I.    Introduction

¶ 1         The Japanese people will soon decide the fate of criminal defendants for the first time in over 50 years.¹ Under the Lay Assessor Act as of May 2009, randomly selected members of the Japanese public² will preside over criminal trials alongside professional judges and be responsible for determining both verdicts and sentences.³ Japan's retention of the death penalty means that members of the public will ultimately have to decide whether a person lives or dies.⁴

¶ 2         This article examines the potential impact of the new lay assessor system, or saiban-in seido, on capital punishment in Japan, and considers whether it may reduce death sentences to the point of effectively abolishing them at trial stage in the District Court. The article posits that the introduction of the lay assessor system may create the momentum for Japan to align its criminal justice system with that of other developed countries—that is, abolition of the death penalty as an available criminal sanction.⁵

¶ 3         I approach questions about the lay assessor system and abolition of the death penalty from a normative perspective linked to current trends in international law and human rights law.⁶ Accordingly, this article argues that abolition of the death penalty—de facto or de jure—is the most desirable outcome of the introduction of lay participation in Japan. It explores the possibilities of a shift in the public conscience from passively pro-capital punishment to abolitionist through active participation in the judicial system. It is without doubt that any outcomes will depend upon the roles played by each of the parties involved in the criminal justice system: the ministry of justice, judiciary, prosecutor's office, defendant and defense lawyers. This article will examine the development and possible impact of these roles through an analysis of the vested interests of each of the parties, from the staunchly pro-capital punishment to the violently opposed, and perhaps most importantly, to the fence-sitters.

¶ 4         Part One of this article describes developing international norms that are moving towards de jure abolition of the death penalty under all circumstances. Part Two describes the current capital punishment system in Japan—from arrest to execution—and the reasons used to justify its retention. Part Three explores Japan's twenty-year jury system in the pre-World War II period in light of the future role of lay assessors in deciding verdicts and sentences. Part Four considers how the lay assessor system may impact Japan's current attitude towards the death penalty and may even lead to a suspension of death sentences or de facto abolition. In assessing its impact, the article analyses the vested interests of each party involved. It concludes that the introduction of the saiban-in seido may prove a vital first step towards eventual de facto abolition of the death penalty in Japan, provided each party abides by rules of fairness and justice.

II.    Abolition of the Death Penalty in International Law

¶ 5         Since the end of the Second World War, the international stance on capital punishment has shifted from retentionist to abolitionist—more than half the countries in the world have instated either de facto or de jure abolition of the death penalty. As of December 2001, only seventy-one countries and territories had retained the death penalty.⁷ Of these, thirty-four had de facto abolition, that is, no executions were carried out in the previous decade.⁸ Currently seventy-five countries and territories are de jure abolitionist and fourteen are de jure abolitionist for all but exceptional crimes, such as war crimes.⁹ The overwhelming trend towards de facto and de jure abolition in state practice, along with a growing body of international and regional instruments urging abolition, suggest that abolition of the death penalty is on the way to becoming a customary rule of international law.¹⁰

¶ 6         Modern developments in international law and capital punishment began with the proclamation of the right to life in the 1948 Universal Declaration of Human Rights.¹¹ This right encompasses the right to protection of one's life from arbitrary deprivation by the State.¹² The 1966 International Covenant on Civil and Political Rights¹³ further espoused the right to life¹⁴ and specifically referred to the death penalty and its abolition.¹⁵ The ICCPR also established a prohibition on cruel, inhumane or degrading treatment and torture. In addition, it codified the doctrine of due process, the presumption of innocence and the right to review.¹⁶ However, it did not impose any specific obligation to abolish or suspend capital punishment upon the ratifying States.¹⁷

¶ 7         Several scholars have argued that by separating the death penalty from the right to life, provisions of the ICCPR render the former an exception to the latter. However, the adoption in July 1991 of the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty casts doubt on the validity of such arguments.¹⁸ The Second Optional Protocol came after a raft of UN Resolutions on abolition,¹⁹ and although Japan opposed the Draft Protocol, it voted in favor of the resolution that mandated its drafting.²⁰

¶ 8         Even before the Second Optional Protocol entered into force, regional developments towards abolition began with the 1985 Council of Europe Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty.²¹ Subsequently in 1991, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.²² Most recently and perhaps most controversially on May 3, 2002, the Council of Europe opened for signature a further Protocol No. 13 to the Convention for the Protection of Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in All Circumstances.²³ Signed by all member states except Azerbaijan and Russia and ratified by all but seven states,²⁴ Protocol No. 13 permits neither reservations nor derogations and calls for outright abolition of the death penalty in all circumstances.²⁵ The strongly abolitionist Parliamentary Assembly of the Council of Europe has passed recommendations and resolutions calling on Japan, as a country with observer status, to institute a moratorium on executions and take the necessary steps towards abolition of the death penalty.²⁶

¶ 9         The death penalty is most widely used in Asia. Only Nepal,²⁷ Hong Kong,²⁸ Cambodia²⁹ and Timor Leste have established de jure abolition.³⁰ Other attempts at abolition have met with little success. For example, after becoming the first country in Asia to abolish the death penalty in 1987, the Philippines reintroduced it in 1994.³¹ The prospect for eventual de jure abolition exists in many countries which maintain de facto abolition of the death penalty, including Laos (no executions since 1993), Myanmar (1989), Brunei Darussalam (1957) and Bhutan (1964).³² The abolition debate is also gaining traction in Taiwan and South Korea.³³

¶ 10         On May 17, 1998, the Hong Kong-based Asian Human Rights Commission pushed for abolition at the regional level by drafting and declaring Article 3.7 of the Asian Charter on Human Rights.³⁴ Article 3.7 specifically calls for the abolition of the death penalty in all states and sets out minimum standards to be complied with in countries where it still exists.³⁵ The Charter is an unofficial document that was used initially as a lobbying tool to urge countries in the Asian region to protect fundamental human rights.³⁶

III.    The Death Penalty in Japan

¶ 11         Against this international backdrop of declining use, Japan is an outlier in retaining the death penalty. It has continuously maintained an active system of capital punishment excepting two periods of de facto abolition.³⁷ Japan suspended death sentences for three and a half centuries during the Heian period from 818 A.D until 1156,³⁸ and for three years from November 1989 until March 1993.³⁹

¶ 12         This section describes current legal authority, procedures and practices for the death penalty in Japan. It then examines the varying justifications made by Ministers of Justice and the Public Prosecutors Office, along with references to public opinion polls, which serve to promote Japan's retentionist policy.

¶ 13         Article 9 of the Penal Code lists the death penalty as one of six possible criminal punishments.⁴⁰ Eighteen crimes are punishable by death under the Penal Code and other special laws.⁴¹ In practice though, death sentences have been limited to convictions of murder, robbery-murder and rape-murder.⁴²

¶ 14         Despite the availability of the death penalty, prosecutors and judges lack guidelines for determining when to seek and impose it.⁴³ One formula for prosecutorial charges and judicial sentencing that was developed by a Japanese defense lawyer provides: ⁴⁴

(i)           Single murders without prior convictions do not result in death charges or convictions;

(ii)         Double murders without prior convictions may result in a sentence of life imprisonment instead of a death sentence; and

(iii)        Triple murders will definitely result in a death charge and sentence.⁴⁵

¶ 15         Other criteria often used to impose the death penalty have been derived from the 1983 Supreme Court decision in the famous Nagayama trial⁴⁶ and include the circumstances of the crime, motive, number of victims and effect on society.

¶ 16         The new Lay Assessor Act contains nothing in the way of sentencing guidelines for lay assessors or judges. Whether the yet-to-be-drafted Supreme Court Rules will provide such guidance remains to be seen.

¶ 17         Once sentenced to death at the trial stage in a District Court, a convicted person may lodge a direct appeal to the High Court for review of the original judgement, and subsequently to the Supreme Court on constitutional matters or precedential consistency.⁴⁷ Once a second appeal fails and the sentence is confirmed, the convicted person may seek retrial, pardon, amnesty or extraordinary appeal, all of which are granted at the discretion of the Cabinet.⁴⁸ Such requests do not guarantee a stay of execution.⁴⁹

¶ 18         Although this article focuses on the effect of lay participation on the death penalty at the trial phase, subsequent High Court and Supreme Court review of saiban-in decisions will ultimately decide whether death sentences will continue to be handed down.

¶ 19         Seven detention centers are equipped for executions, which are carried out by hanging under Japanese law.⁵⁰ Executions must be carried out within six months of the judgment becoming final⁵¹ and within five days of the issuance of an order by the Minister of Justice.⁵² However, the lengthy nature of appeals and applications for retrial usually extends the period between confirmation of sentence and execution to fifteen to twenty years.⁵³

¶ 20         The Japanese Minister of Justice is responsible for signing execution orders (shikei shikkō meirei) and has ultimate control over the continuation of executions. I have classified Japanese Ministers of Justice into three categories of approaches to signing execution orders. The first is the "Sheriff"-- a Minister of Justice who exercises his duties in the pursuit of social stability. For example, Minister Masaharu Gotoda justified signing three execution warrants, which ended a forty-month moratorium from November 1989 to March 1993 by stressing his obligation as Minister of Justice to "protect law and order."⁵⁵

¶ 21         The second category consists of the "Servants," or Ministers of Justice who prioritize their official duties above any contrary personal beliefs. For instance, at current Minister of Justice Seiken Sugiura's first press conference upon taking office, he announced that he would not sign an execution order for philosophical and religious reasons.⁵⁶ The very next day, speaking in his official capacity, he retracted that statement:

The statement I made at yesterday's press conference in relation to executions was an expression of my individual sentiments and not a statement in relation to the performance of my role as Minister of Justice and guardian of the law. In this respect I regret that there has been a misunderstanding and seek to rectify it.⁵⁷

¶ 22         The final group are the "Samaritans," those Ministers of Justice who refuse to sign executions on principle. Minister Akama Bunzō was perhaps the first of these; he reportedly refused to sign any execution orders presented to him during his term from November 1967 until November 1968.⁵⁸ Other Samaritans include Ministers Hasegawa, Kajiyama, Satō and Tahara who held office between November 1989 and March 1993.⁵⁹ During this period, not a single execution took place, effectively resulting in a forty-month moratorium on executions.

¶ 23         While Ministers of Justice play the decisive role in finalizing death sentences, prosecutors initiate the process by deciding whether to seek the death penalty at the trial stage and whether to continue to seek it on appeal. In turn, decisions by prosecutors to seek death sentences place pressure on judges to grant them, as Japanese judges tend to give weight to the exercise of prosecutorial discretion.⁶⁰ Due in large part to judges and prosecutors sharing similar social and educational backgrounds,⁶¹ judges rely heavily on evidence of confessions extracted by prosecutors for convictions.⁶² This reliance results in a seemingly concerted effort between prosecutors and judges in criminal cases. A further factor contributing to the judiciary's pro-retentionist stance is its conservatism.⁶³ Trained and nurtured by the Ministry, the judiciary demonstrates a strong tendency to defer to government policy. Death sentences prove no exception.⁶⁴ The greatest imperative on judges to continue death sentencing is, however, a perception of public pressure. High profile cases attract extensive media attention which arouses public sentiment and creates a perceived obligation on the judiciary to give defendants in more violent crimes the ultimate penalty.⁶⁵

¶ 24         The most frequently cited reason for continued sentencing and execution in Japan is public support for capital punishment. The Japanese government has relied on public opinion polls to respond to criticism and justify its stance both domestically and internationally.⁶⁶ Linking the will of the people to retention of capital punishment gives such sentences a certain democratic legitimacy.

¶ 25         Public opinion polls regularly demonstrate widespread support for capital punishment. In the most recent poll conducted in 2004 by the government, an unprecedented 81.4% of people surveyed agreed with the statement that in certain circumstances the death penalty is unavoidable.⁶⁷ Arguably, public opinion polls are relatively more empirical and form a more rational and universal basis⁶⁸ for retention.⁶⁹

¶ 26         Critics point out many deficiencies in the public opinion polls, including a lack of cross-sectional quality in the audience surveyed; problematic phrasing of questions; and the political motivations of the agency conducting the poll.⁷¹ Nonetheless, overall support for Japan's system of capital punishment is undeniably high.

¶ 27         Judging from the normative perspective grounded in international law that the death penalty should be abolished under all circumstances, one argument may be that the Japanese public is wrong in its support of the death penalty. This article asserts instead that the Japanese public is uninformed. Due to their relative ignorance about the system of capital punishment in their own country, the Japanese are ill-equipped to make judgments required in these opinion polls. This lack of information permeates every stage of the process—from interrogation of suspects⁷² to post-trial detention⁷³ to most importantly, execution.⁷⁴

¶ 28         Up until now the direct impact of this judgment has been minimal. However, the introduction of the lay assessor system in May 2009 will require the Japanese public to determine whether to sentence individual defendants to death, not whether to retain or abolish the death penalty as a system. Already future lay assessors have indicated that they do not want to be involved in the system; in one public opinion poll, 46.5 percent of those surveyed did not want to become lay assessors because they did not want to judge people. Another 46.4 percent responded that they did not wish to participate because of the difficulty in determining guilt or innocence.⁷⁵ For the first time, the new saiban-in seido will educate and equip the public with the necessary tools to make an informed decision about the future of capital punishment in Japan. While predictions about the nature of this decision are difficult, a certain shift in the public's stance on the death penalty is foreseeable.

¶ 29         Despite overwhelming support for retention of the death penalty in the judiciary, legislature and general public, abolitionist groups do exist in each of these sectors. This section applies an institutional analysis to attempts thus far as well as plans in the future to abolish Japan's system of capital punishment.

¶ 30         To date, challenges to the constitutionality of the death penalty have been few and unsuccessful. By the end of the 1950s, the Supreme Court had ruled on almost all major constitutional challenges to capital punishment and made no subsequent revisions thereafter.⁷⁶

¶ 31         Perhaps the most unequivocal of judicial precedents on the death penalty is the Japanese Supreme Court's 1948 decision⁷⁷ that considered whether capital punishment contravenes the right to life⁷⁸ and the prohibition on cruel punishment.⁷⁹ The court found that the Constitution protects an individual's right to life only to the extent that that right does not interfere with the public welfare. Therefore, in eliminating threats to the public welfare, the death penalty trumped the right to life.⁸⁰ The Court also held that capital punishment does not contravene the prohibition of cruel punishment contained in article 36.⁸¹ Although the four judges in the minority allowed scope for reconsideration of this doctrine in the event of a shift in public opinion against the death penalty, this remains the definitive stance on the issue.⁸²

¶ 32         In the final constitutional challenge to capital punishment, Ichikawa et al v. Japan,⁸³ defense counsel argued that the current method of execution violates Article 31's requirement that criminal penalties be imposed according to procedure established by law. Defense counsel claimed that the Act concerning the Validity of Provisions which were in Force at the Time of Enactment of the Japanese Constitution⁸⁴ rendered ineffective Cabinet Order No. 65 of 20 February 1873,⁸⁵ which created the framework for executions; hence, the death penalty was not being carried out according to procedure established by law. The Court rejected this argument and with no further successful challenges to capital punishment's constitutionality as of June 2006, has unequivocally excluded a judicially-driven abolition of the death penalty.

¶ 33         Nevertheless, there are judges opposed to the death penalty, including former Justice of the Supreme Court of Japan Shigemitsu Dandō.⁸⁶ Yet even Dandō spoke of death sentencing as unavoidable during his term as Supreme Court Justice,⁸⁷ as prosecutors continue to press for the death penalty where it remains a legal form of punishment.⁸⁸ Accordingly, legislative change alone can remove this constraint, which ultimately requires a shift in the official government stance.

¶ 34         The official position of the Japanese government is retentionist. Apart from an unofficial three-year moratorium on the death penalty by virtue of individual Ministers of Justice choosing not to sign execution orders, there has been at least one execution annually.⁸⁹ Bills on abolition were presented to the Diet four times in 1901, 1902, 1906 and 1956. None of these bills passed.

¶ 35         In 1994, however, several members of the Diet formed an all-party Diet Members' League for the Abolition of the Death Penalty (Parliamentary Union for the Abolition of the Death Penalty).⁹⁰ As of 2003 the League had 122 members, the equivalent of one-sixth of the Diet.⁹¹ In conjunction with the Japan Federation of Bar Associations (JFBA),⁹² in November 2004 the League drafted an Act for a Moratorium on Executions. The League considered the passage of this Act to be the best first step towards abolition, based on advice from Parliamentary Assembly members of the Council of Europe who attended a Justice and Human Rights Seminar hosted by the Diet Members' League on May 17, 2002.⁹³ The subsequently established JFBA Committee on the Realization of a Moratorium on Executions⁹⁴ produced the first draft of the Act, which also incorporated the establishment of a House of Councillors Committee on the Death Penalty on May 17, 2005.⁹⁵ As of June 2006, the Bill has yet to be presented to parliament. Nevertheless, increased abolitionist activity at a governmental level suggests that if the momentum continues, de jure abolition may be possible.

¶ 36         Around two dozen abolitionist groups have established themselves in Japan,⁹⁶ the largest of which is Forum 90.⁹⁷ Forum 90 was set up in 1990 as a collaboration among Amnesty International's Japan Section, private citizens, community organizations, lawyers, politicians, academics, members of religious groups and convicted persons. Originally established to support Japan's ratification of the Second Optional Protocol, Forum 90 now has over 5,000 members. It conducts seminars, holds interviews with the Minister of Justice, and cooperates with abolitionist movements in Korea and the United States.⁹⁸ Forum 90, along with other organizations such as Amnesty International and the Japan Civil Liberties Union, has submitted NGO reports on the death penalty in Japan to the United Nations Human Rights Committee.⁹⁹

¶ 37         Despite gradually changing attitudes towards capital punishment in Japan, the legislature, judiciary, administration and the populace continue to support the death penalty. The following section examines Japan's previous jury system, the new lay assessor system, and their past and future impact on the death penalty in Japan.

IV.    Lay Participation and the Death Penalty in Japan

¶ 38         The concept of lay participation in the criminal justice system in Japan is not new. For example, civil conciliation proceedings (chōtei) involved lay persons during the Tokugawa period,¹⁰⁰ in the pre-WWII jury system that lasted for twenty years¹⁰¹ and in prosecutorial review commissions (kensatsu shinsa kai).¹⁰² This section briefly describes the twenty-year jury system that was suspended in the midst of World War II and examines its outcomes relative to the new lay assessor system and its role in potential abolition of the death penalty. It then describes the new lay assessor system and its future shape and influence as the greatest grant of judicial decision-making power to the Japanese people to date.

¶ 39         Japan's pre-war jury system (baishin seido) was introduced by the 1923 Jury Act,¹⁰³ which, like the Lay Assessor Act,¹⁰⁴ imposed a five-year grace period before the Act entered force. After taking effect in 1928, the jury system was then suspended in 1943.¹⁰⁵ The pre-war jury system was based on systems for lay participation in France, Germany, England and the United States.

¶ 40         In the pre-war system, a jury presided over death or life imprisonment trials unless the accused chose otherwise.¹⁰⁶ In all other cases, juries were only empanelled if specifically requested by the defendant,¹⁰⁷ in which case the defendant had to bear the costs of the jury.¹⁰⁸ Only Japanese males over the age of thirty who paid three yen or more in taxes over the previous two years were eligible to serve as jurors.¹⁰⁹ Rather than returning a verdict of guilty or not guilty, the jury deliberated and formulated responses to questions of fact posed by the judge.¹¹⁰ A simple majority of the twelve jurors¹¹¹ determined the responses, which were ultimately not binding on the outcome of the case.¹¹² The Jury Act did not allow for objections to the judge's jury instructions.¹¹³

¶ 41         In contrast to jurors in the future Japanese ­saiban-in seido, pre-war jurors in Japan did not have to decide directly whether to sentence a particular defendant to death. Nevertheless, the experience of those jurors offers a glimpse into how jurors in the new lay assessor system may act when called upon to sentence a criminal. Data collected from Japan's original jury system suggests that lay people are more lenient than professional judges in criminal sentencing. Juries returned significantly more acquittals than modern judge-only trials across the board and despite wartime mobilization and other impediments.¹¹⁴ For example, a study of the criminal courts in Sendai between 1928 and 1943 indicates a certain leniency in the overall jury decisions; of sixteen defendants tried by juries, ten were acquitted and three were found guilty of a lesser charge.¹¹⁵ A second study found that juries acquitted sixty-three percent of murder suspects and accused arsonists, while judges acquitted only .07% of persons accused of those crimes during the same period.¹¹⁶ Scholars argue that this dramatic difference in outcomes resulted from jurors' heavier reliance on physical evidence, replacing the traditional judicial reliance on prosecutorial dossiers and written confessions in convictions.¹¹⁷ If the new lay assessors act similarly to their predecessors, this may allow room for de facto abolition in the form of lesser sentences or acquittals and may even create a momentum for de jure activism.

¶ 42         While not the first form of lay participation in Japanese history, the saiban-in seido is the first of its kind in Japan and the world.¹¹⁸ A hybrid of the classic common law jury system and the mixed courts of the civil system, this model for a new lay assessor system significantly reconstructs criminal justice in Japan and thereby may change Japan's fundamental approach to capital punishment. This section highlights areas for potential development and change through an analysis of articles in the Lay Assessor Act related to the role of saiban-in in death sentencing.

¶ 43         The Lay Assessor Act was enacted on May 28, 2004, as one of a suite of judicial reforms proposed by the Justice System Reform Council (shihō seido kaikaku shingikai) in its 2001 report.¹¹⁹ The main goals of the saiban-in seido are to deliver better justice and promote a more democratic society through citizen involvement in the judicial process.¹²⁰ The explicit purpose of the Lay Assessor Act is "to contribute to the promotion of the public's understanding of the judicial system and thereby raise their confidence in it."¹²¹ From the outset, even before the Act was drafted, there was no consideration of the protection of defendants' rights as a reason for reform.¹²² Neither the drafters nor the text itself envisage the introduction of the new system as a catalyst for reform and ultimate abolition of capital punishment in Japan. Any such reform must therefore begin at a grassroots level upon implementation of the system.

¶ 44         In a typical lay assessor trial, six saiban-in will sit on a panel with three judges and determine both the verdict and sentence in criminal cases.¹²³ To this end, lay assessors and judges will make joint decisions in recognizing the facts, applying the laws to those facts and determining sentences.¹²⁴ Decisions of the mixed panel will be made on the basis of a simple majority, which must include the vote of one judge.¹²⁵ Lay assessors are to be selected by lottery¹²⁶ from a list of eligible voters in each district¹²⁷ and will preside over all capital trials.¹²⁸ In 2004, 3,308 trials would have been eligible for lay assessment. Notably, prosecutors could have sought capital punishment in up to two-thirds of those trials.

¶ 45         Lay assessors will initially be selected at random from the general public. They must be eligible to vote; that is, they must be Japanese citizens who are twenty years of age or more.¹³⁰ Certain persons are prohibited or disqualified from service, namely lawyers, quasi-lawyers and politicians, and persons who have not completed compulsory education, were subject to imprisonment, or for whom lay assessor duties would be a burden.¹³¹ Lay assessor candidates may decline service if they are elderly, members of local councils, students, or have recently served as a lay assessor or on a Prosecutorial Review Commission.¹³²

¶ 46         Lay assessors who have difficulty executing their duties due to illness, carers' duties, potential damage to business, or attendance at a parent's funeral or important social obligation are also excused from service.¹³³ These allowances for declining service leave significant leeway for self de-selection by those who oppose the death penalty and/or do not wish to be involved in sentencing a defendant to death, even as a minority vote.¹³⁴

¶ 47         Another provision of the Lay Assessor Act pertaining to capital punishment is Article 18, which grants courts discretion to disqualify lay assessor candidates whom the court deems may act unfairly in a trial.¹³⁵ This provision may effectively eliminate lay assessor candidates identified as being opposed to the death penalty. Arguably, as long as the death penalty remains a valid sentence under the Penal Code, an abolitionist lay assessor is incapable of acting fairly in determinations of whether to sentence a defendant to death.

¶ 48         The Lay Assessor Act contains a procedure similar to the American voir-dire, whereby the prosecutor, defendant or defense counsel may invoke a number of grounds to request dismissal of lay assessors.¹³⁶ In particular, a request for dismissal may be based on "fear that any lay assessors or reserve lay assessors would conduct a trial unfairly,"¹³⁷ but only where the causes have already arisen or are learned after the appointment of the particular lay assessor. Pursuant to this provision, the court is entitled to conduct a questionnaire of lay assessors before the Lay Assessor Selection Proceeding¹³⁸ and to question them at the Proceeding itself.¹³⁹ The court may do this to ascertain whether the person is someone who may conduct the trial unfairly.¹⁴⁰ Given the open-ended nature of this provision, a lay assessor's stance on capital punishment could be the subject of such questioning and prosecutors could seek their dismissal on the basis of their response.¹⁴¹

¶ 49         This criterion therefore leaves the door open for American-style death qualification by prosecutors in capital cases. In Lockhart v McCree,¹⁴² the United States Supreme court addressed the practice of death qualification in Arkansas courts where jurors decide upon both the verdict and sentence in capital cases. The trial judge removed eight prospective jurors on the basis of their statements that they could not vote to impose the death penalty under any circumstance. The Court upheld the practice as coming within the "representative cross-section" interpretation of a defendant's constitutional right to an impartial jury.¹⁴³ The selection of death-qualified jurors has ramifications beyond an increased likelihood of death sentences, especially in models for lay participation that involve concomitant deliberation on verdict and sentence, such as the new Japanese lay assessor system. Specifically, death qualified jurors are more likely to convict and influence the dynamics of deliberations.¹⁴⁴

¶ 50         How often and under what circumstances the death-qualification procedure will be used is unclear. However, the "simple majority plus judge"¹⁴⁵ rule for verdict and sentencing, as opposed to the traditional requirement of unanimity, largely allays the risk of biased jurors threatening procedural integrity. This safeguard renders the voir dire-like procedure somewhat superfluous. Furthermore, considering its potential to draw out proceedings and enlarge workload, prosecutors may be reluctant to request a dismissal. While worth noting then, the death-qualification system is unlikely to affect criminal justice rendered in saiban-in courts given that unanimous verdicts are not required.

¶ 51         In addition to imposing affirmative duties on lay assessors to attend trial,¹⁴⁶ deliberations,¹⁴⁷ and verdict,¹⁴⁸ the Lay Assessor Act also penalizes those who leak secrets,¹⁴⁹ make fraudulent statements,¹⁵⁰ or fail to appear.¹⁵¹ In the execution of their duties, lay assessors have the authority to question witnesses,¹⁵² victims¹⁵³ and defendants.¹⁵⁴ In mock lay assessor trials currently being conducted across Japan, lay assessors prove unhesitant to exercise this authority.¹⁵⁵ The possibility of personal interaction between lay assessors and defendants, victims and eyewitnesses will bring the Japanese public closer to criminal trials than they have ever been before. This signals a shift away from the traditional format for criminal trials in Japan, in which judges had little room for exploring evidence independent of prosecutorial influence. Both the Japanese Supreme Court and the Supreme Court Public Prosecutors Office have drafted reports aimed at minimizing voluminous trial paperwork and introducing a more interactive, verbal trial to facilitate greater lay involvement.¹⁵⁶ Because lay assessors, unlike judges, have no legal training and are unaccustomed to the routine of the criminal justice system, prosecutors will have to work harder to validate their cases through admitted evidence and live witness testimony, rather than complicated dossiers.

¶ 52         Although the Act does not specify that verdict deliberations should take place before sentencing deliberations, there is speculation among academics studying the new system that, despite the fact that verdict and sentence will be determined in the single sitting, verdict deliberations will take place prior to sentencing. In whichever order they occur, deliberations on one will undoubtedly influence the shape of deliberations on the other. No specifications for deliberation procedure exist other than that a verdict must be determined on the basis of a simple majority and that it "shall include both an empanelled judge and a lay assessor holding that opinion."¹⁵⁷ While relatively simple for deciding guilt or innocence, this decision formula becomes complicated when applied to sentencing.

¶ 53         Given the range of possible sentences for any one crime, sentencing deliberations will likely yield a confusing range of different opinions as to which sentence is most appropriate in a particular case; a distinct majority comprising both lay assessors and judges will be unlikely. In this situation, the law requires:

[T]he number of opinions for the option most unfavourable to the defendant will be added to the number of opinions for the next favourable option, until a majority opinion of the members of the judicial panel which includes both an empanelled judge and a lay assessor holding that opinion is achieved.¹⁵⁸

¶ 54         The formula is a windfall for de facto abolition. In the likely absence of a majority opinion for the death penalty in a capital case, the vote of those in favor of the harshest sentence will be added to those in favor of the second harshest, and so forth, until the requisite majority is attained. Therefore, votes in favor of the death penalty, if not constituting the requisite simple majority, will be added to the next harshest penalty and capital punishment will be eliminated from the equation.

¶ 55         The requirements that each lay assessor express an opinion at verdict and sentence deliberations,¹⁵⁹ and that the chief judge sitting on the mixed panel facilitate such expressions of opinion,¹⁶⁰ further mitigate the likelihood that a suspect will receive the death penalty. Given its controversial nature and profundity, a decision to condemn a defendant to death will likely result in a wide spread of opinion in mixed panel deliberations, and hence, a greater range within which to apply the above-described formula.

¶ 56         The success of the lay assessor system will depend upon how the various members of the saiban-in court play their roles. The following section identifies each of the parties involved in the new system, their vested interests, and how the overall dynamics among the parties may produce a shift towards de facto abolition.

V.    Abolition and the Saiban-in Seido

¶ 57         Moving from a closed system in which capital cases were largely dominated by prosecutors and judges¹⁶¹ to the saiban-in seido will open the Japanese court system to the closest public scrutiny it has ever had. Beginning in May 2009, with six lay assessors sitting on mixed panels with three judges, the public will potentially be the most represented party in the courtroom. This revolutionary change in dynamics between the parties will largely dictate the outcomes of the system and thus the potential for de facto abolition. This section examines the varying perspectives and expectations of prosecutors, judges, defendants and defense lawyers, and future lay assessors regarding the saiban-in seido.

¶ 58         As long as the death penalty remains a valid form of punishment, prosecutors have the duty to charge and pursue the sentence in applicable cases. Regardless of the introduction of the lay assessor system then, prosecutors are first and foremost interested in obtaining a conviction and death sentence in every case for which they seek it. Once the lay assessor system commences, prosecutors will face difficulties in successfully pursuing these interests.

¶ 59         The predictability of the system up until now means that a prosecutor often brings charges in accordance with what he expects the outcome to be in a case.¹⁶² Scholars have argued that this is one principal reason for Japan's extraordinarily high conviction rate.¹⁶³ The unpredictability associated with lay involvement in the system carries with it the potential for prosecutors to lose their power to anticipate outcomes. Given that acquittals are regarded as a threat to prosecutors' legitimacy,¹⁶⁴ the introduction of lay participation may lead prosecutors to bring more moderate charges and fewer capital cases than previously.

¶ 60         Versed and rehearsed in a largely inquisitorial system involving little oral evidence or cross-examination at trial phase, prosecutors working with the lay assessor system will need to focus on developing advocacy skills that are appropriate in a much less formal, adversarial proceeding. In preparation for this new role, prosecutors are undergoing training both in Japan and abroad to become educated in the art of trial advocacy.¹⁶⁵

¶ 61         The Supreme Court Public Prosecutors Office has finalized a draft report proposing a reduction in trial documentation to better facilitate the introduction of the new system.¹⁶⁶ Still, the report falls short of abolishing the system of written records of investigators' questioning of defendants. Thus, courts may continue to rely on written confessions in determining guilt or innocence. In failing to exclude such written confessions, prosecutors reveal their intent for lay assessors to also rely on written confessions obtained during initial investigation rather than verbal statements given by defendants in court.¹⁶⁷ However, the Minister of Justice indicated in recent statements that even this shady area of Japanese criminal procedure will soon become more transparent as prosecutors prepare to make audio and video recordings of suspect interrogations on a trial basis.¹⁶⁸ Although the Public Prosecutors Office states that not every stage of the interrogation process would be recorded, this change in documentation demonstrates willingness on the part of the procuracy to increase transparency, give greater credibility to evidence of confessions, and facilitate more easily understandable trials in anticipation of lay involvement.

¶ 62         Judges face the same dilemma as prosecutors in interacting with members of the public, but to a much greater extent. First, where a prosecutor must persuade, a judge must cooperate with other judges and lay assessors during verdict and sentence deliberations. In the lay assessor system, judges—noted for their conservatism and reputation for being out-of-touch with society¹⁶⁹—may no longer maintain an arms-length relation to jurors. Instead, they must aim to explain the relevant laws in a more easily understandable fashion and facilitate the participation of each lay assessor.¹⁷⁰ Accordingly, they must exhibit a degree of empathy and patience, a much greater change in conduct than for prosecutors.

¶ 63         Second, the saiban-in-seido will pose new ethical challenges to judges in light of the significant amount of discretionary power that the Lay Assessor Act grants the judiciary. For example, judges will have power, directly or at counsel's request, to dismiss lay assessors on the basis of a belief that they will act unfairly.¹⁷¹ An even more important ethical challenge, though the Act does not consider it, is that judges may have to exercise personal discretion to avoid unduly influencing lay assessors during deliberations, since judges are predisposed to relying on confessions and entering judgments imposing the death penalty.¹⁷² It is of significant concern that, because the content and procedure of deliberations are to be kept secret,¹⁷³ the degree of judicial influence on the outcomes of lay assessor trials will not be ascertainable. The judiciary is, however, taking measures in the lead-up to the system's introduction to make participation as accessible and worthwhile as possible for future lay assessors.

¶ 64         Some of the suggested improvements may indirectly pave the way for de facto abolition, and to some extent alleviate fears of undue judicial influence in deliberations mentioned above. For example, in contrast to the draft report of the Supreme Public Prosecutors Office,¹⁷⁴ a Supreme Court draft report published in November 2004 emphasized the importance of relying principally on oral submissions during trial and considering written statements from pre-trial proceedings only when necessary for clarification purposes.¹⁷⁵ In formulating this proposal, the Supreme Court considered the risk that professional judges, who are accustomed to dealing with such written statements, will instruct lay assessors on how to decide whether a particular defendant is guilty.¹⁷⁶

¶ 65         Defendants and defense lawyers have the greatest interest in seeing the new system pave the way for de facto and eventual de jure abolition of the death penalty. Certain obstacles, however, may impede progress toward those goals. First, defense lawyers are as disadvantaged as prosecutors in terms of a lack of advocacy experience and training. Their access to the same or similar training schemes as Japanese prosecutors will determine how level the playing field will be post-introduction of the system. If the JFBA and the defense counsel committees of its regional counterparts (keiji bengo iinkai) cannot prepare defense lawyers for their new roles in the same way that the Supreme Public Prosecutors Office and Ministry of Justice are doing for prosecutors, the introduction of the lay assessor system could prove very detrimental to the defense.

¶ 66         Second, depending on the prosecution's use of the so-called voir dire procedure, defense lawyers will need to learn to play the game of jury stacking to their benefit. However, recent trends towards both recording pre-trial interrogations and reducing reliance on written confessions give hope to defendants and defense lawyers whose clients face the ultimate penalty.

¶ 67         Surveys and forums held prior to and after the enactment of the Lay Assessor Act reveal a general reluctance among the Japanese public to participate as a lay assessor.¹⁷⁷ This reluctance appears to stem not only from a desire to avoid disruption to daily life and business, but also from a general feeling that it lacks the education and qualifications necessary to fulfil the role.¹⁷⁸ Another reason for this reluctance is the public's hesitance to be directly involved in harsh sentencing.¹⁷⁹ During the question and answer session of a Ministry of Justice-sponsored forum on the introduction of the saiban-in seido, members of the public voiced a reluctance to vote for the death penalty even in the most heinous crimes.¹⁸⁰ Satoru Shinomiya, a lawyer presiding over the "Town Meeting in Kanazawa," responded by stating that the new lay assessor system would provide a good opportunity for those Japanese people who previously supported capital punishment, but left its administration to lawyers and the government, to review their stance and reconsider the issue. He concluded with the hope that public debate on capital punishment would further deepen as a result of the public's newly imposed obligation to grapple with the issue.¹⁸¹

¶ 68         Although the drafting of the Lay Assessor Act expressly excluded abolition of capital punishment as a reason for reform, each party in the new saiban-in court since then has appeared to directly or indirectly contemplate the prospect of de facto abolition of the death penalty. At least three avenues for de facto abolition exist, though the possible outcomes of the new lay assessor system are multitudinous. The first scenario may happen where prosecutors seek the death penalty and it is outvoted in accordance with the simple majority formula. The second may occur when prosecutors seek the death penalty and it is outvoted upon applying the complex sentence reduction formula, despite some members of the mixed panel voting for it. Finally, prosecutors may very well not seek the death penalty in some cases, due to the unpredictability of success, and instead seek a lesser penalty for which they have greater chances of success.

¶ 69         Of course much will depend upon the interaction among each of the parties involved. However, procedural changes in place and under consideration that are aimed at facilitating the saiban-in seido indicate positive first steps towards achieving some form of abolition.

VI.    Conclusion

¶ 70         Japan, like any other democracy, grounds its national policies in the will of its people. This is especially so in the case for retention of the death penalty. With de jure abolition of the death penalty close to becoming a norm of customary international law, and absent affirmative steps by the Japanese ministry, judiciary or procuracy towards abolition, the task will fall to the people to effect the change necessary to bring Japan in line with its international legal obligations and to set an example in Asia.

¶ 71         The introduction of the lay assessor system in May 2009 will place Japan's system of capital punishment squarely within the public domain and provide the Japanese public with the tools to initiate a change towards de jure abolition. For the first time, the Japanese people will make decisions on capital sentencing, which may play an essential role in abolition at a grassroots level. Many factors will influence the decisions of lay assessors, not the least of which are the roles played by the prosecutors, judges, defendants and defense lawyers in the new system. Each of these members of the future saiban-in courtroom is surely anxious about how the introduction of the new system will affect their interests. However, attempts already made and currently under consideration to make the system more transparent, accessible and efficient suggest that any change will be positive for the criminal justice system overall.

¶ 72         From the perspective that de jure abolition of Japan's system of capital punishment is desirable if not imperative, the saiban-in seido may well prove to be the necessary first step towards that end. Allowing the people to decide may turn out to be the necessary catalyst for a shift in conscience away from support of capital punishment. Although the Japanese government ultimately will decide whether to pass legislation abolishing the death penalty once and for all, the decisions that the Japanese people make as participants in the saiban-in seido will surely inform that decision.

ENDNOTES