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Tuesday, May 12, 2009
Historic change puts justice in public hands
By ALEX MARTIN
With the "saibanin" lay judge system set to take effect May 21, Japan is gearing up for an important transition in its judicial system, in which citizens begin serving as de facto jurors in district court trials involving serious crimes.
Under the new system, six randomly chosen people will work with three professional judges to hear a case and reach a verdict, which could involve handing down the death sentence.
The adoption of the new criminal trial system is expected to cause major ripples in society, from a shift in public perception toward the justice system to a change in the media's criminal reporting policies — topics that will be further explored in this series.
Following are some basic questions and answers regarding the lay judge system:
Why is the system being introduced?
It is hoped the lay judge system will increase transparency in the criminal trial system, which has a history of being tediously slow — often taking months, even years to reach a finalized verdict — and alienates the public with its opaque decision-making process.
With lay judges on the bench, court procedures will have to be straightforward enough for nonprofessionals to understand and sped up dramatically in consideration of participants' home and work commitments.
Also, citizens participate in the criminal trial process in one form or other in some 80 countries, including many European nations where lay and professional judges sit together on the bench, and American and British-style jury systems in which verdicts are solely in the hands of jurors, as is sentencing in some cases.
What will lay judges do under the new system?
Under the current system, one judge or a panel of three judges presides over criminal trials to decide the facts regarding an alleged crime, based on evidence presented by prosecutors and defense lawyers. The judges have full responsibility to determine the sentence if the accused is found guilty.
In the lay judge system, six lay judges will sit with three professional judges in criminal courts and participate in the decision-making process to decide on the facts, and if guilty verdicts are reached, hand down penalties, fines, prison terms and, in certain cases, capital punishment.
The professional judges will provide the lay judges with legal advice, and all decisions will be made by majority vote with at least one professional judge as a member of the majority decision.
How are the lay judges chosen?
Potential lay judges will be randomly selected each year from a list compiled by the electoral boards within the jurisdiction of each district court.
Those listed will be notified sometime in November that they may be summoned during the coming year.
A lottery will decide on around 50 prospective lay judges per trial, although this number may increase depending on how long a trial is expected to last.
These candidates will be notified of their status approximately six weeks before the trial date.
Finally, after answering a questionnaire to determine if they qualify, the court will narrow the selection to six lay judges and up to six backups who will fill any sudden vacancies.
What's the probability of being chosen as a lay judge?
In 2008, there were 2,324 cases that would have been tried under the lay judge system, according to the Supreme Court.
Using this figure, Kyodo News calculated that one out of 5,590 eligible people nationwide would have been chosen as a lay judge or backup that year.
Figures vary between district courts. The Osaka District Court marked the highest probability rate, with one out of 2,921. This is approximately six times higher than the Yamagata District Court's rate of one out of 17,460, the lowest rate in the nation.
Who is eligible and who isn't?
In principle, all Japanese nationals age 20 and older are potential lay judges. This means foreigners, including resident Koreans, are disqualified.
Those over age 70, students, and those who have served as lay judges in the past five years have the right to excuse themselves. Those living abroad can ask to be exempted.
Certain occupations are automatically disqualified. These include Diet members, judges, lawyers, prosecutors, law professors, police officers, governors, mayors and members of the Self-Defense Forces.
Those who are currently under arrest or charged with a crime are disqualified. Alleged victims or their relatives are also naturally disqualified from serving on their own case.
Those who haven't finished compulsory education, who have been imprisoned or suffer serious mental or physical disabilities are also disqualified.
Besides such cases, those who can prove that their absence from their workplace will cause serious damage to their business could also be excused, but only after careful deliberation on a case-by-case basis.
If a lay judge has trouble hearing, the courts will provide interpreters to assist them.
What cases will be subject to the new system?
Only serious crimes will be subject to the lay judge system.
Most will constitute heinous crimes, including robbery resulting in death or bodily injury, murder, arson, rape, manslaughter resulting from driving under the influence of alcohol, kidnapping for ransom and parents abandoning their children resulting in death.
Other cases include counterfeiting, drug law violations, violations of the Explosives Control Act and weapons violations, which would be extremely rare.
Will the lay judges be paid for their work?
Yes. Potential lay judges summoned to district courts before the final selection process will be paid a maximum of ¥8,000 a day for their time.
Those chosen as a lay judge or backup will be paid a maximum ¥10,000 a day. Most trials are expected to be wrapped up in three days, according to the Supreme Court.
Travel expenses will be covered, including lodging fees of either ¥7,800 or ¥8,700 a night depending on the area.
If a lay judge is absent from a trial without a valid reason such as health issues or an accident, they could be fined a maximum ¥100,000 for not complying with their obligations.
In such cases, backup lay judges will fill their places.
Will companies allow their workers to take days off to be lay judges?
Yes, the labor standards law stipulates that companies must allow their workers time off if are chosen as lay judges.
The Saibanin Law also states that companies cannot fire or impose unfair treatment on employees for taking days off while serving as lay judges.
For people with young children in need of care, the district court will send out notices to all potential lay judges chosen for a case with information regarding temporary child-care services that will be available.