Foreigners size up lay judge system

Citizens' willingness to serve contrasts with other nations that allow public participation

by Setsuko Kamiya

The launch of the lay judge system for criminal trials is being observed with great interest overseas, where public participation in court cases is well established, a prominent expert on the U.S. jury system said.

“It’s a very important moment, not just for Japan but for many people who look at lay participation and think about it as a valuable part of society,” Cornell Law School professor Valerie Hans said during a recent visit to Tokyo.

Hans was vacationing with her family in Japan while the first “saibanin” lay judge trial took place at the Tokyo District Court from Aug. 3 to 6.

Under the new system, six citizens randomly chosen from a list of eligible voters sit on the bench together with three professional judges.

The group works together to determine the facts and participate in sentencing if the accused is found guilty. Germany, France and Italy use similar systems.

On the other hand, the roles of jury and judge are different in the United States. In the U.S. jury system, 12 randomly chosen citizens decide what the facts of a crime are based on the evidence, but if they find the accused guilty, it is up to a professional judge to mete out the sentence.

In the first lay judge case, held at the Tokyo District Court, the team of judges convicted a 72-year-old man of murdering a 66-year-old female neighbor in May and handed down a 15-year prison term. The man later decided to appeal.

Reading news reports on the historic case, Hans, coauthor of “American Juries: The Verdict,” cited several examples that struck her as “remarkable” from an American perspective.

As courts in the U.S. struggle to get more people to participate in the jury selection process, Hans said she was impressed by the high turnout for lay judge candidates.

Of those who were summoned for service in Tokyo, 47 out of 49 reported for duty.

The second case, which was tried from Monday to Wednesday at the Saitama District Court, also drew high turnout, with 41 out of the 44 lay judge candidates summoned reporting for duty.

Getting more people to take part in the selection process is crucial because jurors should reflect values from all communities, Hans said, adding that Americans tend to overestimate how time-consuming and difficult it is to serve on a jury.

Research has shown that once people take part as jurors their estimation of the court system not only rises, but they are more likely to vote in the future because the jury experience helps them engage with the public good and the community as a whole, she said.

“What’s remarkable about Japan’s experiment is that you can observe the introduction of the new system and see whether or not it changes public views and opinion about the legal system generally, and indeed whether it makes Japanese citizens feel more connected to what is going on in their government,” she said.

But unlike the U.S., where jurors are allowed to speak freely about the case and the deliberations once they reach a verdict, lay judges have an obligation to keep such details confidential.

Considering that the jury experience enhances people’s participation and engagement in society, requiring lay judges to remain virtually silent about the experience misses the opportunity to spread the positive factors of citizen participation, she said.

Hans has been in Japan several times to study how the courts and legal professionals prepared for the introduction of the lay judge system. In her interviews with judges two years ago, Hans said she was impressed by their attitude at the mock trials, because they were careful to make sure that the lay judges spoke first during deliberations before the professionals gave their own opinions and views.

In the first case in Tokyo, lay judges questioned the witnesses about the inconsistencies between their signed interrogation papers and their testimony in court.

They also asked questions related to the witnesses’ motives.

“Lay people can really make a major contribution in assessing the credibility by bringing in all their lay experience, community experience in trying to assess whether people are telling the truth or not,” Hans said.

In many other countries where lay judges sit with professional counterparts, research shows that professionals, if they wish, can very easily dominate lay judges, according to Hans.

Care must be taken that this does not occur in Japan, but “if the judges are convinced that it’s worthwhile and valuable (for the public to have an active role), then it really has a chance as a vibrant and lively system where professional and lay judges come together to look at a case with all its complexity,” she said.

Compared to a German court she has observed previously, Hans said she thought that the lay judges were participating more actively and directly asking the witnesses questions.

That fact was actually an indication that lay judges were exerting some power and independence, she said.

“What we know from research is that happens when the professional judges are open to having it happen,” Hans said. “If they have an attitude that is supportive of lay judges, lay judges can operate very well and do really well in understanding evidence and reaching competent decisions.”