法のパースペクティブ：刑事司法と「アウトサイダー」

The criminal justice system in Japan has for decades been characterized by an aura of infallibility supported by an extremely low crime rate. Miscarriages of justice were hardly an issue in the wake of the high degree of professionalism and rigorous approach by prosecutors and judges alike in what is known as “seimitsu shihō” (precise justice): a long and detailed examination of suspects. Yet, the myth of infallibility suffered a severe blow in the 1980s.Flaws were being exposed. One of the foremost experts on criminal procedure in Japan, University of Tokyo professor, Ryūichi Hirano, in 1985 famously assessed that the Japanese criminal justice system was “rather abnormal, even diseased (byōteki)” (Hirano 1989, 129) as the criminal court is ‘simply an institution to check the prosecutors’ determination of guilt “for good measure”’ (Hirano 1989, 131). Hirano’s conclusion that only the inclusion of outsiders such as jurors in a jury system could bring a way out of the traditional scripts of the “hopeless” criminal trials (Hirano 1989, 142). Gradually, the challenges to the criminal justice system in particular, and the legal system in general, resulted in a build up towards a window of opportunity for drastic changes in Japan’s judicial system. An important reform from May 2009 was the introduction of a mixed jury system. For about twelve years, this mixed jury trial has been in operation now. Has it changed the script of the criminal trials in Japan? This question has been central to many recent publications on law and society in Japan. The lay judges attracted most scholarly (and non-scholarly) attention while other non-legal professionals also play an important role in the script of the criminal trials in Japan. Their role has been neglected. In this seminar we will introduce a socio-legal approach to Japan’s criminal justice system and its socio-political context, by paying attention (using methodologies in the field of sociology of law) at a diverse group of “outsiders” in Japan’s criminal process, notably forensic psychiatrists, social workers, victims, forensic scientists, and lay judges. We will also tackle questions related to the path to these changes – history matters, and focusses on their content before turning to how these non-professionals of law operate. In this seminar we will use Erik Herber’s award winning book “Law and Expert Contributions to Japanese Criminal Justice” (Routledge, 2019) as the steppingstone for discussion and guest speakers will also help to answer the important question: “How and why do outsiders’ contributions affect or fail to affect the legal decisions ultimately taken?”