POST WRITTEN BY: Mai Kemmochi, LLM Pace Law School (’15) and Doctoral Program of Sophia University (’17).

“Saiban-in” is a special position introduced in 2009 in the Japanese judicial system. It corresponds to the jury in the U.S. For every case, six persons are randomly chosen from citizens who are 20 years of age or more, and they take part in a trial and decide a judgment with three professional judges. Cases which may involve saiban-in are limited to several kinds of criminal cases: for example, murder, manslaughter, arson, abduction, and stimulant smuggling.

This system is expected to encourage citizens to feel familiar with the court, thereby enhancing their reliance on the judicial system. Before the introduction of this system, the court was deemed another world for citizens because trials were too technical and lengthy for them to access and understand. In response to these difficulties, there were many attempts to make trials easy for lay persons to understand, and to shorten the period of trials, such as pretrial conference procedure among the judge, prosecutor and lawyer in order to clarify and narrow the point in dispute. Furthermore, the most important point of the saiban-in system is that general citizens’ “common sense” can be reflected in judgments, because the court had been sometimes criticized that judgments rendered by professional judges differed from citizens’ view on the seriousness of crimes.

There are three major differences between the Japanese saiban-in system and the American jury system. First, the saiban-in system is not applied to civil cases, while in the United States the jury takes part in both criminal and civil cases. When the saiban-in system was developed, some people said that citizens’ common sense was more needed in civil cases. However, the system was introduced only in criminal cases because the application to both cases would have laid a heavy burden on citizens, and criminal cases have larger effects on our society.

Second, the saiban-in should decide not only whether a defendant is guilty or not, but also what the appropriate sentence for the defendant, including the death penalty. A person who is convicted of murder, for instance, “shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years” under Article 199 of the Penal Code. In this instance, the saiban-in should select appropriate penalty from a range of possibilities, considering many factors like the situation, motive and result of the criminal act.

Third, in principal, the sentence is unanimously decided by six saiban-in and three professional judges together. If they don’t reach consensus after sufficient discussion, they then take a vote, but at least one professional judge must agree with the majority when the result is disadvantageous to the defendant. Under the saiban-in system, it seems that professional judges play an indispensable part in explaining law to the saiban-in, who have no legal expertise, as well as keeping general balance with other similar cases, thereby sustaining legal stability.

Five years have passed since the saiban-in system was adopted, and the number of cases which the saiban-in joined amounts to around 7,000. This inexperienced system has not been without some problems. Among these, I briefly present (1) constitutionality of this system, (2) the burden on the saiban-in and (3) a tendency toward a more severe penalty.

The Japanese Constitution has no provision regarding jury, unlike the U.S., so the constitutionality of the saiban-in system had been disputed. However, in 2011, the Supreme Court upheld its constitutionality, thereby settling this argument.

When the saiban-in system was introduced, a matter of public concern was the burden caused by a long-term trial or fear of danger. Relating to the fear of danger, if the life, body or property of the saiban-in could be harmed, such a case may be excluded from those in which the saiban-in take part. However, this exemption clause appears to be construed very strictly, and has been applied to only one case which involved two members of the Japanese mafia. As for the long-term trial, most cases are finished in three or four days. The average length is 5.7 days, but the longest trial reached 95 days. Though the current exemption clause isn’t applied to the long-term trials, there is discussion that this clause should be expanded to cases where the saiban-in would attend a trial for a significantly long term.

In addition, some people have voiced concerns that the saiban-in might feel sympathy for victims, thereby punishing more severely than professional judges. According to statistics, the tendency toward more severe penalties is certainly recognized, but the number of sentences to death is slightly decreasing and the proportion of deferred adjudication probation is increasing. If judgments to which saiban-in related are appealed, higher courts should not reverse them unless they are logically or empirically unreasonable, and the actual number of reversals is very small.

The adoption of the saiban-in system is successful in that it has no remarkable harmful effects, and it narrows the gap between the court and our daily life. In particular, regarding the latter, the saiban-in seems to feel sympathy not only for victims but also defendants, and have the opportunity to consider punishments for crimes and the death penalty itself. This system will be indispensable to provide a forum for discussion of our society’s legal system between citizens and judiciary and among citizens.

 Sources:

• The Supreme Court of Japan, Saiban-In System
• The Supreme Court of Japan, Report on Implementation of Saiban-In System,
• Yoshihiro Takatori et al., The New Saiban-in (“Lay Judge”) System and Its Effect on the Working Environment, Stay Current (Jan. 2009).
• Daniel H. Foote, Citizen Participation: Appraising the Saiban’in System, 22 Mich. St. Int’l L. Rev. 755 (2013) .