By May 2009, Japan will introduce a lay judge system in which ordinary citizens will take part in criminal proceedings as judges to help decide the outcomes of trials. The system is gradually taking shape as the Supreme Court has made public a simulation for the process of choosing candidates for lay judges.
For the first time in Japan’s judicial history, ordinary citizens will have their opinions directly reflected in trials, although Japan used a limited jury system between 1928 and 1943 in which jurors were chosen from among male taxpayers over the age of 30. The use of lay judges is a big change in the nation’s legal system. The Supreme Court, the Justice Ministry, the Japan Federation of Bar Associations, lawyers, law professors and others need to make concerted efforts to enlighten the public about the lay judge system, to facilitate their participation in it and to eliminate potential problems with it.
Lay judges will sit in the first, lower-court trials involving crimes for which the penalty upon conviction is death, life imprisonment or imprisonment for a fixed term, or crimes in which the perpetrators’ deliberate acts led to someone’s death, including murder, acts of arson and dangerous driving.
In principle, six lay judges will sit with three professional judges. The nine will determine guilt or innocence and hand down sentences by majority vote. A guilty ruling must be supported by at least one professional judge. If either all three professional judges or five of the six lay judges favor a not-guilty ruling, the defendants must be acquitted. Lay judges sit for only one trial.
Lay judges bear a huge responsibility because they may have to choose a severe punishment, including the death penalty. Education and careful guidance will be vital. A Supreme Court simulation shows that about 29,000 voters, or roughly one out of every 3,500 voters, will serve as lay judges every year. Each citizen should be ready to fulfill this duty.
Under the simulation, district courts across the nation will first pick some 360,000 people at random from voter registration lists for Lower House elections. The courts will ask them for a written reply stating what months they cannot serve as a lay judge (especially farmers) and whether they fall into categories exempted under law, such as people aged 70 or older and people with serious diseases or injuries.
Following each indictment, the court will randomly pick 50 to 100 from among the pool of lay judge candidates and exclude those who cannot serve on the basis of their written replies. In principle, about six weeks before the selection date, the court will send summonses and questionnaires to candidates to learn which ones can serve during the specified trial period.
The presiding judge will interview each candidate. If candidates cite special family or work situations for refusing to serve as lay judges, the presiding judge will determine whether the reasons are legitimate. Candidates also will be evaluated on whether they seem capable of rendering a fair judgment. Later, lawyers and prosecutors will join in the process of narrowing down the choice of candidates.
The detailed procedure worked out by the Supreme Court will help remove an unnecessary burden on people who cannot sit on the court bench from beginning to end, while selecting those who have a sense of responsibility and are ready to serve.
For people picked as lay judge candidates, the Mito District Court has decided to provide information on available social welfare services if they are busy with child rearing or nursing care. An encouraging sign in the private sector is that several companies have announced plans to count the days when their employees serve as lay judges as special paid holidays. It is hoped that more companies will follow suit.
Because citizens cannot sit on the court bench for a long period of time, a system to shorten trials was introduced in November 2005. Under the system, prior to the start of a trial, prosecutors and lawyers decide which points of dispute they will focus on and which pieces of evidence they will use in the proceedings. This procedure has already led to shorter trials. But utmost care must be taken so that the newly introduced procedure does not lead the courts to jump to a hasty conclusion at the expense of a careful examination of evidence and statements from witnesses and the accused.
Another big problem is how to deal with cases in which a defendant is charged with multiple crimes such as serial murders. If irregular or illegal investigation is suspected in part, but not all, of the crimes, the trial will become more complicated.
Judicial authorities and legal professionals should resolve institutional problems to ensure fair trials. Meanwhile, people need to educate themselves. Symposiums, study meetings and mock trials have been established for this purpose.