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.