Foley Square

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."