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Friday, December 01, 2006

Juries: Big in Japan

Keep your eyes on the new jury system that is taking hold in Japan.  Perhaps among the more interesting points is that it looks to use a "majoritarian" decision rule rather than a supermajoritarian or unanimity based one.  Of course, my argument for supermajoritarianism in the criminal jury context is meant to apply only to the American system -- but I'm currently looking at world jury systems to see how and why countries choose the decision rules that they do.  Spain and Russia have also relatively recently adopted jury systems -- and the decision rules they chose also weren't unanimity-based. 

Posted by Ethan Leib on December 1, 2006 at 10:12 AM in Article Spotlight | Permalink


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I'm very skeptical whether juries will make any practical difference in Japanese criminal trials. While U.S. criminal trials typically result in conviction rates in the mid 90th percentiles (i.e., something like 4-7 acquittals per 100 trials) Japanese conviction rates run 99.98 - 99.99 percent (i.e., 1-2 acquittals per 10,000 trials). Conviction is such a foregone conclusion that I am told Japanese courts typically take the evidence heard in U.S. sentencing phases before the judges reach a verdict so that they can announce the punishment along with the guilty finding.

A primary factor behind this conviction rate is that the right to an attorney does not attach until the defendant is charged, which usually takes place after several weeks of intensive custodial interrogation, including widespread use of sleep deprivation to induce conviction. This is the reason that the U.S. military has historically resisted surrendering custody of our service personnel suspected of crimes before trial in Japan. Our standard approach in the case of serious crimes was to hold the suspect in U.S. custody (even if a constitutional violation in some cases, who was going to object if the consequence of doing so might be to then be turned over to Japanese custody?) The U.S. would deliver the suspect to Japanese authorities each morning for a full day of questioning, but recover them at the end of the day to ensure they could get a full night's sleep in a U.S. correctional facility. (In less serious cases the individual would be allowed to remain unconfined on an American base and simply restricted from leaving the area).

Given that virtually all Japanese suspects have signed a confession before they are charged, and given the societal emphasis on reaching consensus decisions coupled with deference to elders/superiors/more experienced persons, I can't see the institution of the jury system making any real difference, or providing any insights readily exportable to other nations with either different cultural values or police practices. I think "civilian" Japanese jurors will be no less willing than current judges to convict on the basis of confessions, particularly when cultural norms will call for them to defer to the wisdom of the judges they are sitting with.

Posted by: Dave Glazier | Dec 2, 2006 11:03:53 PM

Isn't that not dissimilar to why jury nullification is almost taboo over here? Because southern juries just wouldn't convict a white man who did anything to a black man or woman?

Posted by: Simon | Dec 1, 2006 3:07:26 PM

So far jury trials have been a mixed bag in Russia. Something like jury nullification is very common. That may well be fine in some cases, since Russia tends to have a lot of very harsh penalties for pretty minor crimes. But, it's also happened in several cases where nationalist/fascist youths have beaten or killed people from Africa, the caucuses, or other former soviet republics. In such cases it seems pretty clear that the juries just don't think that killing darkies is something that good Russian kids should go to jail for. When the general respect for law is as low as it is in Russia (often for good reasons) jury trials are very hard to make work right. They may still be an improvement over the old way, though, where the judges were essentially an arm of the prosecutor's office.

Posted by: Matt | Dec 1, 2006 2:31:21 PM

Tangentially, about Russia and jury trials -

I had been under the impression that Jury trial had attained fairly strong roots in late Tsarist Russia, before its wholesale abandonment during the Soviet period. However, looking around to find something to cite in support of that, I see that I might actually have overstated the strength of the pre-revolutionary tradition; see S. Thaman, The Resurrection of Trial by Jury in Russia, 31 Stan. J. Int'l L. 61 (1995); J. Diehm, The Introduction of Jury Trials and Adversarial Elements into the Former Soviet Union and other Inquisitorial Countries, 11 Fla. J. of Transnational L. & Pol. 1, 20, 21-22 (2001) ("with the exception of approximately forty years at the end of imperial rule, the use of the jury as an independent trier of fact has been unknown in Russia ... a mixed system that included jury trials was introduced in 1866 under judicial reforms implemented by [Ts]ar Alexander II").

In any event, it seems to have made a strong resurgence in post-Soviet times, perhaps precisely because it has the effect of placing a democratic circuit breaker into the administration of justice, and countries which are emerging from unpleasent experiences with authoritarian government tend to grab onto - as did the United States - jury trials particularly strongly. It will be particularly interesting to see how the jury trial there fairs as other aspects of democracy in Russia retrench a little from the 1990s.

Posted by: Simon | Dec 1, 2006 1:52:28 PM

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