The council has three important things on its agenda. First, to increase the number of licensed lawyers for the expanding demand for legal service in the business sector; second, to strengthen the legal aid program for easier access to the courts to resolve legal disputes, and, third, to contemplate the possibility of introducing the jury system or the mixed court system.

Apart from the other two items on the agenda, a lively debate is going on in relation to introduction of the jury system. The criminal jury system existed in Japan before World War II (1928-43) and the evaluation of the system differs in the different legal professions.

In this paper, I will describe the function of the criminal jury system in Imperial Japan and examine why the Japanese jury system was suspended fifteen years after its adoption. I will also give an overview of the new movement to introduce the jury system sixty years after its suspension, especially focusing on the arguments for and against the criminal jury system in contemporary Japan.

In defiance of this difficulty, Prime Minister Takashi Hara proceeded to introduce the system. It was essential and indispensable for Prime Minister Hara to push the Parliament to do this. To show internationally what Japan had accomplished as a democratic country was imperative to become a member of the International League of Nations. The government dispatched five judges and prosecutors to seven countries in Europe and the United States to study the criminal jury system. Films were produced and circulated all over the nation in support of the jury system. Moreover, many law professors of the national university were asked to travel around the country to propagandise the system to the public.

The original draft of the Jury Act that Prime Minister Hara proposed was largely based on the Anglo-American model, but the draft was molded into a completely different one in the Privy Council (Sumitsuin). The members of the Council, which consisted of extreme nationalists and conservatives, franticly resisted Hara’s original plan by claiming it was unconstitutional and finally rejected it to protect the judges autonomy and supremacy over the jury. The Privy Council, for example, transformed the building power of the jury verdict into a special verdict solely answering the judge’s specific question on facts and allowed a judges’ veto power over the jury’s verdict. Nonetheless, the Japanese Jury Act (Baishin Ho, Law No. 50 of 1923) was enacted and the first criminal jury trial took place on October 1,1928.

The Japanese Imperial jury system was unusual in the following ways :

The jury system was well accepted in the nation for the first couple of years. However, because of the above-mentioned hardships to the defendant and other reasons described below, the number of jury cases declined drastically year by year. In the last year of the system only two mandatory cases were tried. The Imperial jury system was finally suspended by the Jury System Suspension Act. [2] Which stated that the government would activate the Jury Act after World War II.

In the majority of cases that juries tried in the period of 1928-1943 (436/460 cases, 947.78%) the judges accepted the jury’s original verdicts. In a few cases where they did not agree with the result, the court ordered a new trial by calling in other jurors. This occurred in only twenty-four cases (24/460 cases, 5.2%), and all concerned not-guilty verdicts. However, in eight of the not-guilty verdict cases, new jurors still returned not-guilty verdict against the judges’ wish.

The acquittal rate was higher in cases of murder and arson in comparison with non-jury trials (for example, in murder cases, juries gave 63% not-guilty verdicts, whereas only 0.07% by non-jury judge trials in the same period). The reason for this is that whereas the judges tended to rely much more heavily upon the defendant’s confessions obtained by the police as an indication of the presence of criminal intent, the jury placed less weight on the dossier of confession than on the physical evidence presented to them in the court. This was evident from the fact that when the criminal intent or evidence was not clear in murder and arson cases jurors were prone to require stricter fact-finding from prosecutors.

Ninety-five percent of the cases (460/484 cases) were completed within three days. The longest case lasted only seven days. The average length of trial was about two days (1.9 days) and was far quicker than the bench (non-jury) trials which usually took fourteen months to get decided.

Jury deliberation time may be examined in the records remained intact from the Sendai District Court. The jury took less than two hours where which guilty verdicts were rendered. Where not-guilty verdicts were rendered, it took approximately twenty minutes. Thus the jury in Sendai seemed to have been effective and efficient fact-finders.

Then, why did the number of jury trials soon after the start of the system and almost nobody used it at the final stage ? The legal professions concluded that was an unsuitable and alien system to the Japanese nationality. They argued that the non-jury (bench) trial system was more highly respected and favoured by the Japanese. They estimated it as a total failure. However, lawyers who had handled jury cases described that there were no reports or evidence at that time that jurors’ misbehaviour, such as accepting bribes or other illegalities sabotaged the system itself.

This clear contradiction in the evaluation of the Imperial jury system continues even today in relation to the assessment and position on the reintroduction of the jury in Japan. Before examining the arguments on the pros and cons of jury introduction into Japan, the analysis of the reasons for the sharp drop in utilization of the system and its sudden suspension will be necessary.

The reasons for the sharp drop and suspension can be traced back to the system itself. First, as I mentioned above, the jury system itself was defective disadvantageous to the defendants; second, the legal professions opposed the jury trial system itself at the out set; and third, Japan was herself confronted with World War II, when even making lists of jurors was impossible because of the lack of eligible jury venire persons in all jurisdictions.

On the first point, there was a tendency for legal professionals to recommend to their clients to decline their right to a jury trial. The fact that once a defendant chose to use the jury system, she was considered to have waived her right to appeal was the reason for the lawyers negative attitude towards jury trial. It was, in fact, a “risky gamble” for the defendant and the attorneys. Thus the use of the jury system was avoided by lawyers and judges alike, and its existence was in name only at the end of its history.

Secondly, abhorrence of the jury system among judges was well apparent in the actual handling of the jury trial. For instance, the Jury Act, Article 41, obliged the judges to inform the defendants that they could waive the right to jury trial, even if it was a compulsory jury trial case. Further, judges sometimes even urged defendants who asked for a jury trial to change their minds. On such an occasion, a former judge who dealt with a jury trial said;

The judges regarded the jury system as the laypersons’ invasion of their holy territory granted from the Emperor (Tenno) and thus were hostile to jury trials. Because the verdicts sometimes did not turn out as the judges wished, so they reluctantly had to deal with discomforting judgments. This attitude was described by an official as follows :

The negative attitudes toward the jury system was not solely among judges. In a former prosecutor’s explanation of why he did not like the jury system, he mentioned that it was costly for the courts and annoying for both the judges and prosecutors. Particularly prosecutors abhorred the jury trial because it made their basic preparation difficult. This kind of negative atmosphere inside of the court quickly spread to trial lawyers.

Third, Japan was just in the midst of the War and was invading Siberia and China. Most male adults who were eligible to be jurors were sent to the front line and there was no desire to do court litigation in the nation while many were dying on the battlefields. The government at that time declared the Emergency Condition Act (Kokka Kinkyu Ho) to require ever civil litigation to start with mediation procedures. The jury system was not free from this conflict resolution policy. The reasons for maintaining and supporting the jury system based on international policy were gone because of the War and the all of a sudden government policy was changed to discourage the system.

After World War II, in a series of Japanese democratisation plans, the General Head Quarters of the Allied Occupational Army persistently recommended the Japanese Government to reintroduce the jury system. In the process of the revision of Criminal Procedure Law, the high officials of the Ministry of Justice (Shiho-sho, at that time) strongly opposed that plan. They raised the following negative reasons : (1) the Japanese were not mature enough to bear the jury system; (2) the Imperial jury system in Japan resulted in a failure. The high officials of the Ministry of Justice, who survived from prosecution as war criminals insisted that the people trusted professional and career judges rather than lay persons, and that the citizen’s participation in the judicial process was not suitable to the nature of the Japanese people.

In the 1970s, on the one hand, a growing interest in the jury system became apparent because of a series of miscarriage of justice. The cause of these errors was apparently the poor fact-finding of the judges when the Supreme Court overturned death penalties or life sentences after the defendants had endured a lengthy trial and sentences of up to thirty years in prison. People were quick to tie the inadequate fact-finding of the judges with their limited life experience. The jury system was therefore required to avoid miscarriages of justice. This is the beginning of the popular movement to reintroduce the jury system in Japan. Because of the specific reason of avoiding miscarriages of justice, the movement was mainly supported by criminal defence attorneys.

In the 1980s, on the other hand, because of continuing unpopular judgments, the Supreme Court of Japan realized that for popular respect and support for the court to return, it was vital to recover its reliability. Then, in May of 1987, the Chief Justice of the Supreme Court of Japan, who is also the head of judicial administration, for the first time after World War II, mentioned his interest in the adoption of the jury system. He dispatched four judges to England, the United States, France and Germany to research the jury system and the mixed court system. Since the investigation report which was returned to the Supreme Court by those judges was not disclosed, their evaluation of the jury system was not clear. However, no further steps have been taken by the Supreme Court so far. Despite this, the Supreme Court action ignited the movement for a jury system in Japan.

In early 1990, inspired by the Supreme Court interest in the jury system, the Japan Federation of Bar Associations, which is the national organization of fiftythree local bar associations, organized a national symposium to discuss the jury system. Also, three private organizations consisting of laypersons have been continuously lobbying the Congress to enact the new jury law. The local Bar Association have held mock jury trials every year by recruiting local citizens to get acquainted with the jury system.

In the end of the 1990s, Japan is obliged to change herself due to foreign pressure caused by the economic recession and political instability. The majority in the Parliament lead by the coalition of conservative parties has tried to recover the reliance and leadership in the economic sphere in international settings. The government is now trying to shrink bureaucratic control over private activities by decreasing the number of Ministries and bureaucrats.

The explanation is related to the theory that the Japanese have respect for bureaucrats and are obedient to higher authority.

Tanaka’s statement contends that the Japanese do not have the cultural foundations to handle a jury system. For him the Japanese are a culturally disadvantaged people. Tanaka seems to overlook the educational function of the jury system even where people lack “belief” and the possibility of introducing other jury systems suitable to the Japanese culture.

Firstly, jury opponents think that the Japanese would not be able to decide on an appropriate verdict because of their “inexperienced” amateurism (i.e., bias or prejudice). On the other hand, judges are considered to be professionals who are well-trained to control such personal preference and able to realize the judicial decision-making process without any prejudice. Secondly, jurors’ ability to comprehend has been challenged. The jury, a group of lay persons who have not received either legal education or fact-finding training, will find it difficult to understand the evidence and issues introduced in the trials. Thirdly, the cost of managing the jury system is higher compared with a non-jury system.

These three criticisms are not particularly focused on the Japanese jury system but rather on more general issues which the jury system confronts. However, they have been used as grounds for not beginning the jury system in Japan. The following is an examination of each of these problems individually.

The argument showing the lay person’s ability to comprehend is exemplified in the activities of the advisory committee consisting of the ordinary citizen. The best example is the Prosecutor Review Commissions (Kensatsu Shinsakai) that has the responsibility to advice prosecutors on reconsideration of charging decisions. Although the prosecutors are in no way bound to comply with the committee’s decision, the work and ability of lay committee members are highly evaluated among scholars and professions. For instance, one attorney said as follows :

Therefore, we should not use this argument to show that the Japanese cultural level is inferior and thereby to oppose the adoption of the jury system.

When compared to the financial situation among the three branches of government, the budget for the judiciary amounts to less than 1.0% of the whole.

Second, is the jury system’s educational effectiveness. If the citizenry participates directly in the judicial process, national interest in the function of the judiciary will rise, thereby giving people more of an opportunity for thinking about their rights and duties. This is extremely helpful for the development of the responsible and conscientious citizen. Moreover, people are given the opportunity to acquire a deep understanding of the role of the courts and judges in society, which would consequently strengthen the public’s interest and respect towards the judiciary at large.

In the non-jury (judge’s) trial not only legal facts related to the prosecutor’s indictment but also non-legal factors such as the defendant’s character and compromise with the victim are taken into consideration. Because of the high conviction rate of 99.99%, the judge’s task in Japan usually consists in giving adequate sentences rather than deciding whether the defendant is guilty or not guilty. This is seen as effective among Japanese professionals since through the fact-finding (or, more appropriately, fact-reconfirmation) process, judges can decide sentences at discretion according to the criminal’s nature and background. This is called a precise judicial administration (Seimitsu Shiho). Based on the facts, judges can give benefit to the defendant and lessen the charges to a lower crime category or give lenient sentences. However, in jury cases, the non-legal facts must be excluded from the jury’s consideration.

Therefore, judges and prosecutors warn those who advocate the jury system that the defendant might not get lenient sentences any more when the jury returns a guilty verdict. In other words, the Japanese judges are proud of serving as a fact finder as well as social adjudicator of the defendants rather than judges who decide the case was proven beyond a reasonable doubt. The precise fact-finding is necessary for the judge to conclude the case and therefore, they rely heavily upon written documents (dossier of confession) rather than the oral testimony in the court trial. In the Japanese criminal trial the dossier is predominant as evidence and proof. The jury system would break up the traditional dossier trial completely. That is why they do not welcome this new foreign style.