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A new day for Japanese justice

Here comes the (lay) judge.

According to opinion polls, many ordinary Japanese are concerned about serving as lay judges.

“I’ve been notified that I will be called up to serve as a lay judge, but I’m nervous about making a decision that will have such a big impact on someone’s life. There’s always a chance I could be wrong,” said a company manager who can’t be identified because of the strict secrecy rules that apply to lay judges.

“These very strong confidentiality requirements are a somewhat disturbing issue,” said Professor Lawrence Repeta, formerly of Omiya Law School in Japan and currently a visiting professor of Asian law at University of Washington, Seattle. “People can be fined 500,000 yen ($5,000) or imprisoned for six months for disclosing details of a case."

Repeta added: “These trials will involve some of the most serious and violent crimes, which could be very stressful for the lay assessors."

The government recently announced the creation of a 24-hour helpline that will provide counseling to lay judges, in response to concerns.

The company manager who is now a potential lay judge candidate has another understandable concern: “I’d also be nervous about sitting on a Yakuza (mafia) trial; I’d be worried about sending one of them to prison.” Japan’s 80,000-plus organized crime group members operate with a certain degree of impunity, and while they have no history of intimidating the judiciary, lay judges may present an easier target.

“I think that strategy would backfire for the Yakuza, in terms of harsher sentences,” Kawatsu said. He conceded, though, that their very presence may be enough to scare some members of the public. So far, there are no plans to keep lay judges hidden from mobsters during trials.

Unknown to many, there is actually some history of jury systems in Japan. Between 1928 and 1943 there were juries — of 12 men over 30 years old and above a certain income level — that defendants could elect to be tried by, though very few chose the option. Then in U.S.-occupied post-war Okinawa, juries were used with mixed results in trials involving American forces and their families until the island returned to Japanese jurisdiction in 1972.

Whether the reintroduction of lay participation will lead to a drop in Japan's notoriously high conviction rates is a question that should be answered by July or August, when the first trials under the new system will likely conclude.

“Actually, since the law passed through parliament in 2004, the conviction rate has already dropped very slightly,” Kawatsu said, “though it’s still 99 point-something-something percent.”

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