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Sunday, June 11, 2006
Preparing for 'people's courts'
For more than 60 years since its last form of a jury system was suspended, Japan's courts have been the preserve of a largely unseen elite. Now, though, regular citizens are set to take part again too, and 'mock trials' like those popular in America may play a key role in preparing for this momentous social change
April ends and May begins in Japan with "Golden Week," when four national holidays grace the calendar and most of the country takes a vacation.
Far less well known is that May in Japan also starts with "Constitution Awareness Week," officially designated as such because May 3 (Constitution Day) was when the Constitution went into effect in 1947. Around that time every year, many local governments and those in legal circles mark the occasion by holding lectures and panel discussions to raise awareness of legal and constitutional issues.
This year, one prominent feature of these events were mock trials of criminal cases. Recently more of these proceedings are being held nationwide, often jointly hosted by local courts, public prosecutors' offices and bar associations. For the most part, what's driving the trend is the introduction in May 2009 of the saibanin system, a new criminal court procedure based on the use of lay judges.
In Japanese criminal courts today, one or three professional judges hear evidence presented by the prosecution and defense, raise issues as they see fit and then decide the facts of the case. If they find the accused guilty, they also hand down a sentence.
In less than three years, though, the judges' bench will be composed of six citizens chosen at random from voter lists who will join three professional judges. This will be the first time in more than 60 years that the Japanese public will have taken part in court proceedings, since a jury system that was introduced in 1928 -- that included only male taxpayers over 30 years old -- was suspended in 1943.
In an effort to publicize the new system, the Supreme Court, the Japan Federation of Bar Associations and the Justice Ministry are currently running various promotional activities, among which mock trials are one of the chief components. In May alone, mock trials of murder and armed robbery cases were held in the cities of Kushiro in Hokkaido and Utsunomiya, Nagoya, Yamaguchi and Fukuoka in the prefectures of Tochigi, Aichi, Yamaguchi and Fukuoka, respectively.
In most of these mock saibanin trials, according to news reports, legal professionals or court staff members played the roles of judges, prosecutors, defense attorneys and witnesses. The lay judges were chosen from concerned citizens who applied for an opportunity to participate; those not chosen were allowed to be the court audience.
After the trial, most participants quoted in the media commented on how interesting and meaningful the experience had been, and how they would be willing to take part when the new system comes in. Some also explained how challenging the deliberation process had been, and wondered if ordinary people with little or no legal knowledge would be able to handle their role.
Many commentators noted that legal professionals involved in saibanin trials will have to give clear guidance to the lay judges, who primarily bring their common sense and life experience to the proceedings. The promotional mock trials are intended to help legal professionals understand and visualize how the new system will work for them, and how they will need to modify their conduct and language to allow for the changed make-up of the bench.
In many ways, the mock trials taking place in Japan at this point are an experiment, while in the United States, they are well-established educational tools. Not only used in law schools, such mock trial programs have become increasingly popular in high school social studies classes -- so popular, in fact, that there is even an annual nationwide competition.
OKLAHOMA CITY -- On May 12, members of the local legal community gathered at the Oklahoma County Courthouse in the city's quiet downtown office district. The court schedule that day listed just one case, a second-degree murder trial stemming from a rodeo event that the city hosted the previous August.
The defendant, Dakota Boren, 20, stood accused of causing the death of Billie Jo Murray, a star rider who was fatally thrown by her mount during the saddle bronc riding finals of the National Coed Rodeo. The fall allegedly occurred after Boren tampered with the hack rein.
In courtroom 315, the trial began with public prosecutor Kevin Burrows outlining the prosecution's case to the jury. In a solid opening statement, he said that Murray had been Boren's prime rival in the event, in which the winner would take away not only a commemorative golden buckle but also a $10,000 annual scholarship for four years to support her way through college. Burrows claimed that the two women's rivalry actually went back to their fathers' generation, and the pocket knife he alleged that Boren used to sever the girth was a keepsake from her deceased father, who had always been in the shadow of Murray's father in rodeo competitions.
"Today, the defendant is charged with one count of murder in the second degree," said Burrows, one of the three prosecutors representing the State of Oklahoma.
"By the end of the trial," he declared as he eyeballed the jurors, "the state will have proven, beyond a reasonable doubt, that the defendant, Dakota Boren, was the one who cut Ms. Murray's hack rein and is responsible for her death."
A moment later, Boren's defense council, Connor Mendenhall, took his turn to walk over to face the jury and outline the defendant's version of the story. He said that while Murray's death was undoubtedly a tragedy, it was an accident caused by a poorly maintained old rope.
"The evidence will show that this case was an accident and not a crime. And it will only magnify the tragedy of Billie Jo's death to convict an innocent young woman," he said, his voice resonant with conviction.
At the far end of the room from the jury box, a worried-looking Boren sat at the defense counsel's table.
After the opening statements, witnesses were called one after another.
Macy Henry, another rodeo rider and a close friend of Murray's, testified on the rivalry between the deceased and Boren.
Sean McGee, a pickup rider at the rodeo, told the court that he saw Boren carrying a pocketknife near the area where Murray's gear was stored.
Detective Sam Nigh described in detail the investigation she conducted, which led her to conclude that Boren had cut the rope with her pocketknife and concealed the incision with adhesive tape -- a tape similar to one used by Murray.
Meanwhile, Ripley Kerr, the rodeo competition's organizer, testified that she also knew about the rivalry between the two young women, but said that Murray was usually more of a problem than Boren.
Then Sidney Bellmon, an expert on rodeo equipment who also examined the hack rein, told the court that it could have been cut by other means.
Finally, Boren herself went to the witness stand. There, she categorically denied the accusations against her, claiming that the only edge she needed was the words of encouragement that she heard from her father the night before -- and not the knife as Det. Nigh claimed. Nonetheless, the questioning and cross-examinations she faced from both the defense and prosecution sides were intense.
Then came time for prosecutor Chloe Brown to stand and deliver her closing argument. She selectively revisited testimonies that pointed to Boren having had a clear intent to sever the rope so that she could become the champion.
"Deliberately risking injury to another human being, the defendant has exhibited exactly the depravity of mind and reckless indifference that is prohibited by the law of second-degree murder," she declared. "Dakota Boren may not have intended to kill Miss Murray. She may not have even meant to hurt her. But that was a risk she was willing to take."
In his closing arguments to the jury, defense lawyer Andrew Brandon said that Murray was arrogant, and many people wanted to see her fall.
"Det. Sam Nigh had two suspects in this case," he pointed out -- "Dakota Boren and Macy Henry. Yet, Det. Nigh ignored Macy Henry. We depend on the state to do a complete and thorough job, so that an innocent person is not convicted. And it is your responsibility as jurors to examine and question the evidence that the state produces," he told the jury as the 2 1/2-hour-long proceedings drew to a close.
In a real trial, the next step would be for the judge to give jury instructions before sending the jury out to consider its verdict. In this court at the 23rd National High School Mock Trial Championship, however, the jury's job was not to determine the facts of the case and decide their verdict on that basis, but to evaluate the performances of the prosecutors, the defense lawyers and the witnesses, who were actually all high-school students. Conversely, the jurors in this case were real attorneys serving as evaluators, and the presiding judge of the mock trial was a real working judge.
The case in Room 315 was heard at the beginning of the two-day competition, with San Marcos High School from Santa Barbara, California, acting as the prosecution against University High School from Tucson, Arizona. Simultaneously, the same case was also acted out in Oklahoma County Courthouse's 21 other courtrooms by different teams and panels of judges.
Acted out they may have been, but there definitely wasn't a fixed script, and the dramas that unfolded were almost as compelling as the real thing. In fact, with the required combination of rigorous logical thinking, detailed legal preparation and a convincing court performance, many commentators believe such mock trials are realistic approximations to actual judicial proceedings.
Teams competing in the national championships received a case pack on April 1 that included the rules of the competition, the evidence, witness statements and the exhibits. The case, written by members of the Oklahoma Bar Association, had been carefully designed to be balanced to both sides, as the students would be required to represent both the prosecution and defense.
Having studied all the materials thoroughly, the students paid particular attention to the strengths and weaknesses of witness statements so that they could prepare their own questioning and cross-examinations and rehearse their courtroom arguments. Next, after students were allotted roles and the participants' scripts were written, many hours of practice followed after school and on weekends to polish their arguments and performances.
As a result, by the time they got to the courtrooms in Oklahoma City, the students were ready to think on their feet and perform professionally.
After the round of trials was over in all the courtrooms, the panels of judges immediately retired to finish their evaluation -- based in large part on how well the attorneys raised and responded to questions, and how consistent and effective the witnesses were. Scores were not revealed and teams continued to compete against other schools until the finalists were announced after the fourth round.
Of the 44 teams -- which represented 39 states, Northern Mariana Island, Guam, South Korea and two alternate teams from the host state -- the two that made it to the final were Valley High School from West Des Moines, Iowa, and Kalamazoo Central High School from Kalamazoo, Michigan. In the end, the Iowa team, playing the role of the prosecution, took the 2006 championship.
"Mock trials serve as an opportunity for students to compete as a team in an academic and intellectual venue. I think team competition is important for the young people, but most don't have the opportunity outside of the athletic arena," said Eric Burrows, who is the teacher coach of the San Marcos High School team. "It works for the students to perfect the public-speaking skills that are necessary. They become very confident and skilled in articulating their thoughts in public."
In addition to the support and enthusiasm of teachers, the voluntary input of legal professionals is a significant part of the program. While many attorneys work as coaches of teams, others preside over and score the competition. For the national championships, about 200 judges, prosecutors and attorneys from Oklahoma and various other states volunteered. All had at least a few years' experience of mock trials at local or national level.
"A lot of people think we're trying to develop new lawyers, but it has nothing to do with that. We have too many anyway," laughed Al Ellis, a trial attorney who flew in to score a round from Dallas, Texas, where the championships will be held next year. He admitted that few students he has coached have become lawyers.
"But nobody working on this ever says 'we want you to become lawyers.' Our mission has always been, 'we want you to learn the system and how important it is, and to be a part of it when the time comes,' " he said.
This aim was echoed by John Wheeler, chairman of the national championship board and director of the Center for Law and Civic Education at the Iowa State Bar Association, who believes that teaching law to young people is an important part of citizenship education. "We want people to be involved in learning the process, because a good citizen knows how the system works, has knowledge of basic laws and ought to have some basic understanding of what actually goes on in court and what they do."
Indeed, despite their solid presentations, most students interviewed at the national championships said that when they first joined the mock trial team they didn't know how the court system worked, though afterward they quickly picked it up and appreciated it.
Amber Beery, who was both a defense lawyer and prosecutor for the Archbishop Hoban High School team from Akron, Ohio, said this was the first time in her four years' experience on the team that she had felt confident enough to stand up and make counterarguments to objections raised by opposing lawyers. She also said that being on the mock-trial team helped her understand the court system far better than from textbooks.
"I think jury duty will be interesting," said Beery, who will graduate from high school this year and eventually wants to become a doctor. "I don't know if I want to be on a big criminal trial case that takes up a lot of time, but I do think it's interesting and, as citizens, it's our obligation to make our system better."
At present, mock trials in Japan have not reached the competitive stage they are at in America. Instead, they are being used to promote and test out the new saibanin lay-judge system set to be introduced within three years. Certainly they are bound to be a useful tool, since many citizens have yet to realize they may soon be required to fulfill their citizen's duty in court, and most have little knowledge of how the Japanese wheels of justice turn. What's more, considering that the judicial system and legal professionals are generally felt to be very distant from the ordinary public, the move to open up the courts is a significant change for which no amount of preparation would be too much.
For the new system to take root in Japanese society, though, and for a nationwide debate to develop on how to revise and improve the system, the major challenge facing both legal professionals and the public is to educate citizens who can appreciate the meaning of their role in the delivery of justice as both a key democratic right and duty. Hopefully this could mean that the Japanese legal and educational communities may also decide, ultimately, to stage national mock trial competitions like the one in Oklahoma City last month -- not just to better prepare future lay judges, but to make better citizens of everyone.
Staff writer Setsuko Kamiya is on leave of absence from The Japan Times to study the U.S. jury system and judicial culture. A 2005-06 Fulbright Fellow, she is a visiting scholar at the Graduate School of Journalism at the University of California, Berkeley.