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Japan has reintroduced a system involving lay participation in serious criminal trials. As discussed in several Australian Network for Japanese Law (ANJeL) events over recent years, this saiban’in system involves randomly selected ‘Lay Judges’ and professional career judges jointly assessing the facts to reach a verdict, as well as deciding on sentences. The model is more Continental European than Anglo-American, but a shared concern is to bring the justice system closer to citizens’ everyday life – a guiding principle in the Judicial Reform Council’s Final Recommendations issued in 2001. Diverse dimensions to greater popular participation throughout Japan’s legal process, including also my study of how the Japanese government organizes its litigation services beyond the criminal justice sphere, will be the subject of ANJeL’s third book from Edward Elgar (forthcoming around December 2010, co-edited with Leon Wolff and Kent Anderson).

Legislation establishing this saiban’in system was enacted in 2004, but implementation was delayed for five years to allow all stakeholders to get used to the idea and many practical implications. (For example, many of the ANJeL Judges-in-Residence sent to Australia by the Supreme Court of Japan have carefully compared how this country manages jury trials, especially in connection with the media.) The enactment illustrates my previous point that the former Liberal Democratic Party (LDP) led coalition had already shifted away from more conservative stances even before its dramatic loss of power in the general election on 30 August this year. Even more ironically, although the first saiban’in trial took place without apparent mishap earlier that month, campaigns by the Democratic Party of Japan (DPJ) and other then-Opposition parties drew on growing concerns among the general public about actually having to serve as Lay Judges. Hopefully, however, Japan's experience will become similar to Australia's - where the general public is quite negative about serving on juries, but individual jurors afterwards report that it was a worthwhile experience. (A similar pattern is also observed in the US.)

Below I first reproduce translations of DPJ policy statements promising to make the new saiban’in system more user-friendly in various ways. Then I add its related policy statements about video-recording of interrogations of suspects undertaken by police or prosecutors in Japan. (Both are slightly edited from translations kindly prepared by Glenn Kembrey, Sydney Law School student intern for our Centre for Asian and Pacific Law [CAPLUS] who is also assisting with ANJeL activities.)

As explained in the attached paper by Professor Makoto Ibusuki, a frequent visitor and a Program Convenor – ANJeL in Japan, the new DPJ-led government is now bound to enact legislation mandating full video-recording. Some politicians within the LDP anyway may have been open to this sort of reform too, but the pace should pick up. This particular law reform is bound to please NSW's Director of Public Prosecutions Mr Nicholas Cowdery QC, a key person behind the IBA's 2004 Report on 'Interrogation of Criminal Suspects in Japan' that recommended precisely this change.

Interrogations.jpg

(a) Smooth Implementation of the Lay Judge System

In May 2009, a Lay Judge system came into effect. While working towards to increase citizens’ understanding of the system by continuing to disseminate public information, making the process visible through audio and visual recording, and disclosure of the entirety of evidence held by the public prosecutor etc, we will quickly introduce the necessary environment for having fair trials while preventing an increase in the length of lay-judge trials.

In particular, the system will be quickly reviewed so as to decrease the burden on citizens who become lay judges. This will be achieved by adopting a flexible approach to those randomly selected citizens who present reasons for declining to serve as lay judges; by limits on the application of penal regulations for the breach of confidentiality obligations imposed on lay judges; by reviews of means for discussing the imposition of a death sentence; and by increasing the daily allowance paid to lay judges.

(b) Visualising Criminal Examinations, and Preventing False Charges through the Proper Disclosure of Evidence

Reforms will be carried out to achieve a fair and highly transparent criminal justice system, by aiming to achieve visualization through video recording of the entire examination process of a suspect by police, prosecutors and others.

The need for this has recently has become clear through a succession of false accusations, such as the “Toyama Himi Incident”, “Shibushi Incident” and “Ashikaga Incident”. However, this large problem is still dealt with in closed-off rooms. To prevent false accusations on the basis of coerced confessions in [suspect] examinations, we will (1) require investigating authorities to use audio and visual recording of the entire process of suspect examinations so as to be able to determine the voluntariness of confessions, if in dispute at trial; (2) to obtain thorough disclosure of evidence at criminal trials, we will implement an amendment to the Criminal Procedure Code requiring the creation and disclosure of a table listing evidence held by the prosecutors, and so on.”

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From: http://search.japantimes.co.jp/mail/ed20091015a2.html

Thursday, Oct. 15, 2009

EDITORIAL
Police interrogations on video

The Democratic Party of Japan's election manifesto calls for all interrogations of criminal suspects by investigators to be recorded on video, to (1) prevent prolonging a trial because of differences in opinion between public prosecutors and defense counsel members over the reliability of the record of a suspect's oral statement, and (2) prevent false charges resulting from confessions made under duress.

In news conferences after their appointment to Cabinet posts, both Justice Minister Keiko Chiba and National Safety Commission Chairman Hiroshi Nakai said they will work hard to fulfill the election promise. At the same time, Mr. Nakai said investigators must be allowed to employ the "weapons" of plea bargaining, sting operations and undercover probes to help uncover more crimes and increase the number of arrests and indictments. Mr. Nakai seems to think that the introduction of these investigative methods will reduce investigators' opposition to full videotaping of the interrogation process.

For their part, the police and public prosecutors say full videotaping of interrogations will make it difficult for investigators to elicit confessions by establishing trustful relationships with suspects.

Because interrogations are conducted without the presence of suspects' lawyers, the possibility cannot be ruled out that some suspects make false confessions when responding to leading questions by investigators or to avoid prolonged interrogation. Cases of serious false charges remain fresh in our memory, including that of Mr. Toshikazu Sugaya, who was released in June on the strength of a new DNA test after he had served 17 years of a life sentence for the 1990 murder of a 4-year-old girl in Ashikaga, Tochigi Prefecture.

A long period of study will be needed before plea bargaining, undercover investigation and sting operations are introduced. Mr. Nakai should not regard the introduction of these methods as preconditions for full videotaping of the interrogation process.

[Some American commentators also seem concerned about juror deliberations being subject to confidentiality obligations, but that is consistent with Anglo-Commonwealth law as well.]

From http://search.japantimes.co.jp/mail/nn20091008f3.html

Thursday, Oct. 8, 2009

Court asks media, not lay judges, to censor comments

SAITAMA (Kyodo) The Saitama District Court has asked the media not to report some of the remarks made by lay judges at post-trial press conferences because they could breach confidentiality obligations.

The request, made Monday, was spurred by responses two male lay judges made to reporters when asked about the trial of a 53-year-old man they sentenced to nine years in prison for arson.

Reporters asked the two — a 29-year-old man and a man in his 30s — if the big difference between the demands of the prosecution and the defense team made sentencing difficult, and if they thought they should have watched a DVD of a police experiment that re-created the fire scene. The DVD was adopted as evidence.

The court said stating personal views on sentencing constitutes a violation of the confidentiality guidelines, and giving views on the adoption of evidence also violates the secrecy of court deliberations.

According to the court, Ryuji Tamagami, 53, drove a truck into a pachinko parlor in Niiza, Saitama Prefecture, and ignited it with a fire bomb on April 24.

The prosecutors sought 10 years for Tamagami, while the defense asked for four years.

Six lay judges took part in deciding the sentence together with professional judges.

Under the lay judge system that was introduced in May, lay judges can be imprisoned or fined if they intentionally leak confidential information they gain during trials.

From http://search.japantimes.co.jp/mail/nn20091007a6.html

Wednesday, Oct. 7, 2009

Aum victim distressed by call to lay judge duty

By SETSUKO KAMIYA
Staff writer

A lay judge candidate who was a victim of the 1995 sarin attack in Tokyo is urging the judicial system to give candidates an opportunity to serve at a different courthouse if they have traumatic memories associated with a certain court.

Hiromi Aiba, 43, was summoned Tuesday to serve as a lay judge at the Tokyo District Court.

She was one of the thousands of people injured in the March 1995 sarin attack on the Tokyo subway system by the Aum Shinrikyo cult. Twelve people were killed.

The Tokyo District Court is located near Kasumigaseki Station, where many people were injured in the nerve gas attack. Cult guru Shoko Asahara, who masterminded the atrocity, was sentenced to death there.

Aiba was not chosen Tuesday as a lay judge or as an alternate for the trial of a 35-year-old Chinese man charged with overstaying his visa and committing a robbery resulting in injury. She was released from service by noon.

"I felt relieved, but I had mixed feelings because I also wanted to participate in this new system," Aiba said at a news conference.

A resident of Itabashi Ward, Aiba said it was the first time she had ever been in the district court. She said she had to use a JR line and a bus to get there because taking the subway to Kasumigaseki would have been too traumatic.

A law stipulates that lay judge candidates can ask to be excused from serving on a trial if it might "affect their physical or mental conditions."

She was reluctant to come to Kasumigaseki but had no choice, she said, because ignoring the summons can draw a fine.

It would have been much easier if she had been called to a different court, she said.

"There must be others who want to serve as a lay judge but don't want to have access to a particular court that gives them bad memories, like fighting out a divorce, accidents or other matters," she said.

"I believe that if people take part in trials, it will allow them to know details of the case that don't show up in news reports," Aiba said. "I felt that I wanted to serve. But not in this court."

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Japanese Law in Asia-Pacific Socio-Economic Context
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