Victim participation in criminal trials in Japan

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International Journal of Law, Crime and Justice 38 (2010) 149e165 www.elsevier.com/locate/ijlcj

Victim participation in criminal trials in Japan Masahiko Saeki Graduate Schools for Law and Politics, The University of Tokyo, 7-3-1 Hongo, Bunkyo-ku, Tokyo 113-0033, Japan

Abstract Since 2000, the Japanese Code of Criminal Procedure has been revised twice to introduce into criminal trials two systems of victim participation: the Victim’s Statement of Opinion (VSO) and the Victim Participation System. This study addresses the impact of those systems on decision-making in criminal trials, with special focus on the impact on sentencing. Following a literature review are the early findings from my psychological experiment which focuses on sentencing by lay judges. The results indicate that information concerning crime victims does have an impact on sentencing, but it is immaterial whether or not the information is submitted through recently introduced systems. Evaluations of those systems from the perspectives of crime victims also indicate that they tend to evaluate at least the VSO positively, regardless of the statements’ perceived lack of impact on the outcome. Ó 2011 Elsevier Ltd. All rights reserved.

1. Systems of victim participation in Japan: summary and issues 1.1. Recent changes in the Japanese criminal procedure: two modes of participation The Japanese criminal justice system is changing drastically at present. These changes are mainly due to two modes of participation. The first involves citizen participation in criminal trials. Saiban-inno Sankasuru Keijisaibanni Kansuru Horitsu (Act on Criminal Trials Examined under Lay Judge System, or ACTELJS) was passed in May 2004 and came into effect in May 2009. This system, called Saiban-in Seido in Japanese, is referred to here as the Lay Judge System (LJS). Saiban-in (lay judges) are appointed from the citizenry as members of the E-mail address: [email protected] 1756-0616/$ - see front matter Ó 2011 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijlcj.2011.01.002

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judicial panel,1 and some of the more serious cases are examined under the LJS (ACTELJS Article 2(1)). Under the LJS, lay and professional judges decide whether or not the defendant is guilty, as well as determining appropriate punishment if the defendant is found guilty. Such decisions are made by a special majority rule (ACTELJS Article 67), namely, a majority opinion should include at least one vote from each of the lay-judge and professional-judge groups.2 The second major change in Japanese criminal trials is victim participation. Since 2000, Keiji Sosh o H o (Code of Criminal Procedure, or CCP) has been revised twice to introduce systems of victim participation in criminal trials. This paper focuses mainly on this latter aspect. First, a brief summary of the systems of victim participation3 is provided, then, two particular issues with regard to victim participation are discussed. 1.2. A summary of the systems of victim participation in Japan 1.2.1. Victims’ statement of opinion The first revision concerning victim participation is the introduction of Iken Chinjyutsu Seido (Victim’s Statement of Opinion, or VSO). Through the VSO, a “victim and others” or a victim’s legal representative can orally state their opinions such as their sentiments at trial (CCP Article 292-2(1)).4 However, if the court considering the state of the proceedings and other circumstances deems an oral statement inappropriate, then the court may allow victims to submit written opinions in lieu of oral statements, or prohibit the stating of opinions altogether (CCP Article 292-2(7)). Although the CCP does not prescribe when a statement is allowed, it would generally take place after the examination of evidence and prior to the closing arguments. Pursuant to the CCP Article 292-2(9), these statements may not be used as evidence in fact-finding related to the crime; however, the statements may be used in deciding upon the appropriate punishment for guilty parties. The use of the VSO has increased steadily. In 2001, the first full year after its implementation, just under 300 statements were submitted; in 2008, however, over 1400 statements were submitted (see Fig. 1).5 Most of those statements were delivered orally. In addition, according to a report prepared by a research group under the auspices of the Ministry of Justice enamely, Hanzaihigaishanotameno Shisakuwo Kenky usuru Kai (Study Group of the Policies for Crime Victims, or SGPCV) e the VSO has been mainly used by bereaved family members (see Table 1).6,7 Therefore, the use of the VSO has been largely concentrated in cases of death brought about by negligence or murder (see Table 2).7 1

For a detailed explanation of the appointment procedure for lay judges, see Supreme Court of Japan (2010). A panel under LJS basically consists of three professional judges and six lay judges (ACTELJS Article 2(2)). However, if there is no dispute in the case, the court could create a panel that consists of one professional judge and four lay judges (ACTELJS Article 2(3)). 3 Ota (2008) provides a broad overview of developments in the Japanese victim-support scheme. 4 “Victim and others” is defined as “victim or the victim’s spouse, lineal relative, brother or sister in cases where the victim has died or has serious mental or physical disorder” (CCP 290-2). Below, the term “victims” is used to describe “victim and others” or the victim’s legal representative. 5 This Figure was generated using data from the Criminal Affairs Bureau, Supreme Court (2010: 419 table 63). 6 SGPCV distributed a questionnaire to 140 crime victims in whose cases district courts rendered judgments between January 1 and March 31, 2004, and who had utilized VSO. A total of 104 victims from 140 victims responded to the questionnaire. 7 This Figure was generated using data from Hanzaihigaishanotameno Shisakuwo Kenkyusuru Kai (2004). 2

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Fig. 1. Supreme Court’s report on the implementation status of VSO, *VSO came into effect in November 1, 2000.

1.2.2. Establishment of Basic Act on Crime Victims Although the introduction of the VSO seemed to improve the way in which victims were treated in criminal trials, further reforms were demanded. A special turning point came when Mr. Isao Okamura met Prime Minister Junichiro Koizumi in 2003 and asked him to advance victim-oriented reforms. Mr. Isao Okamura is an attorney at law whose wife was murdered; he had served as a representative organizer of the National Association of Crime Victims and Surviving Families (NAVS), one of the most active victim advocacy groups in Japan. In 2004, Hanzaihigaishat o Kihonh o (Basic Act on Crime Victims, or BACV) was established; it came into effect in April 2005. Article 18 of the BACV states that “the State [i.e., Japan] and Local governments shall take such necessary measures as providing information concerning the progress of criminal procedures and developing a system to expand opportunities to participate in criminal procedures, so that Crime Victims may get involved in criminal procedures concerning the harm in a proper way” (emphasis added). Also, the BACV provides for the establishment of Hanzaihigaishat o Shisaku Suishin Kaigi (Council for the Promotion of Policies for Crime Victims, or CPPCV) as a special organization in the Cabinet Office (BACV Article 24(1)), and for the CPPCV to in turn create a draft of the “Hanzaihigaishato Kihonkeikaku (Basic Plan for Crime Victims, or BPCV). In December 2005, the BPCV was established, requiring the introduction of a new system by which victims could participate directly in criminal trials. In response to that requisition, the CCP was revised to introduce Higaisha Sanka Seido (Victim Participation System, or VPS)” in 2007, which came into effect in December 2008. 1.2.3. Victim participation system8 If the court allows victim participation in the criminal trial, that victim may, in limited cases, participate in the criminal trial as Higaisha Sanka Nin (victim intervener) (CCP Article 316-33). The VPS is available for cases of (a) intentional crimes that have resulted in the death of a person, (b) indecent assault and rape, (c) bodily injury or death through negligent conduct in 8

For a more detailed explanation of the VPS, see Kawaide (2010), which was consulted in writing the VPS summary.

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Table 1 Categories of VSO users (January to March in 2004). Number Victim Bereaved Family Others Total a

Percentage

20 72 12

19.2% 69.2% 11.5%

104

99.9%a

Due to rounding, the total percentage value does not equal 100.

breach of duty of care or in automobile operation, (d) arrest and confinement, or (e) kidnapping and human trafficking (Kawaide, 2010:51). Victim interveners can basically undertake any of the following five acts. First, they can attend the trial and the trial preparations, in which an examination of a witness or an inspection is performed (CCP Article 316-34). Second, they can express an opinion to the public prosecutor about the exercise of the public prosecutor’s authority, and the public prosecutor must explain to the victim, if necessary, the reasons for exercising or not exercising the public prosecutor’s authority (CCP Article 316-35).9 Third, they can question a witness, though the object of that questioning is limited to challenging the credibility of the witness’s statement with respect to mitigating circumstances (CCP Article 316-36).10 Fourth, they can question the defendant, when it is necessary for the preparation of a statement of opinion11 (CCP Article 316-37). Finally, they can state an opinion about the finding of facts and the application of the law within the limits of the facts specified as a count after a statement of opinion by the public prosecutor (CCP Article 316-38). According to the provisions of the CCP, this victim statement under VPS (CCP Article 316-38) is similar to that made by the public prosecutor, whereas the VSO (CCP Article 292-2) mainly focuses on the expression of victim sentiments. Although the VSO can be considered when deciding upon appropriate sentencing, such statements under VPS cannot be used as evidence, even in deciding upon sentencing (CCP Article 316-38(4)). Though the VPS has a very short history, it seems that it has been mainly used by bereaved family members, as is the case with the VSO. The Supreme Public Prosecutor’s Office reported the implementation status in the period from December 2008 to May 2009; by the end of May 2009, the number of cases in which victim participation was admitted was 206, while the number of persons allowed to participate was 321. The people who applied to participate were mainly bereaved family members, and the cases in which victims applied to participate were mainly traffic accidents (see Tables 3 and 4).12,13 They mostly used “attendance to the trial,” and “question to the defendant” was a second-most used form of victim participation (see Table 5).13 The victim intervener may appoint attorneys at law and entrust the five aforementioned acts to the lawyers. If the victim meets financial-resource criteria, he or she can request the court to 9

According to an interview with a prosecutor at the Utsunomiya District Public Prosecutor’s Office on January 7, 2010, this kind of explanation to victims might have been undertaken by many prosecutors prior to this revision. 10 These mitigating circumstances must be general mitigating circumstances which are not related to facts constituting a crime. 11 This “statement of opinion” includes both the VSO (CCP Article 292-2) mentioned above and the statement of an opinion concerning the finding of facts and the application of the law (CCP Article 316-38) mentioned below. 12 The Supreme Public Prosecutor’s Office reported upon the first year of the VPS implementation on December 21, 2009. According to the report, the number of persons who had already participated at that time was 657 (Yomiuri Shimbun, 22 December 2009, p. 27). 13 This Table was generated using the data from Ban and Shidehara (2009:19 Tables 1 and 2).

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Table 2 Categories of cases in which VSO was used (January to March in 2004). Number of Cases Death Occurred not in Automobile Operation Death through Negligence in the pursuit of social activities or automobile operation and Dangerous Driving Causing Death Attempted Murder, Injury, Assault, and Assault Causing Injury Injury through Negligence in the pursuit of social activities or automobile operation and Dangerous Driving Causing Injury Property Offence, with Exception of Robbery and Extortion Robbery, Robbery Causing Injury, and Extortion Indecency, with Exception of Rape Causing Death Others Total

Percentage

24 48

23.1% 46.2%

7 7

6.7% 6.7%

2 1 5 10

1.9% 1.0% 4.8% 9.6%

104

100%

appoint a Higaisha Sanka Bengoshi (attorney for victim participation) (Hanzai Higaishatono Kenririekino Hogowo Hakarutameno Keijitetsuzukini Fuzuisuru Sochinikansuru Horitsu (Measures Attached to Criminal Procedure for Protecting Crime Victims’ Rights and Interests Act, or MCPPCVRIA) Article 5). If the victim wishes to request the court to appoint an attorney for the purpose of victim participation, he or she is required to make an application through the Nihon Shih o Shien Center (Japan Legal Support Center, or JLSC) (MCPPCVRIA Article 5(2)). The JLSC then nominates candidates for an attorney from the lists of contract attorneys at law for victims (MCPPCVRIA Article 6(1); Sogo Horitsu Shien Ho (Comprehensive Legal Support Act) Article 38-2). By October 1, 2009, 2082 attorneys had registered as contract attorneys at law for victim participation.14 Table 615 shows the status of using attorneys for victim participation, as of November 2009, in which a total of 552 crime victims applied for victim participation systems. It is interesting to note that victims scarcely used court-appointed attorneys for victim participation in cases related to automobile accidents (please see “Dangerous Driving Causing Death or Injury” and “Causing Death or Injury through Automobile Operation” in Table 6).” 1.3. Issues regarding victim participation There has been great debate concerning the advantages and disadvantages of victim participation, and a broad range of issues has been raised e relating to jurisprudence, practical matters, and the impacts of that system, among others.16 This paper focuses on two particular issues relating to victim participation in criminal trials. One of these two issues is the impact of victim participation on decisions in criminal trials e in particular, the impact on sentencing. The second is victim evaluations of those systems. Any discussion of these two issues should be based on empirical research, but there has been little such research on these issues in Japan. I will therefore review empirical research that has taken place in 14 Among these attorneys, 362 are female. The JLSC provided this data, when I interviewed members of their staff on November 20, 2009 at their headquarters office. 15 This table was generated using the data of Nihon Shiho Shien Center (2010:90). 16 Similar issues have been discussed with regard to Victim Impact Statements (VIS). For a brief and comprehensive discussion of that topic, see Ashworth (2000) and Erez (2000).

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Table 3 Categories of cases in which victims applied to participate (December 2008 to May 2009). Number Injury and Injury Causing Death Murder and Attempted Murder Forcible Indecency, Rape, etc Causing Death or Injury through Automobile Operation, etc Dangerous Driving Causing Death Robbery Causing Death

48 27 22 120 2 5

Total

224

Percentage 21.4% 12.1% 9.8% 53.6% 0.9% 2.2% 100%

other countries; in relation to the first issue, I will also present the early findings of a psychological experiment that I conducted in 2010. 2. Impacts on decision-making in criminal trial 2.1. Review of empirical research When the VSO and VPS were introduced, many scholars and lawyers expressed concerns on whether or not these systems would unduly influence the determination of guilt and affect sentencing. It would be fruitful to determine whether the VSO or the VPS have indeed had any impact on decisions of guilt or sentencing, and if so, to what degree. This paper specifically focuses on the impact of victim participation on sentencing. The following section summarizes previously reviewed empirical research on this matter. It is noteworthy that the independent variable used in empirical research in other countries differs from the VSO or the VPS in Japan (Saeki, 2010). The objects of empirical research in other countries are mainly written Victim Impact Statement (VIS), and the cases used as the samples were basically not serious ones.17 As explained above, the VSO tend to be delivered orally and the VSO and the VPS are used mainly in serious cases in which the victim has died. However, such research helps us plan an empirical research that has a specific application to Japan’s systems. The empirical research can be categorized into two types, based on the dependent variables. Some empirical research treats professional judges’ sentencing as a dependent variable, while other research treats lay judges’ sentencing as a dependent variable. No study has found an impact of VIS on professional judges’ prison-term decisions (Davis et al., 1984; Davis and Smith, 1994a; Erez and Tontodonato, 1990; Erez and Roeger, 1995; Walsh, 1986). However, some studies have found that VIS has an impact on professional judges’ probation decisions (Erez and Tontodonato, 1990; Walsh, 1986).18 For this reason, it might be preferable to research 17 As explained below, some empirical research treats professional judges’ sentencing as a dependent variable, and the other empirical research treats lay judges’ sentencing as a dependent variable. The former research basically addresses less serious cases than cases in which the VSO or VPS is typically used in Japan. On the other hand, the latter research basically addresses serious cases because jurors must decide death or life imprisonment in these cases. So, the cases which the latter research addresses might be similar to the cases in which the VSO or VPS is typically used in Japan. However, the differences of the legal systems between other countries and Japan should be considered when applying research findings from the latter research to Japan’s VSO or VPS. 18 An evaluation of pilot schemes in Scotland indicates similar patterns, but those impacts were very slight (Leverick et al., 2007:30).

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Table 4 Categories of persons who applied to participate (December 2008 to May 2009). Number Victim Victim’s Spouse Victim’s Lineal Relative (Father or Mother) Victim’s Lineal Relative (Children) Victim’s Lineal Relative (Others) Victims’ Brother or Sister Victim’s Legal Representative Appointed Attorney Total

70 37 84 55 1 29 7 67 350

Percentage 20.0% 10.6% 24.0% 15.7% 0.3% 8.3% 2.0% 19.1% 100%

the impact of victim participation on decisions relating to a suspension of the execution of a sentence in Japan, rather than on the impact on prison terms. In addition, because the VSO and the VPS are used mainly by bereaved family members, we should focus on cases in which the victims have died. Now that the LJS has been initiated and murder cases are examined under it, it might be appropriate to focus on cases in which death was caused through negligence in the pursuit of social activities or automobile operation, either of which is examined solely by professional judges.19 The second category of empirical research on this issue treats lay judges’ sentencing as a dependent variable. This research uses one of two types by methodology: (1) data from actual cases or reported statistics (Aguirre et al., 1999; Cassell, 1999; Eisenberg et al., 2003; Karp and Warshaw, 2009) and (2) mock-jury studies (Blumenthal, 2009; Butler, 2008; ForsterLee et al., 2004; Gordon and Brodsky, 2007; Greene, 1999; Greene et al., 1998; Hills and Thomson, 1999; Luginbuhl and Burkhead, 1995; McGowan and Myers, 2004; Myers and Arbuthnot, 1999; Myers et al., 2004, 2002; Nadler and Rose, 2003; Platania and Berman, 2006; Tsoudis and Smith-Lovin, 1998). The results of the former type are not consistent. There have been studies that showed some impact on sentencing (Aguirre et al., 1999; Cassell, 1999), but there have been also studies that showed no such impact (Eisenberg et al., 2003; Karp and Warshaw, 2009). On the other hand, many mock-jury studies did show an impact (e.g., Butler, 2008; Blumenthal, 2009; ForsterLee et al., 2004; Luginbuhl and Burkhead, 1995).20 Now that the LJS has been introduced and implemented, the impact of the VSO or the VPS on sentencing under the LJS in Japan should be examined.21 2.2. Early findings of the author’s psychological experiment In Japan, there has been a major controversy about the impact of systems through which a victim participates in criminal trials, but that controversy in Japan seems to differ from that in America. In America, many scholars seem to consider whether or not information concerning 19

It has been noted that although causing death through negligence in the pursuit of social activities or automobile operation (Keih o (Penal Code) Article 211) is not examined under LJS, dangerous driving causing death (Penal Code Article 208-2) is examined under LJS. 20 On the other hand, neither McGowan and Myers (2004) nor Myers et al. (2004) showed such an impact. 21 In this sense, Naka’s study (2009) is the first important contribution to Japanese research. She showed that a departed victim’s picture reinforces confidence that the defendant had an intention to kill, and that such a picture enlarges the gap of sentencing made by law school students versus that made by students whose majors were not law (Naka, 2009: 411e413).

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Table 5 Acts undertaken by victim interveners (December 2008 to May 2009). Number of Cases

Number of Persons

Trial Attendance (CCP Article 316-34) Examination of the Witness (CCP Article 316-36) Questioning the Defendant (CCP Article 316-37) Statement of Opinion (CCP Article 316-38)

134 (65.0%) 31 (15.0%) 89 (43.2%) 63 (30.6%)

210 (65.4%) 38 (11.8%) 107 (33.3%) 74 (23.1%)

The numbers of cases in which victim participation was allowed and the persons who were allowed to participate

206

321

victims might have an impact on sentencing, or if such an impact could be justified or not.22 Therefore, it is necessary first to confirm whether or not it is meaningful to treat this issue as a system problem or one that pertains to the information involved. In addition, the VPS is a particular Japanese system that differs distinctly from those systems addressed by the existing research. I therefore conducted a psychological experiment to address two issues: to explore whether any impact on sentencing was brought about by the system or the information involved, and to explore the impact of the VPS. This experiment took place on the Komaba campus of the University of Tokyo, which is used mainly by undergraduate students in liberal arts courses. I posted a notice soliciting applications for participation; 228 students responded and were chosen as subjects. Of these, 156 were male (68.4%) and 72 were female (31.6%); their average age was 19.3 years. Three participants did not concentrate on the video during the experiments, and so their data were removed from the overall results. Because it was impossible to determine how many students would be able to participate in this experiment, I conducted the experiment while simultaneously enrolling more participants. Furthermore, because it was impossible to collect all of the participants at once, the experiment had to be repeated with small groups of participants.23 The experiments were conducted in the following manner. First, I provided a brief summary, explained the conditions of the experiment, and asked the participants to sign a letter of consent. The Participants then watched a video about the mock criminal trial of a murder case. The length of that video depended on certain conditions, as explained below, but the average length was approximately 45 min. After watching that video, the participants were asked to fill in a questionnaire. They then received a reward and the experimental trial ended. The video used in the experiments was filmed with semiprofessional actors and actresses. The mock trial involved a fictional murder case. The defendant had been advised by the chief of an auto repair shop that he would be laid off. He attempted to persuade the chief not to fire him, but they got into a quarrel and the defendant fatally stabbed the chief. Basically, the defendant confessed to what he did. I manipulated two factors: victim information and victim participation. Victim information comprised three conditions of disclosure. In the first condition, the participants received no information about the chief’s widow (i.e., information control); in the second condition, the participants received such information through the widow’s oral VSO (i.e., information by the 22 There were controversies concerning the constitutionality of VIS in America. Along the course of those controversies, the Supreme Court of the United States put the problem of the impact of the prosecutor’s comments concerning the victim in the closing argument into this discussion (South Carolina v. Gathers, 490 U.S. 805 (1989)). 23 I enrolled, on average, 6 participants for each experiment. Eventually, 37 such experiments were conducted between April 14, 2010 and May 18, 2010.

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Table 6 Status of attorney use for victim participation (December 2008 to November 2009). Number of Cases of Application for VPS (A) Murder and Attempted Murder Injury Injury Causing Death Forcible Indecency, Rape, etc Dangerous Driving Causing Death or Injury Causing Death or Injury through Negligence in the Pursuit of Social Activities Causing Death or Injury through Gross Negligence Causing Death or Injury through Automobile Operation Arrest and Confinement Kidnapping and Human Trafficking Robbery Causing Death and Rape at the Scene of a Robbery Total

Number of Cases of Application for CourtAppointed Attorneys (B)

¼B/A100

65

35

53.8%

56 19 85 10

26 7 50 0

46.4% 36.8% 58.8% 0%

17

1

5.9%

3

2

66.7%

265

21

7.9%

4

4 2

100.0%

28

7

25%

552

153

27.7%

victim); in the third condition, the participants received same information through the prosecutor’s reading of the widow’s statement (i.e., information by the prosecutor). In that video, information concerning the widow included details of her and her son’s suffering from the crime, her description about what kind of person her husband was, and her request for the harshest punishment as possible. Victim participation was comprised of two conditions. Questioning of the defendant has been frequently used under the VPS; therefore, this questioning was employed as victim participation content. In the first condition, the prosecutor asked the defendant whether it was true that he regretted what he did, and how deeply he regretted it (i.e., questioning control); in the second condition, the widow created the same questions herself (i.e., victim questioning). The numbers of participants (N), percentages of female participants (PF), and means of age (MA) in each condition are shown in Table 7. As Table 7 shows, there were no participants when victim information was provided by the prosecutor and victim participation was undertaken. As mentioned, I had to continually seek out new participants while conducting experimental trials; therefore, at first, fewer than five conditions were used, and when there was a growing number of applications, additional conditions were added to the experimental scheme. However, as time passed, the composition of the applicants changed in terms of sex or affiliation. I thus decided to use only five conditions in this experiment, considering the importance of homogeneity with respect to each condition. Participants were allowed to select the type of punishment from three options: death penalty, life imprisonment, or imprisonment for a definite term. However, virtually no participants selected the death penalty or life imprisonment as an appropriate punishment for the defendant.

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Table 7 Participants in each condition. “Victim Participation”

“Victim Information”

Information Control

Information by the Victim

Information by the Prosecutor

Questioning Control

Victim Questioning

(Condition 1) N ¼ 44 PF ¼ 29.5% MA ¼ 19.2 (Condition 2) N ¼ 46 PF ¼ 28.3% MA ¼ 19.1 (Condition 5) N ¼ 44 PF ¼ 29.5% MA ¼ 19.5

(Condition 3) N ¼ 44 PF ¼ 34.1% MA ¼ 19.4 (Condition 4) N ¼ 47 PF ¼ 34.0% MA ¼ 19.3 e

In condition 2, two participants selected life imprisonment; in condition 4, one participant selected life imprisonment and another participant selected the death penalty; and in condition 5, two participants selected the death penalty (For the number of conditions, see Table 7). It is interesting to note that when the participants did not receive victim information, no participant selected the death penalty or life imprisonment. Because the number of participants who chose the death penalty or life imprisonment was very small, I have excluded those participants’ data from further analysis. If participants selected imprisonment for a definite term as an appropriate punishment for the defendant, those participants were asked how long the defendant should be incarcerated. A two-way layout analysis of variance (ANOVA) was conducted on prison terms while using victim information and victim participation as factors. Due to a lack of a condition in which victim information comprised information by the prosecutor and victim participation comprised victim questioning, Type IV sum of squares was used to conduct two-way layout ANOVA. The analysis found that the main effect of victim information was statistically significant (F (2, 214) ¼ 3.63, p < .05), but neither the main effect of victim participation nor the interaction between those two factors was (F (1, 214) ¼ 1.18, n.s.; F (1, 214) ¼ .97, n.s. respectively). Since victim information had three different conditions, a multiple comparison via a Tukey’s Honestly Significant Difference test was conducted. As a result of that multiple comparison, the difference between information control and information by the prosecutor was found to be statistically significant ( p < .10); the difference between information control and information by the victim, meanwhile, was statistically significant ( p < .05). Finally, the difference between information by the prosecutor and information by the victim was not statistically significant. As Fig. 2 shows, when information concerning the widow was given, the average prison terms that the participants thought to be appropriate for the defendant tended to increase in severity. However, whether that information was submitted by the prosecutor or by the widow herself does not seem to have a statistically significant impact on sentencing. Even when calls for the death penalty and life imprisonment were transformed into calls for 30 years of imprisonment e i.e., the upper limit of imprisonment for a definite term e the results hardly changed. The main effect of victim information was statistically significant (F (2, 220) ¼ 5.51, p < .01), while neither the main effect of victim participation nor the interaction between those two factors was (F (1, 220) ¼ .65, n.s.; F (1, 220) ¼ .53, n.s. respectively).

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Fig. 2. Results of two-way layout ANOVA Regarding Prison Term.

According to a multiple comparison via a Tukey’s Honestly Significant Difference test, the difference between information control and information by the prosecutor, and between information control and information by the victim, were both statistically significant (the difference between information control and information by prosecutor is p < .05 and the difference between information control and information by victim is p < .01); meanwhile, the difference between information by the victim and information by the prosecutor was not statistically significant. The results detailed above indicate three points. First, if the contents of questioning are not different, the victim’s questioning of the defendant under the VPS might not have an impact on sentencing under the LJS. Second, information concerning the bereaved family members might have an impact on sentencing under the LJS. Third, whether that information concerning the bereaved family members was delivered by a prosecutor through reading a bereaved family member’s statement, or by a bereaved family member him- or herself through the VSO, might not matter in terms of having an impact on sentencing. Therefore, it might be more appropriate to focus on the issue of the impact of victim information on sentencing, at least under the LJS, rather than focus on the issue of the impact of the system concerning victim participation in criminal trials. 2.3. Remaining research tasks As shown above, a certain amount of empirical research already exists in other countries, but such research has been scarce in Japan. For this reason, empirical research on the impact of victim participation on sentencing should also be undertaken in Japan.24 There is no empirical research on the impact on professional judges’ sentencing in Japan, and such research is needed. As pointed out, it might be better to focus on decisions concerning the suspension of the execution of a sentence, and to select cases of death through negligence in the pursuit of social activities or automobile operation as samples. Next, regarding the impact on sentencing under the LJS, more empirical research should be conducted in Japan. It is noteworthy that the results of this experiment indicate that the impact 24

As was already pointed out, the impacts on decisions of guilt and fact findings should be verified.

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of victim information may be more important than the impact of the systems of victim participation. According to those results, it is best to examine what kinds of victim information have an impact on sentencing. In addition, one should keep in mind the actual decision-making process under the LJS, where lay judges and professional judges deliberate together. For this reason, it may not be sufficient to research only citizens’ decisions; mock-jury methodologies should be modified in accordance with the actual LJS process and, ideally, data from actual cases should be analyzed. 3. Victims’ evaluation of the systems 3.1. Review of empirical research Mollification of victims’ anger or providing victims with closure or recovery from suffering, as has often been pointed out, are important objectives in introduction of the VSO or the VPS. If so, it is important to determine how victims evaluate their own experience of VSO or VPS usage. First, let us review the results of empirical research on this issue in relation to VIS. The controversy between Sanders et al. (2001) and Chalmers et al. (2007) is both interesting and meaningful. Sanders et al. (2001) insist that VIS usage raises victims’ expectations that VIS will make a difference with regard to sentencing; eventually, however, they found no such impact.25 On this basis, they conclude that VIS does not satisfy victims. On the other hand, Chalmers et al. (2007) insist that victims evaluate VIS usage positively, even when they believe that it has no impact on sentencing.26 According to the results of assessments of a pilot project in England and Wales, 77% of victims, when interviewed after opting into the VIS scheme, felt that making a VIS had been the right decision. However, when they were interviewed after their cases had reached their conclusion, only 57% felt so. The percentage of victims who felt that making a VIS had been the wrong decision rose from 2% after opting into the VIS scheme to 20% after their cases had reached their conclusion (Hoyle et al., 1998:32). Sanders et al. (2001:450) underscore this result and conclude that the VIS does not generally improve victims’ overall satisfaction with the criminal justice system. They attribute this “great deal of dissatisfaction” to the victims’ ultimate perception that their VISs had no impact on their cases’ outcome (Sanders et al., 2001:452). On the other hand, Chalmers et al. (2007) insist that VIS should be evaluated more positively; they claim that the majority of victims considered making a VIS to be the right decision, even after their cases had reached their conclusion (Chalmers et al., 2007:369e70).27 In addition, they introduced the results of evaluations of pilot VIS projects in Scotland from 2003 to 2005; insisting that the majority of victims who had made a VIS were satisfied with the VIS schemes, irrespective of whether or not they perceived the VIS to have made a difference on case outcome (Chalmers et al., 2007). 25

It is noted that whether or not victims’ perceptions are correct is a separate issue. This discussion might be considered from the perspective of procedural justice. Some empirical research on this issue mentions this theory (Erez and Tontodonato, 1992; Hoyle et al., 1998). Although there are many studies concerning procedural justice, with regards to this issue, Tyler et al. (1985) is especially useful. 27 Chalmers et al. (2007:370) raise some doubts regarding the validity of the findings from the pilot projects in England and Wales. As Hoyle et al. (1998:10) confess, it was not possible to conduct interviews with as many victims after their cases had reached their conclusion as after they had opted into the VIS scheme, because so many cases had remained unresolved when the fieldwork ceased. However, it was not clear how many victims had not been interviewed after the conclusion of their case (Chalmers et al., 2007:370). 26

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In America, to explore victims’ evaluation of VIS, Davis and Smith (1994b) conducted an experiment in New York, and Erez and Tontodonato (1992) conducted a questionnaire survey in Ohio. Both studies found that VIS has no impact on victim satisfaction. In addition, Erez and Tontodonato (1992:410e13) point out that some victims’ satisfaction with the sentence imposed decreased as a result of feeling that their input had no impact on the outcome; they warn that VIS usage should not raise victims’ expectations that it will have an impact on sentencing. In short, there are two main positions on the impact of VIS on victim satisfactions. One is that victims do not evaluate VIS positively, due to their perceptions that their VISs had not influenced their respective outcomes. The other position is that victims evaluate VIS positively, even when they believe that their VISs had no impact on the outcome. Existing research seems to indicate that the former position is relatively dominant.

3.2. Research in Japan Next, I considered victim evaluations of victim participation in Japan. In relation to the VSO, SGPCV’s questionnaire survey (Hanzaihigaishanotameno Shisakuwo Kenkyusuru Kai, 2004) is worthy of review. As mentioned above, SGPCV conducted a questionnaire survey of victims who used the VSO in 2004. According to that survey’s results, out of 88 victims who had delivered an oral VSO, 55 persons (63%) said that “It was good for him/her to deliver a VSO” or “He/she could deliver a VSO well.” The survey also found that 18 persons (20%) said that “It was not good for him/her to deliver a VSO” or “He/she could not deliver a VSO well.” The balance of the respondents made neither assertion. It seems that the majority of victims who had conducted oral VSOs also evaluated their experience of VSO usage positively.28 The victims who answered that “It was good for him/her to deliver a VSO” or “He/she could deliver a VSO well” were asked the reason why they answered so; Fig. 3 presents the results of that multiple-choice question. As Fig. 3 points out, many victims were satisfied in the sense that they were able to perform the VSO well (see (A) and (B) in Fig. 3),29 but fewer victims were satisfied in terms of their VSO having made some sort of impact (see (C) and (E) in Fig. 3). The victims who answered that “It was not good for him/her to deliver a VSO” or “He/she could not deliver a VSO well” were also asked the reason for that answer. Fig. 429 presents the results of that multiple-choice question. Indeed, Fig. 4 suggests that many victims were dissatisfied in the sense that their VSOs were perceived as not having made some sort of impact (see (G) and (L) in Fig. 4); however, it also suggests that fewer victims were dissatisfied in the sense that they did not perform the VSO well (see (H), (I), (J), and (K) in Fig. 4). However, it should be noted that the number of the respondents was relatively small (N ¼ 18). These data suggest that some victims are indeed dissatisfied with their perceived absence of VSO impact on outcomes; nonetheless, many victims seem to evaluate VSO usage positively, 28 The victims were asked what impression they had of VSO usage; in answering, they could choose one of three options. The first was that “It was good for him/her to deliver a VSO / He/she could deliver a VSO well.” The second was that “It was not good for him/her to deliver a VSO / He/she could not deliver a VSO well.” The third was “neither.” It is noted that these options can derive two different meanings: some victims, for example, might consider the delivering a VSO a good thing to do, but they might simultaneously think that they could not do it well. As a result, this questioning might make a mistake which is called “double-barrel”. 29 This Figure was generated using the data of Hanzaihigaishanotameno Shisakuwo Kenkyusuru Kai (2004).

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Fig. 3. Advantages of VSO use. A: He/she could convey his/her sentiment or opinion about sentencing to the court directly. B: He/she could state his/her sentiment in front of the defendant. C: Due to his/her statement, the defendant seemed to understand the weight of guilt. D: He/she could fully state his/her sentiment, which he/she couldn’t state through questionings or examinations of him/her. E: Judges seemed to understand the contents of his/her statement, and that statement seemed to influence the judgment. F: Others.

even when they consider their VSOs not to have made any difference to their cases’ outcomes. Of course, it should not be overlooked that some victims seem to be disappointed by a perceived absence of VSO impact on outcomes. As Leverick et al. (2007:91) mentioned, this may be an unavoidable downside of victim participation. If so, future research should explore the countermeasures that could mitigate this by-product of these systems. 3.3. Remaining research tasks According to empirical research concerning victim evaluations of VIS in other countries, there are two main positions. One position insists that victims do not evaluate VIS positively, because they perceive their VIS as not having made any impact on their cases’ outcomes, while another position insists that victims do evaluate VIS positively, regardless of the perceived impact of their VIS on their respective cases’ outcomes. As mentioned previously, the former position appears to be relatively dominant. However, in assessing the results of a questionnaire survey concerning the VSO in Japan, the latter position might apply, at least with regards to victim evaluations of the VSO. It should be noted that this survey does not compare victims who use the VSO to those who do not; therefore, additional research is needed to clarify the relationship between VSO usage and victim satisfactions. In addition, we should study the relation between the VPS and victim satisfactions. Although the empirical research of other countries mainly focuses on victim evaluations of VIS, the VPS gives victims a more active role in criminal trials than the VIS or the VSO in Japan. For this reason, we must conduct further research that directly addresses the effective and equitable utilization of the VPS in Japan’s criminal trials.30 30

In this regard, a consideration of the empirical research of civil law countries might be useful. For example, see Erez and Bienkowska (1993).

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Fig. 4. Disadvantages of VSO use. G: The defendant seemed to feel nothing while the defendant heard his/her statement. H: He/she couldn’t speak well due to tension. I: It was hard for him/her to speak in front of the defendant. J: It was hard for him/ her to speak in front of the observers. K: He/she couldn’t speak fully due to the time restriction. L: Judges didn’t seem to understand the contents of his/her statement, and that statement didn’t seem to influence the judgment. M: Others.

4. Conclusion This paper addressed two systems of victim participation in Japan e the VSO and the VPS. Two main issues arise with respect to these systems, within the context of the Japanese justice system. One focused on the impact of these systems on trial outcomes; the other on victim satisfactions. These two issues have been viewed within the framework of existing empirical research in order to suggest the focus of future empirical research. As to the impact of the VSO or the VPS on professional judges’ sentencing, it might be meaningful to focus on decisions concerning the suspension of the execution of sentences, and to select cases of death through negligence in the pursuit of social activities or automobile operation. In any case, no empirical research has been conducted on this topic in Japan. When exploring the impact of the VSO or the VPS on sentencing under the LJS, it would be important to focus on murder cases or the like as research objects. According to the results presented here, the victim’s questioning of the defendant under the VPS does not have any significant impact on sentencing under the LJS. However, victim information might make a difference to sentencing under the LJS, although it does not matter whether that information is submitted by a prosecutor or by a bereaved family member through the VSO. Therefore, it would be more meaningful to examine what kind of victim information would make a difference to sentencing under the LJS. Concurrently, we should attempt to improve the methodology of mock-jury studies, in line with actual LJS processes. Regarding the victims’ evaluation of VSO or VPS, although there is the research which seems to indicate a basically positive evaluation of VSO, there remain several questions to be explored. This paper provides summaries of new systems of victim participation in Japan, and indicates many issues yet to be explored. This paper was intended to assist in clarifying future research tasks, and to be useful in planning further empirical research on these issues.

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