Academic journal article Washington International Law Journal

Patching Old Wineskins: Heightened Deference towards Saiban-In Findings of Fact on Koso Appeal Is Not Enough

Academic journal article Washington International Law Journal

Patching Old Wineskins: Heightened Deference towards Saiban-In Findings of Fact on Koso Appeal Is Not Enough

Article excerpt


"[N]o one puts new wine into old wineskins; or else the new wine bursts the wineskins, the wine is spilled, and the wineskins are ruined. But new wine must be put into new wineskins."1

The reforms that took place at the turn of the millennium in Japan have been described as equal in significance to those of the Meiji Restoration and the Occupation.2 Arguably, the crowning achievement of these reforms was the saiban-in seido-the Japanese lay assessor system- whereby laypersons are selected randomly from the public to sit on panels with professional judges to decide criminal cases. The saiban-in seido has certainly been the most visible of the millennium reforms.3 Although the saiban-in is new, the appellate procedure into which it is placed is old. Pouring the new wine of lay participation into the old wineskins of presaiban-in appellate procedure threatens to undermine the saiban-in"s influence and to spoil the contribution it was intended to make.

Part ii of this comment briefly reviews the millennium reforms, and the historical and spiritual significance of the saiban-in seido. Part Ill describes current appellate procedure in Japan, and explains why the capacity of appellate judges to replace facts on appeal threatens to compromise the goals behind the saiban-in. Part IV reviews a Supreme Court of Japan decision that indicates a move toward establishing a heightened standard of review for saiban-in findings. Part V of this comment argues that even if the Court were to institute a heightened standard for saiban-in findings, this protection would still not be sufficient to protect lay participants' contributions. Instead, the Court should move strongly to protect saiban-in input, and end the appellate practice that allows judges to replace facts on appellate review.


A. The Saiban-in Seido

Responding to a perceived need to improve the quality of justice in Japan, the Japanese Diet4 introduced the saiban-in seido-or lay assessor system-into the criminal justice system in 2004; it went into effect in 2009.5 The saiban-in seido is a system of joint decision making,6 whereby professional judges and laypersons together find facts and determine the sentence of a criminal defendant.7 Only in cases involving crimes punishable by death or indefinite imprisonment, or in cases in which a victim has died, is the saiban-in mandated under the system.8 The saiban-in system borrows features of European and Anglo-American criminal justice models, but is not identical to any other system in the world.9

In most circumstances, saiban-in panels are made up of three judges and six lay assessors.10 Saiban-in members are randomly selected from the voting population,11 and may be subject to dismissal for specific reasons.12 Like professional judges, lay participants may ask questions of witnesses,13 victims,14 and the defendant.15 To secure a guilty verdict, a simple majority that includes at least one lay assessor and one judge is necessary.16 The same majority is sufficient for determining a sentence, except in cases where the majority does not include both a lay assessor and a professional judge. In such a situation, the vote most unfavorable to the defendant is counted with the next most unfavorable until such a majority is reached.17 The chief judge manages the panel during proceedings. She must update and educate lay assessors on legal rulings or court procedural decisions.18 In addition, she must "conscientiously explain[] the necessary laws or ordinances to the lay assessors, making arrangements so that deliberations are easily understandable . . . [and] provid[e] sufficient opportunity for the lay assessors to voice their opinions . . . so that lay assessors are sufficiently able to execute their duties."19 Lay assessors, as well as judges, are 'entrusted' to freely decide the issues before them "based on the strength of the evidence. …

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