Mansfield Center eyes lay judge debut

Quasi-jury system offers insights for U.S., model for Asia, scholars say

by Setsuko Kamiya

A new system that gives ordinary citizens in Japan a role in deciding the outcome of criminal trials debuts in less than three years.

As the country prepares for the “saibanin” (lay judge) system, perhaps the biggest change to the legal system since the end of the Allied Occupation, the new makeup of the bench has caught the attention of legal experts and East Asian scholars in the United States.

The Maureen and Mike Mansfield Center at the University of Montana has launched the “Japanese Juries and Democracies Program” to study the ongoing judicial reforms in Japan and to promote exchanges of information on the role of laypeople in the court systems of Japan and the United States.

“It’s a bold human experiment,” Terry Weidner, director of the Mansfield Center, said in an interview during a recent visit to Tokyo. “It’s a daunting challenge, but if it works, it will make incredible changes that ripple throughout Japanese society, so I find it very exciting.”

The Mansfield Center focuses primarily on relations between East Asia and the U.S. and rarely deals with domestic Japanese themes, Weidner said. But scholars recognize the importance of the lay judge issue and believe the change may influence the legal systems of neighboring parts of Asia that are also undergoing judicial reforms. They also believe the U.S. has a lot to learn from the challenges Japan will face.

At present, about 80 countries allow some sort of public participation in their courts.

The U.S., the United Kingdom, Canada and Australia, for example, choose citizens at random to serve on juries. The get legal guidance from the judge, weigh the evidence admitted in trials and deliver the verdict. In cases of guilty verdicts, the judge usually determines the sentence. Usually, jurors sit for only one trial.

Germany, France and Italy have a “mixed” court system, where citizens and professional judges sit together on the bench, deliberate, reach a verdict and determine, if applicable, the sentence. Citizen judges are chosen from lists provided by political parties and communities and hear several cases during a term of several months.

At the moment, the general public plays no role in Japan’s criminal trial process. Cases are heard by a single judge or a panel of three. The judges are responsible for both determining guilt or innocence and handing down sentences.

But by May 2009, this system will change. A panel of nine judges — six lay judges selected at random from voter lists and three professionals — will sit on the bench in felony trials, including murder, arson and rape. They will deliberate, reach a verdict and, where appropriate, determine a sentence by majority vote. The lay judges will sit for only one trial.

Japan’s lay judge system thus incorporates elements of the U.S. and European trial systems. Other than a brief period between 1928 and 1943, when Japan had a limited jury system in which jurors were chosen from among male taxpayers over 30 years old, this will be the first time ordinary citizens play a role in the courts.

The lay judge system is part of a larger judicial overhaul aiming to improve the quality of the legal process and ensure fairness and transparency in the criminal justice system. It is hoped that lay participation will make proceedings easier for the average person to understand, and expedite the legal process, allowing citizens to perform their new civic duty without an undue burden on their lives.

It is hoped the new system will also give ordinary citizens a larger stake in Japanese society and democracy.

Attorney Robert Precht, when he heard about the Japanese legal reform, urged the Mansfield Center to start a study program on this issue.

Precht, one of two directors of the program, said he learned about the change in summer 2005. Having served as a public defender in the federal courts of New York for many years, Precht was later contacted by a Japanese law professor who sought his help in arranging meetings between Japanese lawyers and legal professionals in the U.S.

Taking a keen interest in the developments in Japan, Precht, who has also taught at the University of Michigan law school, came to Tokyo about a year ago to learn more about the lay judge system.

The scope of the change is fascinating, Precht said, but he is particularly struck by the huge responsibility the lay judges will bear. The impact, he said, would be like asking members of the American public to vote on issues before the U.S. Congress.

“Not only is this a huge change, but it is also a courageous and a bold change to give citizens a voice, and I admire Japan” for undertaking it, Precht said.

In May, Precht contacted Weidner at the Mansfield Center, named after the late Montana Sen. Mike Mansfield, who served as ambassador to Japan in the late 1970s and ’80s. “We felt that this was something very interesting that was happening, and we wanted to learn more about it and see if we could be helpful,” Precht said.

In mid-December, Weidner and attorney James Taylor, codirector of the program, joined Precht in Tokyo and, after talking with a number of Japanese legal professionals and scholars, found many areas for cooperation.

One is to help prosecutors and defense lawyers in Japan develop basic advocacy skills. Courtroom proceedings, which have up to now been based mostly on written documents, will inevitably give way to a format where oral arguments are more important, to give lay participants a better understanding of trials.

At the same time, Precht and Taylor saw that the legal reforms in Japan have much to teach those working in the American system, such as the questioning of witnesses by lay participants. In the U.S. there is an ongoing debate over whether to allow jurors to question witnesses. Under Japan’s new system, lay judges will be allowed to pose questions.

The American experts also see common challenges in Japan and the U.S., including how to bring in ordinary citizens to the judicial process and encourage them to be impartial.

Bringing Americans who have served on juries to Japan to share their experience may be helpful, they believe.

“Jury service really gives citizens a chance to participate and to learn about the system. When people leave jury service in the U.S., they have a much deeper understanding and much deeper respect for how the system works,” Taylor said.

While primarily looking into the Japanese legal system for comparison with its American counterparts, the two attorneys also see Japan as a model for other parts of Asia, as most have yet to open the court systems to the public. With judicial reforms also taking place in South Korea and China, the center is interested in how Japan’s experience will influence these countries.

In the meantime, the Mansfield Center is planning a conference next summer in Tokyo where American legal experts will have dialogue with their Japanese counterparts.

“We don’t see this as a one-way street,” Mansfield Center Director Weidner said. “I think it will be very useful for any Americans we bring over to learn the Japanese system, and they can start learning more about Japanese society. So it really reaches our key mission, which is mutual understanding.”