Judge and Jury

Japan's new trial-by-jury system, which was officially inaugurated May 21, won't start trying defendants until later this summer. When it does happen, citizen participation will likely mean substantial changes to a legal system in which trials can meander on for years in an arcane version of the language that most ordinary Japanese can hardly understand.

And, for the Japanese, normally bloodthirsty in the abstract when it comes to murder cases, it is one thing to tell a poll-taker that you favor the death penalty. It is another to actually stare a defendant in the face and condemn him or her to hanging. That is one unpleasant duty that some Japanese will face as the country begins its revolutionary changeover to citizen participation .

Public opinion polls consistently show that about 80 percent of Japanese people favor capital punishment, and the number of executions, by hanging, has been on the rise in recent years as Japan has experienced a number of particularly heinous murders. Despite that, Japan's murder rate remains one of the lowest in the world, at .00499 per 1,000 people, compared to the US, at nearly 10 times that, or 0.42 per 1,000. Although statistics are notoriously unreliable, Colombia ranks as the most murderous country in the world, with .617 murders per 1,000 people.

Now some members of the public will take their place as "citizen judges" on the bench, sitting beside three professional judges with new powers to convict and sentence defendants in criminal trials. The start of the lay judges system is the most revolutionary change in Japanese jurisprudence since the end of the war.

Currently, both criminal cases and civil suits are adjudicated by professional judges alone, usually sitting as a tribunal of three. There is no jury system, and most trials amount to a tedious presentation of interminable and to most people incomprehensible legal dispositions. The change is designed to inject the viewpoint of ordinary citizens into the process.

Into this mix now will be added six lay judges chosen at random from voting rolls. They will sit on the bench with the three professional judges forming a tribunal of nine (not unlike the US Supreme Court). Decisions will be made by majority vote to which at least one of the professional judges must concur.

The new citizen judge system is often, but inaccurately, likened to the jury system in Anglo-American countries, but this is not entirely accurate. In common-law systems, 12 citizens sit in a separate box, ask no questions and determine guilt or innocence – and in some jurisdictions the punishment. In those cases the judge serves as a kind of impartial referee, deciding on strictly legal issues.

The irony is that Japan experimented with a judge and jury system composed of a single judge and 12 jurors from 1928 to 1943, when it was abolished because Japan didn't have the manpower to waste (all jurors were men). Surprisingly, the American occupiers, who changed much of how Japan is governed, didn't resurrect a jury system, even though they consider it fundamental to individual liberty.

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South Korea introduced its own modified jury system last year, but it more closely resembles the common-law system in that trials are composed of 12 jurors who sit separately from the judges and are allowed to determine guilt or innocence. However, in South Korea the judge can overturn the jury verdict.

It isn't expected that the first citizen judges will be empanelled before later in the summer. It means that any indictments issued after that day will be determined under the new system. Four cases have been selected, including one case of a robbery with bodily harm, an attempted arson, a purses-snatching and a 29-year-old woman accused of attempting to murder her lover. None, including the attempted murder, will likely result in death sentences, which are usually reserved the most gruesome murders.

Public opinion surveys in Japan have shown that while the public generally supports the idea of bringing ordinary citizens into the process, many are uneasy about passing judgments – and sentences - on their fellow Japanese. This is especially true if it requires imposing hanging sentences.

In officially introducing the new system, Justice Minister Eisuke Mori acknowledged this in a fairly straight-forward manner: "It is, in some sense, natural to feel reluctant to pass down the death sentence," he said. "But the social order is maintained, and I would like the lay judges to participate in the system."

The system is likely to revive interest in adding a new penalty of life imprisonment without the possibility of parole. At present, judges can choose either the death penalty or life imprisonment in which the defendant might be paroled and returned to society after 20 years or so.

Opponents of capital punishment in Japan have long argued that the life-without-parole option would provide judges, and now lay judges, who are leery of capital punishment with an "out" that does not endanger the public with the possibility of convicted murders being released. It seems likely that addition of lay judges will only encourage that movement.

Statistically it is unlikely, of course, that any average Japanese would be called upon to have to impose a death sentence on anybody. Moreover, only a minority will even be called on to serve as judges. The first notices went out in February to 295,027 people informing them that they were part of the new jury pool for 2009, but that still represents only about one person in 350. So the chances of any one person being called very remote.

Like their counterparts in common law jurisdictions, the citizen judges will be called away from their jobs to do their citizen duty. If nothing else, should speed up trials, which in Japan are notoriously lengthy. Shoko Asahara, the leader of the cult that spread sarin nerve gas throughout the Tokyo subway system in 1995, was convicted and sentenced to death following a trial that lasted nine years. the addition of ordinary workers

Given that track record, the notion that most trials with citizen jurors can be disposed of in less than one week seems ambitious, although the judiciary is confident that seven out of 10 trials can be adjudicated in three days. They expect to expedite things by disposing of the purely technical legal issues before the lay judges are actually seated.

Meanwhile, trial lawyers are brushing up on their Japanese -- ordinary Japanese, that is, not the convoluted legalese they are used to speaking when addressing the court -- in order to try to make their arguments and evidence their clear to the lay people on the tribunal.