Court Reform In Japan

A continuous, fair trial that determines guilt or innocence without extending for prolonged time is the aim of most legal systems worldwide; Japan's trial system, in theory, is no different. In practice, however, it would seem that Japan is lacking in both speed and fairness. A 99% conviction rate coupled with trials that extend for years has been forcing lawmakers to rethink the post WWII legal procedure.

In order to alleviate these problems the Diet (Japan's legislative branch) has passed a law to introduce a new criminal court system that will bring ordinary Japanese citizens into the courtroom. The system, known as Saibanin, will consist of a joint judicial group in which there will be three professional and six lay judges. The reasoning behind the use of lay judges that have no legal background is similar to that of the USA jury system. However, some key differences between both the details of the systems, as well as cultural and social aspects of the Japanese could prevent the proposed mixed-court system from solving anything.

The dynamic of the Japanese social structure throughout its history is seen as highly group oriented. Also, there is a distinct hierarchy amongst Japanese in terms of social status that can be seen in almost every interpersonal exchange, especially in language used. Someone deemed to be a superior would use neutral Japanese, while the social subordinate will speak in an honorific form when referring to the superior, and a humble form when referring to themselves. This manner of communication is not simply a formality, the level of respect carries over into trusting the judgment of someone who is socially superior, and often not voicing personal opinion if it is contradictory.

Thus, it can be surmised that in a group consisting of nine Japanese, three of which have a high rank in society (the professional judges), and six of which are average Japanese citizens, the lay judges will not voice an opinion that is contradictory to that of the professional. To do so would not only be rude (in assuming your judgment is more accurate than that of a superior), but it will also inhibit the group's objective of coming to a decision on the matter. Were this to occur, the introduction of the mixed court would not produce a fairer courtroom, as is intended, though it would still speed up the trials, as the lay judges would not be available for extended periods of time.

While this argument seems valid, some would argue against it. A key problem that can be seen with this theory is that it relies upon the assumption that the lay judges will - both consciously and subconsciously - consider their association with each other and the professional judges as a "group". In his article, "Reviving the Criminal Jury in Japan", Lester Kiss argues, "It is important to keep in mind that because the jury does not seem to qualify as a typical group, Japanese members of the jury may behave more individualistically," (Kiss 4).

Regardless of whether or not the lay judges will perform their task as intended, there are other issues that need to be addressed. A