Foley Square

Hyogo Bar Association, Kobe

My talk, "Effective Trial Techniques in front of Lay Citizens: Suggestions for Japanese Lawyers" was designed to acquaint Japanese lawyers with some of the trial techniques American lawyers use in the courtroom. With the advent of the saiban-in system, trial practice will radically change in Japan. Currently, most trials are conducted on the basis of written records. Lawyers submit written reports to the three-judge panel, and the panel renders a decision, often after several years. The saiban-in system will require concentrated trials, conducted through live testimony. Japanese lawyer must learn a new skills-set: how to present live testimony and persuade ordinary citizens. One of the questions from the lawyers was what's the difference between opening statements and summations in terms of the strategy. It's a good question, and I hadn't really thought about it. I said that opening was like a table of contents -- what you expect the evidence to show. The summation is the argument based on what the evidence has been. I said it should resemble a Kabuki drama.

College Women's Association of Japan, Tokyo

I presented a luncheon talk to this well respected organization describing the saiban-in system, and using examples from the World Trade Center bombing trial to illustrate how trial practice will change in Japan with the new system. During the spirited Q & A, a foreign woman said that the saiban-in system would never work in the country "because Japanese don't have opinions." As the meeting broke up, a young Japanese woman came up to the foreign woman and said "I'm shocked you said that!"

A lively discussion in Nagoya

I gave a talk today to a group of lawyers at the Aichi Bar Association in Nagoya about the American jury system and possible lessons Japan could learn from our experience. We had about an hour of questions and answers after my presentation, and the range of comments was striking. Some of the lawyers seemed modestly optimistic about the new saiban-in system because, at the very least, it will bring enhanced transparency to judicial proceedings and may help curb the worst excesses of the police. But others were were more skeptical. One lawyer predicted that Japanese citizens serving as saiban-in would impose harsh sentences and that the new system will result in more severe penalties than the present system. He seemed to believe that, on balance, the new system was not good for Japan. Anyway, it was a very stimulating discussion. 

The Aichi lawyers did seem to agree on one point: The key to the success of the new system will be the willingness of the Japanese citizens to question the government's evidence, including confessions. And everyone seemed to agree that defense lawyers must learn a new set of trial advocacy skills to help citizens perform this task.

Forced confessions in Japan

In response to Professor Makato Ibusuki Asahi Shimbun op-ed proposing measures to curb the use of forced confessions in Japan, jury scholar Hiroshi Fukurai wrote me:

There will be a fifth way to prevent the use of forced confessions in criminal court, that is, to establish the effective system of lay participation in legal decision making, i.e., I am talking about Japan's new saiban-in system.  Based on surveys from Japan's grand jurors (i.e., prosecutorial review commission members, whose duty is to review and assess the appropriateness of prosecutors' non-indictment decision) and Dallas residents who  served in jury trials, I found that, when defendants dispute "confession" documents in open courts, more than 90% of those citizens showed a strong interest in knowing how confessions are made and recorded, and more than 70% of them also said that they are more likely to believe the defendants' arguments that confessions were forced rather than prosecutorial evidence.

The extent of judges' influence on lay judges is still unknown, however, it is clear that lay judges are more likely than professional judges to question the voluntariness or believability of "confessions" made by defendants.  As survey findings indicate, they are also more likely to believe defendants' testimony over written confession records.