The successful introduction of the saiban-in seido—the Japanese lay assessor system—was a tremendous step towards creating meaningful exchange between the public and the judiciary and democratizing the criminal justice system in Japan. To preserve the quality of this exchange, judges must conscientiously solicit and respect lay assessor input during deliberations, and saiban-in decisions must retain their force on appeal. Under current appellate procedure, however, saiban-in findings of fact may be replaced on koso appeal. Koso appeals threaten to eviscerate lay participants’ contributions in the individual case being reviewed and, in the long term, will discourage judges from taking lay assessors’ contributions seriously during jury deliberations. Although the Supreme Court of Japan has affirmed the unique capacity of saiban-in panels to assess credibility and make factual determinations, a 2012 Supreme Court decision threatened the panels’ responsibility by failing to impose a higher standard of review for reviewing the factual findings of saiban-in trials. Even if it had adopted a higher standard, such standards are subject to erosion over time as judges apply them in individual cases. To ensure the vitality of the saiban-in’s contribution to the Japanese criminal justice system, the Supreme Court of Japan should eliminate koso appeals courts’ ability to replace saiban-in findings of fact on appeal.
Caleb J. Vandenbos,
Patching Old Wineskins: Heightened Deference Towards Saiban-In Findings of Fact on Koso Appeals Is Not Enough,
24 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wilj/vol24/iss2/14