Foley Square

Citizens to Citizens

Japan is starting a jury system in 2009, but polls show that the prospect of jury service intimidates many Japanese; other polls show that 80 percent of them don't want to be on juries. I hosted a program in Tokyo recently in which two Americans -- Michelle Arnot of New York and Judith Farrar of California -- shared their jury experiences with Japanese college students. In this excerpt the former jurors answer a student's question about how they would feel if they were called upon to judge a person accused of mass murder. A second student expresses his strong dissatisfaction with a Japanese law that will forbid citizens from discussing the deliberation process after the case is over.

Article on Trial Techniques for Japanese Lawyers

In November I gave a lecture to the the Daini Tokyo Bar Association concerning American trial techniques. Lawyer and law professor Satoru Shinomiya adapted the lecture for publicaton. It appears in this month's Niben Frontier and can be found here:

Download NibenArticle.pdf .

Good question

During the Q & A at Toyo University's conference on managing saiban-in stress a Japanese audience member raised an interesting point: "If the purpose of a jury system is to protect citizens from the government, isn't it a little strange that the government is being asked to promote it? Why aren't there more grassroots organizations promoting the saiban-in system?"

First Thing We Do, Let's Get Some More Lawyers

The Asahi Shimbun today condemned efforts by some local bar associations to cancel a government plan to increase the number of lawyers in Japan.

The question that must be asked here is whether the serious problem of areas without enough lawyers has been fixed. Each district under the jurisdiction of a court needs at least two attorneys because both the plaintiff and the defendant need legal counsel. Of the 203 districts under the jurisdiction of a local branch of a district court, however, three have no practicing lawyer at all, and 21 have only one. In 2006, the Japan Legal Support Center known as Houterasu was created as part of the judicial reform to offer legal counsel to citizens across the nation. But the organization has so far secured only one-third of the 300 lawyers it needs to provide the services it is supposed to offer. In spring next year, a new saiban-in citizen judge system will be launched for citizen participation in the judicial process. Court hearings will be held day after day under the system to shorten trials. A shortage of lawyers would be clear.

Buddhism and Justice in Japan

Sensoji Temple, originally uploaded by robertprecht.

In the spare lobby of the Supreme Court of Japan, an American lawyer notices a small statue. He draws near, sees the form holding what appears to be scales, and  feels certain that it is a statue of the familiar Lady Justice that graces so many courthouses in the U.S. But he is wrong. It is a statue of the Buddha, and the expression on the face is one of serenity.

Hamada Kunio, a former Justice of the Supreme Court of Japan, recently delivered a paper about the rule of law in his country. He had this to say about the role of Buddhism: 

In Japanese, the term “law” is “ho-ritsu”. The term “ho” came from a Buddhism term dharma (damma in plural), meaning teachings (not necessarily commands) of Buddha, and “ritsu” from vinaya, meaning regulations for groups of Buddhism followers to comply with in their daily lives in their groups. In my view, Buddhism, which has been accepted in Japan for more than fourteen hundred years, is [the] least aggressive religion or teaching. It is kind to humans, other beings and the environment as well. Traditionally, there are said to be eight million (8,000,000) gods in Japan. Believers in monotheism (meaning a religion which holds that there is one and only supreme God in the world) represent a very small percentage of the nation. These traditions in Japan permit Japanese people to pursue quite flexible spiritual as well as secular lives. This may help explain the Japanese tendency for flexible (or convenient) interpretation of rules to fit the prevailing conditions rather than trying to comply with rules rigidly or otherwise changing rules immediately if it is not possible for many to comply with them.

For me it will be very interesting to see how these principles play out in the saiban-in system.

Bengoshi create opening statements

Lawyers in Fukuoka work in teams to create opening statements.

Fig leaf?

Today in Osaka I conducted a round-table discussion with a small group of distinguished legal professional composed of a judge, a prosecutor, a defense lawyer, and three scholars. Two students also attended.

To begin I described my trips throughout Japan and my audiences’ comments about the saiban-in system. Then as a group we discussed this issue: The Japanese government will evaluate the saiban-in system three years after implementation. What are the evaluation criteria for judging the effectiveness of the saiban-in system?

There was a very spirited debate. An experienced scholar started off. “There is a simple measurement -- whether the new system will decrease the current conviction rate which is 99.9%”

The prosecutor responded good-naturedly, “well, I certainly hope that figure does not change under the new system. The reason the conviction rate is so high is that we bring to trial only cases in which there is a very high probability of conviction. In America, by contrast, prosecutors bring cases to trial even when there’s only a probability of conviction.”

The defense lawyer was hopeful that the saiban-in system would reduce the conviction rate, but for that to happen defense lawyers would have to improve their trial advocacy skills. “We need to learn from American energy, research, and experience.”

A second scholar raised a more fundamental question about the saiban-in system “Isn’t this all just a façade to enhance the authority of judges through the fig leaf of civic participation? The law forbids saiban-in from disclosing deliberations, so judges can dominate citizens with impunity.”

The judge responded calmly, “Actually, the new system will reduce the power of judges. Citizens will now have the opportunity to see how we work. They can participate. Hopefully they will gain trust.”

A third scholar had more modest goals for the saiban-in system. “Even if the citizens do no more than come to court and willing serve as saiban-in, I think that's a positive step. They will be playing a brand new role. Maybe over time they will become comfortable with this role and start speaking up. Besides, even in Japan, there are outspoken peoples, and some of these people are bound to serve on saiban-in panels.”

“In America,” the first scholar observed, “there is a clear divide between the role of the judge and the role of the jury. The judge instructs the jury on the law, but it is the jury, and only the jury, that decides the facts. I am very uncomfortable with the saiban-in system because it seems to confuse the roles of the judges and the citizens and creates a process that values coordination and cooperation. Coordination and cooperation will harm the deliberation process and rob the saiban-in of their independence. I hope the saiban-in system will evolve into a system that more closely resembles the American model.”

Students give opinions

This afternoon I presented a lecture to a group of 30 University of Ryukyus undergraduates entitled "How Americans Cope with Jury Duty: Possible Lessons for Japanese." In the audience were two members of the U.S. diplomatic corps who kindly agreed to participate: a former juror and a former prosecutor. Following my lecture I asked the students to describe their feelings as they face the prospect of becoming saiban-in. One student doubted his ability to deal with the responsibility of judging another person fairly, especially since he was not legally trained. The American former juror made the point that expertise is not required to know right from wrong. Another student was clearly appalled by the prospect of having to judge serious violent offenses. A third student said he would feel overwhelming pressure to just follow what the professional judges told him and the other saiban-in about how to vote. The former prosecutor made the point that in the American system, jurors are autonomous from the judge. While the Japanese system is obviously different in this regard, she urged the students, should they ever be called to serve, to exercise independent judgment -- after all, it's their independent judgment that can help prevent false convictions. To my surprise two students voiced excitement about the new system. "It will be interesting to be in a courtroom and play a new role. I am looking forward to serving!"

". . . bias, race, language"

About 25 lawyers in Fukuoka participated in a training workshop I conducted about effective opening statements. I devised a sample fact pattern in which foreigners were accused by two Japanese women of raping them. The lawyers divided up into four groups and worked for 30 minutes coming up with opening statements. Then lawyers from each group presented them. I was incredibly impressed. The lawyers created compelling stories and suggested why the men may have been falsely accused and the resulting confession unreliable. As one lawyer said, "This is not a case about rape. This is a case about bias, race, and language."

Debating the value of opening statements

Today I gave a lecture before the combined Tokyo Bar Associations in Kasumigaseki. The lawyers were particularly interested in the theory and practice of opening statements. I presented my experiences during the World Trade Center bombing trial. There was an abundant amount of physical evidence tying the defendant to the plot and it was my challenge to develop a theory of innocence and convey that to the jury in my opening statement. I urged the view that lawyers should try to present an alternative view of the evidence to the saiban-in, rather than relying on reasonable doubt arguments. At least one lawyer seemed skeptical of this view: "how do you give a B story without knowing what the evidence will be at trial?" I answered that Japanese lawyers will have a more complete picture of the evidence before trial than American lawyers do, owing to Japan's more liberal discovery rules, and so they can plan ahead and will have the tools to create compelling opening statements. To be sure, not all cases lend themselves to creating opening statements that present a competing view of the evidence, but I believe most do. Since most people leap to conclusions and then look for evidence to confirm their early conclusions, it's particularly important for defense lawyers to counter the government's detailed portrait of guilt with an alternative view, much like the great director Kurosawa did in Rashomon.

Three Good Questions

During the Q&A after my lecture at the Roppongi Bar Association, an organization of primarily foreign attorneys working in Japan, a participant voiced doubts about the capacity of the country to accept popular participation in the judicial system. “Japan has no history of civil rights – the idea that people have rights they can assert against the government. Japan’s not ready. Don’t we have to change the country’s mindset first so that rights are respected before trying to introduce a jury system?” The questioner has a point, but I still believe the saiban-in system is a step in the right direction. Japanese citizens will soon be asked to express their opinions in front of government employees. That’s revolutionary. Even if they are reluctant at first to express their opinions, over time they may become used to the idea. Also, the trial process itself is bound to change, with much greater reliance on live, in-court testimony. Police will be more accountable. Underlying my response is the assumption that all other things equal, societies are healthier if citizens express their opinions. Is that just my Western bias?

Another questioner asked if I thought the new system would result in a change in the conviction rate. Currently, 99.9% of those who go to trial are convicted. I opined that those that expect the new system to moderate the conviction rate may be disappointed. But the person’s question raises a bigger issue. What are the evaluation criteria for measuring the success of the saiban-in system, or the U.S. jury system for that matter? Do jury system’s result in more accurate adjudications? Scholars say no. Then what’s the value of jury systems? I would say their value is in getting citizens to participate in government, exposing them to the way police work, and forcing them to take responsibility for government actions.

A third participant noted that Japan’s saiban-in system will differ in important ways from the U.S. jury system. The term “saiban-in” means lay judges, not jurors. Saiban-in will serve alongside professional judges and will be expected to participate during the trial testimony like judges. Moreover, deliberations will be different. Verdicts will be by majority vote. Given these differences, the audience member asked, how is U.S. experience relevant to Japan? I can't say, but based on my talks around the country with Japanese lawyers and judges there is a tremendous hunger for information about how U.S. lawyers present cases clearly to lay people and how U.S. judges explain legal principles clearly to citizens.