A Weak Start at Reform

Joseph Rozenshtein


In May 2009 Japan introduced lay participation in criminal trials. This "lay judge system" (saiban-in-seido) places three professional judges and six laypeople together as a single deliberative body for serious criminal trials. This was a welcome reform to those outside Japan, since Japan's conviction rate for cases reaching trial had previously been 99.9%, and the police had been practicing a relatively scandalous approach to interrogation and due process. This reform, however, should not be understood as a move toward the greater democratization of Japanese jurisprudence. This paper argues instead that Japan's new jury was not designed to become a bulwark of democracy like its American counterpart. While America's jury is an end in and of itself, Japan's new lay judge framework is a means used by the Japanese government to achieve the very specific ends of institutional stability and governmental legitimacy. The paper examines the history of Japanese criminal justice from the seventeenth century and shows that Japan’s government has continuously supported popular sovereignty and due process only to the degree that they augment governmental stability and legitimacy. The structure of the new Japanese jury is the product of this same government mentality. While there is potential for the procedural lots of criminal defendants to improve as a result of the new system—for example, the possibility for more acquittals—the effects of Japan's new jury system will be slight, as the rest of Japan's criminal justice machinery remains essentially the same.

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