As three years have passed since the introduction of the lay judge trial system, the process to review the system has started with a Justice Ministry panel, which includes legal professionals, citizens and mass media people. The review is in accordance with a supplementary provision of the Act on Criminal Trials Examined Under Lay Judge System.
Nearly 30,000 Japanese citizens have served as lay judges and more than 95 percent of them said in surveys after individual trials that serving as lay judges was a meaningful experience. The review must be done with a view to making the system more acceptable to people, thus helping it take root firmly in Japanese society.
There are many things that must be taken up in the reviewing process. Serious attention should be paid to alleviating the burden on lay judges. Specifically the gag order on them must be eased, although it should remain in effect to the extent necessary to ensure free discussions among lay and professional judges.
Six lay judges and three professional judges handle criminal trials dealing with certain types of crimes such as murder, arson and abduction for ransom. But the current gag order is too severe. Once a citizen has served as a lay judge or a backup lay judge, he or she is banned for life from disclosing such things as opinions expressed by judges and the number of judges who have expressed a particular opinion. Those who violate the gag order face punishment.
To let other people share the experience of serving as lay judges and to judge whether discussions by judges were reasonable, a citizen who has served as a lay judge should be allowed to disclose to some extent opinions expressed by judges in a manner that will make it impossible to identify persons who expressed those opinions. Such disclosure will be helpful in improving the lay judge system as a whole.
It will be also important to re-emphasize the principle that lay judges make judgment solely on the basis of evidence, free from prejudice and without being swayed by emotions. On July 30, 2012, the Osaka District Court in a lay judge trial sentenced a 42-year-old man suffering from development disorder to 20 years’ imprisonment — four years longer than demanded by the prosecution — for stabbing his elder sister to death.
The importance of the principle that no punishment is to be meted out when there is uncertainty about guilt also cannot be overemphasized. Currently only a majority decision is necessary to hand down a death sentence, but such a grave decision requires maximum caution. A lay judge who opposed a death sentence based on strong beliefs will likely suffer from trauma if his or her opinion was quashed by a majority opinion. In view of this, a unanimous decision should be required for passing a death sentence.
The review panel also must take necessary steps to ensure that court proceedings will be clear and understandable to lay judges without compromising the accuracy.