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Tuesday, May 12, 2009
Day of public reckoning in criminal trial process looms
First in a series
Japan later this month will embark on a new chapter in its criminal trial system when citizens begin playing an active role in dispensing justice, joining some 80 countries that in one form or other have public participation in the judicial process.
After May 21, the lay judge, or "saibanin," system will see ordinary people sit with professional judges to try serious crimes at the district court level.
Six randomly chosen voters will sit with three professional judges to weigh the facts, and if they reach a guilty verdict, hand down a sentence.
The lay judges will try such crimes as murder, robbery involving death or bodily injury, and rape. Whatever verdict they reach must come by a majority vote with at least one of the three professional judges supporting the decision.
The first trial under the new system is expected to be held as early as July.
Observers say the involvement of ordinary citizens in the process of handing out justice will bring many changes to the way legal professionals operate. As a consequence, the system will be fairer and more transparent than before, they argue.
"Under the conventional system, there had been so many things that only made sense to legal professionals," said social psychologist Masahiro Fujita, an associate professor at the National Graduate Institute for Policy Studies in Tokyo who has researched the lay judge system. "But when the lay judges start asking their own questions, it will lead professionals to reconsider those things. And that is really significant."
The introduction of public participation in criminal trials began to take shape nearly a decade ago. The Judicial System Reform Council, set up by the government in 1999, discussed all aspects of the legal system with the aim of improving its quality while making it generally more accessible to the public.
In its final report in 2001, the council suggested that while improvements to the education and number of legal professionals should be made, citizens who are subject to the law should also play an active role to inject their views and common sense into the criminal trial system, which has been only the realm of legal professionals.
Since the Diet unanimously passed the law to establish the lay judge system in 2004, the legal system has been in full gear to lay the groundwork for the transformation. Efforts have included running a huge campaign to promote the new system, including issuing explanatory brochures and giving speeches at companies.
A big challenge has been to simplify the legalese. When only legal professionals were involved, they used a lot of jargon and trial proceedings focused on written documents.
Under the new system, legal professionals will have to ensure the process is understandable for the average person.
"Until now, we would just read out the documents in a very dry way, and that was fine because basically we knew that judges would review them later (to decide the facts and sentencing)," said lawyer Takeshi Nishimura, secretary general of the preparatory task force of the lay judge system at the Japan Federation of Bar Associations. "But to make trials easy to understand for lay judges, what became extremely important was our questioning and arguments."
Among numerous efforts to improve their communications skills, the JFBA received training from American lawyers from the National Institute of Trial Advocacy. In the process, the Japanese lawyers received a range of advice, even including tips on how to make eye contact with the judges, Nishimura said.
"Come to think of it, we barely looked at the (professional) judges when we were reading documents," he laughed.
Prosecutors have made similar efforts, according to Shozo Fujita, director of the Saibanin Trial Department of the Supreme Prosecutor's Office. "The preparation process was full of challenges, but I think we're ready for the system to start running," he said.
During practice trials, some prosecutors used Power Point presentations during their opening and closing arguments while also distributing memos to the panel of judges — all with the aim of making it easier for the judges to follow their arguments, he said.
The introduction of videotaping of confessions has partially opened up the questioning process, although police and prosecutors are reluctant to open the door completely to taped interrogations.
Law-enforcement authorities claim they have limited investigative powers and thus obtaining confessions is vital.
The partially taped interrogations are to be used as evidence to demonstrate that confessions were voluntary. They argue that if suspects know everything they say is being videotaped, they may hesitate to talk about the details of the crimes they allegedly committed or about accomplices, which would make it difficult to obtain enough evidence to get at the truth of a crime.
Criticism of the partial videotaping remains strong among lawyers who claim all questioning sessions should be taped. Nishimura said he shares this view, but it was better to proceed with partial progress than hold out for total videotaping.
"Videotaping was unthinkable until a few years ago, but authorities decided to pursue it, even partially, because the public is going to participate in trials. If we stop the new system from running, interrogations would revert to what they used to be," he said. "If we communicate to the lay judges the problem of partial videotaping during interrogation proceedings, I believe some among them will advocate taping the entire interrogation, not just the (end result)."
The Supreme Court has held hundreds of in-house meetings and workshops to achieve balanced deliberations with their new lay counterparts, said Masaya Kawamoto, a judge currently serving as an administrator in the criminal department of the Supreme Court.
More than 600 mock trials have been held, including at all 50 district courts, in which members of the public were invited to serve as lay judges while professionals put their revisions into practice to see what in the process still needed improvement.
Kawamoto took part in four mock trials at the Tokyo District Court. He said he felt good working with the lay judges because they brought different opinions to the decision-making process.
"At times when some things were difficult to decide, it was good to hear different views, even though we came to the same conclusion in the end," said Kawamoto, who added proudly that his panel was the first to reach a not-guilty verdict in the mock trials.
But a majority of the public doesn't appear ready. A 2007 opinion poll by the Cabinet Office found that 20.8 percent of the respondents were either willing to or would not mind participating. Another 44.5 percent said they did not want to participate but feel they have to because it is an obligation, and 33.6 percent said they did not want to take part.
"I suppose when summoned, I'm obliged to go," said Hiromi Suzuki, 37, who runs an aromatherapy shop in Tokyo. She did not receive a notice in November from the court in Kanagawa Prefecture, where she lives, and thus will not be called to serve this year. But she could be called in the future.
Suzuki said that through the movies she was aware that the public takes part as juries in the U.S. and other countries, but she finds it hard to imagine this happening in Japan. "I'm still not familiar with the system," she said.
"To think that my opinion could determine someone's fate . . . that is a grave thing, even though that person may have done something wrong," Suzuki said. "These things had been decided by people who studied the law. I wonder if people who have never studied it can make such decisions."
Despite the overall anxiety among the public, however, Fujita of the National Graduate Institute for Policy Studies, who has analyzed many mock trials, believes that once the system is up and running people will play their part.
For a paper published in 2004, Fujita surveyed mock trial participants, asking how they were able to express their opinions in the deliberations.
Comparing the answers before and after the mock trial, the participants expressed confidence they were actually able to have good discussions with both their peers and the legal professionals.
"As long as judges do well and act as a facilitator rather than a teacher, deliberations involving all participants can be held successfully," Fujita said.