Saturday, April 09, 2005

More about the Coming Mixed-Court (Mixed-Jury) System in Japan

See Robert Bloom, Jury Trials in Japan (March 16, 2005).

Professor Bloom worries in part that professional judges in Japan's emerging mixed system (for criminal trials) will dominate the lay judges a/k/a the assessors a/k/a the jurors, and that Japanese attitudes toward hierarchy and status will enhance such domination. Professor Bloom recommends various measures to enhance the prospects for autonomous deliberation by lay members of Japanese mixed-courts.

Some of Professor Bloom's recommendations bring back personal memories. In the early 1990s, when Latvia was gaining its independence, I accompanied ("led" would be the wrong word) a group of law teachers from the U.S. and Europe to Riga to discuss reform of the former Soviet system of civil and criminal justice in Latvia. In one session, a very young member of the Procurator's Office, after hearing a debate between John Langbein and Richard Lempert over trial by jury, proposed some measures to enhance the prospect of independent deliberation and decision by lay members of Latvia's mixed-court system. For example, he proposed that lay judges and professional judges initially deliberate separately and arrive at tentative initial decisions, and only then deliberate together to reach a final verdict or judgment.

I wonder if the tendency of lay judges in Japan to defer to professional judges will really be more pronounced there than elsewhere. The concerns that Professor Bloom voices about lay juror deference to professional judges in Japan are eerily similar to the concerns that I have had and have heard other people express about lay deference to professional judges in both Latvia and Germany. I had this concern about undue lay deference because of my personal experiences as well as from my scattered reading in professional literature. In the early 90s I chatted with some trial judges in Latvia about the role of lay assessors. Furthermore, I am fairly familiar at a personal level with both German and Latvian "culture": I was born in Latvia, and I spent a year at the University of Munich as a university student and another year in Munich as a "guest professor." Based on such sources of information I once had the firm sense that Latvian and German members of mixed courts would be more deferential to professional judges than lay persons in the U.S. would be under similar circumstances. Now I am much less sure about this. (Important disclosure: I have done no systematic study of the question, and I have not recently examined any of the literature that attempts to compare national, social, or ethnic differences in attitudes toward status and hierarchy or such comparative differences in the tendency toward group conformity in such settings.)

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