An earlier experience of lay involvement in court decisions in Japan – The Jury 1928–1943

Lay judge, or “saiban-in”, courts try serious cases in Japan. Sitting together, professional judges and lay judges decide guilt and sentence. Resembling Anglo-American jurors, and unlike lay judges elsewhere, saiban-in are selected at random and sit in only one case. Dissimilar to mixed tribunals in some countries, where they cannot, or do not in practice, Japanese lay judges question witnesses directly, giving them a more active role in fact finding than jurors. Before their inception, in May, 2009, ordinary citizens’ participation in the criminal justice system was very limited. A criminal jury system did exist from 1928 to 1943. It was not, however, a success. This article tells of the creation of the jury system in the 1920s and examines reasons for its failure including the law itself, opposition by the judiciary, cultural elements (taken by some to confirm that under no circumstances could jury trial work in Japan) and political factors such as descent into authoritarianism, militarism and war.