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  • Dietmember Hosaka critical of “thought screening” in new J jury system

    Posted by arudou debito on May 31st, 2007

    Hi Blog. Excerpting an excellent article from Chris Salzberg at Global Voices Online on Japan’s upcoming jury system (from May 2009). He translates Lower House Dietmember Hosaka Nobuto‘s questioning of the Justice Minister et al regarding their proposed screening of applicant citizen jurors in the new and upcoming jury for criminal cases.

    I don’t want to cut and paste in Chris’s entire blog entry, so see it here. But I will paste below his and his partner’s translation of Hosaka’s blog entry (Japanese original here or up at the abovementioned Chris blog link).

    This is very important, since for once Japan’s judiciary is trying to open the sacerdotal system of judicial decisionmaking to more public input and scrutiny. And here they go all over again trying to screen jurors to make sure they are sympathetic towards (i.e. trusting of) the police. The police and prosecutors have enough power at their disposal to convict people (to the point of raising hackles at the UN Committee Against Torture) without proposing to stack the jury too.

    Again, it’s best written up at Chris’s blog, so also take a look at that. Arudou Debito in Sapporo

    ==============================
    (Written by Chris Salzberg and Tokita Hanako)

    …It is only against this backdrop of the chronic problem of forced confessions that Hosaka’s blog entry can really be understood. The blog entry is called “The hidden ‘trap’ of the citizen judge system: thought checking in citizen judge interviews“, and begins:

    Yesterday, in the Lower House Committee on Judicial Affairs, I questioned [the government] for 40 minutes over a legal revision of criminal proceedings to institutionalize “Participation in the Judicial Action of Crime Victims”. In exchanges between the Supreme Court and the Justice Ministry, a state of affairs was revealed in which the legal system would be swayed from its foundation by a “wide range of views from a group of citizens chosen by drawing lots”, part of the [new] citizen judge system. When a police officer is called by the prosecution to testify as a witness, it is permissible to ask the citizen judge candidates and the court of justice: “Do you have trust in the investigation of this police officer?” If you answer: “No, I do not trust this police officer”, then the prosecutor can judge that “A fair trial cannot be guaranteed” and can instigate a procedure in which, without indicating any reasons, a maximum of 4 candidates can be disqualified.

    The 6 members of the citizen judge system, acting as “representatives of the people”, under this filtering by the prosecution, becomes a group of only “well-intentioned citizens without any doubts about the police”; this in turn has a huge influence in court battles in which the prosecution argues with the defence over the “voluntariness of confessions” [extracted by the police]. The investigation has the authority to perform a “thought check” on these delegates of the citizen court system, chosen by “drawing lots”, related to issues such as their “degree of confidence in the police investigation” and their “view on the death penalty”, and, without stating any reason, can carry out a “challenge” procedure to eliminate up to 4 candidates. I am shocked that this scheme has been hidden. For the “bureaucracy”, this very convenient “well-intentioned citizen without doubts about the bureaucracy”, chosen from the entire population by drawing lots, is nothing more than a disguise under the name of “participation in the legal system”. If the three elements of the judicial community have concocted these “unacceptable questions” which could impinge on the freedom of thought and creed, we cannot ignore this. Below I have presented a tentative record [of the proceedings]. Starting next week, I will try to put the brakes on this reckless degeneration of justice. Please have a look at the exchange that took place in the Committee of Judicial Affairs, reproduced below.

    The rest of the blog entry consists of the proceedings of the Diet session, translated here in their entirety:

    Hosaka
    There was an article in yesterday’s newspaper about the finalization of the essentials of a supreme court outline relating to procedures for the court of justice’s new citizen judge system. In this article, it was explained that the citizen judges would be questioned in an oral consultation or interview. In these consultations or interviews, “investigator testimony” — i.e. in cases in which the police officer (witness) is scheduled to testify — if there is an appeal by the person concerned (prosecution), then the presiding judge can ask: “Are there any circumstances in which you would be able to trust this investigation conducted by the police and others? Or, alternatively, are there any circumstances about which you do not have particular confidence?” In cases in which the answer is “no”, no further questions are asked [of the candidate citizen judge]. In cases in which the answer is “yes”, the citizen judge is asked: “What kind of circumstances are these?” Depending on the answer to this question, if necessary, the candidate citizen judge is then asked: “Do you think you can consider the contents of the police officer’s testimony and render a fair judgement?” The citizen is assessed on the basis of the existence or nonexistence of doubts about the fairness of the trial. What is the meaning of this? We are all acutely aware of the fact that there are cases, such as the Shibushi incident, in which police investigations have gone much too far. One of these citizen judge candidates might for example say: “Police investigations sometimes do things behind closed doors, so in this sense perhaps they go too far.” What is the intention of this questioning?

    (Detective Superintendent of the Secretariat of the Supreme Court) Ogawa
    I will answer the question. In cases in which there are arrangement procedures preceding the public trial, when it becomes known either that applications are being processed for an investigator witness, or that an investigator is scheduled to appear, in cases in which the party concerned has made a request, in order to assess whether or not there is any possibility that judgement about the “confidence in the verbal testimony of the investigator witness” will be dealt with in an unfair manner, we are right now considering questions indicated by the committee member (Hosaka) so that we can use it as one reference. In a practical sense, the court makes the decision, so how things will turn out, in concrete terms, is really a judgement to be made by the court.

    Hosaka
    I am asking this question to the Detective Superintendent of the Justice Ministry. In cases such as you just mentioned, in which the investigator appears as a witness, probably a confession has been made. However, what about cases in which, after the [confession], the person switches their position and issues a denial, and raises doubts about the voluntariness of the “recorded confession”? I believe that there are many cases of this kind. The court is asking questions: “Do you have trust in the investigation of the police officer?” If a candidate answers in an interview: “I have no trust at all. I think that it is strange, all these things going on behind closed doors recently,” then the investigator is able to challenge the candidacy of the citizen judge. Could this be a reason for disqualification?

    (Someone from the ruling party [LDP] exclaims:
    They can do that? Hosaka’s explanation to this ruling party member: “Yes, they can issue challenges. Without giving a reason, they can disqualify up to 4 candidates. How will the prosecution judge people who have doubts in their mind about the police officer?”)

    (Detective Superintendent of the Secretariat of the Supreme Court) Ogawa
    On the question of under what circumstances an investigator can, without indicating any reason, challenge [the candidacy of a citizen judge], we really haven’t done any concrete investigation on this. I think it is up to the judgement of the investigator in each individual case.

    Hosaka
    I request that the Minister of Justice share his thoughts on this. The citizen judges are chosen by drawing lots. From a list of registered voters in the Lower House elections. However, in this process, in cases in which [the candidate citizen judge] says: “I have a bit of trouble placing my trust in this police investigation”, the prosecution can declare that “We challenge [the candidacy of] this citizen judge”. The citizen judge may then be excluded. ……if citizen judges become the object of such challenges, I wonder if we can really say that this is a system which draws on an even distribution of representative views of people from the entire country? I am extremely concerned. What do you think about this situation?

    Justice Minister Nagase
    I remember that there were various views expressed when the citizen court system was being set up. “If this is in there, then won’t everybody be judged innocent?”, “No, everyone will be sentenced , right?”, I remember that there were arguments like this. The concerns that you are expressing now are I believe related to those earlier arguments. However, in the three branches of government, in an appropriate manner, we are working toward a citizen judge system that reflects the good sense of the average citizen, not some kind of legal debate in which people quibble over every insignificant detail.

    Hosaka
    My intention is not to quibble over every insignificant detail. What we have to debate about, in a broader sense, is the participation, in the court of justice, of the “victim” within the citizen judge system. As we now understand the meaning of the “challenge” [of candidates], I want to have a thorough debate on this issue.
    ENDS

    One Response to “Dietmember Hosaka critical of “thought screening” in new J jury system”

    1. Christopher Cramer Says:

      Does the defense get to challenge potential jurors? In the American system, both the defense and the prosecution get to reject a certain number of jurors, for essentially any reason they want (the judge can disqualify as many as they want, but they need a good reason). I think it is a reasonable system.

      –YES, BOTH THE PROSECUTION AND THE DEFENSE HAVE THE RIGHT TO CHALLENGE POTENTIAL JURORS. BUT THE “GOOD REASON” APPLIED HERE IS ESSENTIALLY SOMETHING THAT SHOWS A BIAS AGAINST THE DEFENDANT. NOT “AGAINST THE POLICE”. NOT THE SAME STANDARD OR AIM.

      AND AGAIN, POTENTIALLY STACKING THE JURY WITH PEOPLE PLEASANTLY PREDISPOSED TOWARDS THE POLICE IS GOING TO ENSURE THAT THE POLICE NEVER HAVE TO GO ON TRIAL. I’LL HAVE A COURT CASE UP PRESENTLY ABOUT HOW FAR THE JUDICIARY IS WILLING TO GO ALREADY TO LET THE POLICE OFF THE HOOK: EVEN WHEN THE POLICE DENY SUFFICIENT MEDICAL TREATMENT TO PEOPLE IN THEIR CUSTODY AND THEY END UP CRIPPLED.–ARUDOU DEBITO

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