JAPAN’S EXPERIENCES IN JUSTICE SYSTEM REFORM 1
Focusing on
the current legal training system
andlay-judge (saiban-in) system
5 June 2015
YAMASHITA Terutoshi (Mr.)
Director of UNAFEII.

INTRODUCTION

An eminent Japanese law professor 2 made concise and impressivecomments on the process of establishing and reforming the modern Japanesejustice system, as follows: Constructing judicial workplaces imitating Western style buildings is easy,
and making laws similar to Western laws is not difficult; however
fostering qualified legal practitioners is rather difficult.
 Introducing Western legal systems into Japan is a grand-scale societal
experiment which is unprecedented in any field in the past.
 Academics and practitioners must be free from the thoughts of their
mentors, from the thoughts that prevail in the field, and from the thoughts
they had in mind yesterday 3.
These comments caution against clinging to the ideas of the past, and they
continue to inspire the entire Japanese legal profession to make efforts to reformthe justice system.
At the early stage of modernizing the Japanese justice system in the 1870s,
Japan first translated Western laws into Japanese with the intention of making themJapanese law exactly as written. It was essentially transplanting one legal system
into another. Although various articles were changed, downsized or simplified to

1

The views expressed in this paper are solely those of the author, and are neither those of theGovernment of Japan nor other official entities, including UNAFEI.
2
Dr. MIKAZUKI Akira (1921.6.20 – 2010.11.14), Professor Emeritus of the University of Tokyo,
Former Minister of Justice.
3
This phrase was given to Dr. Mikazuki from a German mentor during his studying abroad in
Germany. This became the “torch” that he carried throughout his academic career, and implicatedthe necessity of endless efforts to reform the Japanese justice system.

1

adjust them to the Japanese social conditions, the justice system became similar to
the French system as it then existed, and later became almost identical to theGerman system. These changes to the criminal justice system were motivated by
the desire to avoid colonization, and to abolish treaties with Western countries
which were disadvantageous to Japan in terms of tariff autonomy and theextraterritoriality of foreigners, i.e., their exemption from Japanese criminal laws.
A symbolic example is that Japan constructed the red-brick building of the Ministryof Justice, the façade of which was identical to European style and intended toshow that Japan had a justice system similar to Western countries (Appendix, slide2). The second big reform of the Japanese justice system took place as a result of
the influence of the United States after World War II.
Nearly 60 years passed since then, and, for the first time, Japan decided toreform the justice system on its own initiative, irrespective of any direct influence
from other countries. The reform has been based on the “Recommendations of
the Justice System Reform Council—For a Justice System to Support Japan in the
21st Century”, issued on June 12, 2001 (hereinafter “the Recommendations”). At
that time, the justice system was mainly criticized by people in the economic andcommercial fields because of certain defects and inefficiencies, such as delays inentering court judgments. All the entities relating to the justice system were
subject to the discussions, reforms, and needless to say, the critiques of various
critics. The contents of the Recommendations are available in both Japanese andEnglish on the Internet 4.
The targeted goals of the reform are below: (Appendix, slide 2)
1) Construction of a Justice System Responding to Public Expectations(Coordination of the Institutional Base)
The justice system shall be made easier to use, easier to understand, andmore reliable.
2) How the Legal Profession Supporting the Justice System Should Be (Expansionof the Human Base)A legal profession that is rich both in quality and quantity shall be secured.
3) Establishment of the Popular Base
Public trust in the justice system shall be enhanced by introducing a system
in which the people participate in legal proceedings and through othermeasures.

4

http://japan.kantei.go.jp/policy/sihou/singikai/990612_e.html

2This paper will mainly discuss two big reforms and current challenges about: the legal training system―in relation to Japanese law schools―, which
relates to point 2) above, and the lay-judge system (saiban-in) exemplifying public participation in thecriminal justice system, which relates to point 3) above.
These are typical examples, as the eminent professor pointed out, of issues,difficulties and necessities facing the Japanese legal profession in developing theJapanese justice system.

II.

REFORM OF THE LEGAL TRAINING SYSTEM

A. Overview of the Population and Qualifications of Legal Practitioners
The Japanese legal profession consists of two categories: legal practitioners
and academics in the field of law. The reform mentioned here, which started in
2004, relates to the legal training of practitioners. That is because the normal
career path of Japanese academics is to proceed step by step from postgraduate
courses, to research associate, to associate professor and then to professor
without taking the National Bar Examination and practicing law. In contrast, tobecome a legal practitioner (judge, prosecutor or private attorney), candidates haveto pass the National Bar Examination, which is administered by the Ministry ofJustice, and then complete a practical training course of the Legal Training andResearch Institute (LTRI) under the supervision of the Supreme Court for a certain
period (the term varies with the times) (Appendix, slide 3).
Although the Bar Examination is a qualifying examination, it has been an
extremely competitive examination because the number of successful candidates
had been limited to around 500 (the passage rate was around two per cent) for
many years until 1990. Then, since 1991, the number gradually increased andreached 1,000 in 1999. The total number of legal practitioners was around 20,000
in 1997. The population of legal practitioners (approximately 6,300 people perlegal practitioner) was rather small compared to even the smallest population
among Western countries (around 2,400 in France in the same year).
Those having completed two years of university education were eligible totake the Bar Examination, which was open to those who learned through self-study.
The competitiveness resulted in the prevalence of cram schools (i.e., private
3schools or tutors offering “bar review courses”) merely teaching skills andtechniques necessary to pass the exam. This method was ultimately deemed
inappropriate because it produced practitioners who were not able to think logicallylike a lawyer. It is worth noting that since the 1880s the Japanese faculty of law
has played an important role in producing competent personnel with legal
knowledge to public and private sectors. However, the popularity of cram schools
ironically showed that the legal education and training of the faculty of law atuniversities was less useful to pass the Bar Examination and, thus, to become legal
practitioners.
Legal demands in various aspects of the people's lives are expected toincrease in number and also to become more diverse and more complicated.
Legal practitioners are expected to properly respond to global issues such as
human rights and environmental issues, as well as international issues and crimes.
Increasing the number of qualified legal practitioners is a precondition for realizing"the rule of law" throughout Japan. Thus, this competitive examination system
was criticized as the "single point" of selection for the legal profession.
B. Shift to the Japanese Law School System (Appendix, slide 4)
In order to overcome these problems, a law school system was introduced in
2004 as a new legal training system. The idea is not to focus on the "single point"of selection through the Bar Examination but to organically connect legal education,
the Bar Examination and legal training as a "process". Thus, professional law
schools should provide education and training for the legal profession. Unlike thegeneral education requirements at the undergraduate level, curricula for
professional law schools should include advanced subjects, such as legal practices
and technical skills useful for legal practitioners. To meet such requirements,
many experienced legal practitioners are invited to law schools as teaching staff.
The graduates from law schools are eligible to take the Bar Examination three times
within five years. The practical training of the LTRI under the Supreme Court
should be carried out for legal trainees by taking the legal education and training at
law school into consideration. Through this reform, law school education, the Bar
Examination and practical training at the LTRI are now closely connected as a“process”.
Unlike law schools in the United States, the undergraduate faculty of law still
remains; thus, the current Japanese training system can be characterized asfollows.
 New Japanese law schools have two tracks for graduation: a two-year track for
4





those who studied law as undergraduates, and a three-year track for the others.
With regard to lecture style, interactive Socratic debate is recommended to
improve students’ logical thinking, which is different from the typical lecture
style at other universities.
Law schools should enable students to acquire specialized legal knowledge
and provide them with a basic understanding of cutting-edge legal areas.

In accordance with the law school system, the Bar Examination is still
expected to evaluate whether candidates are qualified, and the LTRI is also
expected to provide those who pass with more practical training. These reforms
were to be implemented with the aim of increasing the number of successful
candidates to 3,000 by 2010. If successful, the population of legal practitioners
would reach 50,000 by 2018, which means the number of people per legal
professional would approach 2,400, similar to the French system. In considering
the increase of successful candidates and some practical training provided by law
schools, the practical training term at the LTRI was shortened to one year.
Here, I should mention that the Recommendations stated that “Law schools
should provide substantial education in order for many students who havecompleted the course (e.g., 70 to 80% of such students) to pass the new National
Bar Examination”. Importance was placed on providing substantial education tolaw students rather than achieving any specific bar passage rate. However, somewere impressed that a high ratio of the students would pass if they completed any
law school course irrespective of its quality.
C. Results of the Reform
The reform has increased the number of legal practitioners, although the
population of legal practitioners has not reached the levels expected under the
Recommendations (Appendix, slide 5).
The reform resulted in the founding of over 70 law schools whose capacity
totaled approximately 5,500 law students throughout Japan. In 2004, the numberof examinees for law school was around 40,000 (7.3 applicants for each availableseat). At that time, law schools were encouraged with great hope. However, thenumber of law school examinees has gradually decreased to nearly 12,400 in 2013,
and there were only 2.9 applicants for each seat during the same year (Appendix,
slides 6 and 7).
Possible reasons are as follows:51. Establishment of many law schools
During the planning of new law schools, some opined that the number o law
schools and capacity for admission should be limited, but eventually over 70 law
schools were established based on the policy of free market competition. Due tothe decreased number of applicants for law schools, some had to stop or downsize
admission. The number of newly admitted law students has decreased fromaround 5,700 in 2004 to nearly 2,700 in 2013, despite a capacity of 4,200 for thatyear (Appendix, slides 6 and 7).
2. Fewer successful candidates than expected
The Recommendations set a target for 3,000 successful candidates per yearby 2010. Although the number has exceeded 2,000 (the highest number was
2,309 in 2008), the expected figure of 3,000 was difficult to reach because of thechanging climate of the economy and the needs of legal practitioners (Appendix,
slides 8 and 9).
3. Lower passage rate than the expected
The passage rate in the first and second year (2006 and 2007) of the new
Bar Examination was 48.3 per cent and 40.2 per cent, respectively. These rates
were perceived as relatively low, compared to the expected passage rate in the
Recommendations. Since 2010, the passage rate has dropped to around 25 per
cent; the total passage rate for the past 9 years (up to 2014) was 21.2 per cent. In
particular, the passage rate among candidates completing three years of law school(12.1 per cent) has been lower than that of candidates completing two years (32.8
per cent). The gap between the two is problematic because the new systemseemingly fails to encourage the participation of those from fields other than law(Appendix, slides 8 and 9).
As for the cumulative passage rate of those who completed law school up to2009, nearly 50 per cent of them passed. Here, the gap between the two-year andthree-year students still exists: around 65 per cent of two-year students pass,whereas only 32 per cent of three-year students pass.
4. Long term and high cost necessary to become legal practitioners
Candidates normally must pursue education and legal training for four (4)years at a university, two (2) to three (3) years of education at law school and one(1) year for the LTRI practical training. A majority of the candidates have toborrow money for daily expenses and study costs. If they fail to pass the Bar
Examination, they would be in great debt without having obtained a career. Thus,
6

pursuing a legal career is challenging and involves the assumption of great risk interms of planning one’s life.
Moreover, even after completing the practical training at the LTRI, hundredsof new private attorneys do not join any local bar association because of theinability to afford the membership. Some say this stems from overestimating thedemand for private attorneys. As discussed above, the goal was to increase thenumber of lawyers to match the level of the French system. However, theJapanese market for legal services appear to be small.
5. Another route for taking the Bar Examination
To provide an equal opportunity, especially for people who cannot study at alaw school due to financial difficulties, another path to take the Bar Examination
started in 2011. Since anyone can take this examination without having tocomplete a law school education, this route is a shortcut to becoming a legal
practitioner. Some feel that the shortcut would damage or diminish the value ofthe law school system as an educational “process” on which great importance has
been placed.
D. Consideration of Measures to Address the Challenges
In order to solve the undesirable situation mentioned above, approaches tosolving the problem have been frequently and continuously discussed. Causes
and possible solutions depend on the assessment of the law school system and the
Bar Examination system. However, the law school system is the core of theprocess of education and training. Some improvements have been made to dateas follows.
 The target of 3,000 successful candidates was retracted in 2013, but noalternative number has been announced due to the difficulty of estimating theproper needs of legal practitioners (Appendix, slides 8 and 9). Consideringthat the desired number in the Recommendations was based on the statistics ofWestern countries, a scientific survey in Japan is expected.
 The limitation for taking the Bar Examination (three times in five years) was
abolished in 2014 so that one is now able to take the Bar Examination every
year within five years after the completion of law school.
 Reducing or eliminating funding for law schools in which applicants do notreach the designated number for admission or the expected passage rate
through cutting grants-in-aid from the government.
 Efforts to expand fields in which lawyers participate and to understand theneeds of attorneys such as in-house lawyers, national and local government
7

lawyers, international cooperation activities, etc.
Although some defects in the reform distract us, I am confident that the law
school system definitely has an important advantage, that is, legal practitioners andacademics have closely interacted with each other, and they have jointly andcooperatively made efforts to improve legal education and training. This could nothave happened if the new system had not been introduced. I believe thisinteraction will bring further improvement and development in this field.

III.

LAY JUDGE (SAIBAN-IN) SYSTEM

Public participation in the criminal justice system for Japanese lawyers
normally means not only the involvement of citizens in crime prevention, offender
rehabilitation and reintegration but also two special criminal proceedings in whichcitizens directly participate. One is a citizen review panel known as the Inquest of
Prosecution for cases in which a prosecutor decided not to prosecute; the other isthe lay judge system for serious cases tried before citizens who participate in theprocess alongside professional judges. The former system was introduced in1948 with the influence of the United States, and was revised and came into force
on 21 May 2009, the same date as the introduction of the lay judge system.
The lay judge system is a combination of the jury system typically found in
the United States and the assessor system in Germany. Although Japan adopted
a jury system for a certain portion of criminal cases since 1928, the jury system
lasted only for 14 years until 1943. The reasons included that the jury's verdict
was not legally binding on the courts 5, the defendant’s right to appeal fact-finding toa higher court was restricted, the high cost of jury trials during war time, defendants’
preference for bench trials, etc. Except for that period, the Japanese criminalcases had always been tried by professional and qualified judges.
A. Background and Reasons for the Lay Judge (Saiban-in) System
The Recommendations stated the reasons to adopt the lay judge system:“Looking at the existing systems for popular participation in justice,systems such as conciliation members, judicial commissioners 6, and5

The binding power of the jury’s verdict was deemed to contradict the Meiji Constitution, underwhich any case must be tried by professional judges; this also applies to any assessor system.

6

This means a citizen attending a civil trial to provide advice to a judge.

8Inquests of Prosecution exist, and those systems have been
performing their functions quite well. Still, on the whole, opportunities
for the people to be involved in the administration of justice are very
limited, and the authority provided to the people in those instances inwhich they do participate is also limited. (See Article 3(3) of the Court
Law.)

In order to establish a much firmer popular base for the justicesystem by obtaining the autonomous participation of the people in thejustice system, it is necessary to establish appropriate participation
mechanisms in a variety of settings, such as trial procedures, theprocess for selection of judges, and the administration of the courts,
the public prosecutors offices and bar associations, as well as reformsof the existing systems for popular participation systems”.

The main points are establishing a much firmer popular base for the justicesystem and obtaining the autonomous participation of the people in the justicesystem. From my perspective, additional advantages include democratizing thecriminal justice system and educational effects of democracy for both legal
practitioners and ordinary citizens.
B. Overview of the Lay Judge (Saiban-in) System
1. Composition of the panel
Saiban-in is a recently created word used to describe the “lay judges” whoparticipate in saiban-in trials. Saiban-in trials were introduced by the Act on Criminal
Trials Examined under the Lay Judge System, which came into force on 21 May 2009.
Saiban-in cases are tried by a mixed panel consisting of three (3) professional
judges and six (6) saiban-in.
2. Selection and duties of saiban-in
Saiban-in are selected randomly for each case from among the votersthrough a procedure similar to jury selection in some other countries. The selections
described below are done by lot.
(a) District Courts estimate the number of necessary saiban-in candidates for the
next year and inform municipalities within their respective jurisdictions by
September 1 of each year. The boards of elections of the municipalities send
the list of expected candidates for saiban-in by October 15 each year.
(b) District courts prepare basic name lists (basic list), selecting candidates fromthe lists provided by the municipalities, and notify the selected candidates that9

they are on the basic list around November of each year.
(c) Collegiate panels of the District Courts select candidates from the nomination
lists for specific saiban-in trials and notify them of being candidates for thesaiban-in trial. Candidates having the right or reasonable circumstances todecline serving as saiban-in are to be deleted from the nomination list.
(d) Upon appearing at the District Court, six saiban-in and alternate saiban-in are
selected.
Saiban-in collaborate with professional judges to decide on issues of factfinding and sentencing. Each saiban-in and professional judge has equal voting
power. Procedural issues and matters of legal interpretation are left to theprofessional judges. Verdicts and sentences are based on fact-finding on a majority
basis as long as at least one professional judge agrees with the majority. In otherwords, if no professional judges vote that the defendant is guilty, the verdict must be
not guilty. This is a compromise intended to address the concern that, without sucha requirement, the saiban-in system might be found unconstitutional.
All saiban-in have to keep the discussions during the deliberations secret,such as who opined on what issues or how many votes were for or against the verdict,even after finishing their duties, except as necessary during the trial and judgment
phases. This is because if the contents of the deliberations were revealed, othercandidates of both the particular case and future cases would be afraid to be criticized,
and for that reason, candidates would decline to serve as saiban-in. In order toavoid possible problems, the violation of secrecy of deliberations is punished by
imprisonment with work for not more than six months or a fine of not more than
500,000 yen.
3 Serious cases targeted for saiban-in trial
Saiban-in trials are to be held for(a) offences punishable by death or imprisonment for life; or(b) intentional conduct resulting in the victim’s death, for which a minimum term of
one year’s imprisonment is prescribed.
Such offences include homicide, robbery resulting in death or injury, rape
resulting in death or injury, arson of an inhabited residence, and certain serious drug
offences. Saiban-in trial is mandatory so defendants may not waive it and request abench trial. This may be learned from the short life of the old jury system due to the10reason that defendants tended to prefer trials by professional judges. Ironically,reformers welcomed the saiban-in system, but were not confident that saiban-in
trial would become popular since Japanese citizens tend to respect and trust
authorities, in particular, professional judges. Moreover, victims have no right torequest that a case be tried by saiban-in.
Approximately two to three per cent of trials have been tried by the saiban-insystem. As of the end of December 2014, the number of saiban-in trials totaled
9,278 over a period of nearly five years and six months. For your reference, under
the Japanese criminal justice system, even defendants who admit their guilt are triedin open court unless such cases are punishable by fine not exceeding 1,000,000 yen
through a summary procedure with the defendants’ consent.
In addition, saiban-in trials are for serious cases tried at a District Court of first
instance. The appeal system in criminal cases has not been changed at all so that ahigher court would be able to render a different judgment from the one decided by thesaiban-in panel. In practice, however, higher courts have seemed to maintain the
judgments of the saiban-in panels to date.

C. Statistics Relating to the Lay Judge (Saiban-in) System
The Supreme Court of Japan released preliminary figures on the lay judge
system from May 2009 to February 2015; some of the figures are below:

A

Candidates for Lay Judge in the basic list

691,468

B

Candidates dismissed/excused during the first selection process

197,508

C

Candidates who received notification to attend

493.960

D

Candidates excused based on a written questionnaire

209,715

E

Candidates expected to attend

285,425

F

Candidates appeared

216,631G

Lay Judges (Alternates included)

56,681

H

Average length for trial (including non-trial days)

11

6.9 days

I

Average times of trial (excluding non-trial days)

J

Average length of deliberation

K

Number of defendants（Judgment rendered）

7,464

L

Number of defendants in contested cases

3,222

M

Capital sentence

23

N

Acquittal

42

4.3 times
594.1
minutes

For row “A”, the percentage attendance is 31.3, but 75.9 per cent in the caseof row “E”, which is the number of candidates finally required to attend.
The acquittal rate of saiban-in trials was 0.56 per cent among all defendants
tried (row “K”), and 1.3 per cent for contested cases (row “L”) (Appendix, slides 10 to
12).

D. Changes Brought by the Lay Judge (Saiban-in) System
There were several changes and improvements realized through saiban-in
trials.
1. Consecutive trial dates
Japanese criminal trial dates are normally designated once every two or three
weeks so that several cases are held on the same day. In Japan, this system iscalled “dentist-style proceedings”. 7 In cases where saiban-in are involved in criminal
trials, this style is unrealistic because citizens cannot spare time due to official or
personal engagements. As a result, saiban-in trials take place on consecutive
business days, and intensive examination of evidence has promoted speedy trials.
2. Pre-trial proceedings improve trial preparation
In order to realize a speedy trial through intensive examination of evidence,
parties and judges are required to identify the issues to be contested at trial prior to
the first date of the trial. In addition, the parties have come to submit the best
evidence instead of submitting duplicative evidence as was the practice in the past.

7

In Japan, dentists only work on one cavity at a time and require patients to return frequently forwork on other teeth.

123. Tendency to shift from documentary evidence to testimony
During the investigation, much documentary evidence, such as investigators’
reports and statements from victims and witnesses have been produced, and the
documentary evidence are submitted to the court in cases where the defendant andhis legal counsel agree with the contents. Judges find facts through reading the
documents. However, requiring six saiban-in to read documentary evidence isunrealistic. Although documentary evidence is still used, the parties have gradually
come to call more witnesses for trial.
4. Introduction of DVD-recorded interviews of suspects
Some defendants contest the case even if they confessed and admitted their
guilt in their statements during investigation. A prosecutor is required to prove thevoluntariness and credibility of the statements. Precisely speaking, the decision
whether the statements are to be admitted is a legal matter left to professional judges.
However, once saiban-in believe that there has been some defect in the legal process,prosecutors would face great difficulty obtaining a conviction. For this reason, theprosecution began introducing DVD-recorded interviews of suspects in 2006, if
necessary and partly on the basis of prosecutors’ discretion. Since then, the scopeof the DVD recording has been expanded gradually, and since May 2010, as far as
cases to be tried by saiban-in, almost all the suspects interviewed during investigation
are recorded on DVD.
In addition, during the prosecution’s policy shift to DVD recording, someshameful events seriously affected the public trust in the prosecution; the entire
prosecution service in Japan is trying to regain and restore that trust byimplementing a comprehensive reform program. These circumstances accelerated
the expansion of DVD recording of suspects’ interviews.
5. Plain language at trial
Among legal practitioners (judges, prosecutors and private attorneys),technical terms are enough to communicate with each other so that not only thegeneral public but also the citizens involved with the case were unable to precisely
understand what was happening in court. Legal practitioners have faced somedifficulties in plain expression but gradually improved so that the trial proceedings
have become understandable even to the general public.
E. Some Issues for Consideration
1. Public relations and secrecy of deliberations
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Six years have passed since the introduction of the lay judge system. The
observation of the majority of legal professionals is that the new system has been
relatively well accepted by Japanese society without any major problems. Based ona survey of citizens who served as saiban-in, over 50 per cent of them were unlikely
to have previously served as saiban-in before, but after completing their duties,
around 95 per cent of them responded that they had positive experiences.
In contrast, among those who have yet to serve as saiban-in, around 85 percent did not want to participate in a saiban-in panel. Since many citizens are still
reluctant to be saiban-in, legal practitioners should improve efforts at public
relations. In this context, sharing information and experiences of former saiban-in is
important. A strict interpretation of the provisions requiring secrecy of thedeliberations should be lessened in this regard.
2. Improving the skills of legal practitioners to communicate technical legal
concepts to saiban-in
As stated earlier, legal practitioners now tend to use more plain language
and non-documentary evidence than in the past. However, according to thesaiban-in survey, the saiban-in have become less able to understand the parties’statements. This tendency may come from the routine nature of legal work once
the initial enthusiasm for conducting saiban-in trials—one of Japan’s newest legal
innovations—has faded. Legal practitioners should continually improve their skills
and techniques in order to properly achieve the goals of the saiban-in system.
3. Protection of victims
In cases involving victims, specifically rape and other sex-related crimes,
the victims tend to avoid showing up at court, especially for saiban-in trials,
because such victims are afraid that the general public will learn that they werevictimized. Although some provisions relating to sex-related crimes in the Penal
Code are being considered for revision, procedural provisions also should bereconsidered.

IV.

RECENT DISCUSSIONS ON THE REFORM OF
THE CRIMINAL JUSTICE SYSTEM

Apart from the reforms mentioned above, this part intends to briefly
introduce the recent proposals to reform the criminal justice system of Japan. In
September 2010, some shameful events took place that seriously affected the14

public trust in prosecution. These events triggered reform and improvement of theentire prosecution. The Supreme Public Prosecutor’s Office took the initiative forthe reform. At the same time, many thought that further legal reforms werenecessary to bring about a new era. For this reason, the “Special Working Group on
the Criminal Justice System in the New Era” was established on 6 June 2011.
After around four years of discussion, the working group made a proposal forreforming the criminal justice system. (Appendix, slide 13)
The main points included in the proposal are the following:
A. Provisions for DVD recording of suspects’ interviews during the investigation
stage
As stated earlier, DVD recording has already been carried out in practice.
However, since it is done at the prosecutor’s discretion, proper regulations are
required. As for the scope of cases to be recorded, investigators and prosecutors
must record the interviews of suspects under arrest and detention for crimes to betried at saiban-in trials and in cases where investigation was initiated andcompleted by the prosecutors themselves 8, subject to certain exceptions.
B. Agreements between prosecutors and suspects/defendants and immunity from
criminal liability
Suspects often hesitate to speak freely and truthfully when they know that
their statements are being recorded. This can make obtaining statements moredifficult. Considering this difficulty, suspects/defendants are encouraged to givevideo-recorded statements in exchange for immunity in appropriate cases.
C. Expansion of wire-tapping as an investigative method
Wire-tapping on the basis of a warrant issued by a judge is employed forspecific crimes.
However, present practices are rather restricted so that
expansion of the scope of wiretapping is expected.
D. Points considered in the decision of release on bailJapanese courts seemed reluctant to grant bail in cases where a prosecutor
opposed release on bail, in particular contested cases. The proposal seeks tochange this attitude, as bail should be denied only when based on concrete
evidence of flight risk, danger to society, etc.

8

Japanese prosecutors have authority of investigation by themselves, and often do so.

15

E. Expanding legal advice by private attorneys
Expanding the number of cases where the State provides suspects withassigned legal counsel at the cost of the State is expected.
F. Promoting and enhancing the discovery of evidence
The present system and discovery practices do not require a prosecutor toshow a list of evidence to defence counsel. Thus, prosecutors should be required
to disclose to defence counsel a list of all evidence expected to be offered at trial.
G. Measures to protect victims and witnesses
In order to protect vulnerable victims and witnesses, expanded use of
testimony through video link is intended, and court ordered prohibitions against the
public disclosure of the names of certain victims and witnesses are welcomed.
H. Measures to secure witness testimony
Statutory penalties against witnesses who do not show up to court as
required should be enhanced.
I. Measures to conclude speedy trials for defendants admitting guilt
A draft bill of the reforms based on these proposals will be discussed in a
future session of the Diet.

V.

CONCLUSION

Japan started modernization of its criminal justice system 140 years ago, but
still keeps reforming the system, especially its legal training system and laws
encouraging public participation in criminal proceedings. Coincidentally andinterestingly enough, major reforms took place every 60 years, first in the 1870s,
next in the 1940s and then in the 2000s.
An American lawyer who is familiar with Japanese society and the legal
profession pointed out the different attitude between American lawyers andJapanese lawyers. American lawyers welcome reforming legal systems because
they think it creates business opportunities; however, that is not the case forJapanese lawyers because they seem to be worried that their acquired knowledge
and skills would become obsolete. The attitude of the American lawyers reminds
me of the words of Thomas Jefferson, the Third President of the United States:
16

I am not an advocate for frequent changes in laws and constitutions.

Butlaws and institutions must go hand in hand with the progress of the humanmind.

As that becomes more developed, more enlightened, as new

discoveries are made, new truths discovered and manners and opinions
change, with the change of circumstances, institutions must advance also
to keep pace with the times.

Japanese legal professionals have faced various challenges and reforms in
the criminal justice system during the last two decades. If the observation of theAmerican lawyer is correct, I believe, as Dr. Mikazuki did, that reforming the justicesystem in Japan will never end.

17