HORIE TRIAL OFFERS TEST

Legal reforms changing nation’s courts

by Setsuko Kamiya

before

News photo
Former Livedoor Co. President Takafumi Horie and his attorneys leave the Tokyo District Court after the first day of his trial on Monday. KYODO PHOTO
The reforms were evident in the trial's first session on Monday. The proceedings moved along faster than usual and courtroom arguments appeared more concise.For Horie, who was arrested for alleged securities law violations in January and indicted in February, 26 court sessions have been scheduled through late November. Prosecutors and defense lawyers will then make their closing arguments. If all goes as planned, the court is likely to hand down a ruling in February, according to media reports."Previously, this case would have taken at least three years until the sentencing," said Sadato Goto, an attorney from Osaka Prefecture. "It's true that things are changing."Criminal trials are frequently criticized for taking too long, mostly because courts are often in recess for weeks or months at a time.The questioning of witnesses is often more a matter of confirming the content of court documents than discovering new evidence. And proceedings are hard to follow because everything is enshrouded in a fog of legal jargon.All this was taken for granted because the legal system was run entirely by -- and some would say for -- legal professionals.This is supposed to change in May 2009 with the introduction of a "saibanin," or lay judge system. Under the reforms, citizens chosen at random will sit on the bench in criminal trials, along with professional judges. Together they will decide the facts of a case and, if the accused is found guilty, hand down a sentence. To make the system work trial procedures are being simplified to allow laypeople to play their new role.Some of the changes have already taken effect with the revision of the Criminal Procedure Law in November. Under the revision, when the court deems it necessary, both prosecution and defense counsel can be required to hold pretrial meetings, at which they submit their arguments and provide evidence.The aim is to clarify the points at issue and to narrow down the evidence and witnesses to be called when the trial begins. 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 do not learn the details of the evidence until the trial begins.In theory, this will allow the judge to estimate how long a trial is likely to take and to schedule hearings expeditiously.These pretrial meetings will be mandatory in serious cases including murder, arson and kidnapping for ransom, which will be tried by the lay and professional mixed benches starting in 2009. They also are held in criminal cases where a large amount of evidence is to be presented. Horie's case met that criterion.According to the Supreme Court, as of June 30, pretrial meetings had been held in 301 criminal cases so far. In the Livedoor case, 10 pretrial meetings were held from May through August.The revised criminal procedure and the coming lay judge system are inevitably changing how prosecutors and defense lawyers do their jobs."If we had 100 pieces of evidence – , we now have to carefully narrow them down to 10, and the points of argument from 20 to five,” said Kunihiko Sakai, a prosecutor with the Supreme Public Prosecutors Office, which is overseeing the changes.

“For more than 50 years, we took it for granted that the judges will read everything we submit, so it’s in our DNA that the more information, the better. But now, we have to make an effort regarding how to present the facts to lay judges using less evidence. So it’s really about changing our mind-sets,” Sakai said.

Prosecutors are attending workshops on the reforms to help put the new procedures into practice and to make them work better in the courtroom, he added.

Meanwhile, defense lawyers who previously had limited access to the evidence prosecutors planned to present in court, are also welcoming the changes.

One benefit of the pretrial meetings is that bail tends to be granted more readily than before, said attorney Takashi Takano, who also teaches at Waseda Law School.

Under the previous system, bail was rarely granted before the start of a trial because judges feared defendants might use the opportunity to tamper with evidence, Takano said. And defense attorneys may not have pushed for bail as strongly as they should have because they expected it to be denied.

With the introduction of pretrial meetings, defense lawyers must plan and present their arguments. This means lawyers need to talk to their clients and the courts have begun to understand that, Takano said.

In one recent case, Takano was able to get his client out on bail before trial.

People who follow court cases say Horie, who made bail in April, was released earlier than most defendants. Had the trial been held under conventional procedures, he would still be in custody, they said.

Defense lawyers are holding seminars and swapping ideas on how to squeeze more evidence out of prosecutors. This is particularly important because new evidence will not be allowed once a trial begins.

The system will still need some fine-tuning.

According to the Japan Federation of Bar Associations, many lawyers are worried that judges are simply trying to speed trials up, potentially riding roughshod over the rights of the accused.

Goto, who heads the bar associations’ committee that is examining the reforms, is among them.

“It’s good that things are changing, but what’s most important is to hold a substantial trial that is clear and easy for the public to understand when they eventually take part,” Goto said. “To make that happen it’s important to have good pretrial meetings. The courts shouldn’t just rush it.”