 This is Think Tech Hawaii, Community Matters here. Good morning, Aloha, and Ohio Guzaima. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea program, and today my program is titled Japan's Judicial System. What's the verdict? And my guest is Mark Levin, who is a professor of law and the director of the Pacific Asian Legal Studies program at the William S. Richardson School of Law at the University of Hawaii. Professor Levin has been teaching Japanese law at the Richardson School of Law for over 20 years, covering a range of topics including history, constitutional law, legal education, social careers, business transactions, and with the focus sometimes on the criminal justice system. It would be fair to say that Japan law is his profession and his passion. Professor Levin will discuss the present-day Japan Judicial System, how Japanese social values are reflected in its court system, and judgments, prospects for change in comparisons with the U.S. Judicial System. Professor Levin, welcome. Good to see you. Ohio. Ohio Guzaimus. Ohio. Ohio. And thank you for coming on today, I appreciate it. I want to learn a little bit about the judicial system in Japan, and I mean, we're both outsiders of Japan, but I think it's fair that we have opinions, and we have opinions about our own judicial system. We can talk about both, and be fair about both, I think. One thing I can tell you about myself is, in 1970, I went to Japan, that was my first trip to Japan. I was an undergraduate, a year in Japan program, and even then I heard things about the judicial system and the court system in Japan. One thing was, it seemed kind of strange to me, all defendants pled guilty. They all confessed. The other thing was, judges went from law school to judges, and they never had any practical or practice as lawyers, and then Japanese don't go to court. We settled things out of court, and Japanese don't have juries. Now that was 1970, okay? That was before you were born. I would like you to bring us up to date. Tell us a little bit about how you got involved in Japan and Japan law, and bring us into the 21st century. Have things changed, or what I said with those generalizations, are they still true? Please. So thanks for having me here, this is a real treat, and the answers to those questions would be a full semester course. So I'll try to get little bits of pieces and tidbits that might be good for the audience and good for our conversation. I first went to Japan in 1983. I graduated from law school and just was looking for something different. I was born and raised on the east coast of the US, and it wasn't so much that I had this long desire to be in Asia as it seemed interesting to go someplace else. And the good thing about Japan was that there would be jobs available. So I went right after law school. I spent my days working in a law firm, and my evenings teaching English, and I was there for a year, and it was that point in time that launched me into a career that I didn't know was coming, but has been happening ever since. And I had much of that same reaction as you. The law, the courts, these things were different, and it was fascinating to me, and that explains why my career has gone where it is, is trying to unravel those fascinations. I think the first one, the starting point needs to be the fact that Japan's legal system in the late 1800s, when they modernized, adopted primarily French and German models. So actually, the biggest difference between the United States and Japan, if you're making that comparison, isn't the United States and Japan. It's the fact that the US legal system, including Hawaii's, is based on the Anglo-American system, what we know as the common law system. And Japan's is primarily, it's somewhat hybrid, but primarily based on the French and German system, also known as the Continental Legal Tradition, or the Civil Law Tradition. And so it took me a long time to learn that. I didn't know that right off the bat. I just was like, you, oh, Japan's different, look at these things. So we can, for example, talk about the fact that judges become judges straight from law school. Well, that's very common throughout Continental Europe, and judges are somewhat different. They're meant to be more restrained, more bureaucratic. They're not supposed to create law. There's no tradition of judge-made law. Their job is to interpret and apply the laws that the legislature creates. Like the statute. Without that separate piece that we know of as the common law. So they don't go off on their own, saying, well, this is the way it should be. They say, this is the way it is. Well, you know, the shoulds and what they do sometimes vary everywhere. But the simple point of it is, the basic principles is, those judges are assigned to not create law, it's the legislature's job. So judges, it's a career. Traditionally, you might study law as an undergraduate major, which again is not a U.S. model. And then you would apply for the bar exam. For a long time, one took the bar exam test to go through a training institute of a couple years, and then select your career. You would become a judge. A lawyer or a prosecutor. And probably for the next 10 or 15 years or longer, you would be doing one of those. Japan changed a little bit and now has somewhat like American style law schools. So you might still study law in college. But then you apply to a law school. Go to law school and study for two years. Then take the qualifying exam. And if you pass, you would again go to the training institute. And still, though, on the far side of the training institute, make a choice. I'm going to be a lawyer. I'm going to be a judge. I'm going to be a prosecutor. And it's not a one-sided choice. Somewhat like fraternities and sororities on the college campus. The prosecutors and the judges are at the training institute saying, hey, you should be a judge. Take it about a judicial career. We'd love to have you. Let's talk. Recruitment. There's a recruitment. And the training institute is run by the Supreme Court of Japan. So they have a certain advantage in carrying out that rush process. I can see who it is. Do law firms go to these things too and try to get people to become lawyers? Or does that happen? While one is at the training institute, the teaching model alternates from being at the institute in coursework, which is fairly pragmatic. Because remember, people have already studied law before getting there. And placements. And one has in the court, it's now a year-long program, one has three placements in a lawyer's office, in a prosecutor's office, and at the courts. But meanwhile, if one's interested, one can do one's own interviewing and the law firms are out looking for people. But that explains why someone would, you can go into a courtroom and see a 25-year-old judge. I remember being in a courtroom in Tokyo and it was a bail hearing. So there were three young defendants or young suspects. They'd been arrested, they were seeking release on bail, and they were all in their mid-20s. And the judge was up there and is technically an assistant judge but can handle these bail proceedings in his mid-20s. And the prosecutor was a woman and she was in her mid-20s. And I thought, this just looks like moot court in my law school. But it was real. It was very real for the suspects and their lawyers. So one starts as a judge straight out of the institute and carries on that career. And there's virtually no other entry point into being a judge. And that's basically your lifetime job. One makes that one's career. The only, there's tiny exceptions and then the big exception is the Supreme Court of Japan mixes career judges with others. So there's 15 members of the Japanese Supreme Court and that would include people who are former diplomats, former government officials, former prosecutors, former lawyers, former academics. And it's kind of a quota system. So if an academic is leaving the court, the position is probably going to be filled by an academic. Former prosecutors leaving the Supreme Court, it's going to be filled by a former prosecutor kind of a quota system. So they draw from all of the society of attorneys and judges, prosecutors to become the Supreme Court. That's right. And then adding in non-attorneys of, for example, former diplomats, former senior government officials and academics who are ordinarily not attending. Wow, really on the Supreme Court. Yeah, but still high level professionals. It's not, they don't go out into the business community. They don't go out into the broader public for the Supreme Court, even if there are extremely distinguished people. And among the academics, the academics would be legal academics who wouldn't have a sociologist selected. Okay, now let's go back and talk about that example. You talked about the young defendants and the young judge and the young prosecutor. And what is the criminal law system like there? Like I said, I heard that, hey, don't even bother to have a trial. Plead guilty is what it is in Japan. And there's no jury anyway. So you can't, in America where we think maybe we go in front of a jury of our peers where they hear us talk and maybe there's a not guilty verdict because of that life experience. What's it like in Japan? First, the conviction rate is beyond imagination. It is 99.97. And my colleague at the University of Hawaii has studied this. He's in the sociology department, David Johnson. And others have looked at it, my professor John Haley, with the idea that the real winnowing of what should be done in this case is done with it by the prosecutor. So it's as if the society decided to trust the prosecutor to do this and to do it right. And I think it's fair to say that in the vast majority of cases there probably are doing it right. What's scary is that there probably are some cases where they're not. Now, we have juries, we have a criminal justice system, we have cases where we're probably not doing it right. I think both criminal justice systems have problems, so I don't want to be misstating it. But Japan in 2009 began lay participation in major criminal cases. First thing is you can't call it a jury. They are lay judges. So if you go into the courtroom you'd look up and see behind the proceedings of the defendant and the prosecutor and the police and the witness, the bench and sitting, there are nine seats at the bench. And the three center seats are robed judges. And on the right side and on the left side are six ordinary citizens in ordinary street clothes. And are they just called in? They are just called in. But there's reasons why we don't call them jurors. First of all, they deliberate with the judges. So remember, we in the U.S. we keep the judges out of the room when the jury is deliberate. The jurors are, think of twelve angry men. The jurors are on their own in there. These lay judges are deliberating with the jurors. They can ask questions. So they are lay judges for that trial. This system is only used in cases with severe charges. So ordinary cases, they're not used, but still thousands of cases right now, since 2009, have lay judges. When I was in Japan last month, I actually went to the courthouse and observed some lay judge trials. And these are just ordinary Japanese citizens? Ordinary Japanese citizens. They're called in and have any special training? They're called in precisely the same way that our jurors are called in. But there are other differences. They, for example, weigh sentencing. So our jurors, aside from death penalty cases in the United States, do not determine sentencing. Sentencing is done only by judges. And then you've got nine folks and this complicated human formula of three professional judges and six lay people. And you need a majority, it's not unanimous, you need a majority to convict, including at least one professional judge. And I want to ask about how they work together after our break. Yeah. Okay? All right. So we'll take a short break and we'll be right back. Sounds great. All right. Ted Rawson here, folks. You're a host on Where the Drone Leads, our weekly show at noon on Thursdays here on ThinkDeck. And we talk about drones, anything to do about drones, drones, remotely piloted aircraft, unmanned aircraft, whatever you want to call them, emerging into Hawaii's economy, educational framework, and our public life. We talk about things associated with the use, the misuse, technology, engineering, legislation with the local experts as well as people from across the country. Please join us noon on Thursdays and catch the latest on what's taking place in the world of drones that might affect you. Hello, everyone. I'm DeSoto Brown, the co-host of Human Humane Architecture, which is seen on ThinkDeck, Hawaii, every other Tuesday at 4 p.m. And with the show's host, Martin Desbang, we discuss architecture here in the Hawaiian Islands and how it not only affects the way we live, but other aspects of our life, not only here in Hawaii, but internationally as well. So join us for Human Humane Architecture every other Tuesday at 4 p.m. on ThinkDeck, Hawaii. We are back with Law Across the Sea, my guest, Professor Mark Levin, University of Hawaii Law School. And we are talking about the Japan judicial system and just getting a brief overview of it and kind of differences and idiosyncrasies about it. And we were talking about the lay juror system, Mark. And how did the judges and the lay jurors interact together? I mean, if I was a juror, I might feel intimidated to have three judges on the panel. Right. So again, they're not jurors. They're lay judges. All right. And that's a difference, right? That's a big, big difference. They are ostensibly equal with the only difference being that a single professional judge's vote is needed to convict. So all of them could agree. But if a judge, if one judge didn't agree, then there's no conviction. Right. But all judges could decide to convict. And if all the lay judges, all the professionals would just choose to convict. And if there's only three votes there, so they don't have a majority, they need to pull in some of the lay judges to get a conviction. Otherwise, it's an acquittal. They need five. They need five of nine. That's right. So they would need to persuade at least two of the lay judges for a conviction. The interactions seem to be going well. Well, lay judges, many people were concerned myself among them. Some people said Japanese people won't speak out. I know Japanese people will speak out. I know a lot of Japanese people who are perfectly comfortable speaking out to me. So I put that stereotype aside. But I was worried about whether or not the judges would, sort of the hierarchy would be such that they might impose their variations. And surveys have shown lay judges coming out with a fairly high degree of satisfaction. The system began, I think it was May 2009. And my other concern... Well, just let me interrupt, because that makes me think that maybe that's a cultural thing, too. I have an obligation to do a good job. And I've taken this. I'm not going to just do what somebody tells me. I am going to do a good job. Well, so do our jurors. Yeah, good point. I was a law clerk in the Federal Court for two years and working very closely with jurors. And I have boundless appreciation for what American jurors do as well. But no, they do take their roles very seriously. And keep in mind that their cases are invariably serious cases, including death penalty cases. And I was also troubled by the degree of confidentiality imposed upon the lay judges. And I actually wrote about that and published an article. Taiwan last month announced that they are going to create a system somewhat like Japan, also lay judges. Korea, around the time that Japan created its lay judge system, created a jury system. The Korea has a jury system. More like the American. More like the American, where the judges are not in the room while the jurors are delivering. And the lay judge system is based on what? What was the background for that? It's bent off of a German model. So Germany has lay judges, but lay judges in Germany serve for a term and can hear multiple cases. So that's why I say it's bent off the German model in the sense that like our jurors, the lay judge will serve in only one case. Excuse me, yeah. So Taiwan, I just read, is allowing a little more looseness for lay judges to speak about their experience after the case is done. And I believe that that's important. That's a downside. But I will say that the reports on the lay judge system have been good. There still are problems with the Japanese criminal justice system. The interrogation system is very impressive. By the police. By the police and the prosecutors. Oh, the prosecutors involved in that too. They at different stages. I see. But the lack of access to lawyer, the ability of police and prosecutors to question suspects without lawyer present and to hold them in detention for days at a time, or weeks or months at a time in certain cases. And in Japan, one has a right to remain silent. One does not have a right to refuse questioning. So that's... How about a right to counsel? One has a right to counsel. It was after indictment. I think it has been moved up. Now there's lawyers available. But the lawyer isn't necessarily going to be there while you're being interrogated. So you might have an hour with a lawyer who briefs you as to what you should do. Then you're back in your detention cell and the police will come and take you to an interrogation room and interrogate you without a lawyer present. So Japan still has problems with the system. But I will say that I think the lay judge system seems to be working well. It also up the judiciary's game. So judges involved with the public have to be... They cannot be aloof. They have to create a face and a capacity to interact. It changed the court proceedings so that there is more plain language here. So it's not just the decision making where there's been a positive benefit. I think there have been many places where the system has brought positive benefits. Sort of more open for the society. More open. So now judges... So Japan's judges, off of the civil law tradition, had been very isolated from the society. You'd become a judge. You'd rotate around the country. You'd have almost no contact with people aside from your family outside the judiciary. Well now you do. Now you're spending time meeting people. That has changed. And so I think it has made a difference. So judges on the bench now know when they're in the courtroom there's citizens watching what they do. There's six citizens on there. We're going to take that into account. They will definitely take that into account. A little more social oversight, if you will. Social oversight. So the court proceeding... Now I think the data shows that conviction rates haven't changed substantially. There is a problem, I think, that it only takes a majority to get a death penalty verdict in Japan. So there is death penalty cases, I think, and David Johnson, my colleague has written about this, more that those ought to have some heightened level. But you now have ordinary people in the room watching, participating, keeping the system more... presumably keeping the system functioning with a watchful eye. And that's a good social change and movement. Just going back to my college days, I also heard that Japanese don't go to civil court so much. Is that true or is that still the way it is? That's changed as well. Part of it is when you're in college in 1970 there were few judges and few courtrooms and few lawyers. So part of the reason one wouldn't go to court is one wouldn't necessarily be able to go to court easily. Japanese people didn't know lawyers. They didn't know how to find a lawyer. In the 1930s, going way back when actually the per capita rate of lawyers and judges was much higher, Japanese people were suing. So that's a good thing, isn't it? To have more lawyers. And since 2000 Japan has increased the number of lawyers substantially. They've also loosened things. So now you can ride a train in Japan, look up at the billboards, and there's an advertisement for a lawyer. So think how much that changes something. If an ordinary person is having some manner where they feel like they need a legal consultation in 1970 or even 1995, they wouldn't know what to do. They might go to a government office and get some bureaucrats' advice about the issue. But now they're riding the train every day and they look up and there's that little banner that says, call us, free consultation. And they'll call. So I guess there's good and bad about having lawyers, maybe. And the good thing is there's more opportunity for consultation and advice. But some people are gonna say, well, there's gonna be more litigation. Well, litigation is aiming towards justice. And I'm a big fan of having lawyers in terms of making systems work well, holding government officials accountable, holding businesses accountable. The other change that I would say that sort of indicates this is now businesses in Japan, mega-businesses, are using the American system in House Council more. So as to, I mean, Japan's been roiled with these scandals of businesses sort of lying and cheating very unfortunately, well, part of it is the compliance has been loose of bringing in House Council for Compliance. You now see giant mega-businesses suing each other, whereas there might have been some fixer before. And so I think what it means is this is a system where law is perhaps setting the rules and one hopes setting it well. And making justice available for everybody in society. And that's what we're here for. That is what it is here for. Professor, thank you so much for being my guest today. And I appreciate your time. Thank you for having me. I love you.