Second of two parts

Part I: Employer groundwork laid for lay judges

On a recent Wednesday morning, 20 people gathered in Courtroom 808 at the Tokyo District Court.

At 9:15 a.m., a clerk gave them instructions on what they were about to go through. Then, one by one, all were interviewed by a group of legal professionals. By noon, six were sworn in as lay judges. The rest were excused.

In the afternoon, the six — two women and four men — found themselves sitting on the bench with three professional judges in Courtroom 806, where they heard a woman plead not guilty to murder. The prosecutors said they would prove otherwise, while the defense team argued that the woman acted in self-defense.

The lay judges heard witnesses and examined evidence for the rest of the day and through the end of the next. On the third day both sides made their closing arguments and the nine-member panel entered deliberations. By late afternoon, a sentence was handed down and the six lay judges were dismissed.

All of this is remarkably different from current criminal trials — where people other than legal professionals do not play a role — and it took place in a mock trial held between May 30 and June 1. It is what will become an everyday scene in courts when the “saibanin” (lay judge) system is introduced in trials for serious crimes by May 2009.

To prepare for the new system, the courts, together with the bar, the government and the public, have been holding practice runs to fine tune the proceedings. But the mock trial at the Tokyo District Court was the first to experiment with the selection process for the lay judges.

It is inevitable that participation will require citizens to give up their time to fulfill the new civic duty. Through these tryouts, the courts want to learn what sort of actual difficulties the participants will face, and what criteria will be used to determine whether they should be exempt.

For the Tokyo District Court mock trial, 50 people were selected at random from a list of employees of 20 corporations that agreed to cooperate with the experiment. Summons were sent six weeks in advance and the candidates were asked to return a questionnaire determining their qualifications and availability.

Getting excused from duty

Reviewing the responses, the court in mid-May dismissed five potential participants, including a company division director who was scheduled to attend a meeting overseas, and an individual who said his expertise was necessary for a project that fell at the same time as the trial and there was no one who could replace him. Another man who said his wife was due to give birth on the final day of the trial was also excused.

On the other hand, the court summoned a man who said he was leaving Japan in a month to study abroad and was busy dealing with work and English conversation classes in the evenings.

Under the saibanin law, one can be fined up to 500,000 yen for giving false answers on the questionnaires, and those who fail to show up in court for the interview can be fined up to 100,000 yen.

Had this been a real trial, all except the five dismissed candidates would have had to show up, but this time only 20 people were summoned.

Upon arriving at the court, they were given another questionnaire.

Under the new system, it is at this point that the lay judge candidates will be notified for the first time what case they will be deliberating. They will be asked whether they personally know the defendant or the victim, whether they have been victims of similar crimes, and how much they know about the case through media reports.

Based on the questionnaires, the presiding judge, in the presence of other judges, prosecution and defense, interviews the candidates one by one in a small room to see if they can be fair and impartial. The law says that lay judge candidates who make false statements on this questionnaire or in the interview can be fined up to 300,000 yen.

Following the interviews, the legal professionals huddle to discuss if any of the candidates should be dismissed due to questions of impartiality. Prosecutors and defense attorneys are also entitled to dismiss up to four candidates each without giving a reason. Unlike in American courts, they do not dismiss the candidates to their face.

At the mock trial, four of the 20 people were dismissed at the request of the defense team. The final six lay judges were selected by lottery.

When the system is formally introduced, the selection process will be kept confidential to secure the candidates’ privacy. In the mock trial, the process was videotaped and shown on a monitor in a different courtroom where legal professionals and reporters watched.

The bench in Courtroom 806 has been renovated to accommodate nine judges instead of the usual three. The professional judges in their black gowns took the seats in the middle, and three lay judges sat on either side.

The rest of the courtroom configuration remained the same. The prosecutors and defense lawyers sat in their usual places, but there was a striking difference in the way the two parties presented their case.

In a typical criminal trial today, the two sides stand and read aloud their long opening statements and closing arguments, which are often full of legal jargon.

In the mock trial, each side came forward to stand in front of the witness seat to face the judges. Starting off with a greeting, they presented their case in plain language, reflecting their efforts to prepare for the day when they will have to convince ordinary citizens.

Prior to the mock trial, the lawyers and the professional judges held pretrial meetings to sort out points of contention and admissible evidence. Pretrial meetings are a relatively new phenomenon introduced in 2005 to speed up trials. The lay judges will not participate in this process.

The defendant in the mock trial was a 33-year-old woman charged with stabbing and murdering her 53-year-old lover, from whom who she was receiving financial support. Sometimes, under the influence of alcohol, he beat her.

According to the mock indictment, the fatal incident occurred when the couple were talking about breaking up and it turned violent. After the man assaulted the woman and threatened to kill her, she stabbed him twice, with the wounds proving fatal. She did not call an ambulance, but she did turn herself in to police about half an hour later.

The trial hinged on whether her actions constituted self-defense, and whether she intended to kill him.

Before the closing arguments, in which the prosecutors demanded a 13-year prison term, lay judges asked the woman some questions.

Weighing the evidence

During the deliberations, which would normally be held behind closed doors but were again shown on a monitor during the mock trial, presiding Judge Yoshimitsu Goda told the six lay judges that their task was to determine if she was in a state of danger that would justify her killing the man to defend herself.

You are free to agree and disagree with each other, and to change your mind, the judge said. “What we want is to come to a reasonable conclusion.”

With a younger professional judge serving as the moderator, the six lay judges expressed their opinions, and the professionals offered their views from time to time. Eventually all agreed that the woman was in danger both times she stabbed him. However, they also agreed that the second stabbing was an act of “excessive self-defense,” which meant she was guilty of manslaughter.

Unlike the jury system, where the role of jurors is only to render a ruling, Japanese lay judges will also work with the professionals to decide on the sentencing.

The professional judges explained how sentencing for this kind of case is determined in general. Then the panel discussed what circumstances should be considered to deciding the woman’s penalty. For reference, the professionals also presented sentencing statistics from precedents.

When it was time to finalize the decision, three lay judges said they wanted to give a three-year suspended prison term, but the majority, including the professional judges, said they thought a four-year prison term without suspension was appropriate. Unlike jury trials where the vote must be unanimous, the decisions here will be decided on a majority vote, but at least one professional must be part of that opinion.

After the mock trial, the lay judges said they were overwhelmed with the amount of information they had to deal with and felt they needed more time, but overall they thought it was a good experience.

Kenji Kamada, 53, of Sumitomo Shoji Financial Management Co., was one of the three who asked for a suspended term because he thought the woman regretted what happened and wouldn’t repeat the offense.

If it had been a real trial, Kamada said he would not have compromised and demanded further debate.

“When we have to make an important decision in our business, we won’t stop the meeting at 5 p.m. (and stop the discussion),” Kamada said. “It will be a person’s life we will be responsible for. Of course I’ll discuss it thoroughly.”

For related stories:
FYI: Opening the courts to ordinary citizens

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