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 White paper on crime 2009 Part6/Section2/1 

Section 2  Saiban-in (Lay Judge) System

1 Overview of Saiban-in system

  The Saiban-in system established by the Saiban-in Act aims to enable the general public to participate in the criminal trial, reflect their sound common sense in judgments, and deepen the general public’s understanding of and support for the judicial system, and thereby establish a stronger citizen-oriented basis for criminal justice system over the long-term.

(1) Cases covered, etc.

  Cases subject to Saiban-in trials pertain to offenses punishable by death penalty, life imprisonment with or without work (Item-1 cases), and cases which should be treated at statutory collegiate court (offenses punishable by death penalty, or life imprisonment or imprisonment for a minimum term of one year or more with or without work (excluding robbery, etc.)) for offenses resulting in death of the victim through an intentional criminal act (Item-2 cases), all of which are major offenses that the public has a great interest. However, certain cases can be excluded if the possibility exists of Saiban-ins or their families, etc. being harmed and they are deemed to be unable to perform their duties because of fear. Cases not usually included within the scope of the Saiban-in system can be made subject to the system when consolidated with cases that do normally fall within it.

(2) Pretrial conference procedure

  Cases subject to Saiban-in trials are brought to pretrial conference procedure prior to the first trial date. The court clarifies the main points at issue of the case and determines which and in what order the evidence will be examined. The establishment of concrete trial plan in this way makes the trial intensive and systematic.

(3) Selection of Saiban-ins, etc.

  Fig. 6-2-1 shows the flow of the Saiban-in selection procedure.

Fig. 6-2-1  Flow of Saiban-in selection procedures

  A list of Saiban-in candidates selected by lot from those listed on the electoral register is made every year by the respective district courts. Saiban-in candidates are then selected by lot again from the list of Saiban-in candidates to appear in respective cases, and summoned to the court to take part in the selection procedure. The courts select six (or four in exceptional cases) Saiban-ins by lot, etc. after excluding anyone with incompetency for appointment, anyone who does not wish to appear and is excused the refusal by the court for being with prescribed ground for refusal, and anyone whom the public prosecutor or the defendant requests not to be selected without presenting the cause through private procedure. Reasons for refusal provided in the Saiban-in Act include [1] being 70 or older, [2] being a local assembly member, [3] being a student or pupil, [4] having served as a Saiban-in (or alternate Saiban-in) or a member (or alternate member) of the Committees for the Inquest of Prosecution within the last five years, [5] having appeared at a court on the date of the selection procedure as a Saiban-in candidate within one year prior, and [6] having difficulty performing the duty of Saiban-in or appearing to the court for some unavoidable reason, etc.
  To prepare for any shortage in the number of Saiban-ins, alternate Saiban-ins can be arranged if deemed necessary after taking into consideration the length of the trial and other circumstances.
  Daily allowances and travel expenses, etc. are paid to anyone appearing at a court as a Saiban-in, alternate Saiban-in, or Saiban-in candidate.

(4) Trial and Verdict

  Saiban-in trial is held over days in a row. Public prosecutors and defense counsels etc. are required to make the effort to make the trials easily understandable to ensure that the Saiban-ins can fully perform their duties. During deliberations the presiding judges are required to thoroughly explain any relevant laws and ordinances, organize the deliberations, and provide Saiban-ins with the opportunity to make remarks.
  At Saiban-in trials, deliberations are conducted by a collegiate body consisting of three judges and six Saiban-ins (or one judge and four Saiban-ins in certain cases). These deliberations involve finding the facts pertaining to a judgment of guilty or not guilty, etc., and deciding which laws and ordinances are applicable and thus arriving at the appropriate sentence. Verdicts are rendered based on the opinions of the majority of the collegiate body, including those of both the judges and the Saiban-ins (since the opinions of both the judges and the Saiban-ins are required to be included, a verdict of guilty cannot be rendered even if all the Saiban-ins agree on a guilty verdict if all the judges have different opinions). Saiban-ins can question defendants or witnesses, etc. regarding anything necessary in making a judgment, if they inform the presiding judge that they wish to do so. Interpretation of laws and ordinances and judgments on criminal proceedings, etc. can only be made by judges and the results are provided to Saiban-ins. Saiban-ins are obliged to follow those decisions. In some cases, however, the opinions of the Saiban-ins can prove useful and hence the judges may allow Saiban-ins to attend such deliberations and air their opinions.

(5) Partial judgment

  When a trial is conducted for consolidated cases of a defendant, in order to reduce the burden on the Saiban-ins, the cases can be divided into separate parts. In this case, a trial is conducted for each part by selecting Saiban-ins different from those who are assigned to the all cases, and partial judgments are made as to whether the defendant is guilty or not guilty in each part. Saiban-ins assigned to the overall cases then take into account the partial judgments in the course of making the final judgment through deliberation with the judges and then deciding the sentencing.

(6) Duty of confidentiality of Saiban-ins and measures to protect Saiban-ins

  Saiban-ins and alternate Saiban-ins (hereinafter collectively referred to as “Saiban-ins, etc.”) are obliged to keep any information they have obtained in the course of performing their duties confidential, including the status of deliberations and the opinions of judges and other Saiban-ins, etc. If the Saiban-ins, etc. do disclose any such information they are subject to being punished. The same applies after their duties as Saiban-ins have been completed.
  Measures to protect Saiban-ins, etc. have also been stipulated, including a prohibition of any disadvantageous treatment at workplaces, the non-disclosure of any information that could be used to identify Saiban-ins, etc., and a restriction on contacting Saiban-ins, etc.
  It has also been stipulated that the Supreme Court shall publish data on the operational status of cases subject to Saiban-in trials, the selection status of Saiban-ins, etc., and the status of any other implementation with regard to the Saiban-in Act every year, and that the government will discuss the status of enforcement of the Saiban-in Act three years after enforcement and then take any necessary measures as required.