Abstract
The Headquarters for the Promotion of Justice System Reform was established in December 2001 following the presentation of the recommendations of the Justice System Reform Council on June 12 of the same year (Justice System Reform Council 2001).The Office was divided into various investigative commissions that are carrying out studies prior to the formation of a bill. It is expected that this will include the introduction of a saiban-in system in an attempt to ensure a judicial “popular base.” In this system, citizens will deliberate alongside judges regarding “statutory penalties for serious crimes” (Justice System Reform Council 2001, p. 106 in the Japanese version), so as to determine the guilt or innocence of the defendant. In the case that the defendant is guilty, the citizens will also contribute to the determination of the sentence. Based on the target of this reform to the justice system in terms of “planning the construction of a free and fair society in which each and every citizen autonomously fulfils their social responsibility as a governing body,” (Justice System Reform Council 2001, p. 4) the participation of citizens in judicial participation has a major significance. If the saiban-in system that bears such significance is achieved, citizens will be participating centrally in criminal justice for the first time since the suspension of jury law in 1943, more than half a century ago. With the introduction of the saiban-in system, citizens will be expected to “make an independent and substantial contribution to court judgments by cooperating with judges while distributing responsibilities.” (Justice System Reform Council 2001, p. 102) For the introduction of the saiban-in system to realize above described expectations and to achieve the targets, studies are required to investigate whether it is possible for citizens to collaborate with judges to engage independently and substantially in deliberations during actual deliberations. To that end, the dynamics of the deliberations must also be studied. Given the dynamics of deliberations, the extent to which participants in deliberations are able to speak must be investigated by observing actual deliberation processes. However, such studies have not been sufficiently conducted up to this point. Therefore, in this study, the objective was to obtain fundamental data in order to study the saiban-in system by creating a mock saiban-in system. Also, in order to have a functional saiban-in system, the ideals of deliberations were considered in order for both parties to be able to independently and substantially participate in the deliberations.
This chapter was an English translation of Fujita, M. (2003) Kinô suru saiban-in seido no tame ni: Chii ni sa no aru shûdan ishi kettei no kansatsu kara [For functionable saiban-in system: From observation of group decision-making with status difference]. Hôshakaigaku [Sociology of Law], 59, 209–226. The author thanks The Japanese Association of Sociology of Law and publisher Yûhikaku for their prompt permissions of translating and reproduction. This study was supported by a grant KAKENHI No. 02 J00538 which was disbursed by the Japan Society for the Promotion of Science
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
This section is a reproduction of Fujita, M., & Hotta, S. (2010). The effect of presiding role and information amount differentials among group members on group decision making: Deliberation processes, final decisions, and personality. International Journal of Law, Crime, and Justice, 38, 216–235. The author thanks Elsevier for permitting the reproduction. The author also thanks Professor Hiroshi Fukurai who had greatly assisted at the first time the paper published. This study was supported by a grant KAKENHI no. 2120046 which was disbursed by the Ministry of Education, Culture, Sports, Science and Technology of Japan.
- 2.
The saiban-in system is based on saiban-in hô, means “the act related to criminal trials in which saiban-in participate”. Articles of saiban-in hô in English can be found in Anderson and Saint (2005).
- 3.
Criminal Procedural Law, article 316-2, and Saiban-in Act, article 49.
- 4.
Criminal Procedural Law, article 256, para.6.
- 5.
The pretrial conference was used in a Japanese criminal trial procedure before WWII, when Japan adopted the inquisitorial system in its criminal procedure. So introducing pretrial conference at his time can be said to be a revival of the pre-war pretrial criminal procedure.
- 6.
Nikkei Research is a research company whose head office is located in Tokyo, Japan. The company is specialized in the field of social survey, group interview, marketing research, and area research. The company has a large pool of survey participants (over 160,000 people). For further information on this company, please visit http://www.nikkei-r.co.jp/english/
- 7.
To make sashimi, bones and skins are removed from fish, and fish is secondly needed to be cut in a long and thin shape. Third, the long-and-thin-shaped fish is sliced by a long and narrow bladed knife. So a kitchen knife for making sashimi is normally long and narrow in blade width.
- 8.
Strictly speaking, sometimes the chief judge s entrust the role of presiding over the deliberation to one of the associate judges of their team. This is observed in the deliberations of mock trials in preparation period of saiban-in system. After beginning saiban-in system, deliberations are prohibited from being open to the public. So we cannot observe the deliberation processes of saiban-in system. All we can do is to speculate that the role of presiding over the deliberation is entrusted to associate judges in some cases.
- 9.
This section is a reproduction of Fujita, M. (2010). Verdict-driven, evidence-driven, and “issue-driven”: A proposition of deliberation style particularly found in mixed-jury type deliberations like “Saiban-in seido.” Journal of the Japan-Netherlands Institute, 10, 22–34.
The author deeply thanks the Tokyo office of the Leiden University for clarifying the copyrights issues in reproduction of this paper after the dissolution of Japan-Netherland Institute.
- 10.
Saiban-in no sanka suru keiji-saiban ni kansuru hôritsu [act concerning criminal trials in which saiban-in’s participate].
- 11.
Saiban-sho hô [the Court Act] art. 26 para.2.
- 12.
Saiban-sho hô art. 18
- 13.
Saiban-sho hô art. 9 para.2.
- 14.
Saiban-in Act, art. 70 para. 1.
- 15.
That is some parts of the reasons why some judges say “if we would draft a decision with sufficient reasons, the only style we can take in deliberation should be this style.”
- 16.
In fact, a civic participant said after mock trial and deliberation, expressing his wonder about being able to judge guilty such a “sudden” conclusion which were typically identified by Hastie et al. (1983).
- 17.
The nature of flowcharts will be fit for issue-and-conclusion type illustration, so we have to be careful for not making hard-to-understand charts for civic participants. It is vain if we make charts which do not promote civic participants’ understandings, as legal professionals do not need flow charts to process cases.
- 18.
This section is a reproduction of Fujita, M. (2009). Necessary condition of active civic participation: An anecdotal study on communication networks of two mock mixed jury trials. Zeitschrift für japanisches Recht (Journal of Japanese Law), 14(27), 91–104. The author thanks Professor Harald Baum for quickly and generously permitting reproduction. The author also thanks Professor Dimitri Vanoverbeke to have given the author a chance of publication in that journal.
- 19.
This study was published in 2010 after this paper had been published.
References
Adorno, T. W., Frenkel-Brunswik, E., Levinson, D. J., & Sanford, R. N. (1950). The authoritarian personality. New York: Harper.
Anderson, K., & Saint, E. (2005). Japan’s Quasi-Jury (Saiban-in) Law: An annotated translation of the act concerning participation of lay assessors in criminal trials. Asian-Pacific Law & Policy Journal, 6, 233–283.
Batagelj, V., & Mrvar, A. (1998). Pajek – Program for large network analysis. Connections, 21, 47–57 Retrieved from https://s3.amazonaws.com/academia.edu.documents/31188195/pajek.pdf?AWSAccessKeyId=AKIAIWOWYYGZ2Y53UL3A&Expires=1520202902&Signature=Bbt5FFrZ0e%2B1WKgT0F0JBS%2FtgnM%3D&response-content-disposition=inline%3Bfilename%3DPajek_-_Program_for_Large_Network_Anal.
Bavelas, A. (1950). Communication patterns in task-oriented groups. The Journal of the Acoustical Society of America, 22(6), 725–730. https://doi.org/10.1121/1.1906679.
Bray, R. M., & Kerr, N. L. (1982). Methodological considerations in the study of the psychology of the courtroom. In N. L. Kerr & R. M. Bray (Eds.), The psychology of the courtroom (pp. 287–323). San Diego: Academic Press.
Cruz, M. G., Henningsen, D. D., & Williams, M. L. M. (2000). The presence of norms in the absence of groups? Human Communication Research, 26(1), 104–124.
Davis, J. H. (1973). Group decision and social interaction: A theory of social decision schemes. Psychological Review, 80(2), 97–125. https://doi.org/10.1037/h0033951.
de Tocqueville, A. (1835). De La Démocratie en Amérique. Paris: Michel Lévy.
Deutsch, M., & Gerard, H. B. (1955). A study of normative and informational social influences upon individual judgment. The Journal of Abnormal and Social Psychology, 51(3), 629–636. https://doi.org/10.1037/h0046408.
Foss, R. D. (1976). Group decision processes in the simulated trial jury. Sociometry, 39(4), 305–316. https://doi.org/10.2307/3033496.
Fujita, M. (2003). Kinô suru saiban-in seido no tame ni: Chii ni sa no aru shûdan ishi kettei no kansatsu kara [For functionable saiban-in system: From observation of group decision-making with status difference]. Hôshakaigaku [Sociology of Law], 59, 209–226 [in Japanese].
Fujita, M. (2009). Necessary condition of active civic participation: An anecdotal study on communication networks of two mock mixed jury trials. Zeitschrift Für Japanisches Recht (Journal of Japanese Law), 14(27), 91–104.
Fujita, M. (2010). Verdict-driven, evidence-driven, and “issue-driven”: A proposition of deliberation style particularly found in mixed-jury type deliberations like “Saiban-in seido”. Journal of the Japan-Netherlands Institute, 10, 22–34.
Fujita, M., & Hotta, S. (2010). The effect of presiding role and information amount differentials among group members on group decision making: Deliberation processes, final decisions, and personality. International Journal of Law, Crime, and Justice, 38, 216–235.
Hans, V. P., & Vidmar, N. (2001). Judging the jury (4th ed.). New York: Perseus Books Group.
Hastie, R., Penrod, S., & Pennington, N. (1983). Inside the jury. Oxford: Harvard University Press.
Henningsen, D. D., & Henningsen, M. L. M. (2003). Examining social influence in information-sharing contexts. Small Group Research, 34(4), 391–412. https://doi.org/10.1177/1046496403251933.
Imai, Y. (1987). Eikyôsha ga hoji suru shakai-teki seiryoku no ninchi to hi-eikyôsha no ninchieikyôsha ni taisuru manzokudo tono kankei (Relationship between cognition of social power held by influential person and satisfaction rate toward cognitive influential person) by. Janapense Journal of Experiemtnal Social Psychology, 26, 163–173 [in Japanese].
Imasaki, Y. (2005a). “Saiban-in seido dônyû to keiji saiban” no gaiyô: Saiban-in seido ni husawashii saiban purakutisu wo mezashite [Summary of “Introducing saiban-in system and criminal trials”: Aiming at establishing judicial practice suitable for saiban-in system]. Hanrei Taimuzu [The Precedent Times], 1188, 4–11 [in Japanese].
Imasaki, Y. (2005b). Saiban-in seido no moto ni okeru shinri, hyôgi, hanketsu no arikata ni kansuru shian [A tentative proposal on the practices of trials by saiban-in, deliberation, and judgement]. Hanrei Taimuzu [The Precedent Times], 1188, 12–19 [in Japanese].
Justice System Reform Council. (2001). Recommendations of the Justice System Reform Council: For a Justice System to Support Japan in the 21st Century. Tokyo, Japan: Justice System Reform Council. Retrieved from https://japan.kantei.go.jp/judiciary/2001/0612report.html
Kameda, T., Ohtsubo, Y., & Takezawa, M. (1997). Centrality in sociocognitive networks and social influence: An illustration in a group decision-making context. Journal of Personality and Social Psychology, 73(2), 296–309.
Kaplan, M. F., & Martin, A. M. (1999). Effects of differential status of group members on process and outcome of deliberation. Group Processes & Intergroup Relations, 2(4), 347–364. https://doi.org/10.1177/1368430299024003.
Kaplan, M. F., & Miller, C. E. (1987). Group decision making and normative versus informational influence: Effects of type of issue and assigned decision rule. Journal of Personality and Social Psychology, 53(2), 306–313. https://doi.org/10.1037/0022-3514.53.2.306.
Kim, M. C., & Penrod, S. D. (2010). Legal decision making among Korean and American legal professionals and lay people. International Journal of Law, Crime and Justice, 38(4), 175–197. https://doi.org/10.1016/j.ijlcj.2011.01.004.
Laughlin, P. R. (1980). Social combination processes of cooperative, problem-solving groups on verbal intellective tasks. In Progress in social psychology (pp. 127–155). Mahwah: Lawrence Erlbaum Associates.
Laughlin, P. R., & Ellis, A. L. (1986). Demonstrability and social combination processes on mathematical intellective tasks. Journal of Experimental Social Psychology, 22(3), 177–189. https://doi.org/10.1016/0022-1031(86)90022-3.
Nishimura, T. (2006). Saiban-in seido dônyû ni muketa torikumi: Bengoshikai [Activities for introduction of the saiban-in system: Bar Associations]. Hôritsu No Hiroba [Forum of Law], 59(10), 27–35 [in Japanese].
Ohtsubo, Y. (2006). On designing a mixed jury system in Japan. In M. F. Kaplan & A. M. Martín (Eds.), Understanding world Jury systems through social psychological research (pp. 199–214). New York: Psychology Press.
Sealy, A. P., & Cornish, W. R. (1973). Jurors and their verdicts. The Modern Law Review, 36(5), 496–508. https://doi.org/10.1111/j.1468-2230.1973.tb01381.x.
Shiibashi, T. (2004). Kôhanzen-seiri-tetsuzuki to shôko kaiji [Pretrial conference procedure and discovery]. Gendai Keiji Hô [Contemporary Criminal Law], 6(12), 17–21 [in Japanese].
Stasser, G. (1992). Information salience and the discovery of hidden profiles by decision-making groups: A thought experiment. Organizational Behavior and Human Decision Processes, 52(1), 156–181.
Stasser, G. (1999). The uncertain role of unshared information in collective choice. In L. L. Thompson, J. M. Levine, & D. M. Messick (Eds.), Shared cognition in organizations : The management of knowledge (pp. 49–69). Mahwah: Lawrence Erlbaum Associates Retrieved from http://web.a.ebscohost.com/ehost/detail/detail?vid=2&sid=c9fcf7bf-8a3a-4950-9b64-053308a67dea%40sessionmgr4007&bdata=Jmxhbmc9amEmc2l0ZT1laG9zdC1saXZl#AN=1999-02987-003&db=psyh.
Stasser, G. (2000). Information distribution, participation, and group decision: Explorations with the DISCUSS and SPEAK models. In D. R. Ilgen & C. L. Hulin (Eds.), Computational modeling of behavior in organizations: The third scientific discipline (pp. 135–161). Washington, DC: American Psychological Association. https://doi.org/10.1037/10375-007.
Stasser, G., & Stewart, D. (1992). Discovery of hidden profiles by decision-making groups: Solving a problem versus making a judgment. Journal of Personality and Social Psychology, 63(3), 426–434. https://doi.org/10.1037/0022-3514.63.3.426.
Stasser, G., & Titus, W. (1985). Pooling of unshared information in group decision making: Biased information sampling during discussion. Journal of Personality and Social Psychology, 48(6), 1467–1478. https://doi.org/10.1037//0022-3514.48.6.1467.
Stasser, G., & Titus, W. (1987). Effects of information load and percentage of shared information on the dissemination of unshared information during group discussion. Journal of Personality and Social Psychology, 53(1), 81–93. https://doi.org/10.1037//0022-3514.53.1.81.
Stasser, G., Taylor, L. a., & Hanna, C. (1989). Information sampling in structured and unstructured discussions of three- and six-person groups. Journal of Personality and Social Psychology, 57(1), 67–78. https://doi.org/10.1037//0022-3514.57.1.67.
Stasser, G., Stewart, D. D., & Wittenbaum, G. M. (1995). Expert roles and information exchange during discussion: The importance of knowing who knows what. Journal of Experimental Social Psychology, 31(3), 244–265. https://doi.org/10.1006/jesp.1995.1012.
Stasser, G., Vaughan, S. I., & Stewart, D. D. (2000). Pooling unshared information: The benefits of knowing how access to information is distributed among group members. Organizational Behavior and Human Decision Processes, 82(1), 102–116. https://doi.org/10.1006/obhd.2000.2890.
Yamaguchi, S., Oka, T., Maruoka, Y., Watanabe, S., & Watanabe, H. (1988). Gôisei no suisoku ni kansuru kenkyû (1): Shûdan-shugi-teki keikô tono kanren ni tsuite [A study on supposition of consensus (1): On relationship with collectivism tendency]. Nihon-Shakishinrigakkai Dai 29 Kai Taikai Happyou Ronbun Shû [Japanese Society of Social Psychology proceedings for the 29th annual conference], 29, 176–177.
Yonamine, M. (1960). Ken’i shugi shakudo ni kansuru ichi kenkyû: F sukêru no kentô [A study on authoritarian personality: Investigation on F-scale]. Ryûkyû Daigaku Kyôiku Gakubu Kenkyû Kiyô [Bulletin of Faculty of Education, Ryûkyû University], 4, 43–53.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer Science+Business Media Singapore
About this chapter
Cite this chapter
Fujita, M. (2018). What’s in the Deliberations: Two Deliberation Experiments with Status Differences. In: Japanese Society and Lay Participation in Criminal Justice. Springer, Singapore. https://doi.org/10.1007/978-981-10-0338-7_3
Download citation
DOI: https://doi.org/10.1007/978-981-10-0338-7_3
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-10-0337-0
Online ISBN: 978-981-10-0338-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)