As a civil law-based country, Japan’s legal system has historically placed a strong emphasis on the formalistic application of code provisions to cases by professional judges without a jury. Within the criminal justice system, prosecutors have played a highly significant role in all cases. They exclusively make the decision to indict an alleged criminal, conduct investigation of crimes, initiate a criminal case, and they also control and supervise enforcement of a conviction. In addition, the Prosecutors Office of Japan has historically emphasized the need to obtain a high rate of convictions to maintain the Japanese public’s trust in, and high regard for, the Office. Critics have highlighted these factors as contributing to a criminal justice system that has displayed a disconcerting 99.8% conviction rate. Although this phenomenon may be partially explained by prosecutors’ careful screening of cases and exercising of their discretion not to indict, a notable lack of external checks on the power of prosecutors has rendered the criminal justice system subject to considerable criticism in recent times. This dynamic has raised concerns regarding the due process rights of defendants and led to long-standing calls for reforms. The 2009 adoption of a lay judge system in Japan, in which citizens participate in the decision-making process of certain criminal trials alongside professional judges, was directed at increasing the accountability of prosecutors and the transparency of the criminal justice process. Although the majority of cases heard under the lay judge system have not demonstrated significant reductions in the conviction rate, there have been indications that the lay judge system counter-balances several concerning aspects of the Japanese criminal justice system. This comment argues that Japan should expand the lay judge system beyond its current narrow scope to encompass either a greater variety of criminal cases or require that all criminal trials are heard by the lay judge system in order to more equally safeguard the due process rights of criminal defendants and decrease the expansive role played by Japanese prosecutors in the criminal trial process.
Harrison L. Owens,
Trial by One's Peers: The Need to Expand Japan's Lay Judge System,
25 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wilj/vol25/iss1/8