Blog of the International Journal of Constitutional Law

How do you say “ladies, gentlemen, and judges of the jury” in Japanese?

For the first time in decades, as the Economist reports, Japan once again has a jury system (or, if you’re feeling saucy, a “saiban-in seido”), and it is puzzling in a variety of ways. The first puzzle has to do with its sheer existence. It’s not clear who exactly wants this system, or why. Regular citizens, not surprisingly, are not keen to sit on juries. It’s not as if the government is satisfying some well-financed corporate lobby by doing this. Criminal defendants aren’t exactly a political force to be reckoned with. And judges cannot be pleased at the prospect that they will not only have to deal with juries, but will also have to actually sit on the juries themselves.

Therein lies another weird aspect of the new system: the juries are to be manned by a combination of professional judges and lay jurors. By law, the lay jurors are supposed to outnumber the professional judges, and the judges have to give the lay jurors sufficient opportunity to express their opinions. This means, of course, that everybody recognizes that the judges will tell the lay jurors what to do, and the lay jurors will go along with it. Which, again, might lead you to wonder why the jury system is being introduced, other than perhaps to take the heat off the judiciary for the 99% conviction rate that seems scandalously high and permanently fixed against defendants. (But don’t take my word for it; again, take it from the Economist, which has much to its credit repeatedly drawn attention to this aspect of the Japanese legal system.)

No one should be surprised that the saiban-in seido sounds pretty familiar–oh sure, juries, we all know what those are–but ends up being more than a little different. I’ll avoid the low road of making some reference to things being lost in translation and instead take the slightly less low road of noting that there’s a word for this phenomenon: Japanization. As in: “We’re going to take this Western institution and Japanize it. Maybe it will be better, as in the case of the menu at Denny’s; maybe it won’t. But by the time we’re done with it, it will surely be different.”

In sum: perhaps no one can be sure why Japan’s government is doing this. But what I do know for a fact–because I saw it myself, in total disbelief–is that Japan’s otherwise suitably grey and somber Minister of Justice dressed up as a giant green parakeet (canary? parrot? you tell me) on national television to promote the system. (Have I mentioned that it’s not clear who wants this system, or why?)

In our next episode: why are Japan’s Catholic clergy refusing to participate in the new jury system? Was it the bird costume? Stay tuned.


5 responses to “How do you say “ladies, gentlemen, and judges of the jury” in Japanese?”

  1. Colin Jones Avatar

    I try avoid even using the word “jury” to describe the new system. I believe the English-language press in Japan is using “lay judge” pretty consistently (I have also seen some people use “lay assessor” but I don’t think that will catch on). I think that “jury” has to much baggage both from a Western standpoint, but also from the Japanese standpoint. I gather the Supreme Court of Japan was willing to accept the system as long as it was called anything other than a “jury” system. In fairness, the Japanese system is intended to be closer to a European model. I have been told by criminal defense lawyers in Japan that the new system in Japan is closest to the Italian system of lay participation in trials. Perhaps someone on this blog is able to confirm how the Italian system works?

  2. David Law Avatar

    I’d be curious to know about the Italian system myself. Fieldwork in Italy … I can imagine worse fates.

  3. Tom Ginsburg Avatar
    Tom Ginsburg

    One interesting aspect from the first saiban-in trial, which occured while I was in Tokyo this week, was that the lay judges asked questions. (By the way, the case was a straightforward one: the 72 year old defendant had confessed to the murder of his neighbor, and so the only dispute was the sentence. The result: 15 years, while prosecutors had asked for 16.)

    In terms of the “why” question, I think it safe to say that this is a top-down reform designed to spur more active civic participation among Japanese. It had been advocated by the criminal defense bar and some academics for a while, but only came about when the Justice System Reform Council decided to adopt the system. That Council had advocated wide-spread legal reforms to change Japanese society.

  4. David Law Avatar

    So, the three explanations I’ve heard are:

    (1) It’s top-down civic-minded reform. As Tom notes, this is the account advanced by the government, but that’s exactly why I don’t really buy it. Maybe I am being too much the cynical political scientist here, but I generally don’t assume that the Japanese government would ever do anything unpopular at the urging of legal academics (unlikely) or the criminal defense bar (unlikelier) for the sake of doing good.

    (2) Corporate interests (Keidanren, etc.) wanted an expansion of the legal profession but needed window-dressing for their self-interested agenda, so they were willing to back a “package” of reforms. The package needed to include reforms that sounded principled, which could pick up academic support that might make it sound more credible, but were also reforms to which corporate Japan was in truth completely indifferent.
    More plausible.

    (3) It’s intended to take the heat off the judiciary for the conviction rate and various recent miscarriages of justice in the criminal justice system. Colin Jones has a new book out on the saiban-in seido, plus an excellent piece that just appeared in the Japan Times in which he advances this thesis:

    This is the explanation I personally find most plausible, although of course these explanations aren’t mutually exclusive.

  5. Colin Jones Avatar

    It is hard to buy the civic-minded angle, since there are simply too many features of the system which benefit only the government. The lifetime confidentiality obligation imposed on the lay judges is a prime example. The supposedly high level of protection to be accorded to the privacy of lay judges was also apparently unnecessary when it came to the panel at the first trial giving a press conference.

    Another explanation I have heard (though not recently) involves the death penalty. Something along the lines of the death penalty remaining acceptable as long as it is applied democratically.

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