The introduction of a lay judge system was suggested in a report issued by the government’s Justice System Reform Council in 2001, with the relevant legislation passing with the approval of both the ruling and opposition parties in 2004. While Japan’s new system features direct civilian participation as jury and lay judge systems which are run overseas, it has a unique mechanism. Like the lay judge systems in countries like Germany and France, saiban-in will participate not just in determining guilt or innocence, but also, in the case of guilty verdicts, setting the level of punishment. However, where lay judges in these countries serve a fixed term, saiban-in will be appointed by trial. This is like the US jury system, ensuring that lay judges always come in as ‘rookies’. The Japanese system also offers no mechanism whereby the defendant can choose trial by the saiban-in system or simply by professional judges. Where a jury delivers a not-guilty verdict, the prosecution does not have the right to appeal, but under the new system, appeals can be made in objection to that verdict.

Why is a lay judge system being introduced? In its report, the Council suggested that the system would see the sentiments of the people better reflected in criminal trials. The Supreme Court’s explanation is that having civilians participate directly in trials and experience firsthand the role that judges play is the most effective means of ensuring the credibility of Japan’s criminal trials into the future.

However, while the Aum Shinrikyo Cult case prompted criticism of protracted trial deliberations, this was not accompanied by calls for direct citizen participation in criminal trials. Opinion poll results released by the Supreme Court in April 2008 showed 37.6 percent of 10,500 respondents unwilling to participate even if it were mandatory, while 44.8 percent were reluctant to do so but would if it were mandatory. Only 4.4 percent actually wanted to participate, while 11.1 percent were prepared to do so.

To ensure that the saiban-in system runs smoothly and with the cooperation of the public, the trial process needs to be shortened and made easier to understand. The system is expected to be utilized for roughly three percent (around 3,000) of cases tried per annum. The Supreme Court anticipates that around 70 percent of trials under the new system will conclude with less than three days’ deliberations. Key to these speedy procedures are the pre-trial arrangement proceedings introduced in November 2005, whereby the prosecutor and the defence counsel consult before the first hearing to narrow down points of dispute and evidence, with the court producing a plan of procedures. It is now impermissible in principle to submit new evidence as a trump card at the public trial stage, and deliberations can no longer be dragged out by calling numerous witnesses and continuing to ask endless questions even about matters that are not relevant to the points of dispute. On the other hand, the legal professions criticizing the saiban-in system express anxiety that it can be ended up rough-and-ready and fail to reveal the truth if the procedures are too fast.

Narrowing down the points of dispute from the outset also makes trials easier to understand. For example, because disputes over whether a confession was coerced through interrogation at the investigation stage (voluntariness of confession) concern something that has occurred behind closed doors, they can easily descend into fruitless argument. Since July 2006 in the case of public prosecutors and September 2008 in the case of the police, partial filming of interrogation for cases where lay judges will be involved has been instituted on an experimental basis. DVD recordings show suspects checking the content of and signing off on their written statements and explaining the background to their confessions. The prosecution’s aim is to clearly demonstrate the voluntariness of confession to lay judges and also, in cases where the defence counsel expresses doubts at the pre-trial arrangement stage as to that voluntariness, to present the DVD as evidence in order to prevent the matter from becoming a point of dispute.

In Japan, interrogation continues within the investigating agency for a maximum of around 20 days between arrest and prosecution, with lawyers not allowed to be present. Arguing that this practice promotes false confessions, the Japan Federation of Bar Associations has been pushing for the entire interrogation phase to be filmed (visibility). Both public prosecutors and the police are opposed, however, on the grounds that it would detract from a key function of the interrogation process, namely the interrogator building up a relationship of trust with the suspect as they draw out the truth.