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Wednesday, May 13, 2009

CITIZEN JUSTICE

Preparation for quicker criminal trials enhances focus


Staff writer

Second in a series

Criminal trials in Japan have tended to take months — sometimes even years — to reach an initial verdict.

But when ordinary people take part in the new lay judge system and together with professional judges try accused criminals, most trials are expected to wrap up in a matter of days, legal professionals say.

Speeding up trial proceedings has been an important goal in the runup to the "saibanin" system, in part because the people summoned for the de facto jury duty will have to take time away from work, home and other responsibilities.

Prosecutors, defense lawyers and judges have been making efforts to dramatically transform the way they operate. They all agree that trials as well as their way of thinking have undergone drastic change.

"Cases that will be tried under the lay judge system are often not very complicated compared with those related to the financial system or the stock market. They are straightforward and easy to understand," said Shozo Fujita, director of the Saibanin Trial Department of the Supreme Public Prosecutor's Office. "Thus, it is possible for us to narrow down the necessary evidence and keep examinations short, while proving what needs to be proved."

Until now, trials dragged on for months because both the prosecution and defense submitted reams of written "evidence" covering even minor details not necessary in proving the facts of an alleged crime. But once submitted, judges had to pour over them to come to a decision, and an ultimate verdict.

And instead of being held every day, trial sessions were spread out over weeks to accommodate the schedules of the legal professionals, not the defendants.

Since the decision in 2004 to introduce the lay judge system, expediting trials has been a major goal.

This inevitably led to revision of the criminal procedure law in November 2005 so that pretrial meetings must be held for all cases that will be subject to the lay judge system.

In the pretrial meetings, both the prosecution and defense are supposed to submit their arguments and divulge the evidence they plan to submit in court. They clarify the points at issue and narrow down the evidence and witnesses to be called.

Professional judges presiding over the pretrial meetings see the main points to be argued in court, along with the names and number of witnesses. But they will not learn details of the evidence until the trial begins. In the end, they can estimate a trial's length and thus schedule sessions.

But what was meant to speed up the proceedings may prove a tail wind for defense lawyers, who say the pretrial meetings are improving the environment to defend their clients.

One major benefit, they say, is that courts have become more apt to grant bail. Bail was rarely granted before because judges feared defendants might use the opportunity to tamper with evidence.

"Even if we asked for bail, it was always rejected," said lawyer Takeshi Nishimura, general secretary of the Japan Federation of Bar Association's lay judge preparation task force.

But now that defense teams must plan and present their arguments under the pretrial meetings, the courts have begun to realize that unless they grant bail, lawyers cannot talk with their clients and thus will not be able to prepare, he said.

Similarly, defense lawyers now can extract more evidence from prosecutors, Nishimura said. This is particularly important because new evidence will not be allowed once a trial begins.

Before the 2005 revision, prosecutors did not have to submit evidence to their opponents in advance. It was up to the courts to order them to do so.

"But now, it is spelled out in the law that the defense has the right to access evidence when conditions allow, and courts seem to be aware of the need to get the evidence out before the trial starts," he said.

Fujita of the Supreme Public Prosecutor's Office acknowledges that prosecutors will have to be better prepared because the more evidence they divulge, the more counterarguments will be made in court. Still, he is confident the new process will go smoothly.

"If all parties utilize the pretrial meetings carefully, we'll be able to set a reasonable schedule and have a very focused argument," he said.

When legal circles began practice trials, the evidence was sometimes excessively narrowed down during the pretrial phase. This caused problems when the trials started, said Masaya Kawamoto, a judge currently serving as an administrative official in the criminal division of the Supreme Court.

"We had to remind ourselves it wasn't just about speeding up. It's a procedure to secure the rights of the defendant, so the trials must be thorough," he said.

As part of the preparation process, the top court sent around 100 judges overseas to observe courts where civic participation in criminal trials is a matter of course. The different systems included those in the United States, the United Kingdom, Germany, France and Italy.

"Everyone came back shocked," Kawamoto said. "Evidence introduced in the hearings was well narrowed down to what was really necessary, and the questions were to the point. They noticed that the sense of time was completely different" from conventional Japanese criminal proceedings, he said.

But Kawamoto believes professional judges here are now prepared to achieve expeditious trials. "In the course of time, I believe we've really seen a major change in our mind-set," he said, adding there is an overall reduction in unnecessary evidence being submitted in other trials and arguments are more honed.

However, shortening the trial process still has critics.

Some say the pretrial meetings limit access to case details. They also argue the courts have stressed too much that the lay judges will only have to serve just a few days.

Nobuo Gohara, a professor at Meijo University and a former prosecutor, said that while he believes opening up the legal system to the public is important, cases that will be handled by lay judges should have been those involving political funds or businesses, because the public is more familiar with these offenses than heinous crimes.

"Authorities have stressed that most cases only last three days, but how can serious cases that could result in life imprisonment or a death penalty be judged in such a short time? It's going to take a lot longer than that, and I don't think the public is ready for all that," said Gohara, who spoke last month to Diet members who suddenly formed a group across party lines aiming to postpone the system's start.

"This system will inevitably invite rough justice," he said.

Others warn there is an overall lack of education of the public on the justice system itself and media crime reports could bias ordinary people.

The lawmakers who joined the group raised 12 major issues to back their opposition to the lay judge system, even though the law bringing in the system sailed through the Diet unanimously.

Lawyer Satoru Shinomiya, who took part in designing the lay judge system, said that while he agrees with many issues that were raised, trying to stop system from starting now would return things to how they were.

"The fact that lay judges are coming has already brought many positive changes to the criminal justice system," he said. "If we have to wait until all the problems are solved, then when will that day come?"

The law calls for the government to review the lay judge system three years after its introduction, if necessary.

What's important to make the system better, Shinomiya said, is for lawyers to make the effort to persuade the lay judges to be fair and do the right thing.

"When the public comes to court, they want to do the right thing and leave. And it is the role of lawyers to encourage them to do that. I'm confident the Japanese people will respond to the call."


CITIZEN JUSTICE



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