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Cablegate: Mixed Forecast for American Defendants: Japan's Pending

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UNCLAS SECTION 01 OF 06 NAHA 000029

SIPDIS

SENSITIVE
SIPDIS

STATE PASS FTC FOR DIERDRE SHANAHAN; DOJ FOR ED HAND, STU CHEMTOB

E.O. 12958: N/A
TAGS: CASC MARR JA
SUBJECT: MIXED FORECAST FOR AMERICAN DEFENDANTS: JAPAN'S PENDING
SAIBAN-IN SYSTEM

1. (SBU) Summary: In May 2009 Japanese citizens will begin
sitting in judgment, alongside career judges, in trials of
serious criminal cases. Japanese officials say that citizen
participation in the criminal justice system brings Japan into
line with other developed nations. There are, however, some
significant differences between Japan's hybrid panels and
American juries, especially in terms of citizen independence
from official influence. Defendants will clearly benefit from
the streamlined trial processes accompanying citizen
participation. Because foreign defendants attract
disproportionate attention in the media, though, the system may
prove a mixed blessing for them. End Summary.

Background:

2. (U) Starting in May 2009, Japan will begin trying serious
criminal cases before hybrid panels of three career judges and
six lay people. The career and lay judges will together
consider testimony and other evidence, deliberate over whether a
defendant is guilty or not, and decide what punishment to
impose. Serious crimes subject to the new system were just 3.2%
of the total number of criminal cases heard by Japan's district
courts in calendar year 2005. Okinawa's senior prosecutor,
Yaichiroh YAMASHIKI, said that his office and the Okinawa
District Court were planning, based on past statistics, for
hybrid juries to try approximately 30 criminal cases per year.

3. (U) According to Ministry of Justice (MOJ) promotional
materials, the goal is to deepen Japanese citizens'
understanding of and support for the justice system-and to bring
Japan in line with other "developed" nations whose citizens
participate in the criminal justice system. Recently Yamashiki
explained at a forum sponsored by Okinawa Prefecture that the
new system was part of a broader trend towards transparency in
criminal justice. Yamashiki stressed that there was nothing
wrong with Japan's existing system, per se, but Japan's lack of
citizen participation in criminal justice was out of step with
other developed countries such as the United States, England,
France, and Germany. Yamashiki and our contacts in the local
defense bar admitted they did not know how well society would
adapt to the new system, and vice versa, and they noted that
legislation establishing the system also mandated its review in
2012.

Screening and selecting lay judges

4. (U) Candidates will be drawn from lists of registered
voters aged 20 and over. National Diet members, police
officers, and members of the Self Defense Forces will be
excluded from service. Beginning in December 2008, and no later
than December each year thereafter, district courts will
randomly draw names from voter registration lists and notify
people of their potential candidacy. Those notified will be
asked to complete surveys eliciting information about individual
exemptions from service, such as being the sole care-taker of an
infant or elderly relative, financial hardship, or health
problems.

5. (U) Approximately six weeks before a trial is scheduled to

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begin, the district court calls 50 lay judge candidates for
interviews. The three career judges slated to preside over the
case interview candidates, in the presence of the prosecuting
and defense attorneys. The attorneys may not question
candidates, but each side may reject four without stating a
reason, after listening to the interviews. The attorneys have
no power to reject candidates for cause; that authority resides
in the career judges. Interviews continue until the career
judges select six candidates to serve with them, and the
remaining candidates are dismissed. The six new lay judges,
called saiban-in, are informed of the first trial date and
instructed on their duties, including their duty to maintain
confidentiality regarding deliberations. They have an

SIPDIS
indefinite duty to refrain from discussing any part of their
deliberations. They are permitted, however, to discuss trial
proceedings and their general impressions of service as a lay
judge.

6. (U) We note that the American jury system has fewer
automatic exclusions and in the United States, attorneys have
the onus of challenging potential jurors. U.S. courts do not
exclude people by occupation, though jury candidates employed in
the criminal justice system are likely to be stricken from
service. While American judges retain final control over who
sits in a jury, the attorneys for the parties question the
candidates, have a specified number of peremptory challenges,
and unlimited challenges for enunciated cause. American judges
are loath to retain a candidate as a juror once an attorney has
challenged for cause, as it is a near-guaranteed issue on
appeal.

Pre-trial proceedings

7. (U) When trials with saiban-in begin, prosecutors and
defense attorneys will be expected to prepare their arguments
and evidence in advance of trial. Prosecutor Yamashiki noted
that this would be a significant departure from previous
practice, when both sides prepared their cases as trials
progressed. Until recently, Japanese criminal trials dragged on
at the rate of about one day per month, so there was enough time
between hearings for the parties to prepare at their leisure.

8. (U) Pre-trial preparation of evidence for live testimony
brings Japanese pre-trial procedures closer to those of American
courts. Government and defense attorneys postpone the start of
a trial until they can complete all evidence collection and
preparation. Surprise witnesses are a regular feature in
American courtroom dramas, but they are a rarity in real-life
courtrooms.

Trial proceedings

9. (U) As of December 2007 Japanese criminal procedures were
revised so that trials run for consecutive days, up to four days
per week. Previously, defendants contesting the charges against
them could languish in jail for years as they received their
monthly day in court. In one recent extreme example, the Tokyo
District Court acquitted an American couple of murder after
seven years and nine months of trial. According to Prosecutor

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Yamashiki, the MOJ expects that most trials will be started and
concluded within three-to-five days. Yamashiki predicted that
the most complicated trials would be cut from two-to-three years
to three-to-four weeks. The MOJ instituted the compressed
system to avoid undue inconvenience to lay judges, but there are
also obvious advantages to defendants.

10. (SBU) Speedy trial may benefit American and other foreign
defendants even more than it does Japanese dependants. Many
foreigners are only temporarily in Japan, under the U.S.-Japan
Status of Forces Agreement (SOFA) covering U.S. Military
personnel, civilians, contractors, and their dependents; on
employment contracts with Japanese employers; or as expatriate
employees of foreign companies. Mounting a full defense depends
on being able to call witnesses, something almost impossible if
the defense case doesn't begin until years after the alleged
crime occurred. The streamlined trial procedures make it more
likely that foreigners on trial will be able to put up a
meaningful defense and have family and friends in Japan to
support them.

11. (U) Until the December 2007 reforms in preparation for the
hybrid jury system, prosecutors had witnesses' affidavits read
into the record, and there was little live testimony.
Throughout 2008, prosecutors and defense attorneys are expected
to present more live testimony in evidence during criminal
trials in order to accustom themselves (and the career bench) to
trying cases before hybrid juries.

12. (U) The order of trial will be unchanged. The government
presents its case first, then the defense. Prosecutors begin
their cases by having the police report read into the record.
Prosecution and defense call witnesses for examination and cross
examination as they present their cases in turn. Career and lay
judges will be able to question witnesses from the bench.
Victims, their families, and victim advocates will also be able
to question defendants during trials.

13. (U) Once the prosecution and the defense finish presenting
evidence, the prosecution makes closing remarks, including its
sentencing demand. The defense attorney then makes a closing
argument. Finally, the chief judge will offer the defendant the
opportunity to have the last word before the trial concludes.
The defendant may make a statement, or decline to do so.

14. (U) We note that Japanese trial procedures and practice
will remain significantly different from American procedures and
practice. In the United States the burden is on prosecutors and
defense attorneys to elicit convincing evidence supporting their
cases from the witnesses, generally without assistance from
judges. American juries do not question witnesses. Judges are
permitted to do so, but rarely do. Victims, their families, and
victim advocates would never question defendants in court,
though they may testify during the trial, and at sentencing
hearings. Finally, in order to protect defendants' right to
refrain from testifying in their own defense, it is unthinkable
for American judges to offer defendants a last word at trial.

Deliberation, verdict, sentencing

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15. (U) The six lay judges and three professional judges
deliberate together during scheduled intermissions during the
trial. During deliberations the professional judges explain to
their lay colleagues the laws that are relevant to the case and
debate the veracity and other qualities of witnesses and
evidence. When the trial is concluded, the hybrid panel begins
final deliberations.

16. (U) Deliberations result in a verdict of guilt or
non-guilt, rendered by a qualified majority vote. At least one
of the professional judges must be in the majority for the
verdict to be valid. If a qualified majority cannot be
achieved, the defendant is acquitted. If a qualified majority
finds the defendant guilty, the entire panel considers the
sentence. The sentence, too, is determined by a majority of the
nine-member hybrid panel, and one professional judge must agree
to validate the sentence.

17. (U) Prosecutor Yamashiki remarked that his office was
nervous about the uncertainty that lay judges would insert into
a criminal justice system heretofore operated entirely by
professionals. He admitted that prosecutors took comfort from
the checks the professional judges would still have on lay
judge's deliberations.

18. (U) The prosecutor put his finger on what is arguably the
most significant difference between Japan's pending hybrid jury
system and the American jury system: the issue of participating
citizens' freedom from outside influence. U.S. criminal
procedures strive to keep judges, as finders of law, from
affecting the deliberations of juries, as finders of fact. To
that end, great care is taken to ensure that juries hear and
understand the applicable law and admissible evidence, that the
defense and prosecution are apprised of the jury's instructions,
and that juries begin deliberating only after all evidence has
been presented.

19. (U) Our contacts in the Okinawa defense bar have expressed
their great frustration with judges ignoring their objections to
inadmissible evidence at trial. Judges typically respond to
defense objections by saying that they, as experts in the law,
will mentally partition the admissible evidence from the
inadmissible, and consider only the admissible in rendering
their decision. Defense attorneys worry that this attitude will
carry over into saiban-in trials, with career judges overly
confident that they can keep lay judges from taking inadmissible
evidence into consideration.

20. (U) During an American criminal trial, should a question
arise whether proposed testimony is admissible at trial under
the rules of evidence, attorneys will argue to the judge outside
of the jury's presence. If an issue is not raised pretrial, an
American attorney objects as soon as an objectionable question
is asked, not waiting for the answer. One of the first legal
aphorisms law students learn is that "you can't un-ring a bell,"
i.e., once a jury has heard evidence, it cannot forget it, and
it will carry that information into its deliberations.


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21. (U) Instructions to lay judges on the applicable law will
also be subject to the career judge's discretion. In America,
jury instructions are established in advance of trial, or in a
break between the end of the trial and the start of
deliberations. Without the jury present, the government and the
defense argue for their preferred instructions on the record,
and the judge decides which instructions the jurors will take
with them into deliberations.

22. (U) Finally, with very limited exceptions for death
penalty cases, American juries do not participate in sentencing
decisions. Many U.S. states and the federal justice system have
sentencing guidelines and other boundaries on judges' sentencing
discretion, but sentencing is still considered part of a judge's
purview, based on their experience. Our legal contacts, and
many local contacts in business, media and education, have
expressed trepidation about lay judges deciding the penalties to
impose due to their inability to put specific cases into a
broader context. But this is just one of many misgivings about
the new system.

Attitudes toward the pending system:

23. (U) In February 2007 the Japanese Cabinet Office surveyed
registered voters about their attitudes toward the citizen judge
system. 80% of the 1,795 respondents said they knew about the
system, and almost as many said they wanted nothing to do with
the system. 44.5% of respondents said they didn't want to
participate, but would if they had to. 33.6% of respondents
said they didn't want to participate even if they were required
to. 15.2% said they wouldn't mind participating, 5.6% said they
wanted to participate, and 1.2% said they weren't sure.

24. (U) Most Japanese citizens' objections fall into three
categories: invasion of privacy, the burden of secrecy, and
financial impact. Privacy concerns begin with the courts having
access to voter registration records, continue through having to
submit to polling and candidate interviews, and finally being
forced during deliberations to share opinions about a trial with
eight strangers. On the other hand, the indefinite prohibition
on discussing deliberations with outsiders to the process, such
as family members, are perceived as punitive. Finally, with a
cap on lay judge stipends of about $100 per day, even three or
four days of trial, not to mention several weeks of trial, would
overly burden workers, especially the self-employed.

25. (U) Prosecutor Yamashiki alluded to similar concerns
during his speech, acknowledging that hearing details about the
serious crimes to be subject to hybrid panels may be traumatic
for lay judges. Undergraduate law students at the University of
the Ryukyus told us that participating in a criminal trial would
be both educational and exciting. They also wondered whether
they should contribute at all, as they had nothing in common
with people involved in serious crimes. Members of a local
adult continuing education program studying MOJ-developed movie
dramatization of a saiban-in trial predicted that, if called to
serve as lay judges, they would be afraid of defendants tracking
them down and harming them, and would do what they could to
avoid actively participating in deliberations.

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26. (U) Foreign commentary on the pending system falls into
two camps. One holds that the new system will shine daylight
into the black box of Japan's criminal justice system. They
note that streamlined trials have already resulted in greater
media coverage of verdicts and sentences, because the results
are released while the public still remembers the incident at
issue. The other camp declares the Japanese culture too status
conscious for lay judges to have any meaningful impact, and too
many elements of the system reinforce their subordination to
career judges. While lay judges are saiban-in, directly
translated as "justice members," career judges retain the title
saiban-kan, or "justice authorities." Career judges retain
their robes, their central location on the bench, and power to
decide who will serve with them as lay judges, ergo,
overwhelming control of the outcomes of trials.

3. Comments/Conclusion:

27. (U) The new system will inject uncertainty into judicial
proceedings, as lay people enter the court room with the power
to question witnesses, decide guilt or lack thereof, and
determine the severity of punishment to be imposed.
Prosecutors, who are accustomed to near-perfect conviction
rates, acknowledge that they are uncomfortable with the prospect
of such uncertainty. Even the defense bar, though, admits it
cannot predict what changes will come with citizen participation
in the system.

28. (SBU) For foreign defendants, the chief foreseeable
advantage of the new system is the speedier trial. Defendants
will be better able to present a meaningful defense, something
practically impossible under the previous system due to the
transient nature of their likely foreign witness list. Foreign
as well as Japanese defendants will spend less time languishing
in jail, with employment and social prospects disappearing,
without being convicted of any crime.

29. (SBU) This advantage for foreign defendants accused of
crimes is counterbalanced by the risk of discriminatory verdicts
and sentencing. Career judges know from years of experience
that Japanese defendants commit the vast majority of crimes in
Japan. Lay judges, whose exposure to criminal cases is limited
to sensationalized headlines, may believe that the first and
only foreign defendant they see is just one member of a vast
foreign crime wave.

30. (SBU) We think this risk will be particularly heightened
in Okinawa. The local daily newspapers pursue an overtly
anti-military agenda. They report in great detail on incidents
and proceedings involving SOFA-status personnel for crimes that
go unmentioned when committed by Japanese citizens. They
reinforce their reporting with editorial outrage over the
"continuous" victimization of the Okinawan people at the hands
of the military. We hope that career judges' influence over lay
judges will suffice to counter anti-foreign propaganda, but only
time will tell.
MAHER

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