The presiding professional judge in the incoming citizen judge system will tell the lay participants to use their “common sense” in deciding criminal cases, according to draft models of such instructions.
The draft models will be reported May 23 to a commission on Supreme Court rules before being distributed to professional judges throughout the country.
The law setting rules on lay judges’ participation in criminal trials stipulates that the presiding judge “explains their authority, obligations and other required items (to lay judges) as specified by Supreme Court regulations.”
The top court is expected to lay out some basic legal concepts, such as “who shoulders the burden of proof” and “evidence-based examinations,” while allowing individual courts to decide what precisely to tell lay judges.
The draft models were formulated mainly by the Tokyo District Court after the opinions of the Supreme Court, the Justice Ministry and the Japan Federation of Bar Associations were taken into account, according to sources close to the matter.
Under the new trial system, six eligible voters selected as lay judges will hear murder and other serious criminal cases with three professional judges at the first court of instance, working with them in reaching a verdict, and in the case of a guilty ruling what kind of sentence to hand down.
Under the draft models, lay judges will be briefed on some ground rules at the beginning of a trial, such as how the trial will proceed and what they should base their judgments on.
Specifically, they will be asked to give a guilty verdict if they have concluded that prosecutors’ evidence is correct and give a not-guilty verdict if prosecutors cannot prove a defendant’s guilt beyond reasonable doubt.
They will be advised to exercise their common sense and to express their opinions, with an understanding that their opinions weigh as much as those of the professional judges.
The lay judges will be warned not to divulge details of the discussions among judges, so they can “exchange candid opinions” and “protect their own safety,” according to the models.
The models do not address some of the concerns that people have expressed in questionnaires about the new system, including worries that their verdicts would impact the lives of others and that people could hold grudges against them or threaten them.
After they understand these explanations, the lay judges are required to swear, “I will conduct my duty fairly and in good faith.”
Under a government estimate, about one in every 3,500 eligible voters a year will be appointed to serve as lay judges in proceedings that will likely last several days.
The three professional judges and the six lay judges will make decisions by majority. However, no guilty sentence will be handed down if all three professional judges find the accused innocent.
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