Tuesday, Dec. 21, 1999
Second of three parts
Staff writer Lawyers and other experts are calling for introduction of a jury system for criminal trials, arguing that it would change not only the makeup of the bench, which is exclusively run by legal professionals, but also the Japanese mind-set.
"If the system is successfully introduced, it will trigger a dramatic change in society," said lawyer Satoru Shinomiya, an advocate of the jury system, which he claims is a truly democratic process.
Japanese criminal trials mainly focus on confirming the contents of "chosho," written records of interrogations by investigators.
Lawyers claim judges hand down rulings based on chosho, which is more important than direct evidence from witnesses, making the entire process of a trial a mere formality.
"Some judges just won't understand anything we say in court. Sometimes they don't even try to listen," Shinomiya said. "Court proceedings are really boring, as everything is document-centered."
Lawyers point out that sometimes suspects' confessions during interrogations are arrived at through pressure and force.
While investigative authorities are proud of the fact that more than 99 percent of indictments lead to convictions, judges tend not to take into consideration the accuracy of charges against the accused, said Takashi Maruta, a professor of law at Kwansei Gakuin University.
"Judges and prosecutors may be serving properly, but despite their experience and intuition they sometimes pass misjudgments," resulting in the conviction of the innocent, he said.
Maruta, currently a visiting professor at the University of Michigan Law School, said that with a jury -- a group of citizens randomly chosen to judge the facts as presented about a crime to decide if the accused is guilty -- chosho will become meaningless, as witness' testimony would weigh heavier on the outcome of trials.
And to help the jury understand court proceedings, the bench, the bar and the state must speak in plain words, and evidence must be challenged in a more incisive way, he said.
Lay participation in criminal courts is a common practice in most European nations and the United States, Stephen Thaman, a law professor at Saint Louis University, said in an interview through e-mail.
These countries have adopted either the jury system and/or mixed courts, where professional judges and ordinary citizens sit together and decide all questions of fact, law and sentencing.
"Since the mid-19th century, European countries have generally felt lay participation in the administration of justice is part of being a democracy," he said.
Thaman pointed out that in mixed courts, professional judges can easily control lay judges, especially in countries where people look up to authority and defer to decisions by higher figures on the social or professional ladder.
Criminal trial principles such as "presumed innocence," "proof beyond a reasonable doubt" and "free evaluation of evidence," were developed in Anglo-American courts, Thaman said.
They work best when the court is divided into a professional component to decide legal issues and a lay component to decide facts and apply the law, he said.
"I think juries will always serve to open the administration of justice and make it more transparent," Thaman said via e-mail. "It forces the parties to play a more active role in the trial and, even when judges are not controlled by the executive or political parties, it works against their bureaucratic, and 'case-hardened' views of crime and criminals and is probably good for Japan."
But the real benefits of introducing the jury system, advocates say, is that it would nurture the people's sense of public morality.
Not only would it give citizens an opportunity to learn about trial procedures, but "committing to something in society that they would usually have nothing to do with, in the end, gives them a chance to realize their rights and responsibilities as citizens," Shinomiya said.
Japan experimented with a jury system from 1928 until it was halted in 1943 amid the war.
However, only 484 cases were tried by juries, a smaller figure than what was projected when the system was introduced.
The reason partly lies in the limitations of the system under the Meiji Constitution, which gave sovereignty to the emperor.
For example, the jury was tasked to judge whether the accused committed the crime in question but not asked to give a verdict.
If a judge did not like a jury's finding, the judge could change the jury and start over again. If a judge gave a ruling based on the jury's decision, the accused did not have the right of appeal.
Although jurors were randomly chosen, they were limited to literate men over 30 years old who payed taxes.
While some skeptics of the jury system point to the failure of the prewar system, Shinomiya argues that they forget the country was in a state of totalitarianism and militarism.
"When the jury system was suspended, the entire country was abnormal because of the war, and society was deprived of all sorts of freedoms," Shinomiya said, pointing out that legal professionals were also to blame for ignoring their mission to fight for freedom.
Another criticism leveled against jury trials is that they would not suit the character of Japanese, who, for example, are said to not be used to having discussions and tend to obey authority.
But Kaoru Kurosawa, an assistant professor of social psychology at Chiba University, said these arguments are groundless.
"Japanese may not be good at having discussions, but that's because we haven't been given the opportunity to do so. And there are no data or reasons to believe that we can't do it," Kurosawa said. Society's over-reliance on bureaucrats is more of a problem, he said. "It would be very upsetting if the only people in this society who were able to judge things are judges. Lawyer Shinomiya supports Kurosawa by pointing out that participants on the Committee for the Inquest of Prosecution -- an independent body consisting of 11 adults randomly selected from the public that is sometimes called on to review prosecutors' decisions -- have a say in whether a case should go to court.
The jury system in the U.S. faces problems of cost and time, in addition to selecting balanced jury members, according to Maruta.
But as discussions to improve the system take place in the U.S., Japanese should introduce a system that suits the conditions here and improve it when necessary, he said.
The jury system, on the whole, has yet to be widely recognized or understood properly by Japanese, due to a lack of information as well as misunderstandings about how the system works.
Mamoru Miura, an official at the Justice Ministry's Criminal Affairs Bureau, said discussions about lay participation in criminal trials should be carried out when there is sufficient information.
"Society should really look into the pros and cons of each system, including our own, to decide whether to introduce the (jury) system," he said, noting the ministry will wait for the decision of the Judicial Reform Council.
In July, the advisory panel to the Cabinet launched discussions aimed at giving the judicial system its first postwar overhaul. It will continue to meet regularly through July 2001 to discuss various issues, including the feasibility of a jury system.
Meanwhile, Shinomiya, who also admits more information on the issue is needed, said he was confident jury trials can happen in Japanese courts.
"It is said that citizens will participate in policymaking in the 21st century, and things are already starting to move in that direction," he said. "It's time citizens take part in trials, too."
Agenda for reform The Judicial Reform Council on Tuesday formally revealed a list of issues it will discuss to realize a more accessible and user-friendly judicial system.
The list includes suggestions such as increasing the number of legal professionals, encouraging practicing lawyers to become judges, and establishing the participation of laypeople in the judicial system by, for example, introducing a jury system or mixed courts.
Improving aid to protect the right of citizens to access court, quickening the trial process, preparing alternative ways to resolve disputes as well as providing more information on services are also listed.
In addition, redefining the functions of the court and prosecutors as well as revamping the legal education system in universities, including the possibility of establishing law schools, are pointed out.
"We have officially identified the issues with the aim of ensuring the rule of law in society and to make the justice system more accessible for citizens," said Koji Sato, a professor of law at Kyoto University and chairman of the council.
Sato also said they will ask for public opinions at the first public hearing in Osaka in March next year.
The council, an advisory panel to the Cabinet consisting of 13 academics, legal professionals, businesspeople and labor unionists has met nine times since it was launched in July.
It has examined the history and conditions of the current judicial system and heard from experts as well as officials at the Justice Ministry, the Supreme Court and representatives of the Japan Federation of Bar Associations.