Three Good Questions

During the Q&A after my lecture at the Roppongi Bar Association, an organization of primarily foreign attorneys working in Japan, a participant voiced doubts about the capacity of the country to accept popular participation in the judicial system. “Japan has no history of civil rights – the idea that people have rights they can assert against the government. Japan’s not ready. Don’t we have to change the country’s mindset first so that rights are respected before trying to introduce a jury system?” The questioner has a point, but I still believe the saiban-in system is a step in the right direction. Japanese citizens will soon be asked to express their opinions in front of government employees. That’s revolutionary. Even if they are reluctant at first to express their opinions, over time they may become used to the idea. Also, the trial process itself is bound to change, with much greater reliance on live, in-court testimony. Police will be more accountable. Underlying my response is the assumption that all other things equal, societies are healthier if citizens express their opinions. Is that just my Western bias?

Another questioner asked if I thought the new system would result in a change in the conviction rate. Currently, 99.9% of those who go to trial are convicted. I opined that those that expect the new system to moderate the conviction rate may be disappointed. But the person’s question raises a bigger issue. What are the evaluation criteria for measuring the success of the saiban-in system, or the U.S. jury system for that matter? Do jury system’s result in more accurate adjudications? Scholars say no. Then what’s the value of jury systems? I would say their value is in getting citizens to participate in government, exposing them to the way police work, and forcing them to take responsibility for government actions.

A third participant noted that Japan’s saiban-in system will differ in important ways from the U.S. jury system. The term “saiban-in” means lay judges, not jurors. Saiban-in will serve alongside professional judges and will be expected to participate during the trial testimony like judges. Moreover, deliberations will be different. Verdicts will be by majority vote. Given these differences, the audience member asked, how is U.S. experience relevant to Japan? I can't say, but based on my talks around the country with Japanese lawyers and judges there is a tremendous hunger for information about how U.S. lawyers present cases clearly to lay people and how U.S. judges explain legal principles clearly to citizens.