f/k/a . . . the archives

September 22, 2007

the saiban-in jury system is coming to a reluctant Japan

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 10:42 pm

To this day, we value harmony,” she said, and, referring to a haiku by Basho, Japan’s greatest poet, she added, “In Japan, to not speak is considered a virtue.” …… Fusako Kimura, 73, quoted in New York Times,Japan Learns Dreaded Task of Jury Duty” (July 16, 2007).

noisy reed thrush–
the big river flows
in silence

how quiet
the light blue morning-glory…
such good manners

losing the contest
I discover
the lord’s mum won
……………………………………….. by Kobayshi Issa, translated by David G. Lanoue

Milwaukee trial lawyer Anne Reed will be hosting Blawg Review #127 on Monday, September 24, 2007, at her juries and jury trial weblog called Deliberations. In my pre-Blawg-Review stop at Deliberations today, I discovered a fascinating topic that should interest f/k/a readers, whether they care about legal systems or Japanese culture: “Juries In A Quiet Land: ‘Saiban-In’ Comes To Japan” (Deliberations, September 20, 2007). [And see, Rough justice in Japan, BBC radio broadcast (September 2007; via Foley Square weblog] As they explain at the Japan Juries and Democracy Program webpage of the University of Montana’s Mansfield Center:

“Japan is in the middle of a dramatic reform of its judicial system that would have appealed to the democratic instincts of Mike Mansfield. In 2001, the Japanese Diet enacted the Saiban-In law (“Lay Assessors Act“), which takes effect in [May] 2009. This law creates a new quasi-jury system in Japan whereby persons charged with major crimes will have both their guilt and sentence determined by a judicial panel composed of three professional judges and six lay persons, rather than by professional judges alone. Japan had a classic jury system briefly in the pre-war period, but the return to citizen participation in the judicial process is a big break with the past and signifies a bold commitment to promote democracy.”

A recent New York Times article gives further details, noting that “In the new system, judges and jurors, with one vote each, will decide cases by a simple majority. Jurors can ask questions in the courtroom, and through their numbers can effectively overrule the judges. Even though all three judges may rule that a defendant is guilty in a case, a not-guilty ruling by at least five of the jurors will prevail. The only exception involves a guilty ruling: even if all six jurors vote guilty, the ruling will not stand unless at least one of the three judges shares that verdict.” This sounds like a major breakthrough for citizen participation in the judicial system, but the Times voices a concern that is also heard throughout Japan:

“But for it to work, the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority.

“To win over a skeptical public, Japan’s courts have held some 500 mock trials across the country. . . . Still, polls show that 80 percent are dreading the change and do not want to serve as jurors, a reluctance that was on display among the mock jurors here.”

“. . . . ‘There is no denying that great submissiveness is part of the national character,’ Judge [Tomonao Onizawa, who is the councilor general at the Supreme Court] said. But, he added, ‘I think this will change gradually.’

“But opponents say that change is unlikely because the judges will overwhelm the jurors. Many favor an American-style jury system, which would separate argument-averse Japanese from the judges.”

Japan’s Ministry of Justice has launched a major campaign to educate the public, including pamphlets, slick advertisements,

and even movies.

having a jumping contest
a night burglar
a cuckoo

locked in a staring contest
me…
and a frog

soon enough
the man-killing man too…
just dew on the grass

in hell’s mirror
the plum-blossom thief’s
reflection

mother cat
steals for her kittens…
run faster!

………………… by Kobayshi Issa, translate d by David G. Lanoue

For additional information on Saiban-in, see:

  • Foley Sqaure, the informative weblog of attorney Robert E. Precht, which focuses on “blogging on Japan’s new jury system called saigan-in.” Precht is associated with the Maureen & Mike Mansfield Center at the University of Montana, and “has been making monthly trips to Japan to talk to lawyers, judges, and citizen groups about the U.S. jury system.”
  • The 51-page “JAPAN’S QUASI-JURY (SAIBAN-IN) LAW: AN ANNOTATED TRANSLATION OF THE ACT CONCERNING PARTICIPATION OF LAY ASSESSORS IN CRIMINAL TRIALS,” by
    Kent Anderson and Emma Saint*
  • The Japan Juries and Democracy Program of the University of Montana’s Mansfield Center, which “will join with colleagues at the UM School of Law, the Mansfield Foundation, and relevant Japanese organizations – including the Japanese Bar Association – to help prepare Japanese judges, prosecutors, defense lawyers and lay people prepare for this significant transition. The UM units will also join in collaborative research on the potentially far-reaching legal and social changes that ensue.”
  • Wikipedia’s entry The Jury in Japan
  • The workshop held a year ago today at Cornell Law School, titled “Citizen Participation in East Asian Legal Systems,” sponsored by the Clarke Program in East Asian Law and Culture (September 22-23, 2006), and organized by professor Valerie Hans.

In a recent posting at Foley Square, “Kyoto Bar Association” (September 12, 2007), Precht describes a presentation he made to the Kyoto bar group. In part he noted that:

“Many people think that Japanese citizens won’t speak up in front of the professional judges, but defense lawyers can help educate the lay members of the saiban-in panel and appeal to them directly. Lawyers can ask the citizens to pay attention to particular pieces of evidence, and lawyers can give the citizens clear choices to make in deliberations. If lawyers do that, it will be difficult for the professional judges to tell the citizens to ignore defense arguments. In a very real sense, it is the responsibility of defense lawyers to give citizens opinions and to empower them to express the opinions.” (emphasis added)

In her Deliberations posting this week on Saiban-In, jury expert Anne Reed says “If you think the jury system can be problematic here, imagine starting a jury system from scratch — in a culture known for a level of deference and reticence that would bring most American jury deliberations to a standstill. That’s what they’re trying to do in Japan.” She emphasizes:

“Significant” barely conveys how big this change is. The transition isn’t just from judges to juries; it’s from writing to talk, lawyers to witnesses, authority figures to ordinary people, years to days.

I plead virtually total ignorance of Japanese culture and society. But, I know that many of our Honored Guest Poets and other haiku aficionados who read f/k/a are steeped in Japanese ways and have studied their culture and language, often living there for extended periods. I would love to hear from anyone who — perhaps after spending significant time among citizens of Japan, or even judging haiku or renku contests with Japanese haijin — have insights or opinions to offer on how the jury system is likely to work in that nation. Please use our Comment section or email me with your ideas.

In the meantime, perhaps Master Issa can shed some light on Japanese perspectives on the justice system and attitudes toward authority and social harmony:

used to losing
I’m peaceful, calm…
mum contest

lit by the mosquito-murdering
taper…
my white hair

it’s a man-killing
mushroom, true…
but pretty!

a reed thrush–
chasing the incompetent
thief

filled with shame
flat to the ground…
the thief cat

unaware of the thief’s
eyes, melons
cooling in water

the thief
is just as he is…
hazy moon

the mountain moon
gives the blossom thief
light

even for stealing water
for my rice field…
I take my parasol

in the misty day
no window can be seen…
a prison
……………………………………….. by Kobayshi Issa, translate d by David G. Lanoue

1 Comment

  1. [...] Read the rest… [...]

    Comment by Jury Experiences — September 23, 2007 @ 3:32 am

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