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Sunday, Feb. 27, 2005
Lay judges could put many fears of the legal system to rest
In a survey carried out by the Cabinet Office last December, 81 percent of respondents said they supported the death penalty, with 53 percent saying they believe serious crimes would increase without it. The Justice Ministry has repeatedly pointed to public support for capital punishment as a main reason Japan maintains it as a punitive option. The human rights group Amnesty International claims there is no proof that it is a deterrent to crime, and that the latest figures merely reflect Japanese people's anxieties over the perceived breakdown of public order.
But there's another reason why the death penalty is popular: It's uncomplicated. Most people have a Manichaean conception of justice -- criminals are evil, victims deserve redress in kind. Fifty-five percent of the respondents said that perpetrators of heinous crimes should pay with their lives, but it should be noted that most Japanese people do not believe they are qualified to make such judgments themselves.
That may change before the end of the decade. Japan intends to implement a lay judge system, in which certain criminal trials will be judged by teams made up of three professional judges and six citizens randomly selected from voter registration rolls. At present, only professional judges try cases.
Public reaction to the proposal has been mostly negative. Two weekends ago, NHK presented two nights of special programs explaining the lay judge system. Prior to airing the specials, the broadcaster carried out its own survey and found that 64 percent of the people they asked didn't want to be lay judges. This finding isn't surprising, but so far the media has given the impression that people demur because being a lay judge would take up their time. Only 11 percent of those who took the NHK survey cited this as a reason. Forty-one percent of the negative respondents said they simply "don't want to judge someone," while 37 percent said they were afraid they would "make the wrong decision."
The feeling is that reaching verdicts and passing sentences are specialized skills. However, citizens in many other countries are involved in trial decisions either as lay judges or juries because it's considered a civic responsibility. There, the idea that average people, regardless of class, income or education, are able to judge the facts of a case is a given. But in Japan, with its tradition-bound reverence for authority (okami), average people are conditioned to believe that they can't.
The NHK special broadcast Feb. 12 was a fictional drama involving lay judges trying a homeless man accused of manslaughter. The story tried to cover all the possibilities of such a case so as to give viewers a more complete idea of what the new trial system would entail.
The program went to great lengths to show that the heart of the system wasn't legal knowledge but rather debate, a style of discourse that "Japanese people aren't comfortable with," according to one professional judge in the drama. However, the six citizens, who represented a wide spectrum of sensibilities, eventually became caught up in the discussion of evidence and motive, and even ethics: Was it right, for instance, to sentence a man to prison simply because that is what he wanted? The case under consideration was far from credible, but it illustrated its points well, the main one being that an open mind, common sense and seriousness of purpose are what's important when passing judgment on one's peers.
A mock trial was the main subject of the special Feb. 13. Six parents of law students attending Toin University in Yokohama acted as lay judges in the case of a man accused of attempted murder. Here, the difficulties were more technical in nature: unfamiliarity with terms, keeping track of testimony, deciding whether or not malice was involved. They were also forced to consider extenuating circumstances.
Afterward, in NHK's studio, one participant said soberly, "The weight of responsibility was very heavy," while another commented, "I learned that we should judge the action, not the person." When asked why Japan needs lay judges, one of the three legal professionals on hand said, "Because the trial system must be supported by the citizens."
Through the proposed system, he elaborated, people would be forced to see how the law impacts their lives.
Presumably, that includes the death penalty. A prosecutor on the show observed, "If we didn't have capital punishment, my job would be much easier" -- the point being that meting out punishment is a decision wherein values are as important as understanding of the law, but most people never have to put their values to such a test.
The lay-judge system will also compel citizens to consider more carefully how the current criminal-justice system in Japan operates. The three legal professionals commented that the new system would require streamlining of court procedures, since most citizens can't take weeks out of their lives to sit through long trials. As an example, the defense lawyer mentioned that suspects' confessions, which currently carry a lot of weight in court, should be taped in order to save time that's often spent arguing over their admissibility as evidence.
Of course, if the police were required to tape interrogations -- at present, they draw up written confessions that the suspect affirms without an attorney present -- then their methods would be more open to scrutiny. In this way, the lay judge system could be instrumental in counteracting the insularity of the Japanese justice system, where police, prosecutors and judges all work in a closed-off world, jealously protecting their prerogatives. The courts could use a good airing out.