Lay Judge and Victim Participation in Japan: Japan’s Saiban’in Trial, the Prosecution Review Commission, and the Public Prosecution of White-Collar Crimes

Abstract

In September 2019, the University of California Hastings Law School hosted a symposium on Japan’s newly instituted public and victim participation systems in the criminal process. This paper addresses themes raised by five scholars' presentations at the symposium, covering the effectiveness and impact of three different newly adopted systems of lay and victim participation in Japan: (1) the new 2009 law of the Prosecution Review Commission (PRC), a Japanese-style “civil grand jury” originally introduced in 1948, which gave the PRC the power to force the prosecution of formerly unindicted cases, thereby challenging and reversing the prosecutor’s original non-prosecution decision; (2) a mixed tribunal called “Saiban’in Seido” introduced in 2009, a quasi-jury panel of three professional and six lay judges in the adjudication of violent and serious criminal offenses; and (3) the victim participation program implemented in 2008, in which crime victims and their proxies were allowed to express their opinions and grievances during the criminal justice process. This paper also explores alternative trial venues through which the adjudication of whitecollar crime may possibly take place, including a new mixed tribunal, as well as the all-citizen, 12-member jury trial. While Japan’s Jury Law was suspended in 1943, its legal provision still exists as part of today’s criminal law, and public efforts have been underway to “unsuspend” and bring back the Jury Law in Japan. Also discussed in this paper is the “revolutionary” use of the all-citizen PRC in the prosecution of state crime, one of the most egregious of white-collar crimes committed by the government. Specifically explored is the PRC’s role in challenging an “unequitable” bilateral treaty between the U.S. and Japanese governments and in extending Japanese jurisdiction over the adjudication of foreign military felons who victimize local residents.