Japanese jurist reports on success of new trial system using lay judges

Lay judges, selected from the public, have been participating in trial proceedings in Japan for serious criminal matters, including death-penalty cases, since May 2009, and assessment of the new system shows it to be successful, according to Japanese Judge Mitsuaki Watanabe.  It is the first time in history, aside from a brief period before World War II, that a type of jury system has been used in Japan.

Watanabe recently presented a lecture at Wayne State University Law School summarizing the first three years of the system. Watanabe has been in Detroit since June as part of a special arrangement by Wayne Law, the Third Circuit Court of Michigan, and the Supreme Court of Japan. The arrangement provides for a judge from the Japanese judicial system to visit Michigan to research and study the American judicial system, with a special emphasis on Michigan trial courts.

Watanabe has participated in Japanese cases as a professional judge working alongside the lay judges. Under the new Japanese judicial system, most trial panels for serious criminal cases — including homicide, robbery causing death or injury and arson of an occupied building — comprise three professional judges and six lay judges.

 Some similarities between the American and Japanese criminal trial systems are obvious — lay judges (called saiban-in) in Japan, like American jurors, are selected randomly from the electorate and are sent notices to appear — but differences exist, too, he said.

For instance, potential lay judges in Japan are asked personal questions and also about their views on various matters, depending on the subject matter of the upcoming case, much like potential American jurors. But in Japan, the questioning is done in private and is not open to the public, and even then, some people object to the questions as an invasion of their privacy.
“For me, jury selection in the United States is very interesting,” Watanabe said.

Another major difference is that the lay judges, working with the professional judges on the panel, determine not only guilt or innocence, but sentencing, as well. No sentencing guidelines are in place in Japan, but the panels “sometimes refer to prior cases,” Watanabe said. A majority vote of the saiban-in, with the concurrence of at least one professional judge, is enough for a guilty verdict.

So far, nearly 4,200 criminal cases have now been decided and sentenced using the new system in Japan, including 14 death-penalty cases. The lay jurors give their opinions on a case before the professional judges “so they won’t be swayed,” Watanabe said. And deliberation time is limited.

The new system has been “reviewed positively by citizens who served,” he said. Yet some members of the public still object to the new way, which they view as an imposition.

Documents in a case are read to the lay judges at the start of a trial, and that can take many hours, he said. After observing American trials, he said he may suggest that Japanese cases have law enforcement officers testify in person rather than having their findings read aloud, to help the lay judges stay engaged and find the proceedings easier to understand.
But all in all, Watanabe said, the new system in Japan is a success. The lay judges sometimes have raised points during trials that have helped him and other professional judges deliberate, he said.

“I think, as a whole, the saiban-in system is going better than predicted,” the Japanese judge said. “I think the system is good for judges, too.”

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