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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.”

Lecture at U.S. Consulate General, Naha

Lecture at University of Ryukyus Graduate School of Law, Naha

Lecture at U.S. Consulate General, Sapporo

Will Saiban-in System Make Police More Accountable?

The Asahi Shimbun reported today:

TAKAOKA, Toyama Prefecture--The first hearing Wednesday in the retrial of a man wrongly imprisoned for rape showed that police and prosecutors withheld evidence proving he was innocent. The 40-year-old defendant was convicted of two counts of rape and attempted rape in 2002 and spent 25 months in prison. "I did not commit those acts," the man told the court. Demonstrating the bizarre nature of the retrial, prosecutors actually admitted they had no case and that the defendant, who wishes to remain anonymous, was innocent of the charges just as he had claimed. It was not a complete victory for the defendant, however. Satoshi Fujita, presiding judge at the Takaoka branch of the Toyama District Court, rejected a request by defense lawyers for police officers who originally questioned the man to testify in court.

Asahi Shimbun Article about my Work

Download asahi_shimbun200706201.pdf

Today, the Asahi Shimbun profiled me in its daily ひと column.

裁判員制度をサポートする米国の弁護士　ロバート・プレクトさん 　戦後初めて、ふつうの市民が裁判に加わり有罪無罪を決めるようになる日本で何が起こるか——。それを直接知りたくて、東京に居を移して１年半になる。 　ミシガン大…… (2007/06/20)