CITIZEN PARTICIPATION IN CRIMINAL TRIALS AND
REFORMATION OF CRIMINAL JUSTICE IN JAPANMasahito Inouye＊

I. INTRODUCTION
Despite various opinions about its historical origins, a system of lay participation in criminal trials has
existed for centuries in many Western countries. It takes the form of either a jury, such as in AngloAmerican countries, or a mixed panel court consisting of professional judges and selected citizens, such as inmany Continental-European countries1.
Quite recently, on the other side of the globe, Japan and South Korea2 adopted, and Taiwan3 also has beenplanning to adopt, their own systems of lay participation in criminal trials4. Each system differs in various
aspects, reflecting the social, cultural, political and legal background in each country or area. Still, it isremarkable that these three neighbors have made similar changes almost simultaneously.
The introduction of a lay participation system necessarily accompanies formal or informal reforms ofcriminal procedure. It might also stimulate certain modifications in the interpretation or application, if not the
text itself, of substantive criminal law. As combined, they could induce substantial reformation of criminal
justice and, at the same time, bring about new challenges.
That is what has been happening in Japan5. And these reforms have been not only changing the way of
thinking and attitudes of professionals engaged in criminal justice, but also affecting public understanding of
the criminal justice system. There seems to be a growing number of people who have begun thinking more
seriously about crime and punishment as a matter closely related to themselves. Thus, the reforms will havea profound effect on Japanese criminal justice in the long run.

Professor, Waseda Law School, and Professor Emeritus of Law, University of Tokyo. The author served as a member of theJustice System Reform Council (1999-2001), a chairperson of the Expert Deliberation Committees on the Saiban-in System andCriminal Justice Reforms and on the Public Criminal Defense System at the Cabinetʼs Headquarters for the Promotion of
Justice System Reform (2002-2004), and a member of the Council on Legislation Special Division on the Criminal Justice Systemin the New Era (2011-2014).
Sections II through IV of this article are an updated and substantially revised version of the authorʼs presentation at the 2013
Seoul National University Law Research Center International Conference, which was later published under the title“Introduction of the Saiban-in System and Reformation of Criminal Procedure in Japan,” in SEOUL LAW JOURNAL, Vol. 55,
No. 2 (2014), pp. 441 et seq.
1
E. g., WORLD JURY SYSTEMS (Neil Vidmar ed., 2008); Valerie P. Hans，Jury Systems Around the World (Cornell Law
Faculty Publications, Paper 305, 2008)〔available at http://scholarship.law.cornell.edu/facpub/305〕.
2
The (South Korea) Act for the Participation of Citizens in Criminal Trials, Act No. 8489, June 1, 2007, enforced Jan. 1, 2008. Cf.
Jae-Hyup Lee, Korean Jury Trial: Has the New System Brought About Changes?, 12 ASIAN-PACIFIC LAW & POLICYJOURNAL No. 1, 58 (2010).
3
In 2012, the Judicial Juan of Taiwan proposed to introduce the “Advisory Jury System” in criminal trials and began its trial run
by holding mock trials in several major district courts. After the presidential election of 2016, however, they made a newproposal for a mixed panel court type of lay participation, the System of “Peopleʼs Participation in Trials”, which would be muchcloser to the Saiban-in System. In April 2018, the bill to implement it was introduced and is now under deliberation in thelegislature. See the Website of the Judicial Juan of Taiwan〔http://www.judicial.gov.tw/LayParticipation/〕.
4
As for the “Peopleʼs Jury System” in China, see e.g. KONG XIAO XIN, CHUGOKU JINMIN BAISHIN-IN SEIDO KENKYU (AStudy on the People’s Jury System in Chaina) (2016); Jinying Zhao, Chinaʼs New Law for Its Jury System〔http://www.linkedin.
com/pulse/chinas-new-law-its-jury-system-jinyung-zhan-l〕.
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II. INTRODUCTION OF THE SAIBAN-IN SYSTEM
A. Overview
In 2004, Japan enacted a statute (the Saiban-in Act)6 to introduce a system of lay participation in criminal
trials. In the new system, six citizens selected randomly from among the voters in each case would serve as
Saiban-in (or lay judges) and, in collaboration with three professional judges7, engage themselves in deciding
both guilt and sentence in the trials involving capital and other serious offenses8
After five years of preparation, the Saiban-in Act came into force on May 21, 2009. In the nearly nine
years until the end of March 2018, annually 1,000 to 1,500 (a total of 11,045) defendants charged with murder,
robbery resulting in bodily injury or some other subject offense (Figure 19) were tried by Saiban-in courts at
50 District Courts and 10 of their branches throughout the country10. 62, 214 citizens already served as
Saiban-in, and, if we add the number of those selected as supplementary Saiban-in, 93, 401 citizens
participated in criminal trials11.
B. Historical BackgroundBut why and for what purposes did Japan adopt such a system in the first place? To get a better
understanding, we need to look back briefly at the historical background of lay participation in Japan.
1. Former Jury System
The Saiban-in system is not an entirely novel experience for lay participation in criminal trials in Japan.
From 1928 through 1943, there was a jury system in which twelve selected citizens heard the evidence anddecided the guilt of the defendant in trials involving serious offenses12.
The former jury system was adopted as a result of party politics in the 1910s and 1920s13 when the socalled Taisho Democracy movements appeared temporarily to prevail in various aspects of the Japanese
The criminal justice reforms in Japan since the turn of the century, including the introduction of the Saiban-in system, havealready been the subject of many, not only domestic, but also overseas, publications. E.g., the literatures listed in Mark A. Levin& Adam Mackie, Truth or Consequences of the Justice System Reform Council: An English Language Bibliography fromJapanʼs Millennial Legal Reforms, 14 ASIAN-PACIFIC LAW & POLICY JOURNAL 1 (2013); Daniel H. Foote, Citizen
Participation: Appraising the Saibanʼ in System, 22 MICHIGAN STATE INTERNATIONAL LAW REVIEW 755 (2013);
Symposium, Citizen Participation in Criminal Trials in Japan: The Saiban-in System and Victim Participation in Japan inInternational Perspectives, 55 INTERNATIONAL JOURNAL OF LAW, CRIME & JUSTICE 1 (2014); Caleb J. F. Vandenbos,
Patching Old Wineskins, 24 PACIFIC RIM LAW & POLICY JOURNAL 391 (2015); Stacey Steele, Proposal to Reform theJapanese Saiban-in Seido (Lay Judge System) to Exclude Drug-Related Cases, 16 AUSTRALIAN JOURNAL OF ASIAN LAW
19 (2015); LEON WOLFF, LUKE NOTTAGE & KENT ANDERSON (eds.), WHO RULES JAPAN? (2015); DIMITRIVANOVERBEKE, JURIES IN THE JAPANESE LEGAL SYSTEM (2015); Harrison L. E. Oweris, Trial by Oneʼs Peers, 25
PACIFIC RIM LAW & POLICY JOURNAL 191 (2016); ANDREW WATSON, POPULAR PARTICIPATION IN JAPANESECRIMINAL JUSTICE (2016); ANNA DOBROVOLSKAIA, THE DEVELOPMENT OF JURY SERVICE IN JAPAN (2017).
6
The Act for the Participation of Saiban-in in Criminal Trials, Act No. 63, May 28, 2004, enforced May 21, 2009 (hereinafter citedas the Saiban-in Act).
7
Saiban-in Act, art. 2, sec. 2. Exceptionally, in cases where there is no contest about the charge, the court may assign the case toa smaller panel court composed of one professional judge and four Saiban-in if it is deemed appropriate to do so, considering thenature of the case and other circumstances, and neither party objects (secs. 3 and 4). As a matter of fact, such exceptional
assignment has never been resorted to.
8
Saiban-in Act, art. 2, sec. 1, enumerating the offenses for which the death penalty or life-imprisonment is prescribed by law andthe intentional offenses resulted in the death of the victim for which the minimum sentence of imprisonment of not less than one
year is prescribed by law.
9
Saiko Saibansho Jimu-sokyoku, Saiban-in Seido no Jisshi Jokyo ni tsuite (Seido-Shiko〜Heisei 30 Nen 3 Gatsu-matsu) (General
Secretariat of the Supreme Court, the Enforcement Situation of the Saiban-in system until the end of March 2018), p. 4.
10Id., pp. 2-3. The annual number of the defendants tried by Saiban-in courts, which account for around 2% of those tried by theDistrict Courts in regular trial proceedings, decreased from the peak of 1,568 in 2011 down to 993 in 2017 in proportion to thegeneral downward trend of criminal cases in these years.
11
Id., p. 5 and Figure 2. If it is deemed necessary, the court may select an appropriate number (not more than six) of
supplementary Saiban-in. (Saiban-in Act, art. 10, sec. 1). Actually, two are selected in most cases.
12
The Jury Act, Act No. 50, Apr. 18, 1923, enforced Oct. 1, 1928. The cases involving any offense for which the death penalty orlife imprisonment was prescribed by law were mandatorily subject to jury trial unless the defendant waived it (art. 3), and those
involving any offense for which the imprisonment not less than 3 years was prescribed by law, with some exceptions, were put
to jury trials if the defendant applied for it (art. 4).
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society before militarism and totalitarianism took over. There were outcries for popular elections andfreedom of political speech, for gender equality and laborersʼ right to organize unions and for liberalism ormodernism. A political historian later presumed that the jury system, modeled after the American one, wasproposed by the cabinet with the intention of attaining a populist effect in place of popular elections, which
they deemed too early to adopt14.
Although the introduction of the jury trial into the authoritarian, inquisitorial criminal justice system atthat time was a remarkable innovation, it deviated from its American model in a crucial point. The judges of
the court could overturn the jury verdict if they found it inappropriate and select a new jury to retry the case(renewal of jury). This was because of the constitutional provision at that time guaranteeing the individualʼsright to “trial by judges determined by law15,” which was interpreted to prohibit jury verdicts from binding
independent judgesʼ decisions.
It is also realistically doubtful if the jury trials had any substantial impact upon the criminal justice system
as a whole or the general public in those days. Only a small portion of the people, males thirty and over who
paid a considerable amount of income tax (less than 8% of that age group), were eligible to serve as jurors. In
addition to that, most of the defendants who were entitled to have a jury trial actually waived it. In the fifteen
years of its operation, there was a total of 484 jury trials16, including 448 mandatory cases (less than 1.8% of
those which could have been subject to jury trial if the defendant had not waived it)17.
As wartime came, jury trials decreased year by year, finally down to just one case in 1942. The next year
the military government suspended the Jury Act18, terminating the short life of the early Japanese lay
participation system.
2. Post-war Developments under the Constitution of 1946
During the postwar occupation by the Allied Forces, the question of whether to adopt or revive a jury
system was temporarily put on the agenda19 in addition to the criminal procedure reform in which theadversarial principle was adopted after the model of American law. As a matter of fact, the new Constitutionof 1946 provides for the right to “trial by an impartial tribunal20” “in the court21” in place of the former
constitutional provision mentioned above. These changes in wording were presumably intended to admit
even a jury equipped with full power. The Court Act of 1947 also confirms explicitly that the establishment ofa jury system for criminal cases by a separate statute shall not be prevented22.
TAICHIRO MITANI, SEIJI-SEIDO TOSHITENO BAISHIN-SEI (the Jury System as a Political Institution) (revised ed., 2013),
pp. 91 et seq.
14
Id., p. 141.
15
The Constitution of the Empire of Japan of 1889, art. 24.
16This includes 24 retrials by renewed juries. Among the 484 jury trails, 215 involved murder and 214, arson. The jury found thedefendant not guilty in 81 cases (17.6% of those excluding 24 retrials). Masao Okahara, “Baishin-ho no Teishi ni kansuru Horitsu”
ni tsuite (On “the Act concerning the Suspension of the Jury Act”), HOSOKAI ZASSI Vol. 21, No. 4 (1943), p. 16; Shiho-seido
Kaikaku Shingikai Jimukyoku, Wagakuni de Okonawareta Baishin Saiban (Jissi Jokyo) (Secretariat of the Justice System Reform
Council, The Jury Trials Formerly Enforced in Japan) (Material 18, Apr. 17, 2000).
17
TAKASHI MARUTA, BAISHIN-SAIBAN WO KANGAERU (Thinking about the Jury Trial) (1990), pp. 133, 137-138.
18
The Act concerning the Suspension of the Jury Act, Law No. 88, Apr. 1, 1943, enforced on the same day.
19
A provision for the right to trial by jury was included in the early tentative versions of the so-called “MacArthur Draft,” which
the occupation authorities prepared and presented to the Japanese government as a basis for the drafting of the newConstitution. Although the provision was deleted in its final version for unknown reasons, the Japanese government believedthat they were required to consider seriously the adoption of such a system in the revision of the Code of Criminal Procedure.
E.g., Shihosho Keijikyoku, Keijisosho-ho Kaisei Hoshin Shian (Ministry of Justice Criminal Affairs Bureau, Plans for the Revisionof the Code of Criminal Procedure: A Tentative Draft) (Apr. 30, 1946), in KEIJISOSHO-HO SEITEI SHIRYO ZENSHU: SHOWA
KEIJISOSHO-HO (Collected Legislative Materials of the Criminal Procedure Laws: Code of Criminal Procedure of 1948), Vol. 2(M. Inouye et al. ed. 2007), p. 368; Keijisosho-ho Kaisei nitsuki Koryo subeki Mondai (Issues for Consideration concerning the
Revision of the Code of Criminal Procedure) (presented at the first meeting of the governmental Justice System Council, July 7,1947), id, pp. 33-34. See also Nobuyoshi Toshitani, Sengo Kaikaku to Kokumin no Shiho-sanka (Postwar Reforms and Citizen
Participation in the Justice System), in SENGO KAIKAKU, Vol. 4 (the University of Tokyo Institute of Social Sciences ed. 1975),
pp. 109-130.
20
Const. art. 37, sec. 1.
21Const. art. 32.
22
The Court Act, Act No. 59, Apr. 16, 1947, enforced May 3 the same year, art. 4, sec. 3.
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Such an idea, however, was not realized in spite of rapid democratization of all systems of governanceduring the occupation. Not only the Japanese government23, but also the occupation authorities24, were not so
enthusiastic about the jury system, probably because of its infeasibility given the destruction, including court
houses, and social disorder throughout postwar Japan25.
Still a certain number of lawyers and scholars, individually or in groups, continuously proposed lay
participation in criminal trials for many years since then. Such movements were stimulated especially since
the late 1980s when the judiciary, under the instruction of the then Chief Justice of the Supreme Court, began
broad research on the situations of lay participation in several Western countries26.
The proponents of lay participation were divided into two schools. One school of people urged theadoption of an Anglo-American type of jury system for the purpose either of democratizing the highlybureaucratic, closed Japanese judiciary or of preventing miscarriage of justice by professional judges who, in
their opinion, were biased toward the prosecution or had become too much accustomed to rendering
judgments of guilt to rule on each case without prejudice against the defendant27. Another school of people
rather preferred a Continental-European type of mixed panel court because of their concern about possible
miscarriage of justice by an inexperienced, emotional or runaway jury and ineffective appellate remedy for it
because no detailed reason would be shown for the jury verdict. In contrast to the former schoolʼs skepticism
against possible manipulation of lay assessors by professional judges in a mixed panel court, the latter rather
expected that a collaboration of professional judges and citizens should enlighten both of them28.
Quite the contrary, however, there also were deep-seated basic oppositions against lay participation
among lawyers and scholars. In addition to the constitutional objections29 inherited from the age of the former
Jury Act, they convinced themselves that fair and right justice could be done only by independent, legallytrained and suitably experienced professional judges30. Many of them also doubted whether the
In response to the negative opinions in the Justice System Council against a jury system for the reason of high cost andpossible harmful effects, the Ministry of Justice presented an alternative proposal to adopt a Continental-European type of
mixed panel court system, which could not gain majority support either. The discussion ended with a deferral mainly because of
its uncertain constitutionality. See KEIJISOSHO-HO SEITEI SHIRYO ZENSHU: SHOWA KEIJISOSHO-HO (Collected
Legislative Materials of the Criminal Procedure Laws: Code of Criminal Procedure of 1948), Vol. 3 (M. Inouye et al. ed. 2008), pp.
115, 120, 226-227, 293-296. See also Toshitani, supra note 19, pp. 130-141.
24
At the same time, the occupation authorities thought it necessary for the Japanese government to show due respect for public
participation as a principle of a democratic judicial system. The above art. 3, sec. 3 of the Court Act of 1947 was the very
product of their recommendation on such a ground. Toshitani, supra note 19, pp. 150-153.
25
Id., pp. 114-118, referring to the answers of the Ministers of State in charge of the new Constitution and of Justice at bothHouses of the Diet (legislature), and pp. 158-159, speculating the occupation authoritiesʼ basic attitude toward the matter and its
backgrounds.
26
Under the instruction of Chief Justice Koichi Yaguchi, which was not necessarily intended to adopt any Western type of lay
participation, several judges were dispatched from 1988 through 1990 to the United States and the United Kingdom on mission
to research the actual situation of their jury systems. In the following years, the General Secretariat of the Supreme Court
extended the research further on the mixed-panel court systems in several Continental European countries. Saiko Saibansho
Jimusokyoku, Baisin-Sanshin Seido: Beikoku-Hen (General Secretariat of the Supreme Court, Jury and Mixed-Panel Court
Systems: Part of the United States), Vols. 1-3 (1992-1995); Eikoku Hen (Part of the United Kingdom) (1999); Doitsu Hen (Part ofGermany) (2000); France Hen (Part of France) (2000); Sweden Hen (Part of Sweden) (2001); Denmark Hen (Part of Denmark)(2003); Italy Hen (Part of Italy) (2004).
27
E. g., EIGORO AOKI, BAISHIN SAIBAN (Jury Trial) (1981); CHIHIRO SAEKI, BAISHIN SAIBAN NO FUKKATSU(Resurrection of Jury Trials) (1996); Satoru Shinomiya, Baishin, Sanshin, Shokugyo Saibankan (1) Baishin-sei no Tachiba kara
(Jury, Mixed Panel Court or Professional Judges (1) From the Viewpoint of a Jury System Supporter), KEIHO ZASSI Vol. 39, No. 1(1999), p. 18; Nihon Bengoshi Rengo-kai, Baishin Seido no Jitsugen ni muketeno Teigen (Japan Federation of Bar Associations,
Proposals Towards the Realization of Jury System) (Mar. 17, 2000), recounting its position declared in its “Shiho Kaikaku ni
mukete no Kihonteki Teigen (Basic Proposals Towards the Realization of Justice System Reform) “ (Nov. 19, 1999).
28
E.g., Ryuichi Hirano, Kokumin no Shiho-sanka wo Kataru (Talking about the Citizen Participation in the Justice System), HO
NO SHIHAI No. 87 (1992), p. 38; id., Sanshin Seido Saiyo no Teisho (A Proposal for the Adoption of a Mixed Panel Court System),
JURIST No. 1189 (2000), p. 50; Hiroshi Sato, Baishin, Sanshin, Shokugyo Saibankan (2) Sanshin-sei no Tachiba kara (Jury, Mixed
Panel Court or Professional Judges (2) From the Viewpoint of a Mixed Panel Court System Supporter), KEIHO ZASSI Vol. 39, No.
1 (1999), p. 30.
29
E. g., HAJIME KANEKO, SHIN-KENPO TO SHIHO (New Constitution and the Justice System) (1948), pp. 75-76 and 81;
HOGAKU KYOKAI, CHUKAI NIHONKOKU-KENPO (Commentaries on the Constitution of Japan), Vol. 2 (1953), pp. 1122 and
1128.
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characteristics of the Japanese people whom they stereotyped as obedient to authority as well as averse tolitigation would fit in with a Western-fashioned lay participation system, especially with an Anglo-American
type of jury system31. As a matter of fact, results of various polls indicated that the public generally put
confidence in the work of professional judges32.
C. The JSRCʼs Recommendations and Their Implementation
1. Proposals for Comprehensive Reforms
In 1999, when the Cabinet established the Justice System Reform Council (JSRC) in order to discuss awide range of challenges to the Japanese justice system and to recommend reforms to make the systemmuch more accessible, reliable and effective in accordance with various needs of the people, lay participation
was put on the agenda, mainly on the initiatives of bar association members who had been longing for a jury
system33. However, with the above-described sharply divided opinions for and against it, many people were
skeptical if any consensus could be reached on the subject.
As it turned out, the JSRC, after two years of intensive discussion, presented comprehensive
recommendations that consisted of three pillars of reform: (1) reforms of the civil and criminal justice systems
in order to establish “a justice system that meets public expectations,” (2) increased production of wellqualified lawyers trained in newly founded professional law schools in order to supply “the legal profession
supporting the justice system,” and (3) citizen participation in order to establish “the popular base” for thejustice system34. The highlight of the third pillar was the introduction of the Saiban-in system.
2. Proposal for Saiban-in System and Its Implementation
At the initial stage of the JSRCʼs discussion, there seemed to be sharp division of opinion between several
members who are enthusiastic for a jury system and the others who were cautious or negative about it35.
Most of them, however, shared the view that the existing justice system, which was too exclusive toprofessionals, should reflect regular citizensʼ sense and feelings more keenly and that increased public
involvement in some form or another should help, not only for that purpose, but also for the people
themselves to identify with the justice system.
What marked a turning point is the hearing of opinions of “hoso sansha” (three sectors of the legal
profession, i.e., the judiciary, the Ministry of Justice and public prosecutorsʼ offices, and the bar). Amongothers, the General Secretariat of the Supreme Court presented its opinion that it should be desirable to adopt
a variant mixed panel court system in which lay assessors could express their judgment on the case, but notformally participate in the final verdict of the court36. They were afraid it might cause a constitutional dispute
if participating citizensʼ judgment had a legally binding effect upon the judges. Although the opinion appeared
too reluctant especially to those who were enthusiastic for lay participation, this became a critical juncture interms of setting a bottom line for the subsequent discussion on the subject in the JSRC, which was virtuallydeprived of any possibility to totally reject lay participation.

E.g., KANEKO, supra note 29, p. 31.
E.g., Fumio Aoyagi, Baishin-sei Sanshin-sei ni tsuiteno Ichi-Kosatsu (A Study on the Jury System and the Mixed Panel Court
System), JOCHI HOGAKU RONSHU, Vol. 4, No. 1 (1960), pp. 27 et seq.
32
For instance, a nation-wide questionnaire survey conducted by a national newspaper right before the beginning of the justicesystem reform revealed that the public highly evaluated the general quality of criminal trials by professional judges and that
79% of the respondents deemed judges reliable, the highest score among the professions involved in criminal justice, followed bypolice officers (74%) and public prosecutors (72%). The Yomiuri Shinbun, Dec. 27, 1998, morning issue, special page A.
33
The Act to Establish the Justice System Reform Council, Act No. 68, June 9, 1999, enforced July 27 the same year, art. 2, sec. 1;
the JSRC, The Points at Issue in the Justice System Reform (Dec. 21, 1999) (English ver.), III 2(4)〔available at http://www.kantei.
go.jp/foreign/policy/sihou/singikai/991221_e.html〕
34
Recommendations of the JSRC: For a Justice System to Support Japan in the 21st Century (June 12, 2001) (English ver.), Chap.
I, Part. 3〔available at-http://www.kantei.go.jp/foreign/judiciary/2001/0612report.html〕.
35
See Masahito Inouye, Saiban-in Seido no Donyu ni itaru Keii to Sono Gaiyo (the Course of Things up to the Introduction of the
Saiban-in System and Its Outlines), JURIST No. 1279 (2004), pp. 74 et seq. Except for the first few sessions, all the deliberations in
the Council were monitored simultaneously by the representatives of news organs and their complete verbatim minutes were
published on the Prime Ministerʼs Office Web site 〔http://www.kantei.go.jp/jp/sihouseido/gijiroku-dex.html〕.
36
Saiko Saibansho, Kokumin no Shiho-Sanka ni kansuru Saibansho no Iken (Supreme Court, Opinion of the Judiciary on the
Citizen Participation in the Justice System), IV, presented at the 30th meeting of the JSRC, Sep. 12, 2000〔available at http://www.
kantei.go.jp/jp/sihouseido/dai30/30bessi5.html〕.
30
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After these and other twists and turns, the JSRC reached the conclusion that an original style of popularparticipation in criminal trials should be adopted in order to improve the quality of justice done by the courtin terms of effectively reflecting “the sound social common sense of the public37.” Evaluating positively thegeneral quality of existing criminal trials by professional judges, the JSRC thought that citizensʼ collaboration
with them should make it much better38.
The Saiban-in Act was the fruit of further detailed deliberation in the expert committee, over which I
presided, of the Cabinetʼs Headquarters for the Promotion of the Justice System Reform to materialize the
JSRCʼs recommendations39.

III. ACCOMPANYING REFORM OF THE CRIMINAL JUSTICE SYSTEM
A. Unique Features of Japanese Criminal Justice in Action
The JSRC also expected that the introduction of the Saibai-in system should contribute to the promotionof their first pillar of reform, the reform of the criminal justice system.
The modern criminal justice system of Japan was built by adopting a succession of Western legal
traditions: first French40, then German41, and most recently, right after World War II, the whole system wasdrastically changed by the current Code of Criminal Procedure of 194842 (CCP), replacing a ContinentalEuropean type of inquisitorial system with an adversary system after the model of American law. Suchadoption of Western legal traditions, however, was followed by a process of “Japanization.” This pattern ismore evident in the actual practice than on the face of the law, and it produced remarkable, uniquecharacteristics of Japanese criminal justice in action, as explained below43.
The investigation of a crime is pursued very thoroughly with a special emphasis on the questioning ofsuspects. Even in the investigation of ordinary cases in which the police play a primary role, publicprosecutors also question suspects and principal witnesses in person. They seek to discover the true facts ofthe case and to become well-informed about the personal details of the suspect and other persons involved sothat they can properly exercise their broad discretion in deciding whether to prosecute the suspect, not only
from the viewpoint of his/her guilt, but also from the consideration of his/her possible rehabilitation without
prosecution44. Such thorough case-screening and active use of broad discretion by prosecutors are reflectedin the amazingly high conviction rate of over 99%.
After a case goes to trial, court sessions are not held consecutively, but with an interval of several weeks.
Trials rely heavily on documentary evidence, including written records of the suspectsʼ and witnessesʼ
statements obtained by prosecutorsʼ as well as police investigative questioning. Most of the documentary
evidence is presented just summarily in open court and subject to later careful reading by the judges back intheir chambers. Such a practice is most often supported by the consent of the defense and contributes to a
Recommendations of the JSRC, supra note 34, Chap. IV, Part. 1, 1.
Inouye, supra note 35, p. 76.
39
From February 2002 through July 2004, the Expert Deliberation Committee on the Saiban-in System and Criminal JusticeReform held a total of 32 sessions, 12 of which were spared exclusively to the deliberations on the Saiban-in system. Theircomplete verbatim minutes also are publicized on the Prime Ministerʼs Office Web site〔http://www.kantei.go.jp/jp/singi/sihou/kentoukai/06saibanin.html〕.See also HIROYUKI TSUJI, SAIBAN-IN HO, KEIJI-SOSHO HO (the Saiban-in Act and the Code of
Criminal Procedure) (Shiho-seido Kaikaku Gaisetsu, Vol. 6, 2005).
40
The Code of Criminal Instruction, Proclamation No. 37 of the Grand Council of State, June 17, 1880, enforced Jan. 1, 1882. This
Code, originally drafted by Professor Gustav E. Boissonade of Paris University, was replaced ten years later by the Code of
Criminal Procedure, Act No. 96, Oct. 7, 1890, enforced Jan. 1, 1893, which maintained the substance of the 1880 Code except forthe provisions relating to the German style of court organization adopted by the Constitution of 1889.
41
The Code of Criminal Procedure, Act No. 75, 1922, enforced Jan. 1, 1924.
42
The Code of Criminal Procedure, Act No. 131, June 10, 1948, enforced Jan. 1, 1949.
43
Masahito Inouye, Keiji-Saiban ni taisuru Teigen (Proposals to Improve Criminal Trial Proceedings), SHIHO-KENSHUSHORONSHU, No. 85 (1991), pp. 94-96; id., Keiji-Shiho Kaikaku wa Nani wo Kaeruka? (Criminal Justice Reform: What Will It
Change?) (1), LAW & PRACTICE No.10 (2016), pp. 7-16. See also Kazumasa Ishii, Waga-kuni Keiji-shiho no Tokushoku to sono
Kozai (Distinctive Features of the Japanese Criminal Justice and their Merits and Demerits) SHIHO-KENSHUSHO RONSHU, No.
79 (1987), pp. 304 et seq.
44
CCP art. 248 gives to the prosecutor wide discretion not to initiate prosecution if it is deemed unnecessary “owing to thecharacter, age and environment of the offender, gravity and circumstances of the offense, and situation after it.”
37
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less costly disposition of mass of uncontested cases in the system without an expedient method of guilty plea.
But even in contested cases, critics have pointed out that trial courts are very lenient in admitting
documentary evidence. Trial judges, in their quest for the whole picture of the case, are inclined to examine alarge amount of this and other evidence and, based upon it, to make detailed fact-finding even on uncontested
issues, including the motives and personal background of the defendant. In such a way, investigative
questioning of the suspect and witnesses could substantially affect the trial.
These features, collectively called “seimitsu shiho” (minute justice), were so unique that a prominent
scholar compared them to the epidemic species which Charles Darwin observed on the isolated Galápagos
Islands45.
Critics even denounced such a structured practice as pathological and abnormal46 in terms that, deviating
far from the original ideal of the adversary system, the criminal trial was deprived of its substance as alegitimate forum for the disposition of each case on the basis of open, fair and lively contests between two
parties. They further criticized that excessive eagerness of the police and prosecutors to obtain detailed
confessions from the suspects should necessarily cause undue infringement on human rights as well as false
confessions, which in turn should lead to serious miscarriage of justice.
Against such criticism, there existed quite opposite opinions that rebutted the criticism as unfounded or
one-sided. Some of them even praised the criminal justice system as contributing much to making Japan thesafest country in the world47.
But, it is undeniable, at least, that the investigation of crime and its proof at trial relied too much upon theinvestigative questioning of the suspects and the written records of their statements and that such excessive
reliance had detrimental side-effects. To the general public as well, the nontransparent features disturbed
their understanding of, and trust in, the whole system. Although most criminal trials under the existing
system were managed promptly, several high-profile cases in which trials took a considerable period of timecaused the peopleʼs loss of trust in the criminal justice system.
B. Purposes and Items of the Reform
The basic direction of reform, therefore, must be to realize efficient and effective trial proceedings
through active allegation and presentation of evidence by the parties, preferably relying on live testimony incourt rather than documentary records of out-of-court statements, and focusing on truly contested issues, inconcentrated proceedings. The introduction of a public participation system, in the JSRCʼs opinion, shouldmake the demand for such reform even more pronounced because it could not be expected for participating
citizens to serve for a long period of time or to read voluminous documentary evidence48.
For that purpose, the Code of Criminal Procedure (CCP) was revised, on the recommendations of theJSRC, to introduce several measures, including a new preparatory procedure (the pretrial or intermediatearrangement procedure) in which contested issues would be sorted out on the basis of appropriate disclosureof evidence between two parties according to a new framework set forth by law as described in Section IV, C2, and a clear plan for trial proceedings could be established in advance49. The pretrial arrangement
procedure is mandatory for the cases subject to the Saiban-in trial50.

KOYA MATSUO, KEIJIHO-GAKU NO CHIHEI (Horizon of Criminal Law Jurisprudence) (2006), p. 9; id., Keiji Saiban to
Kokukmin Sanka (Criminal Trials and Citizens’ Participation), HOSO JIHO Vol. 60. No. 9 (2008), p. 13.
46
Ryuichi Hirano, Genko Kiji-sosho no Shindan (Diagnosis of the Current Japanese Criminal Procedure), in DANDOSHIGEMITSU HAKASE KOKI SHKUGA RONBUNSHU (Essays in Celebration for the 70th Anniversary of the Birth of Justice
Shigemitsu Dando), Vol. 4 (1985), pp. 407 et seq.
47
E.g., Yoshihusa Nakayama, Nihon no Keiji-shiho no Tokushoku: Saiban no Tachiba kara ((Distinctive Features of the JapaneseCriminal Justice from the Viewpoint of a Judge), KEIJI TETSUDUKI, Vol.1 (M. Mitsui et. al ed., 1988), pp. 1 et seq.; Kazuo
Kawakami, Nihon no Keiji-shiho no Tokushoku: Kensatu no Tachiba kara (Distinctive Features of the Japanese Criminal Justicefrom the Viewpoint of a Public Prosecutor), id., pp. 11 et seq.; Takeshi Tsuchimoto, Mou-Hitotsu no Shindan ─ Waga Keiji Shiho
wa “Byoteki” ka (Another Diagnosis: Is Our Criminal Justice “Pathological”?), KENSHU No. 492 (1989), pp. 3 et seq.
48
Recommendations of the JSRC, supra note 34, Chap. II, Part. 2, 1.
49
CCP arts. 316-2 through 316-32.
50
Saiban-in Act art. 49.
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The public criminal defense system, which previously had been available only to defendants after publicprosecution51, also was enlarged to the suspects detained for an offense punishable with the death penalty, life
imprisonment or imprisonment for more than three years52. This would provide appropriate legal support tosuspects and defendants continuously from the early stage so that the defense could prepare adequately forthe pretrial arrangement procedure as well as the concentrated trial proceedings, including the Saiban-in
trials. A special public entity, the Japan Legal Support Center, was established to manage the combined
public criminal defense system for suspects and defendants in cooperation with bar associations and to
supplement the insufficiency of available local defense lawyers with its own staff attorneys.
Based upon these arrangements, the principle of consecutive trial proceedings was reconfirmed53.

IV. IMPACTS OF THE REFORMS AND NEW CHALLENGES
A. Acceptance of the Saiban-in System
1. Constitutional Legitimacy
Even after the enforcement of the Saiban-in Act, strong opposition has still continued in and outside thelegal profession. Many lawyers, including former well-known criminal law judges and prosecutors, havepublicized opinions attacking the new system for various reasons. Some have stuck to the conventional belief,or even natural repugnance, that justice might be spoiled by unrestrained, emotional judgments of lay people.
Others attacked it for its unconstitutionality in terms of violating the defendantʼs right to trial by an impartial
tribunal54 as well as imposing on the people the obligation to serve as Saiban-in and other accompanying
undue burdens in violation of their right to the pursuit of happiness55, freedom from involuntary servitude56,
freedom of thought and conscience57 and so on58.
Practically, however, the legitimacy of the Saiban-in system has been established since the Supreme
Court rejected these constitutional claims in a series of judgments and decisions59.
2. Public AcceptanceFurthermore, until the Saiban-in trials actually began, not only the press, but also many people concerned
were more or less anxious if the Saiban-in system would be welcomed by the public and if they really would
come to participate when they were summoned for Saiban-in duties. Various official and nonofficial
questionnaire surveys had revealed that only a limited percentage of the respondents expressed their
willingness to participate (Figure 360).
Under the current Constitution and the CCP before its revision of 2004, all the suspects and defendants had the right to retain
his/her own defense counsel (Const. arts. 34 and 37, sec. 3; CCP art. 30; CCP art. 30). In addition to that, the defendants, whichmeans those who are publicly prosecuted, are also guaranteed the right to have a defense counsel assigned by the court in casehe/she cannot retain one on his/her own (Const. art. 37 sec. 3; CCP art. 36).
52
CCP art. 37-2.
53
CCP art. 281-6.
54
Const. arts. 32 and 37.
55
Const. art. 13.
56
Const. art. 18.
57
Const. art. 19.
58
E.g., Taro Okubo, Saiban-in Seido Hihan (zoku) (Criticism Against the Saiban-in System: a Sequel), part 1, HANREI JIHO No.
1172 (2002), p. 3; Toshimaro Kojo, Saiban-in Seido no Goken-sei (Constitutionality of the Saiban-in System), GENDAI KEIJI-HO
Vol. 6, No. 5 (2004), p. 24; KIICHI NISHINO, SAIBAN-IN SEIDO HIHAN (Criticism Against the Saiban-in System) (2008), pp. 79 et
seq.
There have been many published articles analyzing and rebutting these arguments. E.g., Masakazu Doi, Nihonkoku Kenpo to
Kokumin no Shiho-Sanka (the Constitution of Japan and Citizen Participation in the Justice System), in HENYO SURU TOCHISYSTEM (Ruling System in Transformation) (M. Doi ed. 2007), pp. 241 et seq.
59
Sup. Ct. (Grand Bench) judgment of Nov. 16, 2011, KEISHU Vol. 65, No. 8, p. 1285; Sup. Ct. (2nd Petty Bench) judgment of Jan.
13, 2012, KEISHU Vol. 66, No.1, p. 1; Sup. Ct. (2nd Petty Bench) judgment of March 2, 2012, SAIBANSHU KEIJI No. 307, p. 695;
Sup. Ct. (3rd Petty Bench) judgment of March 6, 2012, SAIBANSHU KEIJI No. 307, p. 699; Sup. Ct. (3rd Petty Bench) judgmentof March 6, 2012, SAIBANSHU KEIJI No. 307, p. 709; Sup. Ct. (3rd Petty Bench) judgment of March 27, 2012, SAIBANSHUKEIJI No. 307, p. 767; Sup. Ct. (3rd Petty Bench) judgment of Oct. 16, 2012, SAIBANSHU KEIJI No. 308, p. 255; Sup. Ct. (1st Petty
Bench) judgment of Dec. 6, 2012, SAIBANSHU KEIJI No. 309, p. 67; Sup. Ct. (3rd Petty Bench) judgment of Sep. 2, 2014,
SAIBANSHU KEIJI No. 314, p. 267. See also Sup. Ct. (3rd Petty Bench) judgment of March 10, 2015, KEISHU Vol. 69, No. 2, p.
219.
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I was a little more optimistic because it is rather natural for the people to be inclined to avoid suchburdensome duties, and their actual behavior might be different from their response to hypotheticalquestionnaires. As a matter of fact, nearly half of the respondents answered that they would participate if
they were legally obliged to do so61.
It has turned out that 72.6% of those summoned to the court for Saiban-in selection showed up (Figure 2),
and once selected, most of the Saiban-in served until the closing of the trial. This is partly due to the generous
policy of the judiciary to excuse flexibly and generously prospective Saiban-in from the duty on theirapplication for various reasons62.
It is not without worries. There has been no substantial change in the public response to subsequent
questionnaire surveys about their willingness to participate (Figure 3). While the rate of prospective Saibanin excused in the selection process (see Figure 2) increased from 53. 1% in 2009 to 66. 0% in 2017, theattendance rate of those summoned to the Saiban-in selection proceeding in the court decreased from 83.9%
to 64.8% in the same period63. There have been serious discussions, in and out of the judiciary, about how to
improve such situation on the basis of its cause analysis64.
Still, a sufficient number of candidates have shown up to execute a proper selection of Saiban-in for eachcase. A fair cross-section of the society is generally secured in the composition of Saiban-in (Figures 4-1, 4-2,
4-365). Once they were selected, almost all of them served very diligently and sincerely. It is reported that,even in a relatively minor, uncontested case, Saiban-in do not like to dispose of it in one day; they preferspending time to examine and decide carefully because they are conscious of the effects their judgment could
have on the defendantʼs life. That is why a certain amount of time is usually spared for, among others, thefinal deliberation even in uncontested cases66. Also, an overwhelming majority of those who actually served
as Saiban-in or supplementary Saiban-in, including those who had been unwilling or reluctant to participate
before it, evaluate the experience very positively (Figure 567).
Thanks to their sincere and serious involvement, Saiban-in trials in general are operating smoothly andeffectively so far. It seems that the system has been accepted by the people in spite of the occasional media
coverage of sensational cases in which difficulties and excessive burdens on Saiban-in are emphasized.

According to the result of the officially entrusted survey on public awareness right before the enforcement of the Saiban-insystem, only 4.4% of the respondents wished, and 11.1% were ready, to participate while 37.6% wouldnʼt do so even if it were
their legal obligation. Saiko Saibansho Jimu-sokyoku, Saiban-in Seido ni kansuru Ishiki Chosa Kekka Hokokusho (General
Secretariat of the Supreme Court, Report of the Survey on Public Awareness concerning the Saiban-in System) (Mar. 2008), p. 22.
61
Ib.
62
The top five reasons for excusing prospective Saiban-in at their request in 2016 are (1) important business matters (49.9%), (2)mental/financial disadvantage (27.8%), (3) illness/injury (4.5%), (4) care for a family member (4.4%) and (5) hospitalization of afamily member etc. (2.2%). Saiko Saibansho Jimu-sokyoku, Heisei 28 nen ni okeru Saiban-in Saiban no Jissi-jokyo tou ni kansuru
Shiryo (General Secretariat of the Supreme Court, Materials on the Enforcement Situation of Saiban-in Trials in 2016) (June2017), p. 23.
63
Saiko Saibansho Jimu-sokyoku, supra note 9, p. 5.
64
A recent officially entrusted cause analysis by a nongovernmental institute has pointed out the five most probable causes
inducing both the increase in the rate of prospective Saiban-in excused upon request and the decrease in the attendance rate ofthose summoned to the Saiban-in selection proceeding: (1) lengthening of trial schedule, (2) changes of employment situationsuch as shortage of workers and increase of non-regular employees, (3) aging of the population, (4) decrease in peopleʼs interest
in Saiban-in trials and (5) reduction of the number of Saiban-in candidates put on the master list. NTT Data Institute ofManagement Consulting, Inc., Saiban-in Kohosha no Jitai-ritsu Josho Shusseki-ritsu Teika no Gen-in Bunseki Gyomu Hokokusho(Diagnosis Report of the Increase in the Rate of Prospective Saiban-in Excused at their Request and the Decrease in the AttendanceRate of Those Summoned to the Saiban-in Selection Proceeding) (March 2017). The report also indicated that it should improve
the situation if they could reduce undelivered summons due to the absence of prospective Saiban-in by redelivering them.
65
Id., pp. 73-76 and Saiko Saibansho Jimu-sokyoku, Heisei 27 nen ni okeru Saiban-in Saiban no Jissi-jokyo tou ni kansuru Shiryo(General Secretariat of the Supreme Court, Materials on the Enforcement Situation of Saiban-in Trials in 2015) (June 2016), p. 28.
66
The average time spent for the final deliberation per one Saiban-in trial in the nearly nine years until the end of May 2018,
was 640.3 hours (501.1 in uncontested cases and 808.1 in contested cases). Those times have been getting even more prolonged,
from 504.4 hours (438.7 in uncontested cases and 623.4 in contested cases) in 2010 to 760.3 hours (580.3 and 916.6 respectively) in2017. Saiko Saibansho Jimu-sokyoku, supra note 9, p. 9.
67
Saiko Saibansho, Saiban-in tou Keikensha ni taisuru Anketo Chosa Kekka Hokokusho (Supreme Court, Report on the Resultsof the Questionnaires to Former Saiban-in and Supplementary Saiban-in) 2017 (March 2018), pp. 47 and 49.
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The publicity of many Saiban-in trials, including sensational capital cases, has contributed to the peopleʼsbetter understanding of the criminal justice system (Figure 668). Apparently, they have started thinking about
crime, punishment and the administration of the criminal justice system as matters of concern close tothemselves.
As Saiban-in trials become regular daily events, the media, and therefore the general public also, seem tobe losing their initially strong interest in them. Yet, on the other hand, a growing concern about, and a
spreading practice of, “ho-kyoiku” (law-related education) at high, junior high and primary schools after the
Justice System Reform, in which the Saiban-in system as well as criminal justice is a major subject69, areexpected to promote more substantial, long-lasting understanding and commitment among the next
generation of people. Thus, these basic changes might have a profound effect on Japanese criminal justice as awhole in the long run.
B. Transfiguration of Trial Proceedings
The introduction of the Saiban-in system has definitely been inducing a wide-range, overt or covert,
transformation of Japanese criminal procedure in various ways and is bringing about new challenges to copewith. The most covert and dramatic changes have been witnessed in trial proceedings.
1. Activation, Visualization and Concentration
In order to ensure meaningful participation of Saiban-in as well as to reasonably limit the burdens onthem, the Saiban-in Act requires judges, public prosecutors and defense counsel to make trial proceedings
speedy and easily understandable70. The Rules for Saiban-in Trials also provide that both parties shallpresent arguments and evidence in an easily understandable way so that each Saiban-in can form his/herown opinion based upon the trial hearings71.
In compliance with these directions, the judiciary, public prosecutorsʼ offices and bar associations,separately as well as collaboratively, have made continuous efforts to make their modes of presentation attrial as efficient and effective as possible by focusing on the key points, making full use of visualization
methods, and relying on live testimonies in court instead of documentary evidence.
At the initial stage, trial court judges and prosecutors, who would prefer saving time and unnecessary
burden upon witnesses, as well as defense counsel, who would not like to have the victim testify in person attrial, were inclined to agree on the use of written records of the witnessesʼ statements to the prosecutor or
the police, especially in uncontested cases. But, with persistent, repeated reminders and warnings from thejudiciary72, they have evidently changed their attitude in terms of relying much more on live testimony evenin uncontested cases73.
As a result, the sight of Japanese criminal trials has changed dramatically in terms of activation,
visualization and concentration, as far as Saiban-in cases are concerned.
2. Expediting
Then, have the trial proceedings actually become speedy and easily understandable for participating
citizens?

Saiko Saibansho Jimu-sokyoku, supra note 60, p. 43.
E.g., Homu-sho Ho-Kyoiku Project Team, Chugakusei muke Kyozai: Saiban-in Seido (Ministry of Justice Law-related Education
Project Team, Teaching Materials on the Saiban-in System for Junior High School Students) 〔available at http://www.moj.go.
jp/keiji1/saibanin_info_saibanin_kyozai.html〕;id., Keiji Shiho ni tsuite Kangaeyo (Let’s Think About Criminal Justice)〔available
at http://www.moj.go.jp/housei/shihouhousei/index2.html〕.See also the Web-sites of the Japan Society for Law and Education〔http://gakkai.houkyouiku.jp/〕 and the Law-related Education Forum 〔http://www.houkyouiku.jp/〕
70
Saiban-in Act art. 51.
71
The Rules on the Criminal Trials with the Participation of Saiban-in, Sup. Ct. Rules No. 7, July 5, 2007, enforced, May 21, 2009,art. 42.
72
E.g., Chief Justice Hironobu Takesaki, Shin-nen no Kotoba (Words for the New Year), SAIBANSHO JIHO No. 1545 (2012), p. 1.
73
For instance, the average number of witnesses who testified at one Saiban-in trial have increased from 2.1 (1.5 in uncontested
cases and 3.3 in contested cases) in 2010 up to 3.1 (1.9 and 4.2, respectively) in 2017. Saiko Saibansho Jimu-sokyoku, supra note 9,
p. 8.
68
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According to the official statistics, the period of trial itself has been drastically shortened, from an averageof 6.5 months for previous trials involving the same offenses in the three years right before the enforcementof the Saiban-in Act down to 7.8 days for Saiban-in trials (in contested cases, from 10.8 months to 10.7 days)74.
While previous criminal trials sometimes took many years in big cases, there have been so far just twelve
Saiban-in trials that took or will take over two months (Table 7). Even in these cases, actual trial sessions took
less than 40 days and the rest were spared for interval or weekend recesses and final deliberation, except forthe ongoing longest case that is scheduled to take 207 days, including 76 trial sessions.
Undoubtedly, the longer the period, the higher the rate of prospective Saiban-in who ask to be excused,
and then the proper selection of Saiban-in becomes harder. In anticipation of such hardship, the Saiban-in Act
was revised in 2015 to empower the court to exclude from Saiban-in trial a case in which the selection orservice of Saiban-in is deemed difficult due to the extraordinary length of the scheduled trial period75. This
exclusion clause, however, has never been resorted to, even in the lengthy cases listed in Table 7 in which
trials were held after the enforcement of the revision76.
It should not be overlooked that the pretrial arrangement procedures for Saiban-in trials have taken an
average of 6.9 months (8.8 months in contested cases) and the period has been lengthening from 5.4 months(6.8 months in contested cases) in 2010 to 8.3 months (10.0 months in contested cases) in 2017. It takes over a
year or more in a substantial number of cases77.
Although this is attributable, to a considerable extent, to additional charges filed subsequent to the initial
indictment as well as psychiatric examination of the defendant which would suspend the proceedings formonths, some point out that it takes time for the defense to respond to the prosecutorʼs offer of proof and to
make their allegations after discovery of evidence, which sometimes takes many days. Improvements havebeen under discussion in and out the judiciary.
3. Understandability
The majority of former Saiban-in evaluate the trial proceedings in their cases as easily understandable(Figure 878). At one time, negative respondents increased, though still less than 10%. Worried that this might
be attributable to a revival of easy reliance on documentary evidence in uncontested cases, the judiciary
warned repeatedly against such a practice, with the result of a decrease in the rate of negative responses.
However, the understandability of the presentations and arguments by defense counsel are evaluatedremarkably lower than the performances of professional judges and prosecutors (Figure 979). Although they
are in a disadvantageous position of speaking even for the client who makes incoherent or unreasonableassertions, it might be caused by total reliance on the style and ability of each individual defense lawyer
without sufficient systematic training. The bar associations have been seriously trying to cope with thischallenge, for instance, by holding special seminars to improve defense lawyersʼ in-court performances andskills80.

Saiko Saibansho Jimu-sokyoku, Saiban-in Saiban Jissi Jokyo no Kensho Hokoku (General Secretariat of the Supreme Court,
Report of the Examination on the Enforcement Situation of Saiban-in Trials) (Dec. 2012), pp. 40-41; Id., supra note 9, p. 6.
75
The Act to Revise a Part of the Act for the Participation of Saiban-in in Criminal Trials, Act No. 37, June 12. 2015, enforced
Dec. 12 the same year.
76
In eleven out of the twelve lengthy cases listed in Table 7, no substantial trouble was reported in the selection of Saiban-in or
their service in spite of much more prospective Saiban-in being excused than in ordinary cases. However, in the remaining
longest case in which the trial is still in progress at a pace of four sessions a week, three out of the six Saiban-in have alreadybeen discharged at their request within forty days from the beginning of the trial. Although the vacancies have been filled bythree of the six supplementary Saiban-in, there is concern that the trial proceedings should be suspended and considerably
delayed due to the additional Saiban-in selection in case four more Saiban-in are discharged. Kobe Shinbun NEXT, June 29,
2018.
77
Saiko Saibansho Jimu-sokyoku, supra note 9, p. 6.
78
Saiko Saibansho, supra note 67, p. 18.
79
Id., p. 20.
80
See e.g., Masashi Akita, Bengonin kara Mita Saiban-in Saiban (Saiban-in Trials from the Viewpoint of a Defense Counsel), HO
NO SHIHAI No. 177 (2015), pp. 77-79.
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4. Other Cases
As described above, the JSRC recommended that the activation, concentration and expediting should be
realized in all criminal trials, not limited to Saiban-in trials, which the Council expected would give a decisive
motive to promote such changes. However, Saiban-in trials account for only a small percentage of all criminal
trials. As a matter of fact, trials in non-Saiban-in cases do not appear to have changed much so far, probably
because those concerned have been too occupied by implementing and managing Saiban-in trials to spare
their energy for other regular cases.
Realistically, there is a need to dispose of the many uncontested cases efficiently as well as to avoid
unnecessary burdens on witnesses. Consecutive, concentrated trial proceedings relying mainly on oral
testimony will not be suitable for cases involving tax violations as well as business or financial offenses, forinstance, in which a large amount of documentary evidence is to be examined.
However, it is evidently undesirable that Saiban-in and non-Saiban-in trials are administered in two
different ways, causing the appearance of “justice by double-standard.81” Discussions and efforts for further
changes in this respect have just begun among concerned judges and others.
C. New Challenges and Developments of Judicial Precedents
1. Overview
The introduction of the Saiban-in system has produced various new challenges to the existing criminal
procedure. As mentioned above, the CCP was revised in preparation for several predictable challenges. Still,
new challenges have come up through the continuous efforts in practice to effectively realize the purposes of
those statutory revisions as well as the Saiban-in system itself. It is noteworthy that, contrary to theirconventional negativism, the Supreme Court and other courts have actively and promptly, or even inadvance, addressed many of them, with the result of remarkable developments of judicial precedents.
Although the courts adopted such new precedents apparently in anticipation of Saiban-in trials, they did
so technically by interpreting related statutory provisions that apply to all cases, including those to be triedby professional-judge courts. Therefore, the new precedents impact the whole system. At the same time, theyin turn have brought about further challenges that call for serious efforts to cope with.
2. Disclosure of Evidence
Disclosure of evidence had long been a matter of heated disputes before the new system was adopted by
the 2004 revision of the CCP. Under the new system, the defense may have a three-phased disclosure ofevidence from the prosecution in the course of the pretrial arrangement procedure82. First, the prosecutor
shall submit to the defense a document describing the facts he/she plans to prove and disclose all theevidence he/she has requested to examine, including some written record of investigative questioning or adocument indicating how each prosecution witness is supposed to testify at trial. Second, upon the request of
the defense, the prosecutor shall disclose to the defense several categories of evidence (tangible evidence,
results of expert examination, recorded former statements of the defendant as well as prosecution witnessesetc.) deemed important to evaluate the credibility of the prosecutionʼs evidence, if the prosecutor deems it
appropriate considering the extent of necessity for the defense and the extent of possible harm the disclosure
might cause. Third, when the defense requests after revealing the facts they plan to prove and otherallegations they intend to make, the prosecutor shall disclose to the defense the evidence which is deemed
relevant to those facts and allegations if the prosecutor deems it appropriate based on similar considerations.
The defense, if discontented with the prosecutorʼs disclosure or non-disclosure at any phase, may request
review by the trial court (the professional judges in the Saiban-in cases), which may order the prosecutor todisclose particular evidence to the defense if it is deemed appropriate83.
In practice, it is reported that the public prosecutorsʼ offices use their discretion generously to disclose theevidence much earlier and more widely than required by law, and that the defense will have access to any
evidence they would need in most cases.
E.g., Zadankai, Saiban-in Seido no Genjo to Kadai (Round-table Talk, Present Situation and Challenges of the Saiban-in System)
HO NO SHIHAI No. 177 (2015), pp. 39-41 (remarks of Yukihiko Imasaki and Yutaka Osawa).
82
CCP arts. 316-13 through 316-20.
83
CCP arts. 315-25 through 315-27.
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Still, there remain several points at issue. One of them is whether the disclosure required by law is limited
to the evidence which is actually in the custody of the prosecutor. Although some concerned lawyers opined
differently, the drafters of the new disclosure procedure apparently had such evidence in mind84.
Therefore, it is rather amazing that in 2007 and 2008 the Supreme Court, emphasizing the purpose of thedisclosure procedure, adopted a liberal interpretation that items (such as the police officersʼ memoranda of
their questioning of the suspect) not filed in the prosecutorsʼ office also should be subject to disclosure as longas it had been made or obtained during the investigation of the instant case, and was in the custody of a public
official and easily obtainable for the prosecutor85. Discussions have been continuing on how far the scope ofthe decision extends.
Defense lawyers have kept demanding a list of all the evidence in the prosecutorsʼ custody to be disclosed
at an early stage of the pretrial arrangement procedure so that they could make their requests for disclosure
more effectively. This demand would eventually become accepted in large part by the subsequent criminal
justice reforms as described later in Section V.
3. Law of Evidence(a) Overview
After the current CCP adopted such evidentiary rules as the exclusion of involuntary confession and thatof hearsay evidence86, which were totally novel at that time, Japanese scholars and lawyers eagerly studied
the American law of evidence. Since then, various basic principles of American evidentiary law have beenshared commonly in the Japanese legal world. Many pages in criminal procedure textbooks and many hours
in criminal procedure classes at law schools are spared on the law of evidence.
As a matter of fact, there have been few substantial developments in the actual evidentiary rules otherthan the original exclusionary rules of illegally obtained evidence and confession that the Supreme Court andlower courts have adopted87. I suppose this might be attributable largely to the lack of lay participation
because professional judges, who are authorized both to admit and to evaluate the evidence, prefer handling itat their discretion to being bound by inflexible rules.
However, the introduction of the Saiban-in system changed such structure. Participating lay persons must
be protected from possible prejudicial effects of inadequate evidence and guided by appropriate rules of proof
so that they could properly determine the facts of the case.
On such recognition, the Supreme Court of Japan and other high courts have been actively making newcase law on evidence as follows.
(b) Proof beyond a reasonable doubt
In the five-year preparation for the enforcement of the Saiban-in Act, judges, lawyers and scholars haveelaborated how to instruct or explain to participating lay citizens about difficult legal norms and terms inplain language so that they can understand the elements of each charged offense as a prerequisite for theirfact-finding as well as various principles of criminal procedure. Among others, proof beyond a reasonable
doubt was one of the hardest.
A model instruction used in the Tokyo District Court describes, “(a)lthough we cannot ascertain in person
if a particular fact existed in the past, ̶you shall find the defendant guilty in cases where, assessing inaccordance with common sense, you are convinced that he/she committed the indicted offense. On thecontrary, you shall find the defendant not guilty if, assessing in accordance with common sense, you have a
doubt about his/her guilt.”
E.g., Hiroyuki Tsuji, Keijisosho-ho no Ichibu wo Kaiseisuru Houritsu nitsuite (Commentaries on the Act to Revise Several Partsof the Code of Criminal Procedure) (2), HOSO JIHO Vol. 57, No. 8, p. 2311.
85
Sup. Ct. (3rd Petty Bench) decision of Dec. 25, KEISHU Vol. 61, No. 9, p. 895; Sup. Ct. (1st Petty Bench) decision of Sep. 30, 2008,
KEISHU Vol. 62, No. 8, p. 2753.
86
CCP arts. 319 and 320.
87
E.g., Sup. Ct. (1st Petty Bench) judgment of Sep. 7, 1978, KEISHU Vol. 32, No. 6, p. 1672; Tokyo High Court judgment of Sep. 4,
HANREI JIHO No. 1806, p. 144.
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Anticipating the enforcement of the Saiban-in Act, the Supreme Court itself indicated in advance in 2007
that proof beyond a reasonable doubt does not mean the nonexistence of any possibility of opposite facts, andthat, even when there is room to doubt if opposite facts exist as a matter of abstract possibility, the defendant
could be found guilty as far as, according to sound social common sense, such doubt is deemed to lackreasonableness88.
While it is not certain how effective such instructions are, I suppose that hours of group deliberation
among all the members of the court based on repeated explanation by the professional judges from an earlystage of the trial should help ease the hardship Saiban-in might feel in forming their own judgment.
(c) Proof by circumstantial evidence
The hardship for Saiban-in in this respect, if any, must be much bigger in cases where the proof of guilt
relies entirely on circumstantial evidence. As a matter of fact, there has long been a controversy even amongprofessional judges, lawyers and scholars about what should be required to fulfill the standard of proof
beyond a reasonable doubt in such a case. While one school of thought would think it sufficient if the court,
assessing comprehensively all the circumstantial evidence, reaches the judgment that the defendantʼs guilt isproved beyond a reasonable doubt, others would demand proof of at least one fact which is unexplainable
unless the defendant actually committed the charged offense.
Apparently in anticipation of the possible confusion such controversy could cause to Saiban-in trials, theSupreme Court declared in 2010 that a fact unexplainable or extremely difficult to explain unless thedefendant was the perpetrator of the charged offense must be included among the facts proved bycircumstantial evidence89.
Although there are divisions of opinion about the appropriateness of this ruling, it has actually had anevident effect on subsequent Saiban-in trials. As a matter of fact, right after the Supreme Courtʼs judgment, adefendant charged with robbery and murders of an elderly couple was found not guilty for the very reason
that such an unexplainable fact as required by the Supreme Court ruling was not included in the facts provedby circumstantial evidence. The Saiban-in trial court acquitted the defendant, despite the findings that his
fingerprints and cell debris found at the crime scene in the victimsʼ house aroused strong suspicion of his
breaking in and ransacking the house around the time of the robbery and murders in question and that his
total denial of entering the house was a lie90.
In another case, in which the Saiban-in trial court had convicted the defendant for setting fire to a car
owned by her loverʼs wife on circumstantial evidence, the appellate court reversed the conviction and found
her not guilty on the grounds that any fact proved by circumstantial evidence could be reasonably explainedeven if she was not the arsonist.91(d) Exclusion of similar fact evidence
In reference to the Anglo-American law of evidence, it has long been almost an established theory thatsimilar fact or bad character evidence such as the defendantʼs previous convictions for, or criminal records of,similar offenses should not be admissible to prove his/her guilt unless it involves a significantly characteristic
modus operandi common to the instant case or it is used for a limited purpose of proving the defendantʼscriminal intent when his/her committal is proved by other evidence.
Actually, it was not necessarily clear where to draw the dividing line between the principle and its
exceptions in a concrete case.
In a cause célèbre where the defendant was charged with killing four neighbors and injuring many others
by serving them arsenic-poisoned curry and rice at a local festival, the prosecutors produced as a evidence ofher guilt the proof that she had attempted to murder her husband and an employee for insurance money byserving them foods containing arsenic repeatedly. The prosecutors also produced the proof that she hadSup. Ct. (1st Petty Bench) decision of Oct. 16, 2007, KEISHU Vol. 61, No. 7, p. 677.
Sup. Ct. (3rd Petty Bench) judgment of Apr. 27, 2010, KEISHU Vol. 64, No. 3, p. 233.
90
Kagoshima Dist. Ct. judgment of Dec. 10, 2010, HANREI HISHO L06550725.
91
Fukuoka High Ct. judgment of Nov. 2, 2011, HANREI HISHO L06620534.
88
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served foods containing arsenic or sleeping drug to her acquaintances for the same purpose. Despite thedifferences in the motive and other circumstances from the instant case, the trial court consisting ofprofessional judges admitted them92 and found the defendant guilty, inferring her committal from the facts ofher three attempted murders and one previous similar act involving the use of arsenic on top of othercircumstantial evidence. The appellate court found inappropriate the admission of the proof concerning theuse of sleeping drug, but still affirmed the trial courtʼs judgment93.
After the introduction of the Saiban-in system, however, courts have become more conscientious and selfrestrictive about the problem.
In a case involving alleged trespass, theft and arson, the defendant admitted he stole into the victimʼsempty apartment and took a small amount of money, but denied his involvement in setting fire there, though
it happened within the same six-hour time range before dawn. The professional judges of the Saiban-in trial
court rejected the prosecutionʼs proof of his involvement in the arson by the facts that he had been convicted
some 17 years earlier for at least 10 cases of similar trespass, theft and arson, and the court found him not
guilty on the charge of the arson. This judgment was reversed by the appellate court, which found thedefendantʼs previous convictions for similar offenses admissible because of their similarity to the instant caseboth in terms of his habit of setting fire to heating oil in the dwelling and in his frustration over the lack ofvaluable property within the dwelling as the motive for doing so94.
On appeal, however, the Supreme Court quashed the appellate court judgment, proclaiming that theevidence of the defendantʼs previous convictions for similar offenses should not be admitted to prove hiscommittal of the charged offense unless the previous criminal acts had such significant characteristics
considerably similar to the charged criminal act as to enable by themselves a reasonable inference that theidentical person committed both the former and the latter offenses. Such evidence, the Court reasoned, tends
to lead to an empirically unfounded personal evaluation of the defendantʼs criminal tendency, which in turn
could cause a wrongful inference of the defendantʼs committal in the instant case95.
Five and a half months later, the Supreme Court further reconfirmed that the ruling should extend to thesimilar criminal acts other than the previous convictions of the defendant96.
These rulings, however, have left a difficult question: in what sense and to what extent the characteristics
common to the previous criminal acts and the charged criminal act must be significant before the exception
applies.
The difficulty is even more amplified when we take into account the concurring opinion of Justice
Kanetsuki to the second Supreme Court decision. He mentioned that a further exception could be admitted incases where a number of similar offenses repeated by the same defendant in the same short period of time as
the charged offense in question are indicted and tried simultaneously in the same proceedings97. As Justice
Kanetsuki was a prominent criminal law judge, its implication over the scope of the Supreme Court rulings
seems to demand detailed analysis98.
Indeed, a somewhat similar view to his indicated exception has been adopted by an appellate court inanother cause célèbre called “Metropolitan-area Serial Suspicious Death Cases.” The defendant was charged
Wakayama Dist. Ct. decision of Oct. 10, 2001, HANREI TIMES No. 1122, p. 132, sentencing the defendant to death.
Osaka High Ct. judgment of June 28, 2005, HANREI TIMES No. 1192, p. 186.
The defendantʼs jokoku appeal against the High Court judgment was rejected by the Supreme Court, which affirmed, without
any reference to the proof by similar facts, that the defendantʼs committal was proved beyond a reasonable doubt bycircumstantial evidence, including (1) the detection of arsenic of the same characteristic composition at the defendantʼs house,(2) that of arsenic component from her hair, (3) the fact that nobody other than the defendant had an opportunity to poison thecurry and (4) her suspicious behavior witnessed around the time and place of the offense. Sup. Ct. (3rd Petty Bench) judgment ofApr. 21, 2009, HANREI JIHO No. 2043, p. 153.
94
Tokyo High Ct. judgment of Mar. 29, 2011, HANREI TIMES No. 1354, p. 250, remanding the case to the Tokyo District Court
for a new Saiban-in trial.
95
Sup. Ct. (2nd Petty Bench) judgment of Sep. 7, 2012, KEISHU Vol. 66, No. 9, p. 907.
96
Sup. Ct. (1st Petty Bench) decision of Feb. 20, 2013, KEISHU Vol. 67, No. 2, p. 1.
97
Id., p. 5.
92
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with, among others, killing in a relatively short time period of eight months two middle-aged men, whom she
met on online dating sites and allegedly cheated them out of their money with a false promise of marriage,and one 80 year old man, whom she frequently visited and allegedly stole property from, by firing a briquetteto generate carbon monoxide gas inside a sealed car, apartment and house, respectively, where she allegedly
left her victims behind after drugging them with sleeping pills. At the trial, the defense rebutted, in vain, thatthe deaths of her two boyfriends possibly were suicides and the third victim possibly was killed by anaccidental fire in his dwelling. The Saiban-in trial court found her guilty on all the charges and sentenced her
to death99.
On appeal, the Tokyo High Court affirmed the trial court judgment, rejecting the defendantʼs challenge
against the prosecutorsʼ reference in the closing argument to a set of common features shared by all the threemurders: (1) that the defendant had prepared a large amount of briquettes and heating appliances in advance,(2) that she was the last person who saw the victim, (3) that the victim died of carbon monoxide poisoning, (4)that there remained at the scenes the same kind of briquettes and burning appliance as she had prepared, and(5) that she killed the victim by burning a briquette inside a sealed place after putting each victim to sleep.
The prosecutorsʼ argument that either of the defendantʼs criminal acts of special modus operandi, if proven,should be admissible as evidence of her committal of another criminal act of similar special modus operandi,
the High Court held, was not in contradiction with the above-mentioned Supreme Court rulings because thecommon features, when considered together, were strikingly similar to the criminal act to be proven.100
4. Appellate Review of Fact-Finding(a) Law and practice of appellate review before and after the introduction of the Saiban-in system
In the course of the justice system reform, there was a discussion whether an appellate court consistingexclusively of professional judges could be justified to review and reverse the guilty/not-guilty finding or asentence of the Saiban-in trial court solely based on documentary records without diminishing the purpose of
public participation.
In this regard, the CCP of 1948 made a drastic change to its criminal appeal system from the former law
under which the second instance court (mainly the High Court), on appeal (koso) would hold a huku-shin (newtrial) just the same way as the first instance trial court, while the highest Court of Grand Instance, on further
appeal (jokoku), would review, in principle, only legal issues involved in the lower court judgments anddecisions. As the Supreme Court, newly founded in place of the latter court, was assigned by the current
Constitution to carry out the most important task of reviewing the constitutionality of statutes and otherofficial actions101 as well as to unify judicial precedents only by fifteen Justices, it was mandated to shift thetask of reviewing ordinal legal issues onto the High Courts, of which works in turn also had to be reasonably
The Supreme Court rulings do not mean to further prohibit the production of the defendantʼs previous convictions or criminal
records of similar offenses as sentencing material. In this regard, a group of scholars and lawyers have been stressing thenecessity to bifurcate the trial hearing into two phases of guilt-finding and sentencing in order to prevent prejudicial influence ofsentencing materials on Saiban-in. However, a majority, with which I concur, prefers a more flexible solution. In uncontested
cases, it would be inappropriate to bother the same witness testifying on the matters relating to both guilt and sentence to show
up to the court multiple times. In contested cases, the hearing as well as the intermediate deliberation among the members of
the court could be divided into multiple phases, not necessarily the above two, but possibly more according to separate issues
raised in each case, by an appropriate exercise of discretion by the professional judges in the pretrial arrangement procedure.
Repeated instruction by the presiding judge also could help Saiban-in to save themselves consciously from possible prejudicial
influence of sentencing materials. As each Saiban-in is supposed to state the reason for his/her judgment in the deliberation, it
should be checked and corrected by other Saiban-in and professional judges even if any one of them had made his/her
judgment unreasonably. As a matter of fact, there have been no grounds to suspect such a flexible solution does not work. See
Hosei Shingikai Sin-Jidai no Keiji-shiho Seido Tokubetsu Bukai, Jidai ni sokushita Aratana Keiji-s Seido no Kihon Koso (Council
on Legislation Special Division on the Criminal Justice System in the New Era, Basic Plans for the New Criminal Justice System
Responding to the Demands of the Times) (Jan. 2013), p. 34 〔available at http://www.moj.go.jp/content/000106628.pdf〕; Homusho Saiban-in Seido ni kansuru Kento-kai, Torimatome Hokoku-sho (Ministry of Justice Deliberation Committee on the Saiban-in
System, A Summary Report) (June 2013), pp. 29-30 〔available at http://www.moj.go.jp/content/000112006.pdf〕.
99
Saitama Dist. Ct. judgment of Apr. 13, 2012, HANREI HISHO L06750221.
100
Tokyo High Ct. judgment of Mar. 21, 2014, LEX/DB 25503368, dismissing the defendantʼs allegation that the trial court
unlawfully failed to make the prosecutors correct their final argument to prevent prejudicial effect on the guilt finding by the
Saiban-in, though the trial court actually did not rely, at least explicitly, on the similar fact evidence as argued for by theprosecutors.
101
Const. art. 81.
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reduced and rearranged. Thus, although the koso appeal against trial court judgments for mistake of factfinding or inappropriate sentence is retained in the current CCP102, the task of the second instance court islimited principally to doing “jigo-shinsa” (post-fact review) on the basis of the trial records, whether suchprejudicial mistake of fact-finding existed in the trial court judgment or its sentence was inappropriate as theappellant asserts.
At the same time, however, the CCP allows the appellant to refer to, and the appellate court to take into
consideration, changes in circumstances subsequent to the trial court judgment (such as the conclusion of
settlement between the defendant and the victim) as a factor that might make the trial courtʼs sentence
inappropriate103. It further gives the appellate court discretion to conduct an ex officio inquiry whether there
were any other detrimental errors in the trial court judgment than those asserted by the appellant and, if
necessary, to examine new evidence that is not included in the trial record104.
While such challenges against the guilty/not-guilty finding or the sentence of the trial courts actuallyaccounted for the overwhelming majority of koso appeals105, the High Courts, especially from the 1960s,
actively exercised this discretion. Many of them unhesitatingly examined old and new evidence in addition to
the trial record and rendered their own decisions on the defendantʼs guilt or the sentence to be imposed
rather than remanding the case to the original first instance court, even when they quashed the latterʼs
judgment106. Critiques have pointed out that this form of appellate review in practice has substantiallyassumed the nature of “zoku-shin” (successive trial) on top of the first instance trial.
Considering this situation, it appeared even more doubtful whether appellate review of the guilty/notguilty finding or sentence of a Saiban-in trial court could be justified.
Despite such doubt, it was a majority opinion of the JSRC that appellate review is indispensable to remedy
mistakes of fact-finding and inappropriate sentences possibly caused even by Saiban-in trial courts107. And in
implementing the Councilʼs recommendation, the expert committee rather took a different approach of
substantially altering the above practice by inducing appellate courts to return to their originally intendedrole of post-fact review. Then, the appellate court, the committee thought, could be justified to reverse the
Saiban-in trial courtʼs judgment principally by carefully examining the trial record, a task which only
experienced professional judges would be qualified for.108 Hence there was no revision to relevant provisionsof the CCP.
Still, a very critical question had been presented to appellate court judges, asking how they actually could
and should execute their reviewing function properly while paying due respect to the judgment of the Saibanin trial court. Ever since the enactment of the Saiban-in Act, serious discussions had piled up109. Some people
stressed that appellate courts as the “last instance of facts” should not hesitate to fulfil their mission of finding
CCP arts. 381 and 382.
CCP arts. 382-2, 393, 397, sec. 2, added by the 1953 revision of the CCP.
104
CCP art. 392, sec. 2 and art. 393, sec. 1. See also Sup. Ct. (1st Petty Bench) decision of Sep. 20, 1984, KEISHU Vol. 38, No. 9, p.
2810, affirming the appellate courtʼs discretion to examine new evidence as far as it relates to the fact that existed before thetrial court judgement.
105
Among 76,199 criminal koso appeals disposed of by all the High Courts in the nine years from 2000 to 2008, 74,066 (97.2%)
were those filed only by the defendants and 496 by both parties. 54,267 (72.8% of their total) were for the reason of inappropriate
sentence and 18,717 (25.1%) for the reason of mistake of fact-finding. Saiko Saibansho Jimu-sokyoku, Shiho Tokei Nenpo 2: Keijihen (General Secretariat of the Supreme Court, Annual Reports on Judicial Statistics, Part 2: Criminal Cases), 2000-2008, Table
44.
106
In 54,391 (71.4%) of all criminal koso appeal cases disposed of in the above nine years, appellate courts engaged themselves in
examination of the facts, including the questioning of the defendant (31.2%), examination of documentary or tangible evidence(34.55) or hearing of the witnessesʼ testimony (14.6%). As the result of these appellate reviews, trial court judgments were
quashed in 11,027 cases (14.5%), among which only 106 (0.14%) were remanded to the original or other first instance trial court.
Id., Tables 45 and 48.
107
Recommendations of the JSRC, supra note 34, Chap. IV, Part. 1, 1(4)c.
108
Masahito Inouye, “Kangaerareru Saiban-in Seido no Gaiyo nitsuite” no Setsumei (Commentaries on the Chairperson’s
Tentative Draft “the Outlines of a Thinkable Saiban-in System”) (Oct. 28, 2003), Part 3, 5〔available at http://www.kantei.go.
jp/jp/singi/sihou/kentoukai/saibanin/dai28/28siryou3.pdf〕.
109
Cf. Sukeaki Tatsuoka, Joso-shin no Arikata (How the Appellate Review on the Saiban-in Trial Court’s Judgment Should Be),
RONKYU JURIST No. 2 (2012), pp. 77 et seq.
102
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the true facts and securing justice being done even in Saiban-in cases. Others who would pay maximum
respect to the results of Saiban-in trials, in contrast, demanded limited appellate review, under which theappellate court could or should not reverse the Saiban-in trial court judgment unless its fact-finding involves
substantial violation of rules of inference or thumb, or its sentence evidently exceeds a reasonably allowable
range.
As a matter of fact, for a couple of years right after the beginning of Saiban-in trials, prosecutors rarely
filed an appeal against the Saiban-in trial court judgment, and appellate courts also were very careful inintervening in them110. As a growing number of contested, as well as uncontested, cases involving serious
offenses that might result in heavy sentences were put to Saiban-in trials in the following years, more appeals
were filed against their results, even by prosecutors, and appellate courts also began intervening more
actively, though it was most often for the reason of subsequent circumstances affecting the sentence thatthey quashed Saiban-in trial court judgments (Figures 11, 13, 15111.). Thus, the issue became more realistic
and urgent to resolve. Then in 2012, the Supreme Court at last defined its position for a limited appellate
review on possible mistake of fact-finding in the Saiban-in trial court judgment.
(b) Supreme Court judgment of 2012
As the result of customs inspection at the Narita International Airport, it was detected that the defendant,
an arriving passenger from Malaysia, carried three chocolate boxes containing some 1 kg of methamphetamine in his bag. He was charged for smuggling the stimulant drugs at the request of his acquaintance, but hedisputed his awareness of the contents of the chocolate boxes. He asserted that, in Malaysia where he went topick up a forged passport on behalf of that acquaintance, he was asked by a local person to bring the
chocolate boxes back to Japan as a souvenir. Despite the prosecutionʼs circumstantial proof that thedefendant was compensated for his travel to Malaysia by the person who had been indicted for smuggling
stimulant drugs, that he actually brought back the chocolate boxes containing stimulant drugs, that the boxes
were noticeably heavier that those containing only chocolates, and that he had behaved suspiciously during
the customs inspection, the Saiban-in trial court found him not guilty because the court could not become“certain according to common sense” that he was aware of the illegal drug being contained in the chocolateboxes (Chocolate Box Case)112.
Acquittals for similar reasons in several Saiban-in trials involving similar stimulant drug smuggling
followed this113, shocking public prosecutors and investigative agencies who had never imagined that such an
excuse as asserted by the defendant could be accepted by the court contrary to their “common sense.” Theirarguments against these trial court judgments were accepted by several appellate courts, which reversed thejudgments, including the one in the above Chocolate Box Case114. In most of those cases, appellate courts
found the defendants guilty, coming to the opposite conclusion based on their evaluation of the circumstantial
evidence.

Probably thanks to a series of serious discussions among appellate court judges about the right way of executing theirreviewing power, they seem to have become more careful not to overstep their basic role of post-fact review. For instance,
according to the official judicial statistics, the rate of the cases in which appellate courts examined facts dropped from 75.1% in2000 down to 47.6% in 2016. Saiko Saibansho Jimu-sokyoku, Shiho Tokei Nenpo 2: Keiji-hen (General Secretariat of the Supreme
Court, Annual Reports on Judicial Statistics, Part 2: Criminal Cases), 2000̶2016, Table 45. But, also note the latest symptom of
possible change described on page 93.
111
Saiko Saibansho Jimu-sokyoku, Saiban-in Saiban no Jissi-jokyo ni kansuru Sioryo Heisei 21-nen〜28-nen (General Secretariatof the Supreme Court, Materials on the Enforcement Situation of Saiban-in Trials, 2009—2016), Tables 69, 72 through 74.
112
Chiba Dist. Ct. judgment of June 22, 2010, KEISHU Vol. 66, No. 4, p. 549.
113
Until the end of March 2018, 33 defendants have been totally acquitted in cases involving stimulant drug offenses (see Table10); the acquittal rate (that of the totally acquitted defendants among those tried by Saiban-in trial courts) is 3.75%, much higher
than that (0.75%) in the Saiban-in trial cases in general. Table 10 and Saiko Saibansho Jimu-sokyoku, supra note 9, p. 4. The
number of acquittals by Saiban-in trial courts in stimulant drug cases must become larger when the partial acquittals in
multiple-count prosecutions are counted.
According to an official statistical study, the acquittal rate of Saiban-in trials was 0.47% (0.74%, counting in partial acquittals) ingeneral and 2.33% (2.62%) in stimulant drug cases in the three years after the enforcement of the Saiban-in Act while that ofprofessional judge trials involving the same categories of offenses was 0.6% (0.86%) in general and 0.56% (1.7%) in stimulant drugcases in the preceding three years. Saiko Saibansho Jimu-sokyoku, supra note 74, p. 46.
114
Tokyo High Ct. judgment of Mar. 30, 2011, KEISHU Vol. 66, No. 4, p. 559, finding the defendant guilty and sentencing him to
imprisonment for 10 years.
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The Supreme Court, however, quashed the appellate court judgment in the Chocolate Box Case115. On thebasic understanding that an appellate review of possible mistake of fact-finding in the trial court judgment
generally should be conducted from the viewpoint of whether the trial courtʼs evaluation of the credibility ofeach piece of evidence or its comprehensive assessment of all the evidence was unreasonable such as being inviolation of rules of inference or thumb, the Supreme Court stressed that such a limited approach should beobserved especially in relation to Saiban-in cases. The appellate court judgment in the instant case, the Court
concluded, failed to demonstrate concretely that the trial courtʼs fact-finding was unreasonable according torules of inference or thumb.
Thus, the controversy was settled theoretically. However, it is doubtful if the hardship for appellate court
judges has actually been eliminated or reduced. As a matter of fact, the appellate court judgments reversing
the acquittals in three other stimulant drug smuggling cases were, in contrast, affirmed subsequently by theSupreme Court116.
In the first case, the defendant, a foreigner coming recently from Mexico, allegedly attempted to receive
two cardboard boxes containing 6 kg of methamphetamine which his unknown accomplice had sent by air
freight from Mexico. The Saiban-in trial court, conceding that the defendant had a guess about the contentsof the air cargo when he was ordered by an organized crime member to receive it in Japan, found him not
guilty on the grounds that there remained a reasonable doubt about the existence of the conspiracy between
him and the alleged accomplice, which was not deemed “certain according to common sense.”117 Theappellate court reversed this judgment for the reason of the unreasonable fact-finding in contradiction withthe rules of thumb, according to which, in the appellate court opinion, a tacit agreement between them wasreasonably inferred from the facts that the defendant had received air tickets, a considerable amount ofcompensation as well as a portable computer for communication from the organized crime member andactually communicated with that person around the time of his arrival in Japan, in addition to the fact that he,being aware that the air cargo probably contained stimulant drugs, had agreed and actually attempted toreceive it in Japan at the request of that person118.
The second case was more similar to the above Chocolate Box Case in terms that the Saiban-in trial court
denied the defendantʼs awareness of some 2.5 kg of methamphetamine contained in his suitcase which was
detected by customs inspection on his arrival from Uganda by way of Benin and Paris. Conceding that the
involvement of an organized crime group was inferred from the quantity as well as the artful concealment of
the stimulant drugs, the court deemed it conceivable that some group member asked the defendant totransport the suitcase without letting him know its contents or its recipient in Japan119. The appellate court
found it against the rules of thumb to think that some organized crime group dared to enlist the defendant totransport the suitcase containing that amount of illegal drugs such a long way, bearing his travel expenses,
but without telling him the name of the recipient or the destination, and inferred from these and other facts
that he was aware that some illegal drugs were probably contained in the suitcase120.
The prosecution of an Iranian defendant in the third case for masterminding a conspiracy of smuggling
stimulant drugs for profit also arose from the detection of some 4 kg of methamphetamine as the result of
airport customs inspection of the suitcase of an arriving passenger (“D”) from Turkey. To prove thedefendantʼs guilt, the prosecution presented the statement of an alleged accomplice “A” that he engaged
himself in several activities to further the criminal enterprise at the defendantʼs command, the phone logs ofthe defendant, “A” and other accomplices which indicated frequent telephone communications among them,as well as the facts that the defendant went to the airport each time when stimulant drug carriers recruited
by “A” were supposed to arrive there over the preceding year and that the defendant earned a large amount
Sup. Ct. (1st Petty Bench) judgment of Feb. 13, 2012, KEISHU Vol. 66, No. 4, p. 482.
Sup. Ct. (3rd Petty Bench) decision of Apr. 16, 2013, KEISHU Vol. 67, No. 4, p. 549; Sup. Ct. (1st Petty Bench) decision of Oct.
21, 2013, KEISHU Vol. 67, No. 7, p. 755; Sup. Ct. (1st Petty Bench) decision of Mar. 10, 2014, SAIBANSHO JIHO No. 1599, p. 2.
117
Tokyo Dist. Ct. judgment of July 1, 2011, KEISHU Vol. 67, No. 4, p. 632.
118
Tokyo High Ct. judgment of Dec. 8, 2011, KEISHU Vol. 67, No. 4, p. 637, finding the defendant guilty and sentencing him to
imprisonment for 12 years.
119
Chiba Dist. Ct. judgment of June 17, 2011, KEISHU Vol. 67, No. 7, p. 853.
120
Tokyo High Ct. judgment of Apr. 4, 2012, KEISHU Vol. 67, No. 7, p. 858, finding the defendant guilty and sentencing him to
imprisonment for 10 years.
115
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of money in that period. The Saiban-in trial court, however, found the defendant not guilty on the reason thatthe statement of “A” was not reliable because of several inconsistencies with the call histories recorded in thephone logs. Based upon the statements of “D” and another accomplice that they heard a strange voice of somemale beside “A” when they talked with him on the phone and some other circumstantial evidence, the court
also mentioned that the charged smuggling possibly was commanded by a different person121. Quite
contrarily, a detailed analysis of the same evidence and some others led the appellate court to the findings (1)that the call histories lead to the strong inference that many of the telephone calls were related to thesmuggling and were consistent in large part with the statement of “A,” and (2) that the existence of an
unknown ringleader as mentioned by the trial court was only an unsupported abstract possibility. The trial
courtʼs contrary fact-finding and resulting denial of the defendantʼs involvement, the appellate court
concluded, were unreasonable according to rules of thumb122.
The Supreme Court affirmed all of the three appellate courtsʼ reversals of trial court judgments as
supported by a concrete demonstration that each trial courtʼs fact-finding was unreasonable in contradiction
with rules of thumb.
(c) Significance of the Supreme Court rulings
However, it is unclear how consistent the conclusions in the Chocolate Box Case and the three other cases
are. Although “rules of inference or thumb” were evidently the common key factors in these rulings, theSupreme Court did not specify what rules of inference or thumb were in question in each case. Even if we
could clarify it by a detailed analysis, it cannot be generalized or applied to other cases, because what rules ofinference or thumb, especially the latter, are relevant must vary in each case, depending on what fact is to be
proved, through what inference process and from what evidence.
Therefore, it has been left to the courts engaged in each individual case. Appellate court judges are
required to specify the applicable rules of inference or thumb so that they can exercise their authority toreview the trial courtʼs fact-finding appropriately in accordance with the Supreme Court rulings. The trial
court judges in their turn, in anticipation of possible appellate review, are supposed to have, and in Saiban-in
trials to make Saiban-in share, a clear idea of what, if any, rules of inference or thumb they should refer to in
their fact-finding in each individual case on trial. This does not seem to be an easy task for any of them.
Nevertheless, rather amazingly, the official judicial statistics indicate that appellate courts have not
become hesitant, but even a bit more active, in reviewing and reversing the fact-finding of Saiban-in trial
courts after the above Supreme Court rulings (Figure 15), which possibly have made them more confident inexecuting their reviewing power over the judgments of Saiban-in trial courts.
Moreover, the Supreme Court in subsequent cases either quashed or affirmed the appellate court
judgments that reversed professional judgesʼ as well Saiban-in trial courtsʼ convictions or acquittals ofdefendants, by checking if each appellate court complied with the requirements for reversal imposed by theabove Supreme Court rulings, without specifying what “rules of inference or thumb” were in question in eachcase123. The Court even quashed both the appellate court and the professional-judge trial court judgmentsthat convicted the defendant for stealing money out of the envelope the victim left on a desk in a bank. The
fact-finding of either court, in the Courtʼs majority opinion, was not reasonable “in violation of the rules ofinference or thumb” in termies of easily inferring the existence of the money in the envelope solely from the
Osaka Dist. Ct. judgment of Jan. 28, 2011, HANREI HISHO L06650051.
Osaka High Ct. judgment of Mar. 2, 2012, KOSAI KEIJI SOKUHOSHU 2012, p. 181, remanding the case to the Osaka District
Court for a new Saiban-in trial.
123
Sup. Ct. (1st Petty Bench) judgment of Mar. 20, 2014, KEISHU Vol. 68, No. 3, p. 499 (quashing the appellate court judgmentthat reversed the professional judge trial courtʼs conviction of the defendant for abandonment of a mentally disturbed person in
their custody resulting in death); Sup. Ct. (1st Petty Bench) decision of June 8, 2014, HANREI TIMES No. 1407, p. 75 (affirming
the appellate court judgment that reversed the professional judge trial courtʼs conviction of the defendant for murder and aforcible obscene act resulting in death); Sup. Ct. (3rd Petty Bench) judgment of Mar. 18, 2016, SAIBANSHU KEIJI No.319, p. 269(quashing the appellate court judgment that reversed the professional judge trial courtʼs acquittal of the defendant for negligent
homicide while driving); Sup. Ct. (1st Bench) decision of Dec. 25, 2017, SAIBANSHO JIHO No.1691, p. 51 (quashing the appellate
court judgment that reversed the Saiban-in trial courtʼs conviction of the defendant for assisting to attempted murder); Sup. Ct.
(2nd Petty Bench) judgment of Mar. 19, 2018, SAIBANSHO JIHO No. 1696, p. 95 (quashing the appellate court judgment thatreversed the professional judge trial courtʼs acquittal of the defendant for abandonment of her underdeveloped child).
121
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ambiguous testimonies of the victim and her mother, and concluding that only the defendant could havestolen it despite of the bankʼs CCTV video of the scene that did not clearly demonstrate the defendantʼs
conduct124. But here, neither the majority specified the key phrase any further,
Careful and detailed analysis will be needed to see if the higher courts have been executing theirreviewing authority appropriately and consistently in substantial accordance with the Supreme Court rulings
rather than just giving a case-by-case ad hoc evaluation with the nominal use of the above key phrase as amere cliché.
5. Sentencing and Its Appellate Review(a) Difficulties for Saiban-in
One of the motives for the introduction of the Saiban-in system was the public opinion that sentencing byprofessional judges from time to time differed from regular citizensʼ sense of justice. Hence the Saiban-in aresupposed to engage themselves also in sentencing so that it would reflect a public sense of justice more
keenly.
As a matter of fact, the Japanese Penal Code, in this regard, defines each offense in relatively
comprehensive ways. For instance, it does not divide a murder into several ranks such as first degree, second
degree and so on like in some other countries. And a wide range of penalties is prescribed for each offense. A
murder, as well as residential arson, for instance, is punishable by the death penalty, life imprisonment or
imprisonment for not less than five years and not more than twenty years125.
In the conventional practice of professional-judge trial courts, a “market price,” or a rough range of usual
sentences, has been built up according to nature, type and other principal factors of the offense and theoffender. But such customary, unwritten standards are not shared by Saiban-in who participate in criminal
trials for the first time and, probably, only once in their lifetimes. It is not easy for them to form their own
opinions about what is the right sentence for a particular defendant within the wide range of penalties
prescribed by law. It must diminish the meaning of Saiban-inʼs participation if the professional judges would
lead them to follow the conventional “market price.” But at the same time, it must be inappropriate if, due tothe case-by-case, ad hoc decision-making of Saiban-in courts, sentences would vary significantly among thecases of similar natures. As mentioned earlier, an appeal can be filed against an inappropriate sentence by a
Saiban-in trial court because reasonable and objective decision-making as well as equal treatment is requiredin sentencing. Hence, it became very crucial to consider how we could effectively achieve these twin goals.
(b) Sentencing data search system
The General Secretariat of the Supreme Court confronted the challenge by developing the “Ryokei
Kensaku System”,126 a system of sentencing data retrieval by computer. Under that system, a range anddistribution of sentences in similar cases, defined by more than ten key factors such as premeditation,
motives, modus operandi, use of weapon, number of victims, defendantʼs relationship with the victim and soon, can be retrieved from the database of all the sentencing records after April 2008. If needed, the result ofsuch retrieval will be provided in graphic forms to all the members of Saiban-in trial courts as a reference for
their sentencing deliberations. This system is available also for prosecutors and defense counsel, who canrefer to similar retrieval results in forming their opinions on sentencing.
This system could contribute to achieving the above twin goals wisely, at least under two conditions.
First, the retrieval result provided to Saiban-in itself must be reasonably relevant to the sentencing in the
instant case. For that, it is important to select appropriate key factors to specify effectively the range ofsimilar cases from which sentencing data will be retrieved. Second, the results should not have undue effectof depriving Saiban-in of their own initiative to form and express their opinions on sentencing. For that, weneed to define how the Ryokei Kensaku System should be used in the course of sentencing deliberation.

Sup. Ct. (2nd Bench) judgment of Mar. 10, 2017, SAIBANSHU KEIJI No. 321, p. 1.
Penal Code arts. 199 and 108, respectively.
126
Cf. Munehisa Sugita, Ryokei-Jijitsu no Shomei to Ryokei-Shinsa (Proof of the Facts, Hearing and Deliberation for Sentencing),
RYOKEI JITSUMU TAIKEI, Vol. 4 (Osaka Keiji-jitsumu Kenkyuukai ed., 2011), pp. 210-13; Katsunori Ohno, Saiban-kan kara
Mita Saiban-in Saiban Seido (Saiban-in Trial System from the Viewpoint of a Judge), HO NO SHIHAI No. 177 (2015), p. 61.
124
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VISITING EXPERTSʼ PAPERS(c) Theoretical framework of sentencing
In this regard, it was rather common in conventional practice that trial courts, in their reasoning forsentence, referred to various factors, including not only those related to the criminal act itself, but also thepersonal background of the defendant, his/her attitudes subsequent to the criminal act as well as the
response of the victim and the general public, without any reasoned order or distinction. But, for the above
purposes, we need to have a firm theoretical framework to clarify what factors, in what order and how, theyshould consider in sentencing.
Serious discussions on that subject among concerned judges, lawyers and scholars produced a fruitfulreport of a semi-official study group127. On the recognition that, under the current Japanese law, the sentence
for each convict should be assessed basically according to his/her criminal responsibility, the report stressed
that, as the first step of sentencing, we should fix the basic range of sentence considering the factors relevantto the convictʼs criminal responsibility, such as the manner and results of his/her criminal act, his/her motiveor purpose, and circumstances that led to the criminal act and so on. Any other factors, including the convictʼs
personal background and subsequent attitudes, victimʼs feelings, and public response, should be ranked as
subsidiary considerations; those factors may be considered only in deciding the final sentence within theabove basic range of sentence. This framework, which represented a majority understanding, has been wellreceived by many judges and lawyers.
(d) Actual situation and appellate review of sentencing by Saiban-in trial courts
How, then, have the Saiban-in trial courts actually performed in their sentencing? According to an
official statistical study, Saiban-in trial courtsʼ sentences in general do not seem to differ substantially fromthe sentences by previous professional-judge trial courts in the same categories of cases, except for the cases
involving sex crimes, in which heavier sentences are imposed by Saiban-in trial courts probably reflecting therecent public indignation against those crimes (Figures 16-1 through 16-5128). As before, Saiban-in trial
courts also most often impose imprisonment on convicted defendants for approximately a 20% to 25%
diminished time period from the recommendation of the prosecutor, though it sometimes happens that the
Saiban-in trial court imposes heavier or notably lighter sentences than recommended by the prosecutor.
Although appellate courts, respecting the purpose of the Saiban-in system, strictly restrained themselvesfrom intervening in the Saiban-in trial courtsʼ sentencing for the first few years, they began exercising theirreviewing power especially in cases where, in their opinions, an inappropriately heavier sentence had been
imposed. However, it seemed that they were searching for the right limit and standards for their intervention
until the Supreme Court indicated a basic policy on sentencing and its appellate review in 2014.
(e) Supreme Court judgment of 2014
In the case where a young couple was charged with abusing their infant daughter resulting in death, theSaiban-in trial court found them guilty and, stressing the growing social demand for protecting children fromdomestic abuse, sentenced both of them to 15 yearsʼ imprisonment, which surpassed the 10 yearsʼ
imprisonment recommended by the prosecutor129. These sentences were affirmed by the appellate court,
which did not deem them as inappropriate130.
However, the Supreme Court quashed both the trial courtʼs and appellate courtʼs judgments, sentencing
the husband to ten yearsʼ imprisonment and the wife to eight yearsʼ imprisonment131. The Court declaredthat general trends or precedents of sentence for each type of offense should be considered as a first guide insentencing deliberation to attain objectivity and equal treatment. Respecting the purposes of the Saiban-insystem, the Court conceded that Saiban-in trial courts might be permitted to change or deviate from thecustomary standards by reflecting sound social commonsense, but it could be permitted, the Court stressed,
only if they could demonstrate reasonable grounds to justify it. Apparently based on the theoreticalframework of sentencing presented by the above study group report, the Court concluded that the Saiban-in
Makoto Ida et al., Saiban-in Saiban niokeru Ryokei Hyogi no Arikata nitsuite (On How the Sentencing Deliberation in Saibanin Trials Should Be) (the Judicial Training and Research Institute, 2012).
128
Saiko Saibansho Jimu-sokyoku, supra note 74, Figures 52-1, 52-3, 52-4, 52-7 and 52-8.
129
Osaka Dist. Ct. judgment of Mar. 21, 2012, KEISHU Vol. 68, No. 6, p. 948.
130
Osaka High Ct. judgment of Apr. 11, 2013; id., p. 954.
131
Sup. Ct. (1st Petty Bench) judgment of June 24, 2014; id., p. 925.
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trial court did not successfully demonstrate reasonable grounds because such factors as the growing social
demand for protecting children from domestic abuse, which should be ranked as a subsidiary factor in thatframework, were not significant enough for that purpose.
(f) Significance of the Supreme Court ruling
Thus, the Supreme Court defined its position by giving priority to the objective reasonableness and equal
treatment in sentencing in general and extended it to Saiban-in trials as well by indicating the significance of“general trends or precedents” as a first sentencing guide.
Although, theoretically, the Court left room for Saiban-in trial courtsʼ innovation in changing or deviatingfrom the customary standards, it is doubtful if the courts actually could do so successfully. The basic range ofsentence, under the above theoretical framework, must be fixed by the highest ranked, mostly objective
factors relevant to the convictʼs criminal responsibility, of which significance will hardly be evaluated in a
substantially different way even by reflecting “sound social common sense,” compared to other subsidiary
general circumstances such as the defendantʼs subsequent attitudes, victimʼs feelings, and public response.
6. Sentencing in Capital Cases(a) Background
Most serious, among others, is sentencing in capital cases. As a matter of fact, there has been an argumentthat it is too heavy a burden for Saiban-in to involve themselves in deciding life or death of a defendant who isin their presence in court, at the same time taking into consideration the horrible scene of victimization as
well as the rage of the victimʼs family presented to them. But for the very reason that it is the most serious
matter, citizens should be asked, and even entitled, to share the responsibility for making such decisions.
Considering there exist various opinions about the death penalty itself, their participation is desirable because
it enables decision-making to reflect various views among the public.
Still, it is undeniable that Saiban-in have a hard time to reach the final decision on sentencing in thesecases. Regarding such hardship, many more days are allocated for the final deliberations in capital cases.
A total of 35 defendants were sentenced to death by Saiban-in trial courts in the nearly nine years until
the end of March 2018132. Although most of them involved the killing of multiple victims, there are four casesof single killing.
In this regard, previous courts had long adhered to the so-called Nagayama Standards indicated by theSupreme Court judgment of 1983133. In that judgment, the Court held that death sentences should bepermissible only when it is deemed “absolutely necessary” from the viewpoint of the extreme gravity of the
defendantʼs culpability, the proportionality of the punishment to the crime, as well as crime prevention, on
comprehensive assessment of various factors, including the number of victims killed. While there were single
killing cases in which the defendant was sentenced to death, almost all of them involved a premeditatedrobbery and murder, a murder for insurance money, a murder by a kidnapper or a convicted murderer onparole134.
Considering these facts, the above study group report suggested that even the Saiban-in trial courts
should respect precedents in sentencing in capital cases, where each person might have quite a different
opinion135.
(b) Supreme Court decisions of 2015
As if responding to the suggestion, the same division of the Tokyo High Court overturned the first two
death sentences by Saiban-in trial courts in single killing cases in 2013136. In the first case (Minami-AoyamaCase) where the defendant was found guilty of intentionally stabbing the sleeping victim to death with a
Saiko Saibansho Jimu-sokyoku, supra note 9, p. 4
Sup. Ct. (2nd Petty Bench) judgment of July 8, 1983, KEISHU Vol. 33, No. 6, p. 609.
134
Ida et al., supra note 127, pp. 110-115.
135
Id., p. 103
136
Tokyo High Ct. judgment of June 20, 2013, KO-KEISHU Vol. 66, No. 3, p. 1 (Minami-Aoyama Case); Tokyo High Ct. judgmentof Oct. 8, 2013, KO-KEISHU Vol. 66, No. 3, p. 42 (Matsudo Case).
132
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cooking knife he carried after stealing into the victimʼs condominium with the intent to commit robbery, theSaiban-in trial court imposed the death penalty in consideration of, among others, the fact that the defendant
had served a twenty-year imprisonment sentence for murdering his wife and young daughter until only a halfyear before the instant robbery and murder137. The Saiban-in trial court in the second case (Matsudo Case)found the defendant guilty of intentionally killing a female university student who came home after he broke
into her room to take her property and sentenced him to death, considering the facts that the defendantrepeatedly and cold-bloodedly stabbed the promising female student to death with strong intent, that hereturned to the crime scene the next day to conceal his offense by burning the room, that he committed serial
offenses of a dangerous nature such as robberies resulting in bodily injuries and robbery-rapes in neighboringareas in the same period, and that he never showed any remorse for his offenses138.
However, the defendantʼs previous conviction for murders in the Minami-Aoyama Case was, the Tokyo
High Court pointed out, of a different nature because he killed his wife after a quarrel and his daughter as aresult of an attempted double suicide, both without premeditation. Neither did the appellate court agree with
the Saiban-in trial courtʼs assessment of the above sentencing factors in the Matsudo Case in terms, among
others, that the murder of the victim itself was not premeditated and that the serial robberies in the same
period were not of the nature of endangering the victimʼs life.
As these appellate court judgments were sensationally reported by mass media and induced public
controversy139, the Supreme Court promptly defined their position in 2015140. On the recognition that thedeath penalty as an ultimate punishment must be applied very carefully and in such a way as to secure equal
treatment, the Court declared that, in sentencing deliberations on capital offenses, it is necessary to have acommon view, based upon precedent as the results of such careful applications, what factors should beconsidered as well as from what viewpoint and how each of them should be assessed for choosing the death
penalty. And, on the total assessment of those factors, the court must demonstrate concrete and persuasive
grounds to deem the death sentence “absolutely necessary” when they choose it. Stressing that Saiban-in
trials are no exception, the Court upheld both of the appellate court judgments since, in the Supreme Courtʼsview, such concrete and persuasive grounds were not successfully demonstrated by the Saiban-in trial courtin either case.
(c) Significance of the Supreme Court rulings
Thus, holding on to its basic position of placing more emphasis upon objective reasonableness and equal
treatment in sentencing, the Supreme Court made it even more evident in relation to the death sentence.
Especially, it is remarkable that the Court did not admit any possibility for Saiban-in trial courts to change ordeviate from the precedents by reflecting “sound social common sense” like in regular sentencing. This mightmean that even the purposes of the Saiban-in system are forced to yield to the ultimate nature of capital
punishment, which must be chosen as the last resort by absolute, uniform standards.
Still, the Supreme Court rulings could not stop furious criticism arising from every appellate court
judgment that reverses the death sentence by Saiban-in trial court. The controversy among experts as wellas the public will continue, more or less in conjunction with the basic pro and con arguments about the death
penalty itself. Neither will it eliminate further contests on the appropriateness of sentencing in subsequent
capital cases, each of which may vary with its own unique character different from others.
Despite the Supreme Court rulings, a year later a Saiban-in trial court, in another cause célèbre involving
a single killing, sentenced to death the defendant who was found guilty of killing a little girl after abducting
her for indecent purpose and mutilating her body for abandonment141. But this latest and fourth death
sentence in single killing cases142 was quashed by the appellate court for the reason that “concrete andpersuasive grounds” were not sufficiently demonstrated, considering that the murder itself was not
Tokyo Dist. Ct. judgment of Mar. 15, 2011, HANREI JIHO No. 2197, p. 143.
Chiba Dist. Ct. judgment of June 30, 2011, KEISHU Vol. 69, No. 1, p. 168.
139
E.g., News Letter of the National Associations Crime Victims and Surviving Families, No. 46 (Dec. 10, 2013), p. 1, criticizing
the two Tokyo High Court judgments as a betrayal to the nation; id., No. 47 (Mar. 31, 2014), pp. 5-6.
140
Sup. Ct. (2nd Petty Bench) decision of Feb. 3, 2015; KEISHU Vol. 69, No. 1, p. 1 (Minami-Aoyama Case); Sup. Ct. (2nd Petty
Bench) Decision of Feb. 3, 2015; id., p. 99 (Matsudo Case).
141
Kobe Dist. Ct. judgment of May 18, 2016, HANREI HISHO L07150189.
137
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premeditated and that the modus operandi was “not unprecedentedly cruel”143. As the prosecutor filed ajokoku appeal against the appellate court ruling, it is being closely watched how the Supreme Court will
decide.

V. FURTHER CRIMINAL JUSTICE REFORMS
A. Investigation Procedure as a Remaining Area
In contrast to the trial proceedings, reforms were very limited regarding the criminal investigation
procedure. There remained unsolved a deep-rooted, structured problem, i.e., the excessive reliance on theinvestigative questioning of suspects and the written records of their statements in the investigation of crimeand its proof at trial.
In this regard, the above-mentioned extension of the public defense system to suspects detained forserious offenses was naturally a significant improvement. Although every suspect had been entitled to retain
defense counsel, only a limited number of them actually had done so for financial or other reasons. In most of
the cases, unrepresented suspects had been subjected to investigative questioning by the police andprosecutors. Now that the public defense system is available to many of them, nearly 70% of the suspects are
represented (Figures 17-1 and 17-2144). Probably as its consequence, it is reported that a growing number ofthe suspects deny the charges or remain silent when questioned by the police or prosecutors.
However, other reforms that had been put on the agenda of the JSRC were not adopted. Among others,
defense lawyers and opposition groups who intended to control abusive or improper questioning of suspects
by the police and prosecutors proposed several measures, including the mandatory video- or audio-recordingof such questioning to “visualize” this invisible process145. Because of sharply divided opinions arising fromquite different assessments of the current state of affairs as mentioned above, discussions on those proposals
could not reach any concrete conclusion, other than mandating prosecutors and investigative agencies todocument the time, duration etc. of., as well as names of officers engaged in, each and every questioning ofdetained suspects146.
In response to the request the Judicial Affairs Committees of the legislature attached to their decisions forthe 1994 revision of the CCP147, “hoso sansha” (three sectors of the legal profession) thereafter continued thediscussions, but in vain.
B. Moves toward Further Reforms
It was nothing but the imminence of Saiban-in trials that made a breakthrough. Even in former days, it
had been a difficult task for the professional judges to find out what actually had happened in the course ofinvestigative questioning when the voluntariness or trustworthiness of the defendantʼs confession was
disputed at trial. There was hardly any proof available other than conflicting testimonies of investigating
officers and the defendant. In Saiban-in trials where only professional judges are technically empowered todecide the voluntariness issue, Saiban-in are also supposed to hear the evidence on what happened in thecourse of investigative questioning because it is relevant to their evaluation of the trustworthiness of the
defendantʼs confession at issue148. If the above situation of poor proof is not improved, Saiban-in will
experience much greater hardship and confusion.

In the third case (Okayama Dist. Ct. judgment of Feb. 5), the defendant, who was condemned for the murder, rape androbbery of his former colleague and the mutilation of her body, withdrew his koso appeal against the death sentence, which wasthen finalized and executed later.
143
Osaka High Court judgment of Mar. 10, 2017, HANREI HISHO L07220108.
144
Saiko Saibansho Jimu-sokyoku, supra note 105, Tables 26, 27; id, Tables 26, 27.
145
E.g., the Japan Federation of Bar Associations, “Kokumin no Kitai ni kotaeru Keiji Shiho no Arikata” nitsuite (On “How theCriminal Justice System Should Be in Response to the Expectation of the People) (presentation paper to the JSRC, July 27, 2000),
pp. 34-35, recounting its position declared already in its “Vision for Justice System Reform” (Nov. 20, 1998). As to the history of
the arguments for visualizing investigative questioning in Japan, see e. g. Inouye, supra note 42, pp. 19-20; Hisashi Kosakai,
Torishirabe Kashika no Jidai (Era of Investigative Questioning Visualization), KIKAN KEIJI-BENGO No. 82 (2015), pp. 11-13.
146
Recommendations of the JSRC, supra note 34, Chap. Ⅱ, Part 2, 4(1) and (2).
147House of Representatives Committee on Judicial Affairs, Supplementary Resolution of Apr. 23, 2004; House of Councilors
Committee on Judicial Affairs, Supplementary Resolution of May 30, 2004.
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The mandatory documentation of the relevant facts regarding each questioning of the suspect would offersome help149, but only to a limited extent. Thus, especially to ease such hardship for Saiban-in, the necessity
to “visualize” invisible investigative questioning by video- or audio-recording became more keenly recognizedamong concerned people, including judges150 and political parties151. In response to that, the publicprosecutorsʼ offices152, and then the police153, decided to make a discretionary trial run to record on video
their questioning of suspects detained for an offense subject to Saiban-in trial, and gradually expanded its
scope.
Defense lawyers and opposition groups who aimed to control the whole process of investigative
questioning, however, were not content with such response because it was up to the discretion of prosecutors
and the police themselves whether and to what extent the questioning of suspects would be recorded. They
demanded that the whole process of investigative questioning of every suspect, detained or not, as well as
principal witnesses must be recorded on video in any category of cases154.
No wonder, these radical demands were not accepted by the public prosecutorsʼ offices or the police.
From their standpoint, such a far-reaching measure was not only impracticable, but also harmful because it

E.g. OSAMU IKEDA, KAISETSU SAIBAN-IN HO (Commentaries on the Saiban-in Act) (2nd ed. 2009), p. 10. The court may,
if appropriate, have Saiban-in present at the hearing on the exclusive prerogative matters of professional judges, including thevoluntariness of confession, and hear their opinions Saiban-in Act art. 68, sec. 3.
149
The Rules of Criminal Procedures were revised in 2006 to add a new provision obligating the prosecutor to do his/her best to
prove speedily and accurately the circumstances of the investigative questioning of suspects or others, when he/she would doso, with the use of the materials including such documentary records as much as practicable (art. 198-4).
150
Already in 2013, two influential, prominent criminal law judges published their opinions stressing the urgent necessity forsuch measures in anticipation of Saiban-in trials, Makoto Yoshimaru, Saiban-in Seido no Moto niokeru Kohan-tetsuduki no
Arikata nikansuru Jyakkan no Mondai (Several Problems regarding the Administration of Trial Proceedings under the Saibanin System), HANREI JIHO No. 1807 (2003), p. 3; Fumiya Sato, Saiban-in Saiban ni fusawasii Shoko-shirabe to Gogi nitsuite (On the
Appropriate Manner of Evidentiary Examination and Deliberation in Saiban-in trials), HANREI TIMES No. 1110 (2003), p. 4.
151
E. g., Komei-to, Saiban-in Seido Sekkei nitsuite (New Komeito Party, For the Implementation of the Saiban-in System)(December 2004); id., So-senkyo manifestos (Manifestos for the General Election) (September 2005).
In contrast, Minshu-to (Democratic Party) took a more radical position similar to the Japan Federation of Bar Associations,putting more stress upon strict regulation of investigative questioning by mandating the video- or audio-recording of its wholeprocess in every case. Id., So-senkyo Manifestos (Manifestos for the General Election) (September 2005). The latter party
actually proposed an enactment to realize their opinion, which was passed once in the House of Councilors in June 2008, andonce more in its Committee on Judicial Affairs in June the next year.
152
In May 2006, the Supreme Prosecutorsʼ Office adopted the “Trial Run Policy,” under which prosecutors, if it is deemednecessary to do so in preparation for later effective proof of the voluntariness of confessions, shall record on a video appropriate
parts of their questioning of arrested or detained suspects (mainly the scene of their summing up of what the suspect had stated
and the latterʼs affirmation of it at the end of questioning) unless it would disturb the function of the questioning. Then, after
extending the trial run from Tokyo to other districts, the Office adopted the “Full-Scale Trial Run Policy” in March 2008,
instructing all the prosecutorsʼ offices to execute such video-recording, in principle, in every case that would be subject to
Saiban-in trials. Cf. Takeru Tanojiri, Kensatsu niokeru Torisirabe no Rokuon-Rokuga no Unyo (Operation of the Video-/AudioRecording of Investigative Questioning in Prosecutors’ Offices), KEIJI-HO JOURNAL No. 42 (2014), p. 12. As for the subsequentdevelopments, see infra note 168.
Furthermore, after the Democratic Party took over the ruling power in the general election in 2009, the newly appointed
Minister of Justice began an internal high-level study meeting to discuss the visualization of investigative questioning, with theintention of realizing the partyʼs policy described in note 151. After a two year study, during which the Council on Legislation
began deliberating on the subject, as described below, the study meeting published its conclusion in August 2011, that thequestioning of suspects, at first those detained in cases subject to Saiban-in trial, should be recorded on a video as widely aspracticable, though not mandatorily or without exception, that they should discuss its extension to the questioning of mentallydisabled persons or the cases under the independent, direct investigation by the prosecutorsʼ office after a certain period of trial
run, and that they should expand the current operational trial run to various cases, subjects and situations. The conclusion isavailable at http://www.moj.go.jp/content/000077866.pdf.
153
The National Police Agency decided in April 2008, to begin a trial run recording of the questioning of arrested or detained
suspects in the prospective Saiban-in trial cases in similar ways to prosecutorsʼ offices, which began in five major prefectures in
September that year and gradually extended to other prefectures, Cf. Yusuke Kawahara, Torishhirabe no Rokuon-Rokuga oyobi
Do Seido nitaisuru Keisatsu no Taiou nitsuite (Video-/Audio-Recording of Investigative Questioning and Its Handling by the
Police), KEISATSU-GAKU RONSHU Vol. 69, No. 92 (2016), pp. 64-65. As for the subsequent developments, see infra note 169.
154
Among others, the Japan Federation of Bar Associations repeatedly publicized its official opinions demanding such full-scale
video-/tape-recording. Id., Torishirabe no Kashika nitsuite no Ikensho (Opinions on the Visualization of Investigative
Questioning) (June 2003).
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would make it unduly difficult to obtain even voluntary and trustworthy crucial statements of suspects or key
witnesses, for instance, in organized crime cases or cases of a sensitive nature, with the result of seriously
disrupting effective law enforcement.
Several acquittal and retrial cases involving misconduct of the police155 or the prosecutors156 in theirinvestigative questioning as well as handling of evidence in the following years triggered the second stage ofcriminal justice reform at the beginning of the 2010s.
In response to the strong demands for a wholescale review of the above-mentioned conventional structureof the criminal justice system, especially that of criminal investigation procedure157, the Minister of Justiceentrusted such review to the Council on Legislation in June 2011.
C. Recommendation of the Council on Legislation of 2014
After three years of research and deliberation mainly in its Special Division on the Criminal Justice
System in the New Era158, the Council recommended a package of reforms in September 2014159.
From the sequence of events leading to this second stage, the main focus of discussions in the Council was
naturally put on the video- or audio-recording of investigative questioning, more specifically, upon such issues
as how widely it should be mandated and what situations should be exempted from that mandatory
recording. But, here again, differences of opinion were so big that even a deeply involved insider like me could
not say for sure the Council would reach any conclusion whatsoever.
E.g., Kagoshima Dist. Ct. judgment of Feb. 23, 2007, HANREI TIMES No. 1313, p. 285 (Shibushi Case) (finding not guilty a
local election candidate, his wife and ten residents charged with election law violations, for the reason of the establishment of analibi for the candidate and the untrustworthiness of the defendantsʼ confessions obtained by the improper questioning of thepolice); Toyama Dist. Ct. Takaoka Branch judgment of Oct. 10, 2007, HANREI HISHO L06250309 (Himi Case) (finding innocent
at a new trial a convict who served out a three-year imprisonment sentence for rape, after the real perpetrator came out andconfessed). See also Tokyo High Ct. decision of June 14, 2008, HANREI TIMES No. 1290, p. 73 (Fukawa Case) (affirming the Mito
Dist. Ct. Tsuchiura Branch decision to start a new trial for two convicts serving a life imprisonment sentence for robbery andmurder, for the reason of the discovery of new evidence that would, in association with the existing evidence, induce areasonable doubt about their guilt; subsequently, both convicts were acquitted at a new trial in 2011); Tokyo High Ct. decision ofJune 23, 2009, HANREI TIMES No. 1303, p. 90 (Ashikaga Case) (affirming the Tokyo Dist. Ct. decision to start a new trial for aconvict serving a life imprisonment sentence for abduction of a little girl for obscene purpose and murder, etc., for the reason of
the contradictory findings of new DNA testing; subsequently, the convict was acquitted at a new trial in 2010).
Considering such situation, the National Public Safety Commission supervising the police entrusted in February 2010 a study
for “upgrading the investigative methods and questioning” to a committee composed of various experts, including thoseenthusiastic for the video- or audio-recording of investigative questioning. Two years later, the committee published its final
report, in which they proposed for, at least as a first step, expanding the current trial run of video-recording to many more cases
as well as extending it to the questioning of mentally disabled persons. The final report is available at https://www.npa.go.jp/
bureau/criminal/sousa/sousa_koudoka_kenkyukai/pdf/saisyuu.pdf.
156
In 2010, it was revealed that the prosecutor of the Special Investigation Division of the Osaka District Prosecutorsʼ Office incharge of a false official document production case against a high-ranking governmental official forged the log data of an electric
file that might have been favorable evidence to the defendant. The revelation of his misconduct shocked the nation and urged
the whole-scale review of the entire prosecution service,
The Minister of Justice responded promptly by setting up the “Kensatsu no Arikata Kento-Kaigi” (Commission to Deliberateon What the Public Prosecutors’ Offices Should Be), composed of fifteen members representing various legal and non-legal
sectors, including me. After the six-month intensive discussions, the Commission produced a comprehensive set of proposals formany reforms regarding the organization, internal controls, personnel management, training system, professional ethics, etc. Id.,
Kensatsu no Saisei ni mukete (For the Regeneration of the Prosecution Service) (Mar. 31, 2011)〔available at http://www.moj.go.
jp/content/000072551.pdf〕.
157
Among others, the above mentioned Commission, in its recommendations, urged the Minister of Justice to start immediately
such wholescale review by setting up a “forum for thorough deliberation reflecting both the peopleʼs opinions and the expertiseof professionals, including relevant organs”. Id., Part. 4, 3.
158
The Special Division, composed of 26 members including me, held a total of 30 meetings (and each of its three subcommittees held ten meetings) from June 29, 2011 through July 9, 2014, to reach its conclusion. Their complete verbatim
minutes are published on the Ministry of Justice Web site〔http: //www. moj. go. jp/shingi1/shingi03500012. html〕. See also
Takashi Kikkawa, Hosei Shingikai niokeru Shingi no Keika to Gaiyo (Progress and Outlines of the Deliberation in the Council on
Legislation), RONKYU JURIST No. 12 (2015), pp. 4 et seq.
159
The Council on Legislation, Aratana Keiji-shiho Seido no Kochiku nitsuiteno Chosa Shingi no Kekka (The Results of the
Research and Deliberation for Building Up a New Criminal Justice System) (Sep. 18, 2014)〔available at http://www.moj.go.
jp/content/001127393.pdf〕.
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At the very end of the deliberation, however, the Council finally managed to decide with unanimity to takea realistic approach, i.e., improving the matter step-by-step from the starting point on which consensus could
be obtained. The Council recommended to mandate in principle video-recording of every investigative
questioning of detained suspects regarding the cases subject to Saiban-in trial as well as those under the
independent, direct investigation by public prosecutors160. Additionally, the Council expressed its expectationthat the trial-run video-recording by the prosecutors as well as the police should be extended to the extent
possible and that, on the basis of its result, the scope of mandatory video-recording should be reconsideredwithin an appropriate period of time161.
In addition to that measure, the Council further proposed a more comprehensive, structural change todecrease excessive reliance on the investigative questioning of suspects and the written records of theirstatements throughout the process of criminal investigation and proof at trial by a combination of threegroups of measures:(1) Measures to deter or to check improper investigative questioning
In addition to the video-recording of investigative questioning itself, the Council recommended theextension of the public defense system so as to cover all the suspects in detention for that purpose162.
(2) Measures other than investigative questioning to obtain useful, trustworthy statements from the persons
involved
Included is a negotiation procedure between the prosecutor and the defense counsel in which favorable
prosecutorial treatment, such as suspension of prosecution, reduction or non-prosecution of certain charges,
and recommendation for a lenient sentence, could be promised to the suspect or defendant in exchange forhis/her cooperation to solve a case against others involving an organized, financial or business crime. The
Council also proposed the adoption of an immunity procedure with which an accomplice could be forced togive crucial testimony to convict a major figure in an organized crime or conspiracy163.
(3) Effective measures to collect objective evidence
Among others, the Council proposed the reinforcement of interception of telecommunications by making
it more efficient, easier to use as well as more reliably controlled with the use of electronic encryption
techniques164.
Accepting these and other recommendations, the government introduced a bill to revise related laws,
which was passed in the legislature in May 2016165, and the new law is being put into force in four steps,
finally becoming effective by June 2019.
D. Prospect for the Effects of the Reforms
Proponents for much stricter restriction on the investigative powers of prosecutors and the police arenaturally discontent with the new law. They are criticizing the reforms as providing less than minimum
restrictions necessary, while increasing investigative powers, any of which, in their opinion, will induce abuseor other serious problems. They assert, among others, that the video-recording of investigative questioning islegally mandated only in two categories of cases that account for an extremely small portion, probably 3% orso, of all criminal cases and that several exceptions to that already limited extent of mandatory videorecording further will make a big loophole166.
However, considering the long-standing structured practice, as mentioned earlier, as well as sharply
divided opinions about it, it should not have been realistic or appropriate to insist on a one-point breakthroughId., Outline of the Recommendations 1, implemented in CCP art. 301-2.
Id., Outline of the Recommendations 1.
162
Id., Outline of the Recommendations 5(1), implemented in CCP art. 37-2.
163
Id., Outline of the Recommendations 2(1), (2), implemented in CCP art. 350-2 and arts. 157-2, 157-3, respectively.
164
Id., Outline of the Recommendations 3, implemented in the Interception of Tele-Communication Act, arts 3, 5, 6, 14, 20, 21,
Table 2 etc.
165
The Act to Revise a Part of the Code of Criminal Procedure and Related Laws, Act No. 54 of June 3, 2016. Cf. Hiroyuki Tsuji,
Keiji Sosho-ho tou no Ichibu wo Kaiseisuru Horitsu no Seitei Keii tou nituite (Background of the Enactment of the Act to Revise aPart of the CCP and Related Laws and Its Outlines), KEISATSU-GAKU RONSHU Vol. 69, No. 8 (2015), p. 1.
160
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only by such drastic, maximum extension of the mandatory video-recording without taking any concrete
action to change the basic structure as a whole. If members of the Council had stuck to an all-or-nothing
approach, nothing would have changed. It was, in my opinion, very important to take one actual step forward,
which we can and should keep extending.
The video-recording in the new law itself is legally mandated in the most serious or high-profile cases
where large-scale investigation is normally pursued by numerous investigating officers and suspects aremost likely subject to tough questioning in the custody of the police and prosecutors. Its scope is substantiallyenlarged from the former trial-run in that the whole process of every investigative questioning of a suspect
regarding such case must be recorded from right after his/her arrest. I believe this will have much larger
and penetrating impacts than it may appear.
Furthermore, whenever the voluntariness of a defendantʼs self-incriminating statement obtained byinvestigative questioning is disputed at the trial involving such offense, the prosecutor must present the videoof the investigative questioning at issue167. Otherwise, the prosecutor could not prove the voluntarinesssuccessfully unless the court finds the questioning at issue was exempted from mandatory video-recording.
Once such videos become indispensable to prove effectively the voluntariness of the suspectʼs confession in
those cases, it must be practically hard to do so without similar video in contested cases involving otheroffenses as well. Thus, it is highly probable, I think, that this eventually will become a de facto standard
method of proof in other contested cases as well.
As a matter of fact, the public prosecutorsʼ offices have already decided to record, and actually have beenrecording, on a video, as far as practicable, the whole process of their questioning of every arrested ordetained suspect in (1) the prospective Saiban-in cases and (2) the cases under the independent, direct
investigation by the prosecutorsʼ office, as well as that of (3) mentally disturbed or mentally disabled suspects
in detention. They even further expanded their trial run to (4) their questioning of suspects in othercategories of cases and major witnesses in the cases where its legality or properness is likely to be disputed
at trial168. The police also, though more slowly and conservatively, have been taking after the prosecutors
especially in the cases where the voluntariness or trustworthiness of confession and other statements
obtained by their questioning might be seriously disputed at trial169.
While many front-line investigating officers still feel resistance against it, video-recording, from a broad
perspective, should prove itself beneficial to prosecutors and the police as well because it certainly would
reduce unfounded accusations against them for illegal or improper questioning and troublesome disputes
over the voluntariness of suspectsʼ statements.

VI. CONCLUSION
These and other new reforms could certainly have substantial effects on various aspects of Japanesecriminal justice. But it will depend much upon the persistent, patient, attentive, sincere and constructive
E.g., KEIJI-SHIHO KAIKAKU TOWA NANI KA (What Is the Criminal Justice Reform) (H. Kawasaki and S. Mishim ed.,2014)); Nanae Toyosaki, Torishirabe oyobi Sintai Kosoku no Kaikaku (Reforms of Investigative Questioning and Detention of
Suspects), KEIHO ZASSI Vol. 55, No. 1 (2015), pp. 89-101; Shinichiro Koike, Torishirabe no Rokuon-Rokuga (Video-/AudioRecording of Investigative Questioning), HO TO MINSHU-SHUGI No. 510 (2016), p. 10. See also Yuji Shiratori, Hoseishin
Tokubetsu-bukai wa Kadai ni kotaeta ka (Has the Special Division of the Legislation Council Fulfiled Its Task?), HORITSU JIHO
Vol. 86, No. 10 (2014), pp. 5-6; Hiroyuki Kuzuno, Torisirabe no Rokuon-Rokuga Seido (System of Video-/Audio-Recording ofInvestigative Questioning), id., p. 16; Akira Goto, Keiso-ho tou Kaisei-an no Zentai-zo (General Outlines of the Bill to Revise the
CCP and Related Laws), HORITSU JIHO Vol. 88, No. 1 (2016), pp. 6-7.
167
CCP art. 301H-2 (to be enforced by June 2019).
168
Cf. Tanojiri, supra note 152, pp. 12-13. According to the latest official report, the video-recoding execution rate has reached to100% or so in the first three categories; the whole process of the questing was recorded in 99.6% of the cases in the firstcategory, 100% in the second category, 85.2 to 88.8% in the third category in the six months from April through September 2017.
The number of trial-run video-recodings executed in the fourth category also have been increasing. Saiko Kensatsu-cho,,Kensatsu niokeru Torishirabe no Rokuon-Rokuga nitsuiteno Jissi Jokyo (Supreme Prosecutors’ Office, Enforcement Situation
regarding the Video-/Audio-recording of the Investigative Questioning) (Feb. 2018) 〔available at http: //www. kensatsu. go.
jp/kakuchou/supreme/rokuon_rokuga01.html〕.
169
Cf. Kawahara, supra note 153, pp. 64-69.
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efforts of all the parties involved, as well as lasting public support for them, to what extent and how thereforms actually change the above-mentioned conventional structure and improve the total quality ofJapanese criminal justice. There still is a long way to go.

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