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Tuesday, May 22, 2007
LAY JUDGES IN JAPAN
Opening the courts to ordinary citizens
In less than two years, when a new criminal trial system is introduced, citizens will be obliged to serve as "saibanin," or lay judges. The general public in some 80 countries around the world already plays a role in their nations' judicial systems, such as British- and American-style juries and the European mixed courts. Here are some details of the saibanin system taking effect by May 2009:
What will citizens be expected to do as lay judges?
Under the present system, a judge, or a panel of three judges, presides over criminal trials and decides the facts about an alleged crime based on evidence presented by prosecutors and defense lawyers. If the accused is found guilty, it is up to the judge to determine the sentence.
Under the new system, six randomly chosen citizens at least 20 years of age will sit with three professional judges to hear a case. These lay judges will participate in the decision-making process in the criminal courts, deciding on not just the facts but also the penalties, including the amount of fines, length of prison terms and whether to pass a death sentence, with legal guidance from the professional judges.
In cases where there is just one professional judge presiding, four randomly chosen lay judges will be seated. All cases will be decided by a majority vote as they are today when three judges preside.
What kinds of cases will be subject to trial by the lay judge system?
Those charged with heinous crimes including murder, robbery involving death or bodily injury, arson, rape, manslaughter resulting from driving under the influence of alcohol, kidnapping for ransom, and parents abandoning their child resulting in death will be subject to lay judge trials at the district court level. Whether the accused admits or denies their guilt, all cases will be presented in front of the lay and professional judge panel.
In 2005, there were 3,629 cases that would have been tried under the new system, or 3.2 percent of all criminal cases tried that year in district courts.
How will the prospective lay judges be chosen?
Every December, a large pool of prospective lay judges — citizens at least 20 years of age and who have the right to vote in Diet elections — will be chosen at random by lottery. Those chosen will be notified by the court that they may be summoned during the coming year.
When a suitable case comes up, another lottery will be held using names from the pool. Prospective lay judges will then be notified approximately six weeks before the trial date. They will also receive a questionnaire to determine their qualifications.
Who will be disqualified or have the right to be excused from the duty?
Although the idea is to get as many people from different corners of society as possible to participate, there are exceptions. Those who have not finished compulsory education, who have been imprisoned, or have serious mental or physical disabilities that make it too difficult for them to serve, will be disqualified.
Some cannot serve because of their occupations. They include Diet members, judges, lawyers, prosecutors and professors of law, police officers, Self-Defense Forces officers, governors and mayors.
Those under arrest or are currently charged with a crime are also out. Alleged victims — or their relatives — are disqualified from serving on their own case.
Students, people over 70 years old, and those who have served as a lay judge in the past five years have the right to excuse themselves from duty.
Work can be a legitimate reason only if absence involves obvious and serious damage to one's business. Employers are prohibited from imposing penalties on employees performing their civic duty.
Having to care for elderly or young family members will not automatically excuse someone. Is it up to the court to make that determination on a case-by-case basis.
What is the likelihood of being summoned?
The Supreme Court is still hammering out the details of the selection process, but roughly 50 to 100 candidates will be summoned for each case and interviewed individually by the panel of professional judges. Prosecutors and defense lawyers will also be present. If the court finds it necessary, the accused may also sit through the interviews.
Though based on the questionnaire, during the interview the judges may also ask the candidate whether they know the accused or the victim, or how much media exposure they've had to the case.
Based on the 2005 figure, one in every 300 to 600 citizens will be summoned, while one in every 3,500 will be selected as a lay judge.
The lay judge selection process is not open to the public. The Justice Ministry says this is to protect the privacy of potential lay judges.
What is the length of service?
A lay judge will serve for only one case, but the length of time will vary. According to the Justice Ministry, however, roughly 70 percent of the cases will be over in three days. These are cases in which the accused have admitted their guilt.
In 2005, cases subject to lay judge trials took an average of 8.3 months, while evidence was submitted to the court. These proceedings were not held every day. But the revision of the Criminal Procedure Law introduced that year is generally speeding up trials, largely because of the introduction of pretrial meetings that sort out the points of arguments and admissible evidence.
Will lay judges be paid for their service?
Yes. The amount is currently being debated by the Supreme Court and will be announced in June.
Employers have the right to decide for themselves whether to pay a worker while he or she serves as a lay judge.
What are the systems in place for preventing someone from influencing a lay judge or stopping them from leaking information?
Anyone who seeks to influence or threaten a lay judge or their family faces imprisonment of up to two years or a fine of up to 200,000 yen.
Lay judges can also be penalized for divulging certain information learned through their service, such as who said what during the judges' deliberations. Violators can be imprisoned for up to six months or fined up to 500,000 yen.
The Justice Ministry says this is necessary to ensure a secure environment for the panel to freely discuss matters without having to worry about how their opinions will be taken by the public afterward.
However, as court proceedings are open to the public, lay judges are permitted to talk about what is revealed during the hearings, including the judgment presented at the sentencing. They can also discuss their impressions of serving as a lay judge.
Why is Japan implementing the new system?
The lay judge system is part of an ongoing major judicial reform that aims to improve the quality of the justice system and also enhance public faith in it. The revisions include increasing the number of lawyers, establishing more law schools and changing the bar exam.
The Judicial Reform Council that discussed the overhaul of the entire system urged in its final report in 2001 that citizens play a greater role in the legal system to move toward realizing a truly democratic society.
Hopeful observers say the lay judges will bring common sense to a court system that has been dominated by legal professionals. In addition, the new system will inevitably open up court procedures, allowing the public to understand more about the legal system and also to monitor the actions of the authorities.
The Weekly FYI appears Tuesdays (Wednesday in some areas). Readers are encouraged to send ideas, questions and opinions to National News Desk