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    1 P RIME T IME FOR J APAN TO T AKE A NOTHER S TEP F ORWARD IN L AY P ARTICIPATION :   E XPLORING E XPANSION TO C IVIL T RIALS    Prof. Matthew J. Wilson* Systems that incorporate citizen participation into the legal decision-making  process, such as all-citizen juries or mixed tribunals, can significantly impact a country’s  political system and political culture. 1  Such systems can also influence society in many ways. Randomly selected bodies of citizens have the potential to function as powerful vehicles in educating, ensuring justice, and enhancing the credibility of the judiciary. 2  They also provide a valuable civic engagement tool that enables self-governance. 3  As societies around the world face rapid change and related challenges, many nations are searching for potential solutions. Many civic reformers view juries or quasi- jury systems both as a solution in part and means of compelling positive political, economic, and even social change. In fact, the major players in Asia and several other countries around the world have recently integrated lay participation into the administration of justice in an effort to effect change, advance public policymaking, and manifest popular sovereignty. 4  These bold and innovative moves stand in stark contrast to other parts of the world where established jury systems and lay participation in the  judicial process have been criticized, attacked, and even face diminished use. In light of these emerging global trends and the diverse views on lay participation in the administration of justice, it is valuable to closely examine the experience of one major newcomer to the citizen participation club - Japan. For over sixty years, Japan was behind the curve in terms of citizen participation in the judicial process. Meaningful public participation in the trial process was largely a foreign concept. 5  In fact, Japan was the only G-8 nation without a citizen participation * Professor Matthew J. Wilson is currently an Associate Professor of Law at the University of Wyoming College of Law. He also was concurrently appointed as an international scholar at Kyung Hee University Law School in Seoul, South Korea during the 2011-12 and 2012-13 academic years. Financial 1  Iwao Sato,  Emergence of Citizen Participation in Trials in Japan: Background and Issues,  43 Social Science in Japan 3 (Sept. 2010);  see also generally Douglas G. Smith, Structural and Functional  Aspects of the Jury: Comparative Analysis and Proposals for Reform , 48 Ala. L. Rev. 441 (1997). 2  John Gastil, Colin J. Lingle, Eugene Deess,  Deliberation and Global Criminal Justice: Juries in the International Criminal Court  , 24 Ethics & International Affairs No. 1 (2010). 3    Id.   4  Japan, South Korea, China, Kazakhstan, Mexico, and Crotia are several of the nations that have recently adopted lay participation. See Ryan Park, The Globalizing Jury Trial: Lesson and Insights from  Korea , 58 Am. J. Comp. L. 525, 534-36 (2010); Sanja Kutnjak Ivkovic,  Exploring Lay Participation in  Legal Decision-Making: Lessons from Mixed Tribunals , 40 Cornell Int'l L.J. 429, 430-32 (2007);  see also  Hiroshi Fukurai and Richard Krooth, The Establishment of All-Citizen Juries as a Key Component of  Mexico’s Judicial Reform: Cross-National Analysis of Lay Judge Participation and Search for Mexico’s  Judicial Sovereignty, 16 Tex. Hisp. J.L. & Pol’y 37, 54 (2010). 5  Although Japan did not have a jury system, its citizens did have limited involvement in the criminal justice system for over 60 years in the form of Prosecutorial Review Commissions (PRC) or  Kensatsu Shinsakai.   See Hiroshi Fukurai, The Re-birth of Japan’s Petit Lay judge and Grand Jury Systems:    2 system in either criminal or civil trials. 6  As part of a historic internal transformation of Japan’s legal system, however, this drastically changed on May 21, 2009, as Japan revived citizen participation in certain criminal trials pursuant to the “ Saiban-in ho”  or Act Concerning Participation of Lay Assessors in Criminal Trials (the “Lay Judge Act”). 7  As part of its new “saiban-in seido” or lay judge system, 8  Japan now conscripts registered voters to serve on mixed trial tribunals comprised of citizen participants and  professional judges. By design, the Lay Judge Act purposefully limits lay participation in its new quasi-jury system to involvement in certain serious criminal cases only. Citizen participation in serious criminal trials is one of many revolutionary legal reforms that Japan implemented to address its prolonged economic slump and better  position itself for a more prominent role in global affairs. The socio-economic crisis that ensnared Japan in the 1990s fueled significant reforms in established institutions,  policies, and society. The primary concept underlying these reforms was to transform Japan’s mindset and culture from a society known for its excessive regulation to a global model based on transparent, ex post facto  review. 9  In part, self-responsibility and greater civic engagement could help achieve these objectives. By assimilating citizen  participation into criminal trials, Japan also sought to promote civic responsibility, enhance the tools of democracy available to society, and increase public understanding of the judicial process. Additionally, some reformists hoped that citizen participation would infuse sound common sense into the judicial process as well as ensure justice, due  process of law, and prosecutorial accountability. At this point in history, citizen confidence in the justice system had started eroding due to increased attention on forced confessions, intolerably slow trials, indifference to crime victims, and claims of leniency. 10  Conversely, opponents of the new system initially argued that citizen  A Cross-National Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U.S. , 40 Cornell Int’l L. J. 315, 323-28 (2007); Prosecution Review Commission Law, Law No 147 of 1948. The PRC essentially reviewed prosecutorial decisions not to charge suspects.  Id. at 323-24.   If a victim or party of interest requested PRC review and the PRC disagreed with the prosecutor’s inaction, then it would make a non-binding recommendation that the prosecutor’s office reconsider its determination.  Id.  The PRC recommendations were largely ineffective as prosecutors decided to rarely prosecute.  Id. at   325. On May 28, 2004, the Diet of Japan (Japanese legislature) enacted the Act to Revise the Code of Criminal Procedure that empowered PRC to compel prosecutions.  Id.  at 327. 6    Lay Judge System Starts in Japan Amid Lingering Concerns , Kyodo News (May 20, 2009) (available at: 7   Saiban-in no Sanka Suru Keiji Saiban ni Kansuru Horitsu  [  Act Concerning Participation of Lay  Assessors in Criminal Trials ], Law No. 63 of 2004, translated in   Kent Anderson & Emma Saint,  Japan's Quasi Jury (Saiban-in) Law: An Annotated Translation of the Action Concerning Participation of Lay  Assessors in Criminal Trials , 6 Asian-Pac. L. & Pol'y J. 233 (2005) [hereinafter the “  Lay Judge Act  ”]. 8  “ Saiban-in seido ” translates as “lay assessor system” or “lay judge system.” It has also been referred to as Japan’s quasi-jury trial system or simply as the  saiban-in seido . For purposes of consistency, this Article will simply use the “lay judge system” terminology. 9  Judicial Reform Council, The Points at Issue in the Judicial Reform, II.2 (Dec. 21, 1999) available at [hereinafter “ The Points at Issue ”];  see also Luke Nottage & Stephen Green, Who Defends Japan?: Government Lawyers and Judicial System in  Reform in Japan, 13 Asian-Pacific L & Pol’y 129, 130 (2011). 10  Jerome A. Cohen and Mizuki Koshimoto,  Has Japan Found the Best Way for Ordinary Citizens to Take Part in Deciding Criminal Cases? China Times (August 18, 2011), available at    3  participation was an expensive exercise in futility. They pointed to declining jury systems around the world and also argued that Japan had wasted millions of dollars implementing a groundbreaking quasi-jury system that not only was adopted without significant public debate, but that also faced considerable doubt among the public, ran counter to Japanese legal traditions, and faced opposition from some within the legal community. With Japan marking its 3-year anniversary of the lay judge system, now is an ideal time to assess the progress of the new system, examine its effect on Japanese society, and explore future possibilities. More significantly, this paper asserts that the convergence of various forces makes this an ideal time to expand lay participation into the civil realm so as to enhance the justice process and fully achieve the objectives of Japan’s major legal reforms. Accordingly, this paper is separated into three sections. First, Part I details the underpinnings of Japan’s new lay judge system and examines its triumphs and shortcomings. Not only does close scrutiny of the lay judge system benefit Japan, but it can also offer valuable lessons on an international scale to other countries using or considering the use of jury or quasi-jury systems. Second, Part II addresses the future and explores a concept largely unaddressed in academic discourse by suggesting that Japan should seriously consider expanding the use of citizen judges beyond serious criminal trials and into the civil realm. This section addresses the merits of potential expansion and examines possible drawbacks to lay participation in certain civil trials. Finally, Part III points out several issues that Japan would need to address if citizen  judges were able to participate in certain civil trials. Now that lay participation in serious criminal trials has apparently taken root in Japanese society, it is a prime time to assess and explore the possibility of expanding the use of citizen judges to further and fully achieve the expressed goals of Japan’s ongoing judicial reforms. I.   L AY P ARTICIPATION IN C RIMINAL T RIALS IN J APAN A.   Recent Implementation of Lay Judge Trials Until recently, citizen participation in Japan’s justice system has been extremely limited. During the 15-year period immediately preceding World War II, Japan briefly and unsuccessfully experimented with jury trials in criminal matters. 11  There was some discussion after the war about reinstituting jury trials as part of democratic reforms, however this idea was dismissed. 12  Subsequently, a handful of groups have periodically 11  Before World War II, Japan operated a jury system for certain criminal cases pursuant to the Jury Act.  Baishin ho  [Jury Act], Law No. 50 of 1923 (Japan). Between 1928 and 1943, Japan conducted 480 criminal jury trials. Supreme Court of Japan, Case No. 2010 (A) No. 1196, Keishu Vol. 65, No. 8 (Nov. 16, 2011);  see also generally Takuya Katsuta,  Japan’s Rejection of the American Criminal Jury, 58 Amer. J. Comp. L. 497, 503-506 (2010); Dimitri Vanoverbeke, The Taisho Jury System: A Didactic Experience , 43 Social Science in Japan 23 (Sept. 2010). With the rise of militarism and the government’s need to control criminal justice, the Jury Act was suspended in 1943.  Baishinho no Teishi ni Kansuru Horistu  [Act Concerning the Suspension of the Jury Act], Law No. 88 of 1943. There were also a host of other factors that contributed to the demise of this system. See generally Jon P. McClanahan, Citizen Participation in  Japanese Criminal Trials: Reimagining the Right to Trial By Jury in the United States, 27 N.C.J. Int’l L & Com. Reg. 725, 748 (2012); Sato,  supra note 1, at 3.   12  Katsuta,  supra note 11.    4 championed the return of lay participation, but direct public involvement in the justice  process did not materialize until nearly seventy years later when Japan finally held its first trial involving citizen judges as part of its new lay judge system in August 2011. 13  Japan’s new lay judge system was not a solitary reform. Rather, it was one segment of sweeping reforms to the entire justice system. 14  The genesis of these reforms, including the new quasi-jury system, was not public pressure. 15  Facing enormous financial deficits, economic difficulties, and challenging social issues, Japan felt compelled to welcome the 21 st  century with major legal reforms. 16  Established in June 1999, the Shiho Seido Kaikaku Shingikai or Justice System Reform Council (“JSRC”) was a 13-person panel designed to conduct detailed, high-level discussions about  potential civic, legal, and judicial reforms. 17  Faced with a sense of crisis, the JSRC noted that Japan had embarked on a course of structural reform including “political reform, administrative reform, [and the] promotion of decentralization and deregulation” to enable Japan to recover its “creativity and vitality.” 18  In its own words, these reforms were intended to further economic development and ensure that every person would “participate in making a free and fair society” as a governing subject instead of a governed object. 19  For the reformers, the judicial system was viewed as an engine for  propelling fundamental societal change. In turn, it was believed that lay judge  participation would essentially function as one of the pistons in the engine. The JSRC set forth wide-sweeping recommendations for revamping the judicial system. 20  The specific goals underlying the recommendations generally and citizen  participation in the judicial process specifically arose from three pillars of fundamental reform, namely: (i) a justice system that “shall be made easier to use, easier to understand, and more reliable;” (ii) a legal profession “rich both in quality and quantity;” and (iii) a popular base in which citizens’ trust in the legal system is enhanced through 13   See Hanging in the Balance, The Economist (Aug. 6, 2009), available at;  First Japanese Jury Trial for 66 Years Convicts Man of  Neighbour’s Murder  , The Guardian (Aug. 6, 2009), available at aug/06/japan-jury-trial-murder/. Although the system was implemented in May 2009, it took several months for the first qualifying lay judge trial to occur. 14  Mikio Kawai, The Impact of the Lay Judge System on Japanese Criminal Justice,  43 Social Science in Japan 18 (Sept. 2010). 15  Although a few civic and legal groups (including the Japan Federation of Bar Associations) advocated civic participation in the judicial process based on wrongful convictions and other shortcomings of the judicial system, the general public did not support the adoption of jury trials. See Makoto Ibusuki, Quo Vadis? First Year Inspection to Mixed Jury Trial  , 12 Asian-Pac. L. & Pol. J. 24, 27 (2010). 16   The Points at Issue, supra note 9. 17  Sato,  supra note 1, at 3. The JSRC was composed of 13 individuals from various sectors in society including three attorneys, two law school professors, three college administrators, two  businesspersons, an author, and the president of the Japan Housewives Association. See Katsuta,  supra note 11, at 512; Hiroshi Fukurai,  People’s Panels vs. Imperial Hegemony: Japan’s Twin Lay Justice Systems and the Future of American Military Bases in Japan , 12 Asian-Pac. L. & Pol’y J. 95 (2010). 18   The Points at Issue, supra note 9, at II. 2. 19    Id  . 20    Id  .    5 their participation in legal proceedings. 21  The JSRC envisioned that the judicial system and citizen involvement therein would assume an enhanced role to shift Japan away from its traditional model of centralized control and bureaucratic regulation. 22  Between July 1999 and June 2001, the JSRC convened sixty-three meetings to discuss various judicial reforms, including the creation of a jury or quasi-jury system. 23  In the process, it studied major judicial systems from around the world. 24  The JSRC’s discussions and debates surrounding the empanelment of citizens as jurors or lay judges focused on the desire to promote a more democratic society by infusing a broader range of background and experience into the justice system. 25  On June 21, 2001, the JSRC issued its final recommendations for judicial reform. 26  This included a proposal for the  saiban-in seido or lay judge system. 27  The suggested major changes were consistent with the perceived need for Japanese citizens to not only break away from excessive dependency on the government, but also to develop greater civic consciousness and become more actively involved in public affairs. Allegedly, concerns about a broken justice system did not propel these changes. 28  Based on the JSRC’s recommended reforms, the Diet of Japan (Japan’s national legislature) passed the Justice System Reform Promotion Act. 29  As a result, the Japanese Cabinet established the Office for Promotion of Justice System Reform (OPJSR) in December 2001 30  to facilitate reform of the justice system and take the lead in enacting 21    Id. ;  see also   Ministry of Justice of Japan,  Ensuring that the Results of the Justice System Reform Take Root  , pg. 3 (last accessed Apr. 29, 2012) [hereinafter “  Results of the Justice System Reform Take Root  ”].   22   See   id. ;  see also The Points at Issue, supra note 9. 23   See Katsuta,  supra note 11, at 512;  see also McClanahan,  supra note 11, at 762. The public had access to the JSRC’s notes, meeting minutes, and summaries. See id.; sihouseido/. 24    Id  . 25  Meryll Dean,  Legal Transplants and Jury Trial in Japan, 31 Legal Studies 570, 581 (2011). A discussion of defendant’s rights was largely omitted from the discussion.  Id. 26  Justice System Reform Council,  Recommendations of the Justice System Reform Council: For a  Justice System to Support Japan in the 21  st   Century  (June 12, 2001), available at foreign/judiciary/2001/0612report.html [hereinafter “  JSRC Recommendations ”]. 27  Dean,  supra note 25, at 581. 28  Conversely, most observers have concluded that these internally generated legal reforms constitute responses to economic and social pressures from globalization and the world economy.   Kawai,  supra note 15, at 21. 29   Shiho seido kaikaku suishin ho  [Justice System Reform Promotion Act], Law No. 119 of 2001;  see also Results of the Justice System Reform Take Root  ,  supra note 21, at 3.   30  The Cabinet is the executive branch of government in Japan. It consists of the Prime Minister and Ministers of State. See generally The Prime Minister, (last accessed on Aug. 28, 2009); The Cabinet, (last accessed on Aug. 28, 2009). In 2001, the Cabinet Office was established in 2001 to strengthen the functions of the Cabinet, enable the Prime Minister to better assert leadership over nationally important issues, and cope effectively with Japan’s rapidly changing economy and society. Cabinet Office of Japan, (last accessed on Aug. 28, 2009).
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