In May 2009, Japan will introduce a new trial system in which six lay persons will sit with three professional judges to determine guilt and sentence in serious criminal cases. This change will inject a meaningful dose of lay participation into Japanese criminal trials for the first time in 66 years (Japan had a jury system of sorts from 1928 to 1943). Each year, at least 20,000 Japanese citizens will participate in a jury-like institution that Tocqueville regarded as a “school for democracy.”
But if there are high hopes for Japan’s new lay judge system, there are also serious concerns. Consider three of the most salient.
The first anxiety is what ordinary citizens will do when they are required to decide matters of life and death in capital cases. Japan is, with the United States, one of only two developed democracies in the world that continue to carry out executions on a regular basis. But unlike the U.S., where death sentences and executions have decreased in recent years, the volume of both in Japan has climbed considerably. In the 18 months since Christmas Day in 2006, when four convicted murderers were hanged, Japan carried out more executions — 23 — than it performed in the previous nine years. Japan is, with Pakistan, one of only two Asian nations where executions are increasing.
Among supporters of capital punishment — around 80% of Japanese citizens — there is concern that the more that lay judges learn about the particular circumstances of a capital case, the more reluctant they will become to impose a sentence of death. And among death penalty opponents, there is a strong desire to stop the ongoing surge in executions. These two constituencies have come together in the Diet to propose the creation of a “life without parole” sentence, which would reduce the gap between the death penalty and the next most severe sanction, and in so doing would make the lay judge role a little easier to perform.
The second anxiety precipitated by the advent of lay judge trials concerns how Japanese lawyers will organize their work schedules under the new system and whether they will be able to deliver effective legal services to the defendants they represent. At present, criminal trials proceed discontinuously, with court sessions held once every month or two until a verdict is reached. It is not unusual for trials to last a year or more in the current system. But starting next year, serious criminal trials will be concentrated in a much shorter period, thus requiring defense teams to be continuously available for however long a trial takes: a day or two in simple cases, two weeks or longer in more complicated ones. For at least some attorneys in a society that hardly has a surplus of lawyers, the new system may create incentives to avoid criminal defense work altogether.
Although these are important issues, I believe the third concern is the most critical: will Japan’s new trial procedures stimulate sorely needed reforms in the pre-trial processes that have long been dominated by police and prosecutors? Here the central issues concern power and accountability in the interrogation room, where the main work of Japanese criminal justice tends to be done. Many of the most disturbing events in Japanese criminal justice stem from two related facts: the system’s over-dependence on confessions, and the absence of checks on police and prosecutor power in the interrogation room.
Since lay judges won’t be able to read long written reports, the new system could make criminal trials less reliant on the paper dossiers that police and prosecutors now produce during their investigations, and more reliant on oral arguments made in open court. If so, then the over-reliance on confessions might be curtailed.
But a more direct and effective safeguard against problems with interrogations would be requiring police to record the questioning of criminal suspects. Recording of this kind is rapidly spreading in the U.S., South Korea, Taiwan and many other nations, and there is no good reason for a rich, technologically sophisticated democracy like Japan to resist it. Yet there is in fact much resistance, especially from the police and prosecutors who have long determined the version of reality that emerges from the interrogation room — one of the most closed and secretive spaces in Japanese society.
Japan will eventually adopt recording reforms because they serve the core values that are supposed to animate Japanese criminal justice — and because recording is the trend of the times. But sooner is better than later for Japan’s recording reform. My hope is that Japan’s new trial system will cause the dominoes to fall in a way that nudges open a door that has been tightly closed for too long.
David T Johnson is a professor of sociology at the University of Hawaii. This commentary originally appeared in Metropolis magazine (www.metropolis.co.jp).© Japan Today