[Special Feature: 10 Years of the Lay Judge System] Has the Lay Judge System Changed Criminal Procedure?

Ryuichi Hirano, a leading authority on criminal law, once "diagnosed" Japanese criminal trials as being "quite hopeless" (Ryuichi Hirano, "Diagnosis of the Current Code of Criminal Procedure," in Yasuji Hiraba et al., eds., Collected Papers in Celebration of Dr. Shigemitsu Dando's 70th Birthday [Vol. 4] (1985), p. 407 et seq.).

Hirano criticized every stage of criminal procedure, noting that "detailed, corroborated confessions are required," "it is often said that trials in our country are 'trials by dossier' (chosho saiban)," and "in our country, the review of factual findings through documents is carried out nonchalantly [in appellate courts]."

Hirano concluded, "Is there a way to break away from such litigation? Perhaps not, unless we adopt either a lay assessor system (sanshin) or a jury system (baishin). ... Criminal trials in our country are quite hopeless." While expressing "despair," he saw a glimmer of hope in the "lay assessor or jury system."

In later years, Hirano stated that a lay assessor system would be "more appropriate in our country" than a jury system, remarking as follows (Hirano, "Toward 'Core Justice' through the Adoption of a Lay Assessor System: Trends and Directions in Criminal Justice Reform," Jurist No. 1148 (1999), p. 5):

"Under a lay assessor system, both professional judges and lay assessors must form their convictions based solely on evidence presented in open court. ... They have no choice but to form their convictions only from what is read aloud in court. To achieve this, investigative records must be concise, hitting the mark and striking the core of the case. This may, in turn, affect the methods of interrogation and the length of detention. Furthermore, witness examinations and cross-examinations in court may become focused on the core issues rather than being overly minute."

Hirano envisioned that a lay assessor system would reform every stage of criminal procedure.

The Lay Judge System (saiban-in seido) differs from a lay assessor system. However, they share the same underlying principle in the sense that citizens and professional judges work together to adjudicate specific matters.

In this article, on the 10th anniversary of the Lay Judge System, I will overview and examine the extent to which Hirano's vision of transforming the entire criminal procedure through citizen participation in the judiciary has been realized. I will refer to the summary report published by the General Secretariat of the Supreme Court (General Secretariat of the Supreme Court, "Summary Report on 10 Years of the Lay Judge System" (2019); hereinafter, page numbers cited without further specification refer to this report).

According to the Summary Report, while conventional criminal trials were characterized by "what is called 'precise justice' (seimitsu shiho) or 'trials by dossier'," over the past 10 years, the concept of "core justice (kakushin shiho)—that is, conducting trials and making judgments within the scope necessary to determine the existence of criminal facts and sentencing, which is the purpose of a criminal trial" has become generally shared. Furthermore, based on the principle of trial-centeredness, "court proceedings have undergone a dramatic change" (p. 6).

Regarding trial preparation, the report points out that "there is now an awareness that the parties' arguments (statements of planned proof and planned arguments) should be narrowed down to necessary points," and "the need for evidence arrangement from the perspective of what constitutes the 'best evidence' for judging the organized issues has also become recognized" (p. 7).

If the trial preparation stage has changed in this way, it is expected that the impact will extend not only to the subsequent trial proceedings but also to the preceding investigation stage. If focused arguments are required at the trial preparation stage, then at the preceding investigation stage, it should be sufficient to collect evidence only to the extent necessary for making those focused arguments later.

Regarding the trial itself, it is noted that "concentrated trials with consecutive court dates are being implemented," "the practice of making concise opening statements is spreading," "proof is being established primarily through witness testimony for the main parts of the crime," and "attempts to strictly select or significantly compress documentary evidence have become completely established" (the time spent examining documentary evidence to prove criminal facts in confession cases decreased from 83.4 minutes in 2011 to 62.9 minutes in 2018). Furthermore, "in closing arguments and defense statements... arguments have come to be developed in accordance with the framework for judgment organized in the pre-trial conference procedure, in anticipation of deliberations and the verdict" (p. 8 et seq.).

The use of witness-centered proof and the strict selection or significant compression of documentary evidence are proof that conventional evidence examination (precise justice), which Hirano criticized, has transformed into the intended "core justice."

Regarding deliberations, for the sake of substantive cooperation between lay judges and professional judges, it is stated that for sentencing, "the framework for sentencing judgments based on act-responsibility has been made clearer." For points other than sentencing, "the framework for judging mental capacity and legal concepts such as intent to kill have been reorganized by returning to their essence. ... Even in cases requiring an understanding of such legal concepts, an environment is being prepared where lay judges can substantively express their opinions" (p. 13 et seq.).

Regarding verdicts, the report states that the perspectives and sensibilities of citizens are reflected in sentencing, noting that "compared to the era of trials by professional judges, the range of sentencing judgments has widened in both directions (lighter and heavier)," the number of concise written judgments has increased, and exhaustive descriptions of reasons for sentencing have become rare, suggesting that "care is being taken to show the process leading to the specific sentence" (p. 17 et seq.).

The above is an overview, based on the Summary Report, of how cases subject to lay judge trials have changed since the introduction of the system.

In the next chapter, let us look at the impact the Lay Judge System has had on appellate trials and the trials of cases not subject to the Lay Judge System.

Under the subheading "Spread of the Efforts and Philosophy of Lay Judge Trials," the Summary Report also discusses the impact on appellate trials and the proceedings of cases not subject to lay judge trials.

Specifically, according to the report, the character of the appellate court as a post-trial review (jigo-shin) has been thoroughly implemented. Both the reversal rate and the percentage of cases where evidence was examined in the appellate court have decreased (the reversal rate, which was 17.6% for cases finalized in appellate courts between 2006 and 2008 [where the first instance was a trial by professional judges], dropped to 10.9% for cases finalized between June 2012 and the end of December 2018 [where the first instance was a lay judge trial]. Similarly, the percentage of cases where evidence was examined dropped from 78.4% to 53.6%; p. 21 et seq.).

Furthermore, the report states that even in cases not subject to lay judge trials, "trials that return to the true purpose of the Code of Criminal Procedure... should be realized." It suggests that based on the "idea of identifying the true issues in the case—that is, where the turning point of the judgment lies—and what the best procedures and evidence are for that judgment," it is necessary to "fully examine whether there is a need or appropriateness to utilize the practices of lay judge trials in non-subject cases, while keeping the purpose of those practices in mind" (p. 23).

Furthermore, bail rates are on an upward trend both in cases subject to lay judge trials and in all cases (including non-subject cases).

In the former, the rate was 4.5% between 2006 and 2008 (the era of trials by professional judges), but it rose to 10.7% between June 2012 and the end of December 2018 (the era of lay judge trials). In the latter as well, the rate rose from 14.4% in 2008 to 32.5% in 2018.

Regarding the pre-trial conference procedure in cases subject to lay judge trials, the Summary Report states that "flexible and broad disclosure of evidence has come to be conducted at an early stage" (p. 7; for judicial precedents reflecting this stance, see Supreme Court Decision, Dec. 25, 2007, Keishu Vol. 61, No. 9, p. 895; Supreme Court Decision, Sept. 30, 2008, Keishu Vol. 62, No. 8, p. 2753).

Active disclosure of evidence is not only being conducted in cases subject to lay judge trials.

The pre-trial conference procedure is an indispensable prerequisite for conducting a lay judge trial and is always performed in cases subject to lay judge trials, whereas it is only performed optionally for other cases. Furthermore, while the Code of Criminal Procedure provides detailed regulations for evidence disclosure in the pre-trial conference procedure, it contains no explicit provisions for cases where the pre-trial conference procedure is not conducted.

However, "flexible and broad disclosure of evidence" is being carried out not only in cases subject to lay judge trials and non-subject cases that were referred to the pre-trial conference procedure, but also in cases that were not referred to the pre-trial conference procedure (see Hiroaki Saito et al., "Roundtable Discussion between Judges and Lawyers ," LIBRA Vol. 16, No. 6 (2016), p. 3 [remarks by Hiroshi Kamiyama]; see also p. 5, remarks by Mamoru Yamamoto and Saito).

The introduction of the Lay Judge System has not only transformed the first-instance trial proceedings of cases subject to the system, but also the trial proceedings of cases not subject to it, as well as the investigation and trial preparation that precede the trial, and the appellate trials that follow it.

This transformation is in a direction that can be evaluated positively. Hirano's vision of reforming the entire criminal procedure through citizen participation in the judiciary is becoming a reality—albeit through the Lay Judge System rather than the lay assessor system he advocated.

However, there are also challenges associated with the Lay Judge System. In concluding this article, let us summarize these challenges based on the report.

Regarding the pre-trial conference procedure, a trend toward longer durations has been pointed out (the average duration of the pre-trial conference procedure was 2.8 months in 2009, but reached 8.3 months in 2017, the longest recorded; p. 38). If the pre-trial conference procedure becomes prolonged, the various burdens on the defendant increase accordingly. Therefore, a sufficient response is required.

A trend toward longer durations is also noted for trial periods, court hours, and deliberation times (p. 38 et seq.). Specifically, the average trial period increased from 5.0 months in 2009 to 10.1 months in 2018. Furthermore, the average court time increased from 526.9 minutes in 2009 to 640.3 minutes in 2018, and the average deliberation time increased from 397.0 minutes in 2009 to 778.3 minutes in 2018.

Regarding deliberation time among these trends, the Summary Report notes that in light of the fact that many former lay judges in the three-year review felt the deliberation time was short, "one factor may be that judges are setting longer deliberation times," and "this should be seen as an expression of the sincerity with which lay judges approach cases, wanting to discuss them fully until they are satisfied, and should not be viewed negatively" (p. 15).

However, if these become prolonged, it increases the burden not only on the lay judges but also on the defendant. Furthermore, as the report points out, "it is not inconceivable that discussions during deliberations may spread to points other than the turning points of the judgment, consuming time there" (p. 15). Necessary and sufficient deliberation time for lay judges should be set even more appropriately.

The trends in the declination rate and attendance rate of lay judge candidates are also somewhat concerning. While it is stated that "from the implementation of the system to the present day, there have been no cases where specific obstacles arose in the selection of lay judges," it is also pointed out that the "trend of rising declination rates and falling attendance rates" has continued (p. 2 et seq.; however, the attendance rate began to improve in 2018).