On May 28, 2004, the
National Diet passed a law requiring selected citizens to participate as judges (and not
juries) in trials for certain severe crimes. Citizens chosen for such service, called , are randomly selected out of the electoral register and, together with professional judges, conduct a public investigation of the evidence in order to determine guilt and sentences. In most cases, the judicial panel is composed of six
saiban-in and three professional judges. In cases where there is no substantial dispute over guilt, the panel is composed of four
saiban-in and one professional judge. Unlike under the older jury system, the defendants are not allowed to waive trial by
saiban-in. The
saiban-in system was implemented in May 2009.
Process In many respects, the new system is very different from a common law jury system. It is not a (lay) jury of an
adversarial system of common law but one that involves a (lay) "judge" found in
inquisitorial systems of
civil law countries, such as those in continental Europe and Latin America. In a common law adversarial system, the judge acts as a referee over the contest between the defence attorney and the prosecutor, in which the two sides present the facts of their case to the panel of jurors; the judge in this system is mainly the referee of court procedure and decides only the applicable law. In the civil law inquisitorial system, the entire panel of judges conduct a public investigation of the crime at the trial, and pass the verdict and sentence those found guilty. For this reason, each member of the panel can initiate the examination of evidence and witnesses, and by a majority (including at least one professional judge, as explained below) can pass a guilty verdict and impose a penalty. Lay judges’ roles are nevertheless constrained; notably, legal interpretations and determinations remain with the professional judges. Unlike the Anglo-American rule for criminal jury trials, both convictions and acquittals as well as sentence remain subject to appeal by the prosecution and the defence. The Japanese system is apparently unique A guilty verdict requires a numerical majority of nine judges that includes at least one professional judge. Accordingly, the three professional judges as a collective have a
de facto veto on any conviction that would be delivered by the lay judges.
Controversy As in most common law countries where people are reluctant to serve as jury members, many Japanese have expressed reluctance to serve as lay judges. Polls suggest that, similar to developed jury systems, 70% of the population of Japan would be reluctant to serve as judges. Some Japanese have been introduced to mock trials over recent years to overcome their reluctance to express opinions publicly, debate, and defy authority figures. Others have written with concern regarding the harsh secrecy provision in the statute which includes the risk of criminal penalties for those lay judges who would publicly share confidential deliberation room discussion even after trial proceedings are complete. Another issue is that some criminal trials used to take years if the charge was serious and the defence contested the charge. After the system moved to include lay judges, the trial period was fixed to a maximum of a few weeks. Some commentators feel justice is compromised for the convenience of lay judges and that cases are not examined in enough detail. ==References==