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Top>Opinion>Democracy and the Lay Assessor System


Ryo Ogiso

Ryo Ogiso [Profile]

Democracy and the Lay Assessor System

Ryo Ogiso
Professor of Criminal Law, Chuo Law School, Chuo University

Yanba Dam and Due Process

A historic change in leadership in the Lower House election this August brought about the review of policies and projects of the past, which is creating controversy. One of the symbolic projects is Yanba Dam in Gunma Prefecture. Recently the Minister of Land, Infrastructure and Transportation has announced a review of the flood control and water utilization effects of Yanba Dam, while the policy of discontinuing its construction will remain unchanged.

The system of government through which citizens directly participate in various policy decision making processes in the pursuit of happiness is referred to as democracy. Democracy, for better and for worse, supports policies preferred by the majority of the public. Therefore, it is not at all surprising that a dam under construction will be discontinued in a democratic system as a result of leadership change. However, this does not mean the government can make any decisions that it wants with no questions asked so long as they are supported by the majority of the public, as there are various interested parties involved in national construction projects, whether dams or roads. In the course of promoting policies, the government must thoroughly explain the necessity (or non-necessity) of a project and the reason for selecting the project site, etc. to the relevant local citizens and listen to their views. Although the policy supported by the majority will eventually be selected through local referenda or elections, those who are forced to give up their ancestral estates for the interests of the public are entitled to due compensation. Since policies that satisfy the interests of all the people concerned are most unlikely to exist, this type of process is crucial to make opponents comply with the selected policies. In the field of law, the process is known as due process of law.

Lay Assessor System Introduced

On May 21, 2009, the lay assessor system started in Japan. The public will participate in judgment of criminal cases and determination of criminal penalties in this system. A court document shows that as of September 17 the ruling of the first trial was given for nine cases (46 cases reported at the end of October by the media), while the number of cases received by district courts throughout Japan from May 21 to September 1 targeted for this system accounted for 566, including: 132 homicides, 126 robberies resulting in death, 51 violations of the Stimulants Control Law, 45 arsons of inhabited structures and 39 rapes resulting in death or injury. Lay assessors and judges will try these cases one by one in collaboration.

The purpose of this system is "to promote the public understanding of criminal trials and raise their confidence in them," as is stipulated in Article 1 of the Act Concerning Participation of Lay Assessors in Criminal Trials: "Through the participation in criminal proceedings of lay assessors with judges, this legislation seeks to contribute to the promotion of the public's understanding of the judicial system and thereby raise their confidence in it". The media often reported that according to an opinion poll 60 - 70% of the public do not want to serve as a lay assessor, listed reasons to decline that were acceptable, and relayed opinions from those who had served as lay assessors on the overly strict confidentiality obligations. However, the fundamental question of "Why do the public have to participate in criminal proceedings now?" is not clear. In other words, it is not certain whether the philosophy of the system was shared among the public or not, but there are some who say that "Since Japan is a democracy it is quite natural that the public participate in court trials".

What is the Lay Assessor System Philosophy?

Criminal acts must be legally defined, based on the consensus of the majority; i.e., whether criminal conversation shall be punished or not. In order to avoid any dubious circumstances, criminal conversation was abolished by law in Japan in 1946. However, the aforementioned due process must be guaranteed in criminal proceedings to the maximum extent possible. The defendant must be given the right and the means to plead their case, however suspicious or unpopular they may be. In terms of determining guilt or innocence, the state (the prosecution), which has the authority to impose penalties, bears the burden of proving guilt beyond a reasonable doubt. Should the prosecution be unable to carry out this responsibility, a judgment of not guilty must be rendered. This is known as the presumption of innocence. After a long history of trial and error, many rules have been set forth to prevent the innocent from being punished. It is not right to determine whether a defendant is actually a criminal or not (fact finding) or to apply such court rules, based on the current preferences of the public.

The jury system that puts the responsibility in the hands of the public to find a verdict of guilty or not guilty in criminal cases is said to have been established in around the 13th Century in England. In addition to the United States of America, the system spread throughout various countries on the European Continent. France adopted the system in the era of the French Revolution, and then Germany followed, influenced by France. The Continental system was transformed after the formation of the German Empire to a citizen-participation system in which judges and citizens worked together to decide sentences in criminal trials. This system was reintroduced in France under the Vichy Regime, and continues up to the present day. The lay assessor system in Japan is similar to this citizen-participation system, considering the process of deliberation.

The right to a jury trial is often referred to as the right to a trial by a jury of one's peers. The spirit of this is eloquently expressed in the US Supreme Court decisions in the Duncan and Taylor cases, which state that: "Jury trials are intended to prevent oppression from the government by ensuring a defendant's right to a trial by a jury consisting of members who have a good sense of the community in which the defendant lives. These trials are an indispensable means of protecting defendants from corrupt prosecutors, overly eager prosecutors and overly obedient, prejudiced or eccentric judges." As such, jurors' decisions are given as verdicts without statements of reasons and jury verdicts are not appealable in general.

A trial by a jury of one's peers is not a matter of democracy, but rather a shield of liberalism which protects the individual from the oppression of the state.

Ryo Ogiso
Professor of Criminal Law, Chuo Law School, Chuo University
Professor Ogiso was born in 1962 in Nagano Prefecture and graduated from the Law Department in the Faculty of Law at Chuo University in 1984. He completed graduate work in the Doctoral Program in the Graduate School of Law.
He assumed his present position in 2006 after serving as a Full Time Instructor and Associate Professor at Komazawa University and as an Associate Professor in the Graduate School of Law at Chuo University. He was an examiner of the National Bar Examination (Code of Criminal Procedure). He is now a board member of the Japanese Association of Victimology and Deputy Director of Graduate School of Law at Chuo University.
His current research theme is Comparison of Criminal Procedures in France, England, the US and Japan. His major publications include BRIDGEBOOK SERIES Criminal Trial Law (Co-author), Crime Prevention Policy and Administrative Police (Thesis) and The Status and Challenges of Victimology (Academic Report).