Takuichi Kawakami / Professor, Waseda Law School, Professional Graduate School, Waseda University
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I. What is the citizen judge system?
The following quotation is part of the explanation about the new trial process that a judge gave to people who had been selected as citizen judges in a mock court simulating a trial by citizen judges in which I was involved:
“The citizen judge system involves three judges and six citizen judges who deliberate together to determine whether defendants are guilty or not and, if guilty, to determine the appropriate punishment.
The word ‘together‘ means that you the citizen judges will participate in the process of attending a trial session in court, observe the examination of witnesses’ testimony and other evidence, hear opinions from prosecutors and defense counsel, exchange opinions with each other, reach a conclusion, and deliver judgment, in collaboration with the judges.
The word ’together‘ also means that the judges and the citizen judges are on a totally equal footing. They will be seated at the same place on the bench. During discussion in this room, which is called deliberation, we hope that you will express your own opinions actively and honestly.
Nevertheless, some of you might be concerned that you do not have enough knowledge of the law and judicial procedure. If so, we the judges will plainly explain things to you. If you do not understand our explanation, please do not hesitate to ask us. We will further explain and clarify until you the citizen judges have fully understood the matters at hand. You can ask us anything you do not understand during a break, at lunch time, or anytime.”
II. Why do citizens need to be involved in a trial?
The citizen judge system has just started. Some of those who were selected as candidates to be citizen judges might be uneasy thinking that they are not qualified to sentence others. This new trial system is not only a system involving new actors called “citizen judges” who are selected from the public to participate in trials that had always been adjudicated by professional judges, it is also a system for radically changing the manner that criminal trials are conducted in Japan from the way that they have traditionally been conducted.
In traditional criminal trials, the prosecutors and defense counsel (i.e., attorneys) argued what crimes were or were not constituted and submitted a great deal of evidence to support their case. The decision made after that was left entirely to the broad discretion of the judges, which was called the principle of free discretion. The judges ascertained detailed facts by reading copious documentary evidence and witness examination records submitted by the prosecutors in order to render their judgment.
Therefore, it was not uncommon for cases to take nearly ten years before sentencing when defendants accused of numerous crimes denied the allegations. Is this any way to conduct a criminal trial?
The citizen judge system is a new system which incorporates both the general public and professional judges in conducting criminal procedure. It is a significant break from the traditional system, which had always been completely entrusted to legal professionals, and it brings the court closer to members of the general public.
In the case of national or local politics, for example, we traditionally participate by voting in national or local elections. In terms of the judiciary, on the other hand, the public had only been involved in votes on the dismissal of Supreme Court judges associated with general elections of the House of Representatives. Committees for the Inquest of Prosecutors are sometimes regarded as a means for public participation in the judiciary, but they do not actually constitute a system for participation in the court itself, rather for examining whether prosecutorial decisions--to prosecute or not–were appropriate.
In this way, the judiciary had long been an exception to the tasks performed by the national government in that it had been carried out only by professionals. From the view of the public, therefore, the judiciary has long been something distant, hard to approach, difficult to understand, and which should be completely entrusted to professionals. But is such a judiciary really acceptable to the sovereign democracy of Japan? It was this issue that the Judicial System Reform Council Opinions released in June 2001 pointed out: “the public must not keep considering themselves to be the subjects of government” and “every individual in this country has the responsibility to shape this nation.”
III. The citizen judges play the leading part
Citizen-judge candidates do not need to be worried that they do not have the legal knowledge or confidence required to sentence others.
Before entering a court, the judges will plainly explain everything that you may be anxious about, including the details of the case and the trial procedure that will follow. After that, you carry out the judicial process with professional judges – this is the citizen judge system. In the court, the trial will be conducted in manner that is easy to understand, both visually and verbally. If you do not understand what is going on in the court, you can ask anything you like at any point, and the procedure will be made easier for you to understand. Thus, you the citizen judges play the leading part in this new trial system.
If you have received a court summons, please come to the court with the confidence that you are a citizen judge, and that the trial will be based upon your decision.
Takuichi Kawakami / Professor, Waseda Law School, Professional Graduate School Waseda University
Professor Kawakami graduated from the School of Law at Waseda University. He has served as a legal apprentice since 1972; Assistant Judge for the Nagoya District Court since 1974; Assistant Judge for the Osaka District Court; Judge for the Tokyo District Court; Judge for the Asahikawa District Court; Instructor for the Legal Training and Research Institute since 1995; Judge for the Tokyo High Court since 1998; and finally Chief Judge for Saitama District Court. He retired from the court in March 2004 and has served as a professor of code of criminal procedure for the Graduate School of Law at Waseda University from April 2004 to the present.
Professor Kawakami’s major publications include “Summary Trial Procedure [Kan’i Kohan Tetsuzuki]” in Ryuichi Hirano and Koya Matsuo, eds., Code of Criminal Procedure: New Cases, Vol. II [Shin Jitsurei Keiji Sosho Ho II] (Seirin Shoin), pp. 209-223; “Reconsidering Summary Trial Procedure Studies [Kan’i Kohan Tetsuzuki Ron Saiko]” in Theory and Practice of Criminal Trials: Commemoration of the Retirement of Judge Yoshifusa Nakayama [Keiji Saiban no Riron to Jissen: Nakayama Yoshifusa Hanji Taikan Kinen] (Seibundo), pp. 193-209; “Investigation [Sousa]” in Toshihiko Ishimaru, Atsushi Senba, Takuichi Kawakami and Satoru Hattori, Practice of the Criminal Procedure, Vol. 1 [Keiji Sosho no Jitsumu (Jou)] (Shinnippon-Hoki Publishing), pp. 217-529; “Criminal Responsibility for Hit-and-Run [Hikinige no Keiji Sekinin] in Tomoo Araki, ed., Series of Criminal Trial Practice, Vol. 5: Traffic Accidents [Keiji Saiban Jitsumu Taikei Dai 5 Kan: Kotsu Jiko] (Seirin Shobo), pp. 177-190, etc.
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