Foley Square

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.

A Resource for Picking Impartial Saiban-in

Japanese lawyers and judges frequently ask me how, precisely, do American lawyers pick impartial jurors? An excellent resource is Deliberations, written by Anne Reed, a trial lawyer and jury consultant in Milwaukee, Wisconsin. The website includes a library of sample juror questionnaires. These questionnaires have good ideas for the kinds of questions that should be asked saiban-in candidates.

BBC Radio Interview

BBC radio today aired a riveting program about the state of criminal justice in Japan. The story centers on interviews with individuals who were pressured by the police to give false confessions and considers what effect the saiban-in system might have in ameliorating some of these problems.

Kyoto Bar Association

Tonight, I spoke to a group of defense lawyers at the Kyoto Bar Association. Two points seemed to resonate with the audience. I was asked what I thought of the saiban-in system. I said I realized it was a compromise, that it was not the pure jury system many reformers wanted, but that it was a step in the right direction. Many people think that Japanese citizens won't speak up in front of the professional judges, but defense lawyers can help educate the lay members of the saiban-in panel and appeal to them directly. Lawyers can ask the citizens to pay attention to particular pieces of evidence, and lawyers can give the citizens clear choices to make in deliberations. If lawyers do that, it will be difficult for the professional judges to tell the citizens to ignore defense arguments. In a very real sense, it is the responsibility of defense lawyers to give citizens opinions and to empower them to express the opinions.

The second point that struck a responsive chord was the need for defense lawyers to humanize their clients. This is a particular challenge in Japanese courtrooms because the defendant is required to sit apart from his lawyer and he is flanked by two armed guards. This sends a message to everyone in the courtroom that the defendant is dangerous. Just as American defense lawyers must make efforts to show the jury that the defendant -- that noxious label -- is a human being with human feelings and human dignity, Japanese lawyers must do the same. American lawyers humanize their clients by sitting next to them, speaking to them, and shaking hands with them, and by other body language. There are clear cultural differences between Japan and the U.S. and not all American techniques will work in Japan, but the goal should be the same. The person on trial is not a thing, not a creature with a label, but a living and breathing human being entitled to a fair and impartial consideration of his case.

By the way, I didn't learn until I arrived in Kyoto that the city is the location of Rashomon. In Rashomon, the great film director Kurosawa takes a shocking crime and then sows doubts in the viewer. A bandit attacks couple a couple in the woods, killing the husband and raping the wife. Four characters in the film present their viewpoints of the crime, but the viewpoints clash. Who is telling the truth? The viewer is left with doubts as to who the real culprit is. Through effective storytelling, the director shows the elusiveness of truth and forces the viewer to consider alternative versions of reality. This is the role of defense lawyers in criminal trials.

Japan preps its citizens for a new role: jurors | csmonitor.com

Link: Japan preps its citizens for a new role: jurors | csmonitor.com.

The reforms are part of an effort to increase transparency and efficiency within the justice system, which now convicts more than 99 percent of those who face trial. The US conviction rate, by comparison, is 89 percent. "I think there's been a recognition in Japan that the current system … not only may be producing wrongful convictions, but that it's cumbersome, in the sense that lots of trials under the current system last for years," says Robert Precht, a defense lawyer and co-director of the Juries and Democracy Program at the Maureen & Mike Mansfield Center at the University of Montana. Mr. Precht informally advises Japanese defense lawyers and judges on Western courtroom conventions. Japanese policymakers say one goal of the reforms will be to wrap up trials in a few days or weeks. While some Japanese analysts credit the country's near-perfect conviction rate to court officials' practice of only prosecuting cases that have compelling evidence, Precht says many Japanese legal authorities say that their conviction rate is too high. "Japanese regard the government as okami," says Precht. "They're 'higher-ups', and [Japanese] don't question them. To Japan's credit, the authorities realize that's not always a healthy attitude. Citizens need to be involved in observing how the government works."