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Wednesday, Nov. 2, 2005
Legal revision to speed hand of justice
Pretrial meetings between judge, lawyers will narrow down arguments
By MASAMI ITO
Japan has long been notorious for extremely drawn out trials that seem to take forever to reach a verdict.
Legal proceedings in serious criminal cases can drag on for years. In the two Aum Shinrikyo sarin gas attacks of 1994 and 1995, for example, only one of the 13 death sentences handed down by the courts has been finalized so far.
But all that may change with a Criminal Procedure Law revision that took effect Tuesday which is expected to speed up the legal system and expedite court proceedings through new pretrial procedures.
When the court deems it necessary, prosecutors and defense attorneys must now meet in front of the judges prior to the start of the trial to narrow down and clarify the arguments in a case.
"This is a major and extremely important revision, not only for the Justice Ministry but for all three legal entities (the ministry, the courts and bar associations)," said Tomoatsu Koarai, an official at the Justice Ministry's Criminal Affairs Bureau.
With the new pretrial procedure, both defense attorneys and prosecutors must clarify their arguments and disclose the evidence that supposedly backs up their claims.
Furthermore, prosecutors must show evidence they do not plan to use in court if the court declares it relevant to the defense's argument.
"In a way, the defense will be able to see what the prosecutors have up their sleeves before (the trial) and prepare," Koarai said.
According to legal experts, the changes could shorten trials by months so that when the actual trial begins, it will only take few days to reach a verdict. On the other hand, the pretrial sessions could take a long while, maybe a few months or even a year or two.
However complicated the procedures may seem, the system must succeed, Koarai said, because Japan will introduce a lay judge system by May 2009. Under this system, citizens will be called on to act as lay judges and render decisions in cases involving serious charges such as murder, rape and arson.
Such cases -- most of which under the present Criminal Procedure Law have taken years to conclude -- will all have to go through the pretrial procedures.
"Members of the public cannot be asked to appear (in court) for such a long period of time," Koarai said.
Attorney Satoru Shinomiya also welcomes the legal revision, which he believes is the biggest change in the Criminal Procedure Law since the end of World War II.
"This revision is an advantage for the defense team," Shinomiya said. Before the revision, "evidence that the prosecutors had in their hands but were not planning to present in court was often left behind closed doors."
In the past, said Shinomiya, the defense could ask for a court order to have prosecutors disclose evidence, but the court rarely granted such requests, saying it was not necessary. The revised law, however, recognizes the defense attorney's right to demand disclosure, he said.
"Prosecutors cannot demand disclosure of (hidden) evidence from the defense because it is 100 percent up to the prosecutors to prove the guilt of the accused," Shinomiya said. "It is similar to the (suspect's) right to remain silent."
Some attorneys however, have expressed concern over showing judges evidence before trial, arguing it could lead them to form opinions before a case opens.
Before 1948, judges viewed every piece of evidence collected by prosecutors. That practice was banned with the revision that year of the Criminal Procedure Law out of concerns that it led to biased decisions. Since then, the only information judges see before trial is the written indictment.
Shinomiya, however, brushes aside such concerns, saying judges will not see the details of evidence, just necessary information such as who the prosecutors plan to call as witnesses, rather than what each witness will say on the stand.
As for the possibility of disclosed information or evidence revealed during pretrial sessions being leaked, whether to the media or anyone else, proponents of the procedures point to the fact that the law bans such acts.
What is important, Shinomiya stressed, is for prosecutors to remember that the aim of the criminal justice system is to get to the bottom of a case for the public benefit.
"Whether the pretrial procedure succeeds depends on one thing only: prosecutors' disclosure of evidence," Shinomiya said.
"Prosecutors will have to change their way of thinking and actively disclose (evidence) . . . for a transparent and fair trial."