Abstract
This chapter traces the renewed interest in popular participation in criminal justice, mainly in juries and to a lesser extent mixed courts, which first arose amongst legal academics and then spread, particularly during the 1980s, to lawyers, citizens’ groups, sections of the press and some politicians.
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Notes
- 1.
In 2006 prosecutors began, on a trial basis, to electronically record that part of an interrogation in which a suspect confesses. They were followed by the police in 2008. During the campaign that preceded the Democratic Party of Japan’s general election landslide victory in August 2009, the DPJ promised to make the recording of criminal interrogations a legal obligation. It was not enacted during the party’s term of office. An editorial in the Japan Times of 30 May 2013 called for interrogations to be recorded in their entirety to reduce the chance of false confessions and also for the recording of statements by witnesses. For further developments which may lead to the electronic recording of interrogations of those suspected of committing offences that must be tried by lay judges see Voluntariness of confessions and electronic recording in Chap. 8.
- 2.
See Yasuzo Kitamura, “Japan’s Response to the State Reporting System under the UN Human Rights Treaties: A Critical Analysis from the Point of the Subsidiary Principle at a Global Level”, Journal fur Rechtspolitik 23, 78–93 (2015), pp. 82–85. The author recounts that the United Nations Human Rights Committee criticised the new Act in its fifth Japanese report in 2008 and called for its amendment to comply with Article 9, paragraph 3 of the International Covenant on Civil and Political Rights which states: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.” The Human Rights Committee considered this Article was violated because the police can hold suspects in substitute penal institutions even after they were first brought before a judge to examine the legality of the detention. The Human Rights Committee repeated its request for the law to be altered in its sixth Japanese report, published in 2014, CCPR/C/JPN/CO/6.
- 3.
Including one in 2001 in which three police officers were given suspended sentences and dismissed from their jobs for serious assaults against suspects in Ehime Prefecture (Mainichi Daily News 27 June 2001).
- 4.
Named after the landmark United States Supreme Court decision (Miranda v. Arizona, 384 U.S. 436 (1966)) on the constitutional rights of defendants in custody against incriminating themselves and on the right to a lawyer before and during questioning by police.
- 5.
Takashi Takano, “The Miranda Experience in Japan” in Feeley, M and Miyazawa, S. 2002, p. 133.
- 6.
See Hiroyuki Shinkai, “After Amendment of the Prison Law: Current Japanese Correctional Administration”. International Journal of Comparative and Applied Criminal Justice, Vol. 34, Issue 2, 2010, pp. 331–349, especially p. 348. Under the Act every penal institution must establish a committee of ten citizens who are individually appointed by the Minister of Justice. The head of the penal institution has a duty to inform committee members of conditions in his or her establishment and to allow them to make inspections and meet prisoners and detainees. The Committee makes a report to the head stating the opinions of its members. Each year the Minister of Justice publishes a public report containing the opinions of each committee and measures taken by heads in response to them.
- 7.
In response to criticisms that judges were disconnected from everyday life, and linked to the extensive reforms of the justice system that began in the early 2000s, assistant judges are now seconded to government ministries, companies and other bodies to broaden their perspectives (Oda 2009: 75).
- 8.
An example of this was an article in the Mainichi Shimbun (7 September 2001) headed “Judge-prosecutors Lend Peers a Helping Hand”.
- 9.
Fewer than five attorneys were appointed to the bench each year under the scheme in the 1990s. However, following the reforms of the justice system at the beginning of the twenty-first century, the number is now increasing. See Oda (2009: 74).
- 10.
Weber (2009: 140).
- 11.
A prominent example was the highly influential scholar of criminal procedure, Professor Ryuichi Hirano of Tokyo University, who expressed the view that Japanese criminal trials were where judges confirmed defendants were guilty and criticised them for over-reliance on documentary evidence and an inability to establish the truth when faced with those who were innocent but had made written confessions. In his opinion this failure of criminal procedure was only remediable by adopting a mixed or pure jury system. Ryichi Hirano, “GenkoKeijiSosho no Shindan” [“Diagnosing the Current Criminal Procedure”] in 4 Dando Shigemitsu Hakase Koki Shukuga Ronbun Shu [In Celebration of Dr. Shigemitsu Dando’s Seventieth Birthday] 407, edited by Yasahura Hiraba et al., 1985. Cited by Takuya Katsuta, “Japan’s Rejection of the American Criminal Jury”, The American Journal of Comparative Law, Vol. 58 p. 498.
- 12.
Foote (2014: 769–770) considered that, had Chief Justice Yaguchi Koichi not shown interest in the potential of lay participation and sent judges overseas to study the jury and mixed courts, lay participation in courts would not have been achieved in Japan until many years after 2009. He also recounts that amongst many of the judiciary in the late 1980s and early 1990s there was deep seated opposition to lay participation.
- 13.
The Japan Federation of Bar Associations held national symposiums on juries in 1990 and 1992. See Maruta (2001: 220).
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Watson, A. (2016). Disquiet About Japanese Criminal Justice and a Revival of Interest in Juries. In: Popular Participation in Japanese Criminal Justice. Palgrave Advances in Criminology and Criminal Justice in Asia. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-35077-6_3
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