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Published online by Cambridge University Press: 16 April 2015
In 2007 the Academy Award winning director of Shall We Dance released his new film, a critique of the Japanese criminal justice system from a wrongful conviction perspective. In this article, I use the filmas avehicle to serve three disparate goals. First, I provide the firstlegal critique of the film, a genre of legal scholarship developing over the past 15 years. Second, I use the film to reflect on criminal justice reforms in Japan, in particular the introduction of the Lay Judge System (quasi-jury saiban-in seido) from 2009. Third, I critically ask whether use of film as a legal text assists or distracts from my primary pedagogical objectives in teaching comparative Japanese law. I conclude with a cautious recommendation of I Just Didn't Do It as legal cinema, as a catalyst for reform of the Japanese criminal justice system and as an educational text.
1 I Just Didn't Do It 「それでもボクはやってない」 (Fuji, 2007).
2 See, e.g., “Masayuki Suo's New Film Press Conference Held” Hoga News (10 October 2006) (noting release date of 20 January 2007)Google Scholar.
3 Shall We Dance? 「Shall We ダンス?」 (Daiei Studios, 1996). This film was remade using Suo's screenplay in Hollywood in 2004 staring Gere, Richard, Sarandon, Susan, and Lopez, Jennifer: Shall We Dance? (Miramax, 2004)Google Scholar.
4 Sumo Do, Sumo Don't 「シコふんでじゃった」 (Daiei Studios, 1992).
5 “Masayuki Suo's New Film Seriously Applauded by Lawyers” Hoga News (27 December 2006)Google Scholar.
6 Ibid.
7 “Awards for ‘I Just Didn't Do It’” Internet Movie Database IMDb, online: <http://www.imdb.com/title/tt0794350/awards> (accessed 1 September 2011) (noting 19 nominations and 12 awards, including best film and director in the leading Japanese Kinema Junpo Awards)+(accessed+1+September+2011)+(noting+19+nominations+and+12+awards,+including+best+film+and+director+in+the+leading+Japanese+Kinema+Junpo+Awards)>Google Scholar.
8 See Foundas, Scott, “Order in the Court: The Films of Masayuki Suo” 32 Cinema Scope (2007)Google Scholar.
9 Edwards, Russell, “I Just Didn't Do It” Variety (20 May 2007), online: <http://www.variety.com/review/VE1117933691?refcatid=31>Google ScholarPubMed.
10 See, e.g., Anderson, Kent & Ryan, Trevor, “Japan” in Black, Ann & Bell, Gary, eds., Law and Legal Institutions in Asia (Melbourne: Cambridge University Press, 2010) (reviewing the decade of law reform in Japan from 1996 to 2005)Google Scholar.
11 The Act Concerning Participation of Lay Judges in Criminal Trials 裁判員の参加する刑事裁判に関する法律 Law No. 63 of 2004; translated at Anderson, Kent & Saint, Emma, “Japan's Quasi-Jury (Saiban-in) Law: An Annotated Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials” (2003) 6 Asian Pac. L. & Pol'y J. 233 (“Lay Judge Act”)Google Scholar.
12 Ibid., Supplementary Provisions, Art. 1 (Enforcement Date).
13 See Anderson, Kent & Ambler, Leah, “The Slow Birth of Japan's Quasi-Jury System (saiban-in seido): Interim Report on the Road to Commencement” (2006) 21 Journal of Japanese Law 55 Google Scholar.
14 Sexual harassment law in Japan had recognised quid pro quo and hostile environment claims since the early 1990s. See Patterson, Nancy, “No More Naki-Neiri? The State of Japanese Sexual Harassment Law: Judgment of April 16, 1992, Fukuoka District Court (1989) No 1872 Songai Baisho Jiken (Japan)” (1993) 34 Harv. Int'l L.J. 206 Google Scholar. More generally, the Equal Employment Opportunity Act 1986 was amended in 2006 to enhance the rights available. See Starich, Megan L., “The 2006 Revisions to Japan's Equal Opportunity Employment Law: A Narrow Approach to a Pervasive Problem” (2007) 16 Pac. Rim L. & Pol'y J. 551 Google Scholar.
15 See, e.g., “When Commuter Hell Takes on a Whole New Meaning” Japan Times (17 June 2001) (noting pressure officials were under to address groping complaints)Google ScholarPubMed; Burton, Melanie, “Are Women-Only Cars a Solution?” Japan Times (17 May 2005) (providing public reaction to groping strategies)Google Scholar.
16 The Japanese graduate professional “Law Schools” (法科大学院) which began in 2004 and are focused on producing practicing lawyers, have received extensive academic treatment. See, e.g., Anderson, Kent & Ryan, Trevor, “Gatekeepers: A Comparative Critique of Admission to the Legal Profession and Japan's New Law Schools” in Steele, Stacey & Taylor, Kathryn, eds., Legal Education in Asia (New York: Routledge, 2009)Google Scholar.
17 Stone, Alan A., “Teaching Film at Harvard Law School” (2000) 24 Legal Studies Forum 573 Google Scholar. A number of other courses now exist at many law schools throughout the world. See, e.g., Elkins, James R., “Reading/Teaching Lawyer Films” (2004) 28 Vt. L. Rev. 813 Google Scholar; Asimow, Michael & Mader, Shannon, Law and Popular Culture, 2nd (New York: Peter Lang Publishing, 2010) (a course textbook relying heavily on film sources)Google Scholar.
18 The university where I taught almost exactly matched the national average of a quarter of the students taking the exam passing. See Ministry of Justice, “The Number of New Bar Exam Passers by Law School for 2011”, online: <http://www.moj.go.jp/ content/000079295.pdf> (accessed 13 September 2011)+(accessed+13+September+2011)>Google Scholar. I am not sure if a summer intensive course taught on a non-bar subject by a foreign lecturer, albeit in Japanese, would draw a representative selection of students from the cohort. Actually, what I hope is I drew a smarter, more creative cohort than those “gunner” students who sought merely to use their summer holiday boringly cramming for the bar exam. More generally, the problems with the reformed bar's pass rate in Japan are widely know and have been widely written about. See, e.g., Kamiya, Setsuko, “Scales of Justice: Legal System Looks for Right Balance of Lawyers” Japan Times (18 March 2008)Google Scholar. The moving standard of the past decade is also well known: in the post-war period the standard was a pass rate of 2-3%, the new law school system was predicated on a promised 70-80% passage rate, from 2010 there were supposed to be 3,000 passers per year from the 74 new law schools, but in reality the number of law schools has decreased while the remaining law schools have decreased their entering class size to deliver roughly 2,000 passers at 23.5% pass rate in 2011. Ministry of Justice, “The Results of New Bar Exam Passers for 2011”, online: <http://www.moj.go.jp/content/000079294.pdf> (accessed 13 September 2011)+(accessed+13+September+2011)>Google Scholar.
19 The rotation of judges every two to three years is a standard practice to expose judges to a variety of experiences, but it has also received significant criticism for its conservative socialising influence and possible political motivations. See, e.g., Haley, John, The Spirit of Japanese Law (University of Georgia Press, 1998) at 117–118 Google Scholar; Ramseyer, J. Mark & Nakazato, Minoru, Japanese Law: An Economic Approach (University of Chicago Press, 1998) at 17–19 Google Scholar.
20 The Trial (Le Procès) (Paris-Europa Productions, 1962)Google Scholar.
21 This is the famous “Blackstone Formula”. Gavit, Bernard C ed., William Blackstone, Commentaries on the Law of England (Washington D.C.: Washington Law Book Co., 1941) at 909 Google Scholar.
22 User Reviews, “Soredemo boku wa yattenai” Internet Movie Data-base (IMDb) (4 April 2008), online: <http://www.imdb.com/title/tt0794350/ajax/iframe?component=footer> (accessed 1 September 2011) (“User Reviews”).
23 “Interview with the Director of ‘I Just Didn't Do It’ Masayuki Suo” (「それでもボクはやってない」周防正行監督インタービュー) Shinema Ai (9 January 2007), online: <http://cinefilimagica.com/eye/backnumber/soredemo_070109.html> (accessed 1 September 2011) (“Interview”)+(accessed+1+September+2011)+(“Interview”)>Google Scholar.
24 See, e.g., Schilling, Mark, “Sore demo Boku wa Yattenai” Japan Times (5 January 2007)Google Scholar (providing in the leading English daily, “The approach [with an unusual devotion to detail] is not without its dryness, as one hearing follow the next, through a dense haze of legalese”).
25 Suo originally directed documentaries such as “Making of ‘A Taxing Woman’” (1988) about another major Japanese postwar director, Juzo Itami, and more recently “Dancing Chaplin” (2010), a documentary of a ballet about Charlie Chaplin. See “Masayuki Suo” Internet Movie Data-base (IMDb), online: <http://www.imdb.com/name/nm0839397/> (accessed 1 September 2011)+(accessed+1+September+2011)>Google Scholar.
26 Pleadings of “false gropings” (chikan ensai) began receiving significant mass media attention from the late 1990s as the number of prosecuted cases also increased. See, e.g., Akiyama, Kenzo et al eds., Defending False Groping (「痴漢冤罪の弁護」) (2004)Google Scholar.
27 See Interview, supra note 23; Kamiya, Setsuo, “‘I Just Didn't Do It’ Questions Court’” Japan Times (2 February 2007)Google Scholar (quoting Suo as saying it was his “sense of justice that served as his driving force” and “as a Japanese citizen, I was very angry to find that such injustice exists in this society”.)
28 See, e.g., Foote, Daniel H., “The Benevolent Paternalism of Japanese Criminal Justice”(1992) 80 Cal. L. Rev. 317 CrossRefGoogle Scholar.
29 See, e.g., Suess, David A., “Paternalism versus Pugnacity: The Right to Counsel in Japan and the United States” (1996) 72 Ind. L. J. 291 Google Scholar.
30 See, e.g., Johnson, David T., The Japanese Way of Justice (Oxford University Press, 2002) at 72–85 Google Scholar.
31 See, e.g., ibid. at 74.
32 See, e.g., ibid. at 215-218. As Teppei's lawyer notes, the 99.9% figure is somewhat deceptive as it includes those cases where the defendant has confessed and agrees to the charges. He does go on to note, however, that even for those few who claim innocence the conviction rate is 97%, which is consistent with Johnson's data. Ibid. The situation has not improved under the new Lay Judge System with 100% conviction rate in its first year and a 99% rate for its first two years. See, e.g., Kamiya, Setsuko, “Year One of Lay Judge System: All Guilty” Japan Times (21 May 2010)Google Scholar (noting all 530 defendants in first year, 2009-2010, were found guilty by saiban-in panels); Kamiya, Setsuko, “Lay Judges Convict 99%; Few Shirk Duty” Japan Times (2 August 2011)Google Scholar (noting for all of 2010 there were 1,506 saiban-in trials and two acquittals for a conviction rate of 99.99%).
33 See, e.g., Haley, John O., Authority without Power (Oxford University Press, 1991) at 125–138 Google Scholar.
34 See, e.g., Johnson, David T., Amerikajin no mita nihon no kensatsu seido ― nichibei no hikaku kosai, trans. by Okubo, Mitsuya (Tokyo: Springer, 2004)Google Scholar.
35 See, e.g., Douglas, Miguel, “‘I Just Didn't Do It’ ― Review” iSugoi (27 December 2010), online: <http://www.isugoi.com/i-just-didnt-do-it-review/> (accessed 1 September 2011)Google Scholar (noting among other similar comments “[The Japanese] have produced a rather complicated system of laws that are highly susceptible to corruption”). Reviews on the Internet Movie Database (IMDb) provide the Japanese criminal justice system is “evil”, “primitive”, “corrupt” and so forth. See User Reviews, supra note 22.
36 See, e.g., Bayley, David, Forces of Order: Policing Modern Japan (University of California Press, 1991)Google Scholar.
37 See, e.g., Haley, supra note 33 at 136.
38 Ibid. at 129-138.
39 For a sense of the vox populi on this issue, Japan's “Channel 2” internet discussion board provides an interesting perspective. See, e.g., “Where is a safer country than Japan” (日本よりも治安がいい国), online: <http://toki.2ch.net/test/read.cgi/world/1221106287/1-100> (accessed 1 September 2011).
40 How long is appropriate, however, is a more challenging question. Australia's four hours of detention unless a terrorist charge seems unreasonably short given the Japanese prosecutors' and detectives' deeper objectives beyond just finding the facts. Crimes Act 1914 (Cth) ss. 23C, 23DF (providing detention of four hours for regular investigations, two hours if the suspect is under 18 or indigenous, and up to 24 hours if it is a terrorist claim).
41 See User Reviews, supra note 22.
42 One typical commentator provides: “The film highlights the primitive and highly dubious procedures that infest the Japanese judicial system, where habeas corpus is trampled upon and a benign and apathetic populace conspire by neglect in the crushing of innocents.” Ibid. (specifically posted by CountZero313 on 19 April 2009).
43 See Interview, supra note 23.
44 See, e.g., Fukada, Takahiro, “In Anonymous Packed Train Lurk Gropers” Japan Times (18 August 2009)Google Scholar.
45 See supra note 15.
46 Rashomon (Daiei Studios 1950). Rashomon has received significant treatment by the legal literature. See, e.g., Althouse, Ann, “Invoking Rashomon” 2000 Wis. L. Rev. 503 Google Scholar; Kamir, Orit, “Judgment by Film: Socio-Legal Functions of Rashomon” (2000) 12 Yale J. L. & Human. 39 Google Scholar.
47 One of the brilliant aspects of Rashomon is by having the actors sit in the court facing the camera and give testimony directly to it, the viewer becomes the judge charged with trying to “find the truth” from the four irreconcilable versions given by the victim, the accused and two eye witnesses. See Richie, Donald, “Rashomon”, in The Films of Akira Kurosawa, 3rd ed. (University of California Press, 1999) at 70 Google Scholar.
48 Suo himself invited this by noting at press conferences that the saiban-in reform was an opportunity for the court to open up and change. See Kamiya, “I Just Didn't Do It”, supra note 27.
49 Ibid.
50 Lay Judge Act, supra note 13, art. 2.
51 Criminal Code, art. 176. Gropings not satisfying the Criminal Code's indecency provisions (e.g. inappropriate touching on top of clothing) are subject to maximum penalty of one year imprisonment and a fine of up to ¥1,000,000. See, e.g., Nuisance Prevention Ordinance, arts. 2-2, 10(2) (公衆に著しく迷惑をかける暴力的不良行為等の防止に関する条例, Hokkaido Ordinance 34 of 2 August 1965).
52 See, e.g., Wolferen, Karel van, The Enigma of Japanese Power (New York: Vintage Books, 1989) at 221 Google Scholar.
53 See, e.g., Haley, John O., “The Japanese Judiciary: Maintaining Integrity, Autonomy and Public Trust”, in Foote, Daniel ed., Law in Japan: A Turning Point (University of Washington Press, 2008)Google Scholar; Miyazawa, Setsuo, “Administrative Control of Japanese Judges”, in Lewis, Philip S.C. ed., Law and Technology in the Pacific Community (Westview Press, 1991) at 263 Google Scholar; Ramseyer, J. Mark & Rasmusen, Eric B., Measuring Judicial Independence: The Political Economy of Judging in Japan (Chicago: University of Chicago Press, 2003)CrossRefGoogle Scholar.
54 See Kamiya, “Year One of Lay Judge System: All Guilty”, supra note 32 (noting the conviction rate for 2009 was 100%); Kamiya, “Lay Judges Convict 99%; Few Shirk Duty”, supra note 32 (noting the conviction rate for 2010 was 99.99%).
55 See Ibusuki, Makoto, “Quo Vadis?: First Year Inspection to Japanese Mixed Jury Trial”, (2010) 12 Asia Pac. L. & Pol'y J. 24 at 41–44 Google Scholar.
56 Ibid., 50-51.
57 See Ito, Kazuko, “Rule of Law and the Criminal Justice Reform” (2011) 6 National Taiwan University Law Review 367 at 379 Google Scholar.
58 Ibid.
59 Johnson, David T., “You Don't Need a Weatherman to Know Which Way the Wind Blows: Lessons from the United States and Korea for Recording Interrogations in Japan” (2007) 24 Ritsumeikan Law Review 1 Google Scholar; (2008) 25 Ritsumeikan Law Review 141 Google Scholar.
60 See Fukurai, Hiroshi, “Japan's Quasi-Jury and Grand Jury Systems as Deliberative Agents of Social Change: De-Colonial Strategies and Deliberative Participatory Democracy” (2011) 86 Chicago-Kent Law Review 789 at 810 (describing the changes from 2004)Google Scholar.
61 Ibid., 806-810.
62 Act to Revise the Code of Criminal Procedure (刑事訴訟法等の一部を改正する法律), Law No 62 of 2004, art. 41.
63 See Ito, Masami, “Victim Participation in Trials Risky Experts Say” Japan Times (30 March 2009)Google Scholar; Hamai, Koichi & Ellis, Tom, “Genbatsuka: Growing Penal Populism and the Changing Role of Public Prosecutors in Japan” (2009) 33 Japanese Journal of Sociological Criminology (犯罪社会学研究) 67 Google Scholar.
64 A search of eBay.com for “I Just Didn't Do It” will produce a plethora of results.
65 See, e.g., Miyake, Shingo, “Judicial Reform Proponent Seeks Larger Role for Citizens” Nikkei Weekly (31 March 2003), available at 2003 WL 10474486Google Scholar.
66 For example, in 2010 of the nearly 23,000 regular criminal cases 40% were resolved from filing to sentencing within a month and another 32% within three months, totally 86% of cases being resolved from start to finish in the court system within six months. In contrast, for the first full year of saiban-in courts, which had yet to accumulate a backlog, 13% were resolved in three month, 25% in three months, and a total of 68% of cases reolves within six months. Secretary General Supreme Court of Japan, “Criminal Volume, Table 10, Criminal Cases by Type and Length to Trial Completion: District Courts” Saibansho De-ta bukku 2010 (Court Data Book 2010); online: <http://www.courts.go.jp/sihotokei/nenpo/pdf/B22DKEI08~10.pdf>>Google Scholar.
67 Sokolow, David S., “From Kurosawa to (Duncan) Kennedy: The Lessons of Rashomon for Current Legal Education” 1991 Wis. L. Rev. 969 Google Scholar; Stone, “Teaching Law at Harvard Law School”, supra note 13.
68 See Anderson, Kent, “The Explosive Growth of Personal Insolvency and the Concomitant Birth of the Study of Comparative Bankruptcy” (2004) 42 Osgoode Hall L.J. 661 (providing citations)Google Scholar.
69 12 Angry Men (Orion-Nova, 1957); To Kill a Mockingbird (Universal, 1962)Google Scholar; A Time to Kill (Warner Bros, 1996)Google ScholarPubMed; The Green Mile (Castle Rock, 1999)Google ScholarPubMed; The Hurricane (Universal, 1999)Google ScholarPubMed.
70 Four death row convictions were overturned during the 1980s based largely on flawed interrogation. See Foote, Daniel H., “From Japan's Death Row to Freedom” (1992) 1 Pac. Rim. L. & Pol'y J. 11 (reviewing the cases)Google Scholar
71 See Kamiya, Setsuko, “Sugaya Case Truly Flubbed: Prosecutors” Japan Times (2 April 2010)Google Scholar (reporting the Ashikaga Case in 2010 where after serving 17 years of a life sentence for murder the defendant Sugaya was found innocent based on DNA evidence and flawed interrogation techniques that led to a false confession).
