JAPAN’S NEW LAY JUDGE SYSTEM AND VOLUNTEER PROBATION

LAY JUDGES AND JURY SYSTEM IN JAPAN

In May 2004, the Act Concerning Participation of Lay Assessors in Criminal Trials was passed based on the recommendations of the Judicial Reform Council, which was instituted for a two-year period beginning July 1999. The lay judge system, in which ordinary individuals chosen from among Japan’s citizens deliberate alongside judges at designated criminal trials, went into effect on May 21, 2009. The first trial under the new system took place on August 3 at the Tokyo District Court

A hybrid lay jury system---with lay judges and professional judges working together on trials--- went into affect in Japan in May 2009 with the first cases being heard a couple months later. Japan had a jury system before but it was suspended before World War II. The plan calls for the system to be reviewed in 2012. If it doesn’t seem to be going down very well it be scrapped. The introduction of a jury system gives ordinary citizens a greater say in the running of the country and puts more pressure on the state and prosecutors to build strong cases. The system has a number of obstacles to overcome: Japanese know little about the system and are not so happy about the idea of serving jury duty.

One survey found that 70 percent of Japanese do not want to serve on a jury, regarding it as a burden and an obligation they do not want to fulfill. They are also worried about retaliations from defendants. Companies don’t like the idea of giving up their employees to the lay judge system.

The systems aims to better reflect public opinion in court, make the justice system more accessible to the public and enhance the credibility of the justice system.

A survey by the Yomiuri Shimbun in April 2009 found that 79 percent of Japanese at that times did not want to serve on a jury.

More than 600 mock trial were held with lay judges before the real things began to address doubts whether ordinary citizens can navigate through the complexities of Japanese law. Mock trails uncovered many flaws including: 1) the limited time for deliberations if the defendant pleads not guilty; 2) confusion on the issue of whether confessions were given voluntarily or coerced; and 3) difficulty understanding court terminology.

Details of Lay Judges and Jury System in Japan

The hybrid lay jury system will go into effect at Japan’s 50 district courts and 10 district court branches and will be applied to around 3,000 cases a year and tap 1 in 4,160 Japanese citizens. Under the saidban-in (“citizen judge”) system three law-school-trained judges and six citizens will work together to determine the verdict on high-profile cases or serious crimes such as murder or manslaughter.

The nine member panel is made up of three professional judges and six lay judges chosen by a lottery, along r with three reserve judges. In the United States a jury is made up of 12 lay people and no professional judges.The jury selection process begins with 50 to 100 candidates that are whittled down to the six judges and three alternates by a somewhat cumbersome selection process that dismisses about a third to half the candidates for various reasons---including illnesses, old age, handicaps and family, work and business obligations---and chose the nine from the remaining people using the lottery.

Many of the cases involve defendants who have admitted to the charges against them and the main duty of the lay judges is to help determine an appropriate sentence. Some defense lawyers have said their strategies will involve highlighting personal problems and struggles that the defendants were going through when they committed the crimes and appeal to the emotions and sympathies of the lay judges for leniency.

An efforts will be made to conduct the trials in a speedy and efficient manner. Lawyers hope to make their cases as clear and easy-to-understand as possible, perhaps using videotapes of re-enactments of the crimes, and relying as much as possible on physical CSI-style evidence. Confessions are expected to be recorded with audio and video tape. In simple cases multiple trials may be handled at the same time by the lay judges to save time.

The government is making an effort to to make sure the lay judges are comfortable by doing things like providing them with magazines to read during their breaks and giving them comfortable chairs to sit on the conference room during their deliberations. Government officials discussing the issues magazine decided that “magazines featuring pictures of bikini-clad girls might cause discomfort.” The government will provide traumatized lay judges with free counseling.

Lay Judges in the Courtroom

Most of the lay judge trials are short, around four days. Various measures are taken to make sure the lay judges understand what is going on such a using monitors to present images and replacing legalese with plain language. Both the prosecution and the defense make an effort to use easy-to-understand graphics and charts. In November 2009, a court decided that lay judges should not be shown a gruesome photo of a headless, limbless torso of a victim in a murder trial. [Source: articles from the Daily Yomiuri Shimbun]

In the courtroom the six lay judges and three professional judges sit shoulder to shoulder at the back of the room in front of small display screens, with the three alternative judges sitting behind them. The alternates sit through the trial even though they only participate if regular lay judges quit. In front of the judges is a secretary. Gallery seats are at the other end of the courtroom. Three prosecutors sit on one side backed by, if applicable, the victim’s family and their lawyer. The defendant and his lawyers sit on the other side. The witness stand is in the middle of the courtroom.

The lay judges are allowed to ask the defendant and witnesses questions; they deliberate in the same room with the professional judges; and their votes carry equal weight as the judges. Decisions are based on a majority rather than unanimous vote. Defendants can appeal their case in an appeals court presided over by a professional judge.

The prosecutors submit pieces of evidence such as physical evidence, investigation reports and expert opinions. Recesses are often called between the examinations and cross examinations of witnesses to give the lay judges time to digest what they have heard. If a lay judge can’t attend because of ailment or some other reason he or she is replaced by an alternate.

Sentencing seems to be based partly on sympathy. One judge told the Yomiuri Shimbun, the rulings “might be relatively harsh on defendants in some cases when taking into consideration the victim’s opinion, or be relatively light in other cases if the panel feels sympathy for the defendants.”

First Lay Judge Cases in Japan

The first two cases under the new lay judge system began in Tokyo and Saitama near Tokyo in early August 2008. The Tokyo case involved a 71-year-old man accused of stabbing to death of 66-year-old South Korean woman in a dispute over land. Six lay judges and three reserves were chosen for that trial. The one in Saitama involves attempted murder by a 35-year-old make of another 35-year-old male. Both men have admitted to the charges so the focus of the proceeding is the input by the lay judges of sentencing.

Of the 100 people selected to serve, letters were sent to 73 of them. The 27 others declined for various reasons such as being over 70. Those who didn’t want to participate had to provide a reason. Things like “already made summer vacation plans--- were not accepted

Among those who have struggled with the lay judge system have been defense attorneys, who lacked persuasive skills to convince a jury and were used to dealing with judges, knowledgeable of the law of the procedures, in a cut and dry manner. They also had trouble navigating through the lengthy pretrial procedures.

A survey by Japan’s Supreme Court released about 10 months after the lay judge system began found that lay judges tend to give harsher sentences than professional judges for serious crimes such as murder and rape as well as with sex crimes in general. In murder cases, for example, professional judges most commonly gave sentences of between nine and 11 years while lay judges gave sentenced between 15 and 17 years. In a survey in August and September 2010, 40 percent of 208 defense lawyers nationwide said they felt sentences were tougher---even by professional judges with no lay judges involved’since the lay judge system was introduced. Studies also have shown that lay judges tended to give out more suspended sentences than professional judges and lay judge cases are less likely to be appealed than professionally-judged cases.

Lay Judge Trials

As of the end 2009, 138 lay judge trials had been held and 142 defendants had been sentenced. The sentences given out were about 80 percent of what prosecutors demanded (say, eight year sentences were given when the prosecution asked for 10 years), which is pretty much in line with the sentences given by professional judges. As of November the judgments were accepted and no appeals were filed.

In the first lay judge trial, the 72-year-old defendant was given a 15 year sentence for killing his neighbor. Deciding guilt was relatively easy. The defendant admitted killing the victim. Much of the four day trial centered on the sentencing. The prosecution sought a 16 year sentence. The lay judges decided on a slightly lesser punishment because they determined the incident occurred “accidently” after an argument.

In the first sex crime trial---a rape and robbery committed by 22-year-old man--- the maximum sentence of 15 years was given. One of the lay judges, a 45-year-old pastor, said, “I though past sentences in sex crimes were too lenient.” The victim testified in a separate room with her identity and image hidden.

In a survey in November 2009, 97 percent of those who participated as lay judge in trials said it was a “good experience.” Examinations of lay judge behavior seemed to indicate that the lay judges were more interested in motive and the chain of events that led to a crime than they were about physical evidence and based decisions on what they saw and heard rather than past cases. Some lay judges said they were confused by the examinations and cross examinations.

Lay Judges and the Death Penalty in Japan

In Japan a simple majority of the nine member panel---three professional judges and six lay judges---is required for the death penalty. In the United States the death penalty can not be given unless there is unanimous support among the 12-member jury.

During the second year of the lay judge system, the jury faced the decisions of handing down the death penalty. In the first death penalty case in October 2010---involving the murder of an ear cleaner and her grandmother by a 42-year-old man--- the lay judges decided not to hand out a death sentence.

But in the second lay judge death penalty case, in November 2010, lay judges and professional judges sentenced to death a 32-year-old unemployed man who killed a 28-year-old mahjong owner and a 36-year-old employee to obtain money to buy stimulant drugs. One of the victims was decapitated with an electric saw. Not long after that six lay judges and three professional judges sentenced to death a minor who brutally killed two women.

In another case, a 71-year-old man charged with robbing and murdering an elderly couple at their home in Kagoshima in June 2009 was acquitted because of lack of proof. The defendant denied he committed the crime. The lay judges decided the presence of his fingerprints at the murder scene and traces of the defendant’s DNA on the metal shovel used to kill the couple was not enough to convict him. Prosecutors had sought the death penalty.

Supreme Court Support of the Lay Judge System

A Supreme court ruling in February 2012 made clear the top court strongly supported the lay judge system. The Yomiuri Shimbun reported: “The Supreme court handed down a decision to acquit a male defendant in the final appeal of a stimulant drug smuggling case. He had initially been found not guilty by a district court, but a high court reversed that on appeal and found him guilty. The defendant's official innocence is to be finalized shortly. [Source: Yomiuri Shimbun, February 15, 2012]

In handing down the decision, the Supreme Court set a standard for an appeals court's rejection of the ruling of a court of first instance. The standard is that an appeals court must detail concretely why the lower court's interpretation of the evidence is irrational, based on factors including the experience of appeals court judges. The top court also urged appeals court judges to hold this attitude even more strongly than before, now that the lay judge system has been introduced. [Ibid]

If an appeals court comprising only professional judges reverses the conclusion of lay judges and professional judges in a lower court, the significance of the system--reflecting citizens' common sense in handing down sentences--could be damaged. The latest decision gives the impression that the Supreme Court is concerned about this possibility. [Ibid]

Prosecutors had indicted the defendant on charges of smuggling about one kilogram of stimulant drugs from Malaysia, hidden in tins of chocolate. A Chiba District Court trial, involving both lay and professional judges, acquitted him because when they evaluated the defendant's statements, such as "I was just asked to bring [the tins] as a souvenir" or "I didn't know stimulant drugs were hidden in them," the judges were "unable to call them definitely unnatural.” [Ibid]

But as the defendant's confessions changed several times, the Tokyo High Court decided he must have been making up a false story each time and sentenced him to 10 years in prison plus a fine of 6 million yen, saying he had brought the tins into the country knowing stimulant drugs were in them. However, the Supreme Court has judged that the view taken in the district court findings is possible. It criticized the Tokyo High Court ruling, which totally rejected this view, as "not sufficiently demonstrating the lower court sentence was irrational.” [Ibid]

Lay Judges Hand Out More Suspended Sentences and Tougher Sentences to Sex Offenders

In May 2012, the Yomiuri Shimbun reported: “Defendants found guilty of sex-related offenses or robbery resulting in murder generally receive heavier sentences in trials involving lay judges than trials in which only professional judges are present, according to a recent Supreme Court survey. The survey, released, also found that lay judge trials were more likely to hand down suspended sentences for defendants found guilty of arson and robbery resulting in injury. Even in murder cases, including murders committed by those who killed family members they were caring for, lay judge trials handed down more suspended terms than in other trials. [Source: Yomiuri Shimbun, May 16, 2012]

The survey compared sentences handed down to 2,757 defendants by professional judges in and after April 2008, indicted before the lay judge system was introduced, with sentences meted out to 2,884 defendants in lay judge trials up to the end of March. The aim of the survey, which covered murder and seven other crimes, was to check on the differences in the severity of sentences handed down in lay judge trials and courts presided over only by professional judges. The day will mark the third anniversary of the introduction of the lay judge system. [Ibid]

The sentences handed down in lay judge trials reflect the thinking of ordinary citizens, observers said. In a lay judge trial, lay judges and one or more professional judges discuss a case. [Ibid] In sentences without suspension in trials involving cases of rape resulting in injury, professional judges generally handed down prison terms in the range of "more than three years but five years or less." In comparison, most lay judge trials would mete out sentences in the range of "more than five years but seven years or less." Lay judges also tended to give heavier sentences to defendants accused of attempted murder, infliction of injury resulting in death, sexual assault resulting in injury and robbery resulting in injury. [Ibid]

Lay judges tend to hand down heavier penalties in cases that are particularly disturbing, such as the death of an abused toddler in Osaka. The parents, who were found guilty of inflicting injuries resulting in the death, were given a 15-year prison term--1.5 times heavier than the prosecutors demanded--at the Osaka District Court in March. [Ibid]

The ratio of suspended sentences stands at 33.2 percent for lay judge trials in arson cases, and 24.3 percent in professional judge trials. In robberies resulting in injury, suspended sentences were given in 13.2 percent of lay judge trials, compared to 8.1 percent professional judge trials. The percentage of the suspended sentences in murder cases stands at 8.3 percent in lay judge trials and 4.6 percent in professional judge trials. The suspended sentences handed down in lay judge trials included such cases as the killing of defendants' family members they were looking after because the serious circumstances of the defendants were taken into consideration. [Ibid]

Japan’s Volunteer Probation System

Probation, or hogo kansatsu, which literally means "protective observation," is a system meant to give guidance with the aim of rehabilitation to adults given suspended sentences or to juvenile delinquents. Volunteer probation officers from the public and others periodically interview them and evaluate their behavior in daily life and give instructions if necessary. [Source: Takaaki Kato and Daisuke Katsui, Yomiuri Shimbun, November 25, 2012]

The system aims to rehabilitate adults and juvenile offenders while they continue to live in society. The probation office obliges those put on probation to report information such as their address and asks them to observe conditions decided according to the crimes or juvenile offenses committed. Those put on probation are often required to comply with "special conditions.” [Ibid]

The Penal Code stipulates that the court can revoke suspension of a sentence if there is malicious behavior violating special compliance conditions. The probation office first asks the prosecutors' office to revoke the suspension of a sentence. The prosecutors' office then files a request with the court.

Probation officers assist people who have been released from prison and other criminal record holders in their efforts to return to society. Although the officers are legally part-time national public servants certified by the justice minister, they receive no salary and are effectively private-sector volunteers. [Source: Yomiuri Shimbun, September 17, 2012]

Probation officers interview people released from prison on bail, young people released from juvenile facilities and people with suspended prison terms that are on probation. The officers meet with them about twice a month to help them rehabilitate. In recent years, recidivism rates have been on the rise, as have the number of suspended prison terms handed down on condition of being put on probation since the introduction of the lay judge system. To prevent released prisoners from committing crimes again, the Justice Ministry has found itself increasingly reliant on the volunteer probation officer system. [Ibid]

As of May 2012, 47,968 people were registered as volunteer probation officers, but the number has been on the decline. The shortage is especially severe in urban areas. Facing a shortage of volunteer probation officers, the Justice Ministry has set up recruiting stations staffed with experienced officers in key cities nationwide to find people capable of taking on the work. [Ibid]

Masaaki Hasumi, 70, who heads a volunteer probation officers' association in Saitama, said he solicited three acquaintances of his to serve as probation officers this year, but all three immediately refused. "My only choice is to demonstrate the rewarding feeling that comes with being a probation officer. Still, it's difficult to recruit new officers under the current situation," he said. As result of a survey that uncovered a number of situations like this the ministry decided conventional means of securing human resources for the job, such as relying on personal connections, was not sufficient. To improve the situation, the ministry decided to set up a system in which experienced probation officers will be designated as recruiters. [Ibid]

Japan had 48,664 volunteer probation officers as of early 2011. Their average age is 63.6. About 27 percent of them are housewives or jobless and 23 percent are company employees or public servants. The term of service is two years. Participants can be reappointed.

Text Sources: New York Times, Washington Post, Los Angeles Times, Daily Yomiuri, Times of London, Japan National Tourist Organization (JNTO), National Geographic, The New Yorker, Time, Newsweek, Reuters, AP, Lonely Planet Guides, Compton’s Encyclopedia and various books and other publications.

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© 2009 Jeffrey Hays

Last updated January 2013

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