UW School of Law Transcript

Asian Law Center 50th Anniversary Featured Speaker - Dan Foote

March 7, 2013

Dean Kellye Testy

Well good evening everyone I'll go ahead and get started. I'm Kellye Testy the Dean of University of Washington School of Law and it's a great pleasure for me tonight to have the honor to introduce Prof. Dan Foote. In some ways the person may be here at the University of Washington who needs very little introduction but it's nonetheless a great honor to welcome him and to introduce him for his talk tonight.

The lecture that Prof. Foote is giving tonight is part of our celebration of 50 years of history of our Asian law Center, the oldest Asian law Center in the country. And a center that we are incredibly proud of-of the many accomplishments that it has seen over the years. As bias that history has been and is distinguished we are also incredibly committed to making the future of passenger one that's even more distinguished. And we have been hard at work over the last few years making decisions about what that future will look like as the way the school approaches in Asian Law Center continues to change as the configuration of the areas of emphasis that we have continues to evolve. So we are really proud now that as much is that center in many ways began with a strong if not a sole emphasis upon Japan for retaining that we have also broadened our emphasis to include China and also Korea and other areas within Asia. And the University of Washington is fast becoming I think the place that's known as the crossroads of Asia in many ways so that persons who are interested in studying many of the different laws of all those countries can see us as a connector in that regard. And we are very excited and proud of that.

It's a pleasure for me to introduce Prof. Foote tonight because he is that such a formative an important role in the development of Asian Law Center. He is now a tenured professor at the University of Tokyo. What many of you in the room now and I am happy to share is that he also spent a good part of his career at the University of Washington, I think, 12 years here is a Prof. And during that time he was the Dan Fenno Henderson Prof. of law and incredibly important faculty member in our Asian Law Center leading or building on the legacy that Prof. Henderson established as well as professors Haley and others who have been so important that centers development.

I wanted to share briefly with you that one of the plans for the future that we're incredibly excited about is that it is become possible again to think about a joint appointment between the US law school and the law school in Japan. And so this visit of Prof. Foote we aim to be one of the times when we can celebrate not only him being here at this point but also the start of a routine sharing of the wonderful talent that Dan foot has so that we can have a joint relationship again and have you back in the fold. And I know that you are also was pleased about that is I am. I see people starting to hold back applause and let's not hold back. Let's say how happy we are about that.

I don't want to take up too much of your airtime today. I know that people are familiar with your biography and it's easy to find but I do just want to say that we are so pleased that you're here and look so forward to the future. Prof. Foote is one of the world's most distinguished scholars in Japanese law and also in comparative law. He at the current time has primary responsibility in the field of sociology of law and his research interests have been quite wide-ranging including criminal law, law and sociology, work and labor an employment, work in dispute resolution. The range of his work is very impressive to me and I also note that the quality of his research, the quality of his teaching, and I know when he was a colleague here the quality of his service to the institution was quite remarkable. So Prof. Foote we are very pleased that you are here with us and we welcome your remarks tonight.

Professor Dan Foote

I am very pleased to be here. As Dean Testy noted, the oldest Asian Law Center in the US, she didn't add the word best I think she should have. I really do. The University of Washington is the best Asian Law Center in the United States. I will get to the next slide. Including my 12 years on the faculty here but since I moved to the University of Tokyo in 2000 and I have taught one course of a year jointly with the University of Washington international contract negotiation using videoconference facilities. So in that context I have been an affiliate professor for the past 12 1/2 years. So I can claim that of the 50 years I have been directly affiliated with this Asian Law Center for half of it. But even before that started certainly I was deeply influenced by the work of Dan Henderson, John Haley and the many others who contributed so much to this center. And I might also add probably one of the proudest days of my life was the day I was named the inaugural Dan Fenno Henderson Prof. of East Asian legal studies here. And one of my great regrets in leaving for University of Tokyo was that I would no longer be able to sign my name that way after I left. But today I am planning to speak about criminal justice sent in particular the Saiban-in system.

I envision a book on criminal justice reform in historical perspective. And I'm going to subject you to a bit of the historical perspective at the start here because I think it is important to know where Japan has come and to give some sense of the importance of the recent reforms. Some of you heard a talk I gave a couple of days ago about legal education reforms in Japan. I have been most heavily involved in those reforms and I am afraid at this point I find it a rather depressing topic. On the other hand the reforms in criminal justice I count myself as an optimist with regard to these reforms but I think the impact of these reforms is been even better than even I might have imagined as a kid I hope will be a much more upbeat talk.

But first the historical perspective, the ones I am planning to deal with are the ones I set out here. First looking at the historical background the Eddo period, the traditional Japanese criminal justice system. And then a series of reforms in the Meiji-Taisho Era, late 1800s to the first part of the 1900s heavily based on continental models, German and French models. Part of the prewar that was the jury system heavily based on the Anglo-American model and so the Saiban-in system as you know is frequently called the Japanese style jury system. It's a lay participation system. It's not the first time in Japan. There was a jury system and I want to talk a bit about the prewar system. Then the next major phase heavily a US influenced postwar reforms to criminal justice. And really what got me most likely started on criminal justice in Japan was the death penalty retrial cases and there were four celebrated or highly publicized cases in which death row inmates who spent their entire adult lives on death row ultimately achieved retrials and were acquitted. And that led to a lot of soul-searching and many proposals for reform. And then the most recent reforms especially from 2001 on are the phases I have in mind. And some of the recurring themes. One is the role of confessions, the centrality of confessions in Japanese criminal justice in particular. A second recurrent theme is: deference to authority and especially the central role played by prosecutors in the system. Tied with that is the adversary system, various efforts of various reform efforts to strengthen the adversary system. And part of that as well with the notion of the public trials, strengthening of the public trials is another recurrent theme-popular participation only appears from time to time-the prewar jury system in particular. A couple of other elements, themes that I think are important: one is the basic philosophy with regard to punishment. And especially in recent years the role of victims’ victims right's movement has become an important theme.

In looking back very quickly first the tradition, traditional system, confession rest required. In principle there could be no conviction without a confession it was a confession statement so-called that was prepared, a document prepared by the investigators and then sealed or acknowledged by the suspect. And because confession was required if you couldn't get a confession then there was a very elaborate hierarchy, a very detailed hierarchy of torturers escalating torturers to be used. But in the system again great deference given to the investigators and there was effectively no formal legal profession and at least in theory and no representation at all. There were a few equivalents, but trials were not open and the punishment philosophy was harsh and very much deterrent centered: heads on pikes and things of that sort.

The punishment philosophy, there was a major change in the late Meiji, early Taisho era. And I have cited in this regard a statement or a presentation, speech made by then prosecutor General Hiranuma to prosecutors in which he said basically imprisonment just hardens criminals. Imprisonment, we should be doing our very best to keep offenders out of prison. We should be doing our best to channel them back into society and the so-called suspension of prosecution doctrine we recognize that in fact we could prove guilt, we can achieve conviction but that would not serve the interests of society so we will suspend prosecution and push for reintegration. These are themes that I developed an article that I wrote published back in 1992. I labeled the benevolence side of Japanese criminal justice and by benevolence I really meant use of both relatively lenient sentences with but with a heavy focus on reintegration into society, the paternalism side. Be paternalism side goes to most of the other themes that I mentioned: deference to authority it was paternalistic by the prosecutor's. The Meiji-Taisho reforms here the continental-based reforms on paper they affected many matters, themes I just mentioned. Confessions weren't required. Torture is prohibited. Right to counsel is recognized. Public trials are instituted. In practice however confessions remains central and there are all sorts of devices for getting around including outright torture but it was limits on the number of days of confinement but you could get around it just by moving from police station to police station for example. And the Council role was highly limited. You did have a right to counsel if you could pay for counsel however counsel were not permitted to participate in the investigation. They did get the dossier that was compiled by the investigators but otherwise no independent investigation by the defense counsel. And the public trial basically was documentary. The confession statements again were prepared by the prosecutor's or their assistants not verbatim. They were introduced into court not read aloud in court and simply passed across. So although it was public in theory and practice even if you attended you basically just saw passing back and forth of documents.

The prewar jury system: the jury act of 1923 set into motion but there was a five-year preparation… It started in 1928. It is very much based on the Anglo-American model. Defendants could opt out of the system and instead choose a bench trial a 12 member jury with no judge present etc. The initial projection, and again the jury decided guilt only the judge would decide the sentence. The initial projection was that there would be 2600 cases per year. In fact when it started trials were quite active. There was cross-examination and it seemed that the trials were active. In the press coverage is very positive at the start. In fact the acquittal rate when you compare to the comparable years, the acquittal rate overall was 16.7%, vastly higher than the judge trials in those years. But the jury was not used very much at all. The highest it ever reached was 133 cases in the year, that was the first year. In the 15 years it was in effect under 500 cases. Projection had been 2600 cases per year so in 15 years they got less than 20% of what they had projected for just one year. Why were there so few? Various reasons are given. The (Japanese term 14:59) so-called the Japanese character, Japanese just aren't accustomed to deliberation in the group for example or Japanese so much trust judges that they won a decision by the judges. In fact there were cost elements. If you are convicted you were responsible for paying the cost of the jury. There were many barriers there was for example a right to appeal and on appeal the judges could simply disregard or in fact the judge could override the majority or on appeal the judge could even if acquitted the judges could reverse and convict. I can't prove it but I think one of the other elements was defense counsel. It didn't pay all that well, it's a lot more burden and there is at least a since the defense counsel were suggesting you don't really want to do this to you wouldn't you prefer a trial by judge? In any event it was very little used and it was "suspended" in 1923 but it was never reinstated.

The postwar era here it's a US style of reforms. And in fact the US occupation was quite positive about the prewar system on paper. Said well yes it's a continental system but there are all sorts of protections in the system however they were undermined by loopholes then legal fictions. We are not going to let that happen. We are going to have elaborate safeguards in our system to make sure that doesn't happen again. And among the reforms going to confessions, a right to silence of various warning requirements about the right to silence. I will just highlight the one the very bottom here: in criminal procedure code confession as to which there was doubt that it was not made voluntarily shall not be admitted into evidence. And others: if it was after prolonged duress or detention shall not be admitted into evidence. Others: there was a string control for defense counsel and this was very much envisioned that they would conduct their own independent investigations, heightened right to cross-examination, public trial was envisioned as a centerpiece so strict limits on use of hearsay evidence for example. The occupation considered reinstating the jury and many Americans who were involved in the occupation said of course Japan needs a jury. But those who were more directly involved: Alfred Doppler who headed the courts and Law division was a German jurist of Jewish descent and had been an administrative law judge in Germany and he didn't really think much of the jury system. I understand Tom Blakemore who was also his assistant, Tom Blakemore wasn't really fond of the jury system either. So it turns out that the jury system is not insisted on and reforms.

In practice: very quickly, numerous loopholes and legal fictions developed and they were at least tacitly accepted and in some cases explicitly endorsed by the courts. With regard to the confessions, I will just highlight one. First a couple of elements on the interrogations: the basic procedure in Japan provides for 23 days from the time of arrest to the time at which prosecutors must either decide whether to indict or release. And that 23 days can and at least in difficult cases frequently is used for interrogations, sometimes very lengthy interrogations for each day during that period. 23 days aren't enough and you can get around it. Voluntary accompaniment, so-called, we won't arrest you, surely you want to talk involuntarily. Or arresting on a second crime or a third crime or a fourth crime: You may recall that after prolonged arrest or detention confessions made after the longest arrest or detention are not admitted into evidence. The court said in one case what has been six months but it was six months subject to a series of lawful arrests, just accumulation of periods on about 20 different crimes and therefore we cannot say that this was prolonged duress or detention and the confession is admitted. These were conducted in secret of course. Prosecutors certainly will not allow counsel to be present and no taping. And again this is a confession statement it is not verbatim but it's prepared by the investigators. The defense counsel role similarly while reforms call for publicly provided counsel for indigents it was at the stage it at which you are accused. That's it the indictment stage. That's after all of the 23 days or six months if you have been subject to arrest on several other charges that takes place. While there is an immediate privilege of counsel it may be conditioned on the needs of the investigation. Prosecutors were not at all shy about using this. They said: we are interrogating you cannot command this is our period for interrogation so in fact meetings were very sharply limited. While in the prewar years defense counsel had been given access to the dossier prosecutors at this stage said oh no now we have the adversary system. You are responsible for conducting your own independent investigation you don't ask is that to that anymore. And discovery as well, the discovery system was not instituted and so in fact the defense counsel ended up with very limited tools. And thus leading in practice in Japanese various phrases about the defense counsel system, the cooperative system, the quasi-adversary system, the so-called adversary system and this is borne out by a survey of lawyers: have you ever in your entire career requested an order compelling disclosure of evidence? 75% said never. You can go down the list basically a very limited role for defense counsel. Similarly the public trial here was largely so-called (Japanese phrase 21:58) trial by documents, passing across of confession statements and again these are not read aloud in court. About a year or so ago I had received a message from Don Clark who many of you may remember a former colleague here, Chinese law specialists, and he was asking about Chinese criminal procedure. He said in China there is this process of preparing confession statements not verbatim just confession statements and all they do they submit them to the court and they read them aloud but that's all and he said in China this a.m. by the way this is very similar to practice in Japan. And he wrote me and he said is that true? I wrote back and I said that sounds so much better than Japan. In Japan they don't even read them aloud in court. And recently there was a case in which it turns out to have been someone who had conducted a psychiatric examination of the accused and had access to the confession statement and he leaked it to a reporter in this got published in a book. He has been prosecuted for violating his confidentiality duties. So it is regarded that these are really secret documents and not to be revealed to the public. So much in my view for public trials. In any event so those were some of the aspects of the postwar reforms and the way in which they had been limited.

A judge, Ishi Matsu was about to retire made a few waves by saying: we need judges, the courts really aren't involved in this process. It's the prosecutors. It's prosecutorial justice and proceedings in open court are merely formal ceremony.

One more element before we get to the recent reforms and that is the death penalty. We trail cases that it is been a good chunk of several years while I was here working on these cases. And as it turns out once the Supreme Court opened the door to retrials there had been very, very strict limits on obtaining retrials but once they opened the door retrials were held and ultimately the suspects, the defendants were acquitted and the courts said in effect you really were innocent and at least three of those four cases. The other could not be proved beyond a reasonable doubt. But among the factors were that there were unnatural confessions but the prosecutors had proceeded on hunches and kept changing getting new confession statements that fit the new evidence is a came in and suppression of exculpatory evidence and other improprieties. And the reaction this really did lead to tremendous soul-searching and really quite real soul-searching by all three so-called branches of the legal profession: the judges, the prosecutors and defense counsel. And resulted in all sorts of proposals along many of the themes that I have mentioned on how this can be prevented in the future. And I will skip over the specific reforms but what happened?

Ultimately here again it was centrally just internal. Each of the three branches pledge themselves to recommit their efforts to make sure this never happens again. There was a lot of blame for defense counsel to. A defense counsel who in one of the first cases the Menda case just jumps to the conclusion that of course the suspect was guilty and basically said: well please have sympathy on him he just made a mistake. So there was a fair amount of blame to go around but ultimately the upshot was essentially just internal, internal changes with very little in the way of external checks. One shift though the courts, at least with regard to immediate privilege of meetings with counsel, they became much more critical of prosecutor practices of allowing only 15 min. every five days for example and urged a greater opportunity for meetings and that led to some changes in guidelines but still sharp limits. In the Bar Association it is all kind of voluntary essentially pro bono basis provided so-called duty solicitor system an opportunity to have one free consultation with a lawyer for indigent suspects. The death penalty, the abolition movement also developed great momentum at that point but as I say here the Tokyo subway sarin gas attack in the wake of that suddenly the abolition movement basically disappeared.

Three other items I want to highlight in this regard is a couple of noteworthy reactions. First was by Prof. Hirano at the University of Tokyo a leading criminal law and criminal procedure specialist. He gained quite a lot of attention as you might imagine by an article in which he starts off by saying: Japan’s code of Criminal procedure is abnormal even diseased. And he goes on to explain why it is diseased and among the things he said is this: judges also don't really think much of trials. They think the truth won't come out in a public setting. They think the way to get at the truth is to read through these dossier, confession statements and in many cases these go to hundreds, thousands of pages even in some cases. The way to get at the truth is to go through the dossier back in private. But he says the judges are deluding themselves if they think they can figure out the truth from that. But he closes it by saying: is there any way out? Unless they lay participation or jury system is adopted with not criminal trials in Japan are really quite hopeless. And that is the final phrases. But here suggesting lay participation or a jury system is a way out.

And one other in response to Hirano Prof. Ino at the University of Tokyo who incidentally was a visiting scholar here in the early 1990s and later served as a member of the Justice system reform counsel and chaired the advisory committees that came up with the proposals of the Saiban-in System. But this is his response to Hirano: in my view the real crisis in Japanese criminal justice lies in the fact that defense counsel have so few tools at their disposal. Because they have so few tools at their disposal skilled defense counsel lose the will, or skilled lawyers lose the will to participate in criminal matters. That is really something we should address. And that to my mind is an important part of the picture of the later Saiban-in system.

And one other noteworthy development and that is Chief Justice Iguchi. In 1988 he sent some judges to the United States and Europe to investigate the jury in lay participation systems in fact our law school was one of their first stops for a couple of those who came to the states. I wasn't entirely clear what he had in mind whether he wanted them, one his came here said: I don't know what answer he wants. I don't know whether he wants me to praise the jury system or trash the jury system. It turns out this guy trashed the jury system and I think that was the wrong answer. But in any event Iguchi is later recounted he was on an airplane coming to the states and happen to have a conversation with an American woman in the seat next to him and she talked about the jury system and learned he was a judge and talk about the jury system. And he was fascinated by how important it was. In any event that was to at least lay the groundwork. It opened the possibility.

I will skip over this but another major trend, another major theme that I need to take into account is the rise of the victims’ rights movement and eight increase in punitiveness in Japan from the 1990s on.

So no need to revisit this it's basically the same things I've been mentioning but the lessons from history, there were several waves of reform and in each of these waves or most of them many of the same recurring themes and I am sure those who were involved in the reforms would say oh yes we made some real difference. But looking back at least my assessment is relatively modest in fact of each of the prior waves. Is there any reason to think that this time will be different? And that takes me finally to these recent reforms.

Here the real mover was the justice system reform counsel. It was a counsel established by the Japanese diet for a two-year term and issued its report and recommendations in 2001. There were 13 members of whom three were from the legal professions and three more were legal academics with the others coming from outside either legal academia or the profession. In fact that's a huge set of recommendations. It extends to many, many fields of law. One of the other striking aspects is how rapidly many of them are implemented. For me I have followed Japanese law for a few decades at least since the late 70s up until that point and license of Japan was gradualism, very gradual change was the norm in most fields. But this really led to some striking changes and quite dramatic. In part because Prime Minister Koizumi took you under his wing pushed for a reform, designated the cabinet as the headquarters and eight set concrete timelines with 2004 is the ultimate deadline. As I have said here there are over 20 pieces of legislation many other small pieces of legislation, regulations since they didn't require legislative action. So really a huge set of changes.

Within the criminal justice system there were three major facets: one as a strength and adversary system, one where efforts to invigorate trials and the third is the popular participation or so-called jury system, Saiban-in System. The implementation process the expert consultation committee for these matters, this is chaired by Prof. Enooa whom I just referred to the one who back in the 1990s had said the real dilemma is, the real crisis is that defense counsel don't have enough tools and they lose the will for representation.

But turning specifically to the Saiban-in System and popular participation there was a fierce battle. First a fierce battle... Fierce battle dating back to at least the 1980s but at the justice system reform council itself some bitter opposition to any popular participation in initially the judiciary in ministry of justice were proposed. Another view, the other extreme was the only thing that will do is a true jury system. In Japan a 99.7% conviction rate, judges the presumption of innocence doesn't mean anything, it judges are so inclined to convict the only way to overcome nice to have a true jury with no judges present otherwise judges will dominate. A third view was quite the opposite we should have a late participation but we need judges involved. If you leave it to lay people themselves they won't know anything etc. And another view as well we don't really care we want some form of lay participation. In fact the Saiban-in word, a former professor of mine coined that word and he coined it: "Saiban" that means trial, "in" means a person, basically, member. And he coined it to avoid either jury or (Japanese term 35:30) which was the lay participation term that had been used basically to leave it vague so that it wouldn't decide one way or the other. But once it was decided that there would be some form of lay participation in it would not be a pure jury then the next issue was what proportion? And one proposal, the judiciary said well: 3 to 1 or 3 to 2 three professional judges, to outsiders. Of course the bar was just the opposite: one professional judge, 11 professional jurors, that's the French system etc. and so that was part of debate as well.

The rationales: when the judiciary did give in and say okay we can have such a system the rationales it offered was basically well we've got a great system but this will make it even better. It will make it even better because the people understand the system better, they will have more trust in the system and maybe we can use some additional views. Maybe that will also help give an even richer discussion. The Bar Association was quite different. The Bar Association part of it was proper penalty. We need to have popular views to ensure our proper penalty but much more emphasis was put on miscarriages of justice, presumption of innocence. We need outside views to overcome the tendency of judges to just convict everyone. But it will also help achieve popular sovereignty and will also protect human rights and freedoms. And so a very long range of peoples at the bar had for it. All proposals are typically are products of compromise break year it was really quite extreme. The whole series of views they came together in one of the other sets of views was the judges are out of touch with the common sense of society. They are too lenient. Don't they realize the concerns of victims? But yet another was the way it ties into the other elements. And Prof. Ino a good colleague and friend explained to me at some point and you have to look at the justice system reforms proposed by the reform counsel is really three legs. It's a three legged structure. It's the popular participation system but various steps to invigorate the adversary system and other steps to invigorate trials. And they are all interconnected. It's the jury system that pulls them all together. They had all been proposed in the past but with the jury system in order to have the jury system function effectively you would need to have a trial where jurors can listen and hear they don't have to read thousands of pages of dossier or hundreds of pages of dossier and so you need a trial that's at the center. But beyond that in order to really have an invigorated trial you need a strong defense counsel system. And to achieve a strong defense counsel system you need various other steps such as providing government provided counsel from the suspect stage and expanding the discovery system. So that is yet one other aspect of the reforms.

The system itself, it was again a five-year preparation. As the Taisho era jury, this time it's also criminal trials only initially limited to serious cases, early predictions were for about 3600 cases per year but it's mandatory. There is no right to opt out. That was part of the lesson from Tasha. If you let the defendants opt out they might not use the jury at all. It is also mandatory even if it is not a contested case. This is not only mandatory for contested cases this is mandatory for all cases in the covered categories. It is a nine-member panel: six lay judges and three professional judges. For an contested cases the law would permit a five-member panel but so far only the nine-member panel has been used. And they did deliberate on both guilt and sentence and so far at least today blended procedure and this is one of the issues that is under consideration: should it be bifurcated? Should there be a decision first on guilt and then later on sentence? I certainly think so. But at least so far it's a blended procedure.

A couple of other elements: judges in Japan may question the witness and may question defendants. Judges give a perfunctory warning at the start: notice you do not have any duty to make a statement. But then very frequently say so would you like to say something? But here again the lay judges also have the right to ask questions. And finally one other feature as of cases heard by judges: acquittals may be appealed. But here if it's appealed it goes to the High Court in the High Court is composed only of professional judges.

And so this is the mockup. There was a lot of deliberation, a lot of discussion given to how it should be framed, who should sit where. But ultimately the three professional judges are at the center. Presiding judge at the very center, lay judges on either wing and I have said here and additional reform was the clothing of the defendant. Up until that point defendants came in typically in prison garb. One of the members of the citizens Council for Defense Federation of bar associations on which I sit strongly protested and said that already sends the message that you're guilty and it did and that was another reform. Now defendants are allowed to wear normal clothes.

Prior to implementation, kind of ironic, the mass media in the past was highly critical of prosecutors and the dominance of high prosecutors but as soon as the system was basically announced that it shifted to Saiban-in bashing and bashing at many levels. But among the concerns: one was reluctance by the public to serve. Will jurors, lay jurors be able to play a meaningful role won't they be dominated by judges in the Japanese context? And here various surveys, the cabinet conducted various surveys and members of the public said I don't have any confidence I'll be able to do this. I don't know anything about how trials are conducted. I don't know anything about law. Some other concerns were confidentiality requirements. And there are some according to the law when you read the law it looks as though very strict confidentiality requirements which literally you can't even talk to your spouse about the trial. Another concerns over pretrial publicity for example and certainly a major concern of preparedness. The judges and prosecutors were able to set aside time for training for it. Most defense counsels were not, most lawyers were not. And so that was another concern. And the reaction by the public in general was, why? You tell us it's for us, it's for popular participation review never asked us. This is top down and the initial response first a survey in 2005 when asked do you want to participate etc.? Only 4.4% said that they wanted to participate and over 17% said either I don't want to, don't much want to. The next time around they learned their lesson. They change the phrasing. So they included this other: I don't really want to but I will if it's my duty. And so that suddenly gave them a much higher percentage. But even 2009, and this survey was conducted just as the new system starting but even at that point wanted to participate was up to almost over 13%. But still 26% said even if it's a duty I won't go. So this is not really a ringing endorsement by the public.

But other reforms, so this was one set of reforms and there were other reforms as I have mentioned. The other two legs: to strengthen the adversary system, access to counsel is increased, counsel from the suspect stage, great expansions in legal aid and also the judiciary gets involved in sending a stronger message about the importance about having access either immediate access to counsel or at least early access to counsel.

The discovery system is also, substantial increases in discovery, right to discovery. Still some limits actually many limits but nonetheless major expansion, and again the judiciary sending a message. This is a supreme court decision involving whether a confession was voluntary or not and if you look at only the official prosecutorial records everything looked voluntary but the Supreme Court said to really look at this we need to know what went on in the interrogation. And police who sat in on the interrogation, they were taking handwritten memos and they ordered disclosure of those handwritten memos. That sent shockwaves to the police. One of the police officials is taking my class at the time. But it did send a strong message on the importance of disclosure.

And also various steps to invigorate trials and in particular to achieve put in Japan is called directness and orality in a life in court testimony direct in court oral testimony rather than simply passing documents across.

Finally, has achieved its goals? And again there are many different goals but with regard to presumption of innocence: well, the acquittal rate for these cases is for the first three years 0.6%. It is basically the same as the same categories of cases in prior years. But there have been some very striking acquittals and I have highlighted here in eight cases involving drug smuggling juries acquitted. And these are cases in which the drug smugglers said well you know I was at the airport in Lagos and someone came up to me and said I have this package that I would like you to take. It's to deliver to somebody. I had no idea there were drugs in it. I just accepted it and came in and while I am shocked to discover that it is full of heroin. And in any of these cases there have been acquittals. And in Japan it is basically unthinkable that professional judges would've acquitted in these cases. So at least in these cases the presumption of innocence with the jury are really willing to consider well that might've happened to me, I could be global, I could've done it. And so those are one set of striking cases.

Another that I found very striking was there was a DNA match for the suspect but nonetheless after a search and review of circumstantial evidence, and this is a death penalty case, but the court acquitted. And this too is at least conceivable. One likes to think that you didn't need a Saiban-in to achieve an acquittal in this case but these are at least some striking examples of where the Saiban-in seems to be taking a really searching review. It is too early to tell whether this is protecting against the mistaken convictions. My response to that would be that it's more important than who is the decision-maker itself are the other attendant reforms, the reforms to access to counsel and discovery and the like. And at least one can hope that those will play some role in protecting against mistaken convictions but 10 years from now who knows we may have another set of mistaken convictions coming to light.

Have they affected sentencing? And if so in what direction? One view was there too lenient and we need the common sense of society. And sex-related crimes, rape and sex related crimes there has been a significant increase in sentences. For other categories: the median is about the same as it was but there is much greater variability. Judges tended to be very much along the same (Japanese term 49:34) the same market rate whereas now the Saiban-in trials now there are more cases at the lower end and a few more cases at the higher end of the spectrum. For me the rehabilitation and reintegration ethos is a very important element of Japanese criminal justice and I have watched the growing of punitiveness and feared that the Saiban-in system might have a negative impact on it. At least so far that doesn't seem to be the case. If anything there is an increased use of suspended sentences but much greater increase of suspended sentences with supervision, supervision by a probation officer. And here it seemed that in the past there was basically an acceptance by everyone involved in the system: it doesn't really work. Probation officers they are old, they cannot really relate these young offenders. They have too high a caseload etc. so we just won't place any expectations and Saiban-in our placing expectations and it. And I think there is a message here: we want to have reintegration into society and we think the probation officer has an important role to play in it. It may be that two or three years from now this will backfire. It may be that this will also send the message: we need to re-examine the probation officer system. If there are problems with it get younger probation officers, get more probation officers and the like. So at least in that regard I view this as a sense that the Saiban-in our really placing expectations for a reintegration.

Has enriched deliberations or conversely the fear is that Saiban-in will be dominated by judges and won't be able to express their own opinions. I here at the conclusion of every trial the court distributes a questionnaire to the Saiban-in and asks them to fill it out in the vast majority do in fact fill it out. One of the questions is: was it easy to talk in the deliberations? Did you find that there was an atmosphere that made it easy to talk? And here the Saiban-in the overwhelmingly yes, over 70% say yes it was easy to talk. And a very easy person to say it was not easy to talk. Were you able to discuss thoroughly is another question they asked. And here again over 70% say yes we were able to discuss thoroughly. About 7% here responded there was insufficient time etc. But again, very high ratings for ability to talk and thoroughness of discussions. Whether this is creating popular sovereignty or not is entirely another question and very hard to get it. It's very hard to get it in part because access to those who experience the system is very limited. There is the jury and democracy project. If you're not familiar with it it's a project that was started here at the University of Washington. Two faculty members involved in it John Castrol and Cindy Simmons have been lured away by Penn State but it's a great project and very very thorough, comprehensive empirical study. I would like to do such a study in Japan but, and I actually have a group of people translating the book imparted in hopes that it will persuade the Japanese judiciary to gives permission to do something similar. But at least so far it's very hard to get it. At least on one token the ability to discuss on an equal footing with professional judges may give those who participated even greater confidence. But again the strict limits on confidentiality make it hard to get much spillover impact into our relatively few participants.

Can we understand the proceedings? Well overall yes they say they are easy to understand but the one category here: defense counsel. They don't do so well. It's particularly in denial cases only 28% of the Saiban-in said they were easy to understand. About 25% said it was hard to understand. Defense counsel's say will that's just inevitable are role is much larger difficult than the prosecutor's role. We are trying to plant doubts etc. of course it will be much more difficult to understand. But this does at least raise some questions about whether defense counsel both preparedness and ability to connect with the jurors. However they evaluated their experiences again those who served prior to serving over half said: no I didn't really want to serve. But after serving it’s overwhelmingly positive. 55%, and these are consistent here for each of the first three years, 55% have said it was an extremely good experience another 40% said it was a very good experience. But this doesn't really mean there is no longer reluctance to serve. And these figures are troubling. It's nearly 60% seek and are given waiver when they are called but even if they are not given a waiver despite Japanese feelings of duty over 20% don't appear even after receiving a summons. So there are concerns in that regard.

Skip over those.

I just want to address some comments about the impact on the judiciary. And this to me I find especially heartening. Although chief justice Yaguchi had expressed fascination with the system there was great resistance within the judiciary with. Rank-and-file judges and even high-level judges, there was great resistance. And the judiciary easily could have undermined the system in many ways. They could've at least dominated the process. But looking back over the five-year preparation. And now the first 3 1/2 years of the system I am very impressed at the great efforts the judiciary has made. Not only to get the system off to a good start but by its focus on the ideals, really seeking to achieve live in court testimony. At one point early on someone said: well maybe the judges will just get these dossiers and these (Japanese term 56:26) and we will have to prepare our own short summary because surely we can't expect the Saiban-in to read all of them but instead they said no no that's not the direction to go. We're going to focus on live in court testimony. And they have also devoted great efforts to ensure that the Saiban-in can participate actively. So they do let the Saiban-in speak first and put a lot of effort into training judges so that they will facilitate discussion rather than squelch or stifle discussion. So tremendous efforts during the five-year preparation. And since then as well. When the question of constitutionality came up the Supreme Court dealt with that very quickly. A unanimous decision by the entire 15 Member Court saying basically there is just nothing to this is clearly constitutional system. And when a High Court reversed one of these drug acquittal cases the Supreme Court overturned that as well and said you really should respect the findings of fact by the first instance trial after all. They saw that the witnesses and their live testimony and in fact there has been some backsliding by both prosecutors and defense counsel. They want to go back to the old documentary trials, that's a lot easier. In the judiciary is pushing them to keep to the live in court testimony. They have also been proactive with regard to other reforms. They have pushed for greater cooperation on discovery. I mentioned the earlier Supreme Court decision on police memos and other decisions relating to discovery. Now there have been a number of decisions rejecting confessions on voluntaryness grounds which in the past very very seldom happened. If the courts are going to reject the confession they do it on reliability grounds but not on voluntariness grounds.

There is now a major push for videotaping of interrogations, great resistance by the ministry of justice to it. Kind of grudging: well maybe the very final stage after we've done our 23 days of questioning we will but now there is a real push for it, a meaningful videotaping of the entire process. If that happens in these videotapes start to come out I think there will be some real shockwaves about what goes on behind these closed doors but in any event this at least also ties in to the advent of the Saiban-in.

And then finally some major changes in attitude by the judiciary. Before it started I was told by judges in Japan are divided typically by those who handle criminal cases and those who handle civil cases. Criminal cases in the past there is that almost no interaction with the public. Civil cases there were settlement conferences and the like so much more interaction with members of the public. In the judiciary was suggestiveness of the judges who handled civil trials my shift over and use that experience for the criminal trials. I am told there was resistance. We don't want to do that we are civil judges. But recently at meetings of judges I'm told that within the judiciary now they welcome the Saiban-in trials. They really want to handle them. These are a popular appointment. It is a chance to have some real interaction and to develop a new set of skills. And I will want to close here with a quote from former Chief Justice Ishimata. I haven't written it out. But it's about, and this is a comment that I have heard as well from several defense counsel and several prosecutors that the advent of the system has really given us the opportunity to rethink or to reflect on what the basic fundamental meaning and significance is of criminal trials. And the quote from former Chief Justice Ishimata, "from judges who have handled Saiban-in trials I have heard the sentiments that by forming impressions in open court through concentrated hearings centered on questioning of witnesses they have rediscovered what the true nature of criminal trials should be and at the same time they have come to the self-realization that in the past they were apt to fall into the rut of doing things in the same routine fashion or where concepts such as self-defense, intent or criminal responsibility were an issue and where in the past the judges had applied the concept in accordance with standards from academic theories or judicial precedents they input into their brains just like stereotyped formula. It has been highly educational to have to return to first principles and reconsider the true meaning of the concepts in order to explain them thoroughly to lay judges in the context of concrete cases or by coming into contact with the keen questions or innovative use raised by lay judges they feel as though their eyes then opened two new ways of seeing things." And to the extent that this continues this really suggests a very great change in attitudes of judges and suggests to my mind a much broader impact of the Saiban-in system beyond simply the relatively narrow range of cases being heard by them and in many ways I think represents a watershed event for the development of criminal justice and potentially civil justice as well. And with that I will close.

I will of course be very happy to take some questions. I see that I have already gone 3 min. beyond my appointed time but I am here for as long as anyone has questions.


(Inaudible question 1:03:38)

The victims’ rights movement, I skipped over that here and it really does introduce a very sort of parallel theme. It is not directly tied into the justice system reform counsel. Behind the scenes there are some comments in the recommendations about concerns over whether judges really understand the feelings of society but simply raised as: this is something that has been said we of course is the reforms counsel aren't saying this. In that sense the victims’ rights movement phase comes very little into those recommendations. The victims’ rights movement really starts to take on steam in the 1990s and a number of highly both controversial cases but also with lenient sentences. There was the dump truck driver who ran over a small child and seems to show no remorse whatsoever and received a slap on the wrist and energized the victims’ rights movement and very much a punitive oriented victims’ rights movement. And the victims’ rights movement I guess part of my view.. . One of the aspects his Japan has never paid any attention to victims in the past. And at least anyone who has read John Haley's writings on the role of apology and remorse in the Japanese context certainly will realize there has been considerable attention to the views of victims but not as a formal matter this is really as a informal matter rather than a formal set of rights. A first major law relating to victims’ rights was essentially the right to make a statement, a victim impact statement reform in the Japanese context typically given orally at the close of trial. But more recently the victims’ rights movement has gone far beyond that to grant a right or victims to be represented themselves to raise questions to pose questions that they want the prosecutors to ask. If the prosecutors refuse to ask them than to have their own counsel who will basically play the role of prosecutor and ask questions and also to give a closing statement on why they feel greater punishment is warranted for example. So a right to directly participate in the proceedings as well. And so it... This is a major set of rights for victims in Japan. But it really has gone gone along separate parallel tracks but it does tie into punitiveness and at least in the early 2000 through 2005 or so substantial increases both legislatively in penalties for a broad range of crimes but also in sentences that were being levied and also in use of the death penalty. So there is a growing sense of punitiveness in that sense as well which parallels the victims’ rights movement and may or may not be directly...

(Inaudible question 1:07:32)

There are a couple of different organizations one the Saiban-in (Japanese term 1:07:47) network and the other what's it called lay judges something counsel. And I was on a panel with one of the members of this lay judge counsel who has been a most prominent member of that. Actually he is very much the, rehabilitation and reintegration aspect as well so one of his recommendations, he is one who I think is frustrated that there is not enough opportunity to deliberate. They want to ask more questions and that there is a sense that by the judiciary to make it easier to serve they want to keep the deliberations to a relatively short length. So one of the proposals is: let's not worry about that so much. If there are additional issues rather than trying to narrow the issues so much why can't we open it up and let the defense counsel and prosecutors really address more issues question Mark so that is one part. Another is that lay judges and he says professional judges to they should know what happens after conviction. There should be an attention to what prisons are like in Japan. There should be opportunities for lay judges to visit prisons and to see, to learn more about the probation officer system for example. So that is another set of recommendations. With regard to confidentiality requirements there is a mix. And there are some very strict at least on paper confidentiality requirements. Taguchi-san I think he said he has been in all 47 prefectures and has given talks just all over Japan now. His view is: leave it as is. One of the proposals is: we need more concrete guidance on what is permissible and what is not permissible. In his view is: leave it as it is. It is bad, that guidance would inhibit me. But because there is no such guidance I can speak much more freely. But as the moderator... I would have said if the moderator for the conference I participated and had not said before me: well for Taguchi-san that is fine he is the sort who will use that ambiguity but for most Japanese they are not going to view this as license to speak more freely rather they are likely to be inhabited. So that is another one that is not then... I think, my recollection is that the recommendations don't really specify a position on confidentiality. So those really some of the... It is a long list of proposals.

(Inaudible question 1:10:45)

I don't recall. I am sure Taguchi-san himself strongly favors it himself. But I don't know whether that group has taken a position or not.
Dean Kellye Testy

Let us conclude the formal part of the presentation. Thank you Prof. Foote again for this wonderful lecture.

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