Media fret risk of biasing lay judges

Fourth in a series

Until a year ago, crime reportage often did not identify the source of the “facts” in stories and thus people just took the information on faith when in reality the police, with a vested interest in getting a conviction, provided the details.

Suspects with criminal records might find their history getting heavy play, as well as any negative comments from acquaintances, casting the impression, for example, that those under arrest are bad by nature.

As the lay judge system kicks off May 21, media organizations are taking a hard look at such longtime practices to minimize the possibility of providing misleading information that may prejudice people who may in the future sit on the bench in judgment of an accused criminal.

“Lay judges will be ordinary people. There is no doubt the media influence them,” even though they must base their verdicts solely on the evidence presented in court, said Jiro Hirano, a professor at Gakushuin Women’s College in Tokyo and a former NHK commentator.

The public is well aware of the media’s influence. A Kyodo News poll in March 2008 found 90.3 percent of the respondents think news articles will influence lay judges, and 62.8 percent agreed with some judges and lawyers who said crime reporting needs to be changed to make sure the media do not bias lay judges.

In response to such public calls, newspapers and TV and radio broadcasters created new reporting guidelines and began implementing them last year in an effort to provide better information to the public.

The guidelines encourage reporters to identify information sources as much as possible, consult as many sources as possible to avoid one-sided reporting and exercise caution when describing a suspect’s life history, the personal views of neighbors and acquaintances on a suspect’s character, and confessions made during interrogations.

The guidelines also say the media should identify whether the sources are investigators, defense lawyers or other people, shifting away from the long-held practice of falling back on unhelpful phrases like “sources familiar with the matter” that many Japanese media organizations trotted out.

For example, before the guidelines were introduced, a news article might read “The suspect began owning up to the alleged murder during the police investigation,” as if the reporter were present during the interrogation.

But after the change, the phraseology might read “The suspect began owning up to the alleged murder during the investigation, police said,” explicitly indicating the source.

Striving to identify sources could put Japanese journalism one tiny step closer to U.S.-style journalism. Crime articles in the United States in principle provide the names and titles of police officers, prosecutors and other sources, a rarity in Japan even after the new guidelines took effect.

Media experts say the guidelines appear to be a result, at least in part, of the news industry’s defenses against censorship: The government came close to introducing restrictions on crime reporting when the lay judge system was discussed between 1999 and 2004.

“At that time, the government was almost going to restrict freedom of the press. I wholeheartedly support the media’s efforts to avoid government restrictions,” TV debate-show moderator and journalist Soichiro Tahara said.

After heated discussions among journalists, judges and other experts, the Diet finally decided to drop a provision calling on the media to exercise caution on biasing readers and viewers when reporting on crimes from the bill that created the Lay Judge Law in May 2004. The threat prompted media organizations to come up with self-imposed rules rather than ones imposed by the government.

While critics hail the media’s efforts to change the style of reporting, they still criticize Japanese journalism for relying too much on police for information.

“Journalists should interview many different sources rather than merely delivering information from the police to the public,” Tahara said. But at the same time, he acknowledged it’s a difficult habit to change because identifying a source seeking to remain anonymous risks losing that source, who might be the only party with vital information.

For example, a police officer made an angry phone call to a Yomiuri Shimbun reporter in March 2008 because a crime story — a scoop by the reporter — attributed some of the information to “an investigative source,” Yomiuri editor Harumi Hoshi wrote in a periodical published by the Japan Newspaper Publishers & Editors Association.

The officer, part of a limited number of people who could be identified as an investigative source on that particular case, hung up after telling the reporter he would never talk to him again, Hoshi wrote.

“As we change our writing style to avoid bias and ambiguous expressions, we need to make efforts to gain understanding from our sources and try to make further efforts to use expressions that will be easy for readers to understand,” Hoshi wrote in the magazine. “This change is not bad, as it requires writers to change their mind-set toward professional journalism.”

The guidelines introduced last year also advise journalists not to blindly trust information from the police and prosecutors. They also recommend that journalists make clear to readers and viewers that confessions and indictments may not necessarily represent the facts.

At a symposium on the media and the lay judge system in Tokyo last May, Masahiro Hiraki, councilor general of the Criminal Affairs Bureau at the Supreme Court, said reporting based only on information from police and prosecutors may be subjective because those parties assume a suspect is guilty.

“Journalists should report a story under the assumption that indictments can contain incorrect information,” said Sam Jameson, a visiting researcher at the Yomiuri Shimbun and a former Tokyo bureau chief of the Los Angeles Times.

Japanese journalism does not question the 99 percent conviction rate, and what that says about the judicial system, he noted.

Live television, by its nature, faces unique problems. On some gossip shows and news programs, guest commentators and celebrities may say something that could prejudice viewers, including lay judges who may be watching to familiarize themselves with the cases they are handling.

To avoid that, program directors are now lecturing participants beforehand to be careful about their remarks.

“That is all we can do,” said Tahara, a former TV Tokyo director who now hosts the popular debate show “Asa Made Nama Terebi” (“Live TV Until Dawn”).

While the media try to get a grip on the lay judge system, there is also growing concern among journalists that lay judges may be discouraged to face the press if they fear they will be heavily punished.

The Lay Judge Law stipulates that participants will be sentenced to up to six months in prison or fined up to ¥500,000 if they disclose sensitive information, including identifying to anyone during or after a trial who their fellow lay judges were or how they voted. It also prohibits, but with no threat of punishment, anyone from approaching lay judges or former lay judges with the intention of getting sensitive information.

The Japan Newspaper Publishers & Editors Association and the National Association of Commercial Broadcasters in Japan published a statement in February asking future lay judges to hold a news conference after trials end.

It is important that those who take part in the new system describe their thought process during their lay judge duties and share such information with society, the association said. Doing so will help familiarize people with the system and encourage them to participate in the judicial process, it added.

At the same time, if lay judges felt the professional judges had erred in their guidance or distorted the deliberations, it should be exposed to public scrutiny, the statement said.

But whether courts allow lay judges to speak to the media about their trials has yet to be decided, and newspaper association official Tsuyoshi Takagi said district courts and journalists are currently negotiating the matter.

“The Tokyo District Court will probably be the first to make a decision, and other district courts will probably follow suit,” Takagi said.

Despite the major alterations in writing and reporting, experts say it’s important that journalists remain fundamentally unchanged.

Journalist Tahara admitted it is desirable to identify news sources because it can add credibility to articles, but it is sometimes necessary for journalists not to reveal their sources so the information will come out.

“The more significant the news is, the more likely that journalists get information from sources who want to remain anonymous. It’s the same in the U.S.,” he said, referring to “Deep Throat,” the famous unnamed source Washington Post reporters used during their investigation into the Watergate scandal.

Hirano of Gakushuin Women’s College agrees.

“The media basically have to collect as many facts as possible and report them. That base will not change before or after the lay judge system,” he said. “Newspaper and TV reporters should not be too concerned about bias and hold back on reporting the facts.”