If you think the jury system can be problematic here, imagine starting a jury system from scratch -- in a culture known for a level of deference and reticence that would bring most American jury deliberations to a standstill. That's what they're trying to do in Japan.
The new Japanese system for criminal cases will start in 2009. They call it "saiban-in." The plan is that six lay jurors will join each of the three-judge panels who decide cases in Japan today.
Robert Precht is helping them. He's a New York criminal defense lawyer who's now associated with the Juries and Democracy Program at the Maureen and Mike Mansfield Center at the University of Montana. Mike Mansfield was Senate majority leader through most of the 1960s and 1970s, and afterward served as U.S. Ambassador to Japan. The Juries and Democracy Program now run in his name is helping to "prepare Japanese judges, prosecutors, defense lawyers and lay people prepare for this significant transition," their web site says. Precht travels the country giving talks and workshops, and keeps a blog called Foley Square where he writes about his work and posts relevant news stories.
A new set of skills
"Significant" barely conveys how big this change is. The transition isn't just from judges to juries; it's from writing to talk, lawyers to witnesses, authority figures to ordinary people, years to days. Precht writes:
With the advent of the saiban-in system, trial practice will radically change in Japan. Currently, most trials are conducted on the basis of written records. Lawyers submit written reports to the three-judge panel, and the panel renders a decision, often after several years. The saiban-in system will require concentrated trials, conducted through live testimony. Japanese lawyers must learn a new skills-set: how to present live testimony and persuade ordinary citizens.
So Precht starts with the basics. One lawyer asked him to explain the difference between an opening statement and a closing argument, and he searched for a Japanese analogy. "I said [closing] should resemble a Kabuki drama," he says.
"Doesn’t anyone have any opinions?"
Inexperienced or not, the lawyers will have an easy transition compared to the jurors. In one post, Precht reprints a New York Times article describing one of the hundreds of mock trials being staged by the Japanese government to help people understand what jury service will be like. For the system to work, the Times wrote, "the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority." If this mock jury is remotely typical, that won't be easy:
They preferred directing questions to the judges. They never engaged one another in discussion. Their opinions had to be extracted by the judges and were often hedged by the Japanese language’s rich ambiguity. When a silence stretched out and a judge prepared to call upon a juror, the room tensed up as if the jurors were students who had not done the reading.
"I think there is also the matter of how much he has repented," one of the judges said. "Has he genuinely, deeply repented, or has the defendant repented in his own way? What’s the degree? I mean, some could even say that he hasn’t repented at all."
Hoping for some response, the judge waited 14 seconds, then said, "What does everybody think?"
Nine seconds passed. "Doesn’t anyone have any opinions?"
When it was over, Precht told the Times: "I think people are seriously going to start panicking next year, as citizens actually face the very real possibility of being summoned, and then have to go into this very strange environment, speak in front of authority figures and actually be questioned about their own opinions.” "I'm concerned that’s going to freak people out,” he said.
So he keeps traveling the country, and speaking, and blogging sometimes. He's a witness to something remarkable.
(Photo by Kalandrakas at http://www.flickr.com/photos/eelssej_/508977152/; license details there.)
