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."

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.

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."

Japanese Learn Dreaded Task of Jury Duty, The New York Times by Norimitsu Onishi

 

Ko Sasaki for The New York Times

Members of a theater group, in Hitachiota, Japan, performed "12 Angry Men" to help prepare residents for jury duty, which will start in 2009. NAGANO, Japan — The two-day mock trial resembled, more often than not, a college seminar with the three judges acting as professors and the six jurors as freshmen. Sitting stiffly around an oval table, they were deliberating whether the defendant had intended to kill a taxi driver in a botched robbery.

Japan is preparing to adopt a jury-style system in its courts in 2009, the most significant change in its criminal justice system since the postwar American occupation. But for it to work, the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority.

To win over a skeptical public, Japan’s courts have held some 500 mock trials across the country, including six here in Nagano, the site of the 1998 Winter Olympics. Still, polls show that 80 percent are dreading the change and do not want to serve as jurors, a reluctance that was on display among the mock jurors here.

They preferred directing questions to the judges. They never engaged one another in discussion. Their opinions had to be extracted by the judges and were often hedged by the Japanese language’s rich ambiguity. When a silence stretched out and a judge prepared to call upon a juror, the room tensed up as if the jurors were students who had not done the reading.

“I think there is also the matter of how much he has repented,” one of the judges said. “Has he genuinely, deeply repented, or has the defendant repented in his own way? What’s the degree? I mean, some could even say that he hasn’t repented at all.”

Hoping for some response, the judge waited 14 seconds, then said, “What does everybody think?”

Nine seconds passed. “Doesn’t anyone have any opinions?”

After six more seconds, one woman questioned whether repentance should lead to a reduced sentence. “The way the defendant expresses himself and such, it could be viewed as someone who’s not good at it,” she said. “So there’s no way for us to know what is the degree of repentance from how he has repented in his own way.”

After it was all over, only a single juror said he wanted to serve on a real trial. The others said even the mock trial had left them stressed and overwhelmed. Under the proposed system, randomly chosen citizens will sit on the bench next to judges, decide cases together and hand out sentences. Supporters predict that the direct involvement of ordinary citizens in the judicial process will have far-reaching consequences for Japan’s democracy.

Robert E. Precht, an American defense lawyer and a co-director of the juries and democracy program at the Maureen and Mike Mansfield Center of the University of Montana, has been giving talks on the American jury system in meetings with judges, prosecutors, defense lawyers and ordinary citizens. Changing the attitudes of a public used to being passively governed was proving the greatest challenge, he said.

“D-Day is going to happen in May 2009, and I think people are seriously going to start panicking next year, as citizens actually face the very real possibility of being summoned, and then have to go into this very strange environment, speak in front of authority figures and actually be questioned about their own opinions,” Mr. Precht said. “And I’m concerned that’s going to freak people out.”