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Japan's 10-yr-old lay judge system beleaguered by overlong pretrial procedures

The Osaka District Court is seen in this file photo. (Mainichi)

TOKYO -- While judicial authorities and lawyers say the 10-year-old lay judge system is operating smoothly, questions are being raised over how to keep it that way as cases are drawn out by lengthy pretrial procedures and more citizens refuse to serve.

Moreover, discussions on a review of the system are ongoing. Under the lay judge system, members of the general public are selected to participate in trials for serious offences, in which the defendant is represented by professional lawyers. It was implemented in 2009 to reflect the thinking of regular citizens in trials.

A man in his 30s who participated in the trial of a 49-year-old man charged with murdering two junior high school children in Neyagawa, Osaka Prefecture, western Japan, in August 2015 was surprised that it took some two years just to complete the pretrial conference procedure. This was because there was no physical evidence directly linking the defendant to the murders, and his defense counsel argued that he was not psychiatrically fit to stand trial.

The lay judge said he "wondered if the people who appeared in the trial could clearly remember" the details of the incident. The court held its first hearing on the case three years after the defendant was indicted in 2015, and sentenced him to death about two months later.

The pretrial conference procedure was introduced in 2005, before the launch of the lay judge system. In lay judge trials, intensive deliberations are held over a short period to lessen the burden on the citizen judges.

In the pretrial conference process, judges, prosecutors and defense lawyers hold consultations to narrow down points of contention, agree on what items should be accepted as evidence, and work out a detailed plan for the trial.

The length of this process is being called into question. According to the Supreme Court, pretrial conference procedures in 2018 took an average of 8.2 months. That was about 150% more than the conference process took in 2010, the first full year the lay judge system was in operation.

In one instance, a murder trial began at the Hamamatsu branch of the Shizuoka District Court on May 14, six years and two months after the defendant was indicted. Meanwhile, the trial of a man accused of killing 19 residents at a care home for people with disabilities in July 2016 in Sagamihara, Kanagawa Prefecture, isn't set to start until January 2020 -- 3 1/2 years after the incident.

The Supreme Court takes the situation seriously. A 2018 report released by the top court's Legal Training and Research Institute of Japan points out that the pretrial procedure tends to be prolonged in cases where there is only indirect evidence; where the key evidence is an accomplice's confession; and where the defendant's psychiatric condition is called into question. In such cases, prosecutors and defense lawyers often clash head-on -- even over matters that are irrelevant to the key points of the crimes -- and courts cannot control the discussions.

The report states that it is irrational to argue over unimportant matters, and complains that judges, prosecutors and lawyers have failed to share views on how far they should sort out points of contention and evidence.

The prolongation of pretrial procedure has adversely affected trials. Since more importance is attached to verbal testimony than documents in lay judge trials, the memory of those involve is crucial.

"In trials held long after the incidents, I occasionally feel that the witnesses' memories have faded," one long-serving judge pointed out.

In some cases where the accused plead not guilty, they are detained over a long period while points of contention are being sorted out in the pretrial procedures.

Naoto Otani, chief justice at the Supreme Court, told a news conference on May 15, "Delaying the beginning of trials because preparations become excessively granular is putting the cart before the horse."

Keio University visiting professor Manabu Yamazaki, who previously served as a Tokyo High Court judge, underscored the need for courts to play an active role in swiftly proceeding with lay judge trials.

"Pretrial conference procedures are ideally supposed to set points of contention that are most appropriate to each case. However, if the process is dragged out, it puts a heavier burden on crime victims and defendants alike," he said. "Depending on the incident, it's necessary to broadly consider points of contention and begin the trial within a rational period."

(Japanese original by Akira Hattori, City News Department)

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