Trialling a jury

Japan is quietly going through a period of legal reform, and is poised to introduce a surprising new model for the involvement of lay people in the courts. Legal experts from ANU are investigating its implications for Japan and the world.

In Japanese, it is known as saiban-in seido. The lay-assessor system is a new initiative developed as part of broader legal reforms aimed at delivering better justice and a more democratic society.

Essentially, saiban-in seido is a jury – except in the proposed Japanese model, the jury is made up of three judges and six lay people who deliberate together not only on verdict, but on sentence. Physically, this jury will sit close to the accused, and members will be able to ask questions of the accused and witnesses during the trial.

Considered altogether, the introduction of the saiban-in seido and other legal reforms in Japan represent a big overhaul and are being keenly observed.

So it’s not surprising then that academics are watching the implementation of Japan’s lay-assessor system with great interest, including three ANU experts: Professor Kent Anderson, the new head of the Japan Centre in the ANU College of Asia and the Pacific, and Dr Mark Nolan and Mr Hugh Selby from the ANU College of Law. 

“The issues that Japan is trying to address by creating this system are universal: You see them in Australia, Asia, Europe, South America. We all want criminal justice that is both technically correct in a legal sense and yet reflects the values and understandings of the community at large,” Anderson says.

Although the broad paradigm for the lay-assessor system is borrowed from systems in Europe, the Japanese model will also reflect Japan’s traditions
and culture.

The nuts and bolts of the sabian-in seido are being built by the Japanese Judicial Reform Council (JRC).

“The JRC was set-up in 1999 to look at a number of broadly held concerns about the legal system in Japan. Lay participation in justice was just one of them,” Nolan says. “Essentially, the reasons given for the reforms are to deliver better justice in Japan and promote a more democratic society.”

As that date draws closer various Japanese legal institutions are honing the finer points of how the lay-assessor system will work, while also mobilising public support (for example, there is a Manga comic book called You too can be a lay assessor and at least three competing television dramas complete with famous actors being shown during prime time).

What has been determined is that the lay assessor panel will operate only in serious criminal trials such as murder, or where the penalty can be life imprisonment with hard labour, or where the victim has died following an intentional crime.

“I think involving regular people in delivering criminal justice will have a major impact on how the idealised version of justice is realised and that the results of the road to getting to the new system will be more reflective of society and more satisfying for all,” Anderson says.

But so far, opinion polls have shown that the Japanese public is largely opposed to the introduction of the lay-assessor system. Yet Selby argues that the people are not necessarily adverse to the idea itself.

“It’s mostly that [the people are saying] ‘we don’t want to be the chosen one’.  They’re not necessarily against the new saiban-in seido, they just don’t want to be chosen to be a lay assessor.”

Nolan says: “Like any opinion poll, many Japanese media polls do not look below the surface of the opinions. However, data collected by Japanese social psychologists from mock trials using this model show a much more positive response from mock lay-assessors”.

“The legal actors themselves will have to adjust,” Selby says.

“I mean, they haven’t really got a clue how to communicate with non-lawyers, by virtue of the fact that they haven’t had to up until this point.”

For Selby, who recently spent nine months observing Japanese courtrooms, it is an interesting study in the challenges of advocacy and training for the
legal profession.

“The judges will soon have lay people along for the ride. Prosecutors and defence lawyers will not only be talking to trained judges now but also talking to citizens. Then the judges and citizens will need to interact and make decisions.

“There’s a whole process of re-education that needs to take place for current litigators and judges, and also a review of legal education to help make the transition smoother.”

In the lead-up to the 2009 implementation, there are expected to be releases of court rules and procedural guidelines on how the new system will work. Professor Anderson and his colleagues are translating these complex and comprehensive primary legal documents into English as soon as they are released.

“These procedures are extremely important for advancing our study of the new system, because they will determine crucial trial and deliberation processes which we are currently only speculating about,” Nolan says.

“We’re waiting to see if there’s some prescription, for example, about how deliberations should proceed. Will the deliberation process be the same in every court? Who from the panel will get to speak first in the deliberation room – a judge or a citizen? Will judges and lay people get an equal hearing? Rules as simple as these are yet to be decided, but they may really affect the whole dynamic of the system.”
Selby says the “overwhelming challenge” for the saiban-in seido is how power and influence will be asserted in the trial, verdict and sentencing phases.

Nolan says: “In most legal systems, sentencing is quite complex. It isn’t as black and white as it might seem. So the decision-making process that’s put in place to allow the judges and lay assessors to communicate about the sentencing options will also be interesting to see.”

The research team expect that studying the new system closely will be informative for comparative research on the involvement of the community in legal decision-making outside of Japan.

“In Australia we have mixed tribunals that share many similar features with the saiban-in seido system,” Anderson says.

"Furthermore, looking into the Japanese deliberations we should be able to identify good practices such as how judges can explain the law to lay people and ways to facilitate lay people’s active contribution to the end result.”

He also says that mixed tribunals in the administrative setting would benefit from more research on the psychology of citizens (or non-legal professionals) involved in those panels, as well as data on other psychological processes such as decision-making, small group leadership and the effect of expert influence on decisions. Despite the concerns, Anderson is optimistic about the changes.

“I have a contrary opinion to many observers both outside and inside of Japan,” Anderson says. “I have a huge amount of confidence in the common Japanese people to participate actively. I also am developing a lot of respect for the judiciary and its sincere efforts to positively engage the lay people.”

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ANU Reporter
Autumn 2006