DEBITO.ORG
Arudou Debito/Dave Aldwinckle's Home Page

New ebooks by ARUDOU Debito

  • Book IN APPROPRIATE: A novel of culture, kidnapping, and revenge in modern Japan
  • Yomiuri: New “lay judges” in J judiciary strict about demanding evidence from prosecutors, give ‘benefit of doubt’. Well, fancy that.

    Posted by Dr. ARUDOU, Debito on July 26th, 2010

    Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
    UPDATES ON TWITTER: arudoudebito
    DEBITO.ORG PODCASTS now on iTunes, subscribe free

    Hi Blog.  Here’s an article (I can’t find in Japanese) regarding what’s happening in Japan’s “Lay Judge” system (i.e. generally bringing six common folk to sit on Japanese juries as “saiban’in”, with three other real judges offering “legal guidance”, as in, keeping an eye on them).  Well, guess what, we have “Runaway Juries”, by Japanese standards!  They’re getting in the way of the public prosecutor (who gets his or her way in convicting more than 99.9% of cases brought to Japanese criminal court) and offering acquittals!  Well, how outrageous!  Given what I know about the Japanese police and how they arrest and detain suspects (particularly if they are existing while foreign), I doubt they are right 99.9% of the time.  And it looks like some of the saiban’in would agree.  But here’s a lament by the Yomiuri about how those darn lay judges (how belittling; why aren’t they just “jurists”?) are getting in the way.  Good.  Raise the standard for burden of proof.  Arudou Debito in Sapporo

    ///////////////////////////////////////////////////////////////

    Lay judges strict about ‘benefit of doubt’
    Mariko Sakai, Takashi Maemura and Mayumi Oshige / Yomiuri Shimbun Staff Writers
    Yomiuri Jul. 21, 2010, Courtesy of TTB

    http://www.yomiuri.co.jp/dy/national/20100721TDY03T04.htm

    Three complete or partial acquittals were handed down in lay-judge trials in June and July, in which the principle of giving the benefit of the doubt to defendants in criminal trials was strictly applied. As a result, some prosecutors believe it is becoming harder and harder to persuade lay judges that defendants are guilty.

    There have been about 620 rulings rendered in trials involving lay judges since the launch of the system in May last year. Most were guilty rulings, as the facts of the cases were not in dispute. However, June and July saw sentences of not guilty in trials at the Tachikawa branch of the Tokyo District Court, Chiba District Court and Tokyo District Court.

    Prosecutors have already appealed the sentence in the Chiba District Court case, in which the defendant was indicted on suspicion of smuggling stimulant drugs in three chocolate cans from Malaysia to Narita Airport in Chiba Prefecture.

    This is the first appeal to be filed involving a lay judge trial.

    In a case of arson, trespassing and theft tried at the Tokyo District Court, the prosecution has decided to appeal the ruling to a high court. The defendant was sentenced to 18 months in prison for trespassing and theft but acquitted of arson.

    In both of these cases, prosecutors did not have confessions from the defendants or strong material evidence, and thus tried to prove the defendants’ guilt with circumstantial evidence.

    ===

    Perception gap

    According to lawyer Koshi Murakami, a former division chief of the Tokyo High Court, the sentences of not guilty were handed down in these cases due to professional judges and lay judges’ different understanding of proof beyond a reasonable doubt, the standard for deciding whether a defendant is guilty.

    “Even if they doubt a piece of circumstantial evidence, professional judges decide whether a defendant is guilty after a comprehensive review of other pieces of evidence,” Murakami said. “However, lay judges may consider a not guilty decision if they are suspicious of even one piece of evidence.”

    The ruling in the Tokyo District Court case says there is a strong possibility the defendant committed the arson. However, a great deal of weight was given to the fact that there was a window of about five hours and 20 minutes in which the fire could have been set to the victim’s residence, and therefore it cannot be denied that a third person could have committed that crime.

    In the smuggling case at the Chiba District Court, the ruling says, “The court acknowledges as a fact that the defendant thought the cans he received in Malaysia might have contained drugs.”

    However, it also says, “It is going too far to say that he must have known the actual content of the cans,” focusing on the fact that the defendant agreed to a customs official’s demand for an X-ray inspection of the cans, among other things.

    Given this tendency, a senior prosecution official said, “Prosecutors need to not only explain each piece of evidence at trials, but also persuade lay judges to decide guilty or not guilty based on the whole picture of material and circumstantial evidence.”

    ===

    Selection of evidence

    These three not-guilty rulings have senior prosecutors increasingly worried that the bar for achieving convictions in lay judge trials has been raised, according to a senior prosecution official.

    The Supreme Public Prosecutors Office has begun studying what points lay judges consider important, and certain issues have already come to light.

    In the Tachikawa case, which involved fraud and robbery resulting in injuries, the defendant was indicted on suspicion of robbing three women with a friend on separate occasions, injuring one woman seriously and buying a bracelet with a credit card they stole. He was convicted of the robberies, but acquitted of the fraud.

    During the trial, the prosecution did not submit as evidence a security video that recorded conversations between a shop clerk and the defendant and his accomplice.

    The prosecution decided it was unnecessary to submit the videotape and did not preserve it because of the consistent statements given by the defendant, the accomplice and the clerk in the course of the investigation.

    However, one of the trial’s lay judges criticized the prosecution for its choice.

    “I felt the prosecution was overly optimistic not submitting the security video record, which is very objective evidence,” said company employee Nanako Sugawara, 62.

    “From now on, objective pieces of evidence such as video tapes must be preserved until all hearings related to a case are finished,” a senior official at the Tokyo District Public Prosecutors Office said, reflecting on the trial. “We have to improve our investigation methods so that we can prove our allegations regardless of who is chosen as lay judges.”

    A man who was a lay judge at the Chiba District Court case had some advice for the prosecution.

    “I felt the reward of 300,000 yen [the defendant was promised for transporting the drugs] was rather small. Prosecutors should have explained more about the standard rewards for drug mules,” he said.

    A veteran judge said: “Prosecutors are choosing evidence based on standards like those they used for trials handled only by professional judges. They should reexamine their methods so they don’t overlook evidence that would particularly appeal to lay judges.”
    ENDS

    11 Responses to “Yomiuri: New “lay judges” in J judiciary strict about demanding evidence from prosecutors, give ‘benefit of doubt’. Well, fancy that.”

    1. Tatsumaki Says:

      “Prosecutors have already appealed the sentence in the Chiba District Court case, in which the defendant was indicted on suspicion of smuggling stimulant drugs in three chocolate cans from Malaysia to Narita Airport in Chiba Prefecture.”

      “In a case of arson, trespassing and theft tried at the Tokyo District Court, the prosecution has decided to appeal the ruling to a high court.”

      Prosecutors can appeal a non-guilty verdict? Scary, I took double jeopardy protection for granted.

      Do lay judges handle the appeals, too? If not, Yomiuri might as well start writing the next article about the appeals courts “correcting” the lay judge verdicts.

    2. Tony D Says:

      “From now on, objective pieces of evidence such as video tapes must be preserved until all hearings related to a case are finished,” … “We have to improve our investigation methods so that we can prove our allegations regardless of who is chosen as lay judges.”

      Oh no, the prosecution will have to preserve evidence and ensure the lay judges can be sure of a full picture of the crime?! That’s crazy talk! The justice system has gone mad!!! (I don’t suppose there are any foreigners in the lay judge system they can blame? “cultural misunderstanding” or the like?)

    3. jim Says:

      the prosecutors in japan have had far to much power for far too long. now all of a sudden they have to finally work for there pay and they seem lost in the process. another scary thing is even if the judge grants bail the prosecutor has the power to appeal the granted bail and they normally do it if a NJ is involoved in a crime. then the judge will just revoke the bail that he previously granted. and another thing thats crazy is a prosecutor can even appeal a suspended sentence.

      – More to the point, as a friend put it on Facebook this afternoon, “If only lay judges had the same expertise as professional judges they wouldn’t apply the presumption of innocence incorrectly, seems to be the tone…”

    4. Rachel Says:

      “Even if they doubt a piece of circumstantial evidence, professional judges decide whether a defendant is guilty after a comprehensive review of other pieces of evidence,” Murakami said. “However, lay judges may consider a not guilty decision if they are suspicious of even one piece of evidence.”

      I doubt this is the case. Circumstantial evidence is flimsy and unreliable when there’s little to no objective evidence to back it up. Prosecution withholding or even destroying (not preserving) evidence on the assumption that lay judges will just parrot whatever they’re told strikes me as both unprofessional and arrogant. Providing lay judges with background information even when it doesn’t relate to the case directly is crucial, too.

      The lay judge system overall seems like a step in the right direction, though. Maybe these guys can finally breathe some new life into a system that’s long-since been left (more or less) unchecked.

    5. john k Says:

      Not surprising when all the judges and prosecutors attend the same law schools and they can include or exclude eveidence on a whim. Whereas defence cannot. Defence has no such “power”…one sided, bias….you betchya.

      Nice too see the “beyond reasonable doubt” finally coming into play…maybe programs like CSI, Inspector Morse, Bones, Frost, NCIS etc etc have woken the sleeping giants is what this actually means?

    6. MD Says:

      Debito, do you know whether people who are detained by police in Japan have a higher probability of being indicted compared to other nations?

      The 99.9% conviction rate might mean that some people who are being interrogated by the cops are let go if they manage to resist signing a confession or otherwise if they don’t believe they have what it takes to get a secure conviction.

      I’m asking because when I saw the film “soredemo boku wa yattenai” I had the impression that the reason the boy’s case was prosecuted was because the police managed to get him to sign the confession so they knew they had him, otherwise they would have let him go. If that’s true then it really seems that whether or not you’re actually guilty is completely irrelevant, and that’s a scary thought.

    7. Mark in Kanto Says:

      A little aside.

      Yesterday’s NHK FM news (7:00), in their usual banal and misleading “human interest story,” talked about how schoolkids somewhere were given a taste of what REALLY goes on in “true to life” situations at the Supreme Court here. After some play acting or something they were allowed to read a verdict—of “muzai.”

      Now there’s realism for you!

      How can nearly a whole nation be so deluded?

    8. cstaylor Says:

      The next step is removing the prosecution’s right to appeal a non-guilty verdict.

      Does anyone know if there is peremptory challenge allowed when lay judges are used?

    9. Giant Panda Says:

      Consider all the people that gather in a courtroom: Judge, Prosecutor; Defence and The Accused. Who is the odd person out? Three of these people do this day-in-day-out and for one it is probably the first time they have ever been in a court-room. In Japan the Judge, Prosecutors and Defense lawyers all have the same basic training, before they split off and specialize in their chosen professions. Unlike the system in common law countries where judges are usually appointed from the ranks of seasoned lawyers or barristers (or even non-lawyers in some countries), many Japanese judges have never had any other career, and thanks to their attendance of elite schools and universities, have never had much contact with the “common people”. Their training is exclusively controlled by the State. Is it any wonder that they very rarely fail to behave as expected? Bringing in the lay judges does something to redress this problem, and it sounds like these people are actually thinking for themselves. Well done! (And even after all the brouhaha about how ordinary citizens couldn’t possibly understand complicated legal problems like wareware legally trained elite, and would inevitably just follow whatever the judge told them).

      For MD – yes, the prosecutors are very selective about which cases they indict. Just because someone is arrested is no guarantee that they will be put to trial. If the prosecutors don’t have enough evidence they will decide not to indict and will let you go (usually after keeping you the full 23 days though). Which is one reason why its very very important not to make any confession. Of course, should the case actually go to trial, the fact that you haven’t made a confession will be used to show your “lack of remorse”. Bit of a catch 22 isn’t it.

    10. HO Says:

      cstaylor,
      裁判員の参加する刑事裁判に関する法律
      第三十六条  検察官及び被告人は、裁判員候補者について、それぞれ、四人(第二条第三項の決定があった場合は、三人)を限度として理由を示さずに不選任の決定の請求(以下「理由を示さない不選任の請求」という。)をすることができる。
      Article 36
      The prosecutor or the defendant may each demand disqualification of up to 4 lay-judge candidates (in case of article 2 paragraph 3, 3 lay-judge candidates) without disclosing any reason.

    11. cstaylor Says:

      Thanks HO. Any stats if it’s been used? When I served on a jury in California, the lawyers for both the prosecution and the defense pruned the jury of any outliers pretty quickly.

    Leave a Reply