Many defense lawyers are complaining that the “pretrial clarification procedures” that took effect last Nov. 1 in an effort to speed up criminal trials is leaving them with insufficient time to prepare and foreclosing on chances to introduce new evidence.
The legal process from initiation of a trail until the verdict and sentence takes much longer than in most industrialized nations, and has long been a target of criticism.
Criminal trials of the first instance usually last at least one year, and criminal trial lawyers’ are lower than those for civil suits.
The new discovery system was introduced in an effort to clarify crucial elements of a case in advance, including evidence and trial schedules.
But defense lawyers now say they have to hastily prepare for trials at much shorter notice.
In January, a 32-year-old man accused of killing a female clerk at a convenience store suddenly blurted out in the Sendai District Court, “I had no intention of killing her” — an unexpected remark that apparently threw proceedings into turmoil because during the pretrial discovery, it was “decided” that he had planned the murder.
“There is a limit to the points that can be thoroughly sorted out in advance, even if much time is taken,” lawyer Kiyoshi Abe said.
The pretrial huddle, a bid to simplify trial procedures, is a step toward paving the way for introduction of the so-called lay judge system involving citizens serving as de facto jurors.
Trials to date have usually proceeded based on the outcome of questioning of defendants in lieu of depositions the accused might provide.
Abe noted, “Many depositions are merely ‘compositions’ taking up only those points convenient to prosecutors.”
A lawyer who handles cases before the Osaka District Court expressed concern about the new procedures, saying, “The system is now being used on a trial basis in relatively easy cases, but if it is introduced full-scale, it will cause lawyers a lot of trouble.”
Lawyers are already burdened with procedures and have to spend many hours in court. At initial sessions, they make opening statements and often have to spend whole days at later sessions.
“If there are many points, we have to form a defense team, and there are many cases that force us to work all night the day before trial sessions,” the Osaka attorney said.
A murder trial that started March 9 before the Tokyo District Court is expected to require six days a week. Since November, five rounds of preparatory procedures and eight other meetings have been held, in addition to numerous exchanges of documents.
The Nagoya District Court has rejected using discovery in an attempted murder trial after the defense lawyer objected.
“The direct reason was the inability to judge whether pretrial clarification procedures are suited to the case,” Abe said. “There is also a problem with the procedures themselves.”
Because requests to introduce evidence are severely restricted after the discovery phase, the system is “disadvantageous for lawyers with limited evidence-gathering abilities,” he said.
In the March 9 Tokyo District Court trial session, lawyers wanted to introduce new evidence, but a prosecutor said, “That cannot be done.” The court said, “That point should have been included in (the discovery).”
In the first ruling since the pretrial procedures took effect, the same court sentenced a 28-year-old Malaysian man to eight years in prison for attempted murder and other crimes on Feb. 8 after judges, prosecutors and lawyers held five closed-door sessions to reduce the main points to two — whether the man intended to commit murder or whether he acted in self-defense.
The trial opened on Jan. 27, and there were sessions held three days in a row from Feb. 6. Two days later, prosecutors demanded a 12-year prison term, and the case was closed just after 11 a.m. after lawyers made their closing statement.
At 4:30 p.m., the court handed down the sentence, ending the trial in an unusually speedy five hours after the prosecutors’ demand for punishment.
Prosecutors welcomed the speedy sentence, but a lawyer said: “No full study could be made because of the daily requirement to be in court. We did not have enough time to meet the defendant and study the evidence presented.”
Criticizing the closed-door nature of the pretrial discovery, Ryoji Takada, a former vice president of the Kyoto Bar Association who is representing the defendant in an attempted murder case that won’t be subject to discovery, said, “The No. 1 problem is that judges, prosecutors and lawyers are doing the same thing as a trial even before it starts.”
If prosecutors and lawyers put too much stress on speeding up trials, he said, “There are fears that fact-finding will be neglected,” resulting in miscarriages of justice.