

Japan’s establishment of a jury trial system is a bold effort to democratize its criminal justice process. Lay citizen participation in the criminal process adds transparency and a level of credibility to the criminal justice system. Observers of this change in Japan will undoubtedly be watching to see how this new system deals with the inevitable “bumps” in the road and whether this degree of openness in the trial system yields similar results for the interrogation process.

Raneta Lawson Mack is a professor at the Creighton University School of Law and author of Comparative Criminal Procedure; History, Processes and case Studies (W.S. Hein, 2008)
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