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A new criminal-trial system started in Japan on Nov. 1 when the revised Criminal Procedure Law went into effect. The key point of revision is the introduction of a “pretrial clarification procedure,” whereby prosecutors and attorneys outline their respective evidence and arguments before trial begins. In addition, judges set a trial schedule.

The revision is a welcome prelude to the “lay judge system” that will start by May 2009. This participatory trial system will allow selected citizens to act as judges in major criminal cases, such as those involving murder, rape and arson. With lay judges working together with professional judges, such criminal trials are expected to become much easier to understand for ordinary people who are unfamiliar with legal technicalities.

The new trial system, combined with the pretrial procedure, will likely change significantly the way criminal trials are conducted in this country. Both prosecutors and attorneys should cooperate actively in the new procedure so that trials can proceed more effectively and efficiently.

At present, a criminal trial begins with a prosecutor’s reading of an indictment. In the opening argument that follows, the prosecution publicly outlines for the first time the crime it is prepared to establish. Issues at stake are clarified as the defense team counters the prosecution’s argument. The trial proceeds slowly, usually at the pace of one or two sessions a month. Protracted proceedings, coupled with legal technicalities, have raised the need for trials to improve their quality and pace.

This is the first time since the end of World War II that the Criminal Procedure Law has been revised on such a scale. The most important change is the creation of the pretrial clarification procedure, which takes place behind closed doors with the court presiding. During these preliminary sessions, prosecutors and attorneys clarify their respective arguments and disclose the evidence at hand. The court confirms the issues involved and decides on the evidence to be investigated during the trial. It also sets a timetable for the trial.

The legislation that establishes the lay judge system states that pretrial sessions must be held before trial begins with the participation of lay judges. Pending the start of the lay judge system, however, such sessions may be held at the discretion of individual judges. Nevertheless, it is vitally important that judiciary officials make positive use of this procedure and get acquainted with it before the new system takes effect.

The revised Criminal Procedure Law also opens the way for expanding the scope of evidence disclosure and establishes clearer disclosure rules. For example, prosecutors may have to disclose evidence they are not prepared to submit in court if the defense team requests its submission in connection with its argument. If the request is rejected, the court may order its disclosure.

The revision also makes it possible to hold court sessions on a daily basis, barring unexpected developments. An uninterrupted trial conducted in a short period of time will not only reduce the workload for lay judges — such as citizens with a full-time job – but also help them reach decisions while their memories of the case are still fresh.

Under the pretrial procedure, the defense team will also make an opening argument after the one presented by the prosecution. The court will then reveal the results of the procedure. This will enable the lay judges to know beforehand what the two sides have to say in court. Such preliminary knowledge will help them make a more focused judgment during the investigation of evidence.

District courts throughout the country have been making preparations for the new procedure since last spring.

In several cases, the hearings were concluded on the first day of trial as a result of an agreement between the prosecution and defense team and in accordance with the defendant’s wishes. Without such prior consultations, the trial in a murder case would take several court sessions. In May, for example, the Fukuoka District Court concluded the hearing of a murder case on the first day of the trial, after the prosecution’s statement demanding a guilty sentence.

The new criminal procedure, for all its advantages, still leaves a few questions unanswered. One is how much efficiency can future criminal trials achieve without violating the defendant’s rights. Other questions are whether these trials will be carried out in ways that actually clarify the issues involved while paying due attention to other relevant matters, and will they promote public understanding and trust of the criminal-trial system. The answers will depend on how smoothly the pretrial procedure is practiced.

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