Section 2 Lay Judge System
1 Overview of lay judge system
The lay judge system, which was established by the Act on Criminal Trials Examined under Lay Judge System (hereinafter referred to as the “Lay Judge Act”), aims to enable the general public to participate in criminal trials, for allowing their sound common sense to be reflected in judicial judgments, and deepen the general public's understanding of and support for the judicial system, thereby establishing a stronger citizen-oriented basis for the criminal justice system over the long-term.
(1) Subject cases
Cases subject to lay judge trials are of offenses punishable by the death penalty, life imprisonment with or without work (Item-1 cases), and cases that need to be dealt with by a statutory collegiate court (offenses punishable by the death penalty, or life imprisonment or imprisonment for a minimum term of one year or more with or without work (excluding robbery, etc.)) and are of offenses resulting in death of the victim through an intentional criminal act (Item-2 cases). However, the cases can be excluded by a court decision if lay judges or their families are likely to be harmed and deemed to be unable to fulfill their duties because of fear (no such decision was made for cases disposed in 2010). Cases other than Item-1 and Item-2 cases are also subject to lay judge trials when consolidated with a case subject to lay judge trial.
(2) Pretrial arrangement proceeding
Cases subject to lay judge trials must be brought to a pretrial arrangement proceeding prior to the first trial date. The court clarifies the points at issue with the case prior to determining which and in what order the evidence should be examined. The establishment of a concrete trial plan in this way enables the trial to take place in a more intensive and systematic manner (See Subsection 3, Section 2, Chapter 3, Part 2).
(3) Selection of lay judges, etc.
Fig. 6-2-1 shows the lay judge selection procedure.
Fig. 6-2-1 Flow of lay judge selection procedure
A list of lay judge candidates selected by lottery from those listed in the electoral register is made every year by the relevant district court. Lay judge candidates are then selected by lottery again from the list of lay judge candidates for the respective cases, and summoned to the court to take part in the selection procedure. The courts select six (or four in exceptional cases) lay judges by lottery, etc. after excluding those who have grounds for incompetency for appointment, those whose refusal was approved for having a prescribed reason, and those whom the public prosecutor or the defendant, etc. requests not to be selected without presenting any reason in a private procedure. Prescribed reasons for refusal include [1] being 70 or older, [2] being a local assembly member, [3] being a student or pupil, [4] having served as a lay judge (or alternate lay judge) or a member (or alternate member) of a Committee for Inquest of Prosecution within the last five years, [5] having appeared at a court on the date of the selection procedure as a lay judge candidate during the last year, or [6] having difficulty in fulfilling the duty of a lay judge or in appearing at the court for certain prescribed unavoidable reasons, etc.
Alternate lay judges are selected, if deemed necessary, in light of the length of the trial and any other relevant circumstances to ensure the prescribed number of lay judges.
A daily allowance and travel expenses, etc. are paid to those appearing at a court as lay judges, alternate lay judges (hereinafter collectively referred to as “lay judges, etc.” in this section), or lay judge candidates.
(4) Proceedings and Verdict
Lay judge trials take place over sequential days. Public prosecutors and defense counsels, etc. are required to make the proceedings plain enough to enable the lay judges to fully fulfill their duties. During deliberations, the presiding judge is required to thoroughly explain any relevant laws and ordinances, organize the deliberations, and provide lay judges with sufficient opportunity to make remarks.
Deliberations at lay judge trials are conducted by a collegiate court body consisting of three judges and six lay judges (or one judge and four lay judges in certain cases), on finding the facts pertaining to a judgment of guilty or not guilty, etc., the way in which laws and ordinances are applied, and the appropriate sentence. Verdicts are rendered based on the opinions of the majority of the collegiate body, including from at least one of each party of the judges and the lay judges (as it requires an agreement of both parties of the judges and the lay judges, a verdict of guilty cannot be rendered even if all the lay judges agree on a guilty verdict if all the judges have opposing opinions). Lay judges can question defendants or witnesses, etc. regarding anything necessary in making up their mind, informing the presiding judge of their wish to do so. Interpretation of laws and ordinances and judgments on criminal proceedings, etc. can be made only by the judges but the results also bind the lay judges. In some cases, however, the opinions of the lay judges can prove useful, and hence the judges may allow lay judges to attend such deliberations and air their opinions.
(5) Partial judgment
When a trial involves consolidated cases of a defendant, in order to reduce the burden to the lay judges, the cases can be divided into separate cases. In this case a trial is conducted for each case with different lay judges selected from those who are not assigned to the overall cases and partial judgments are made only as to whether the defendant is guilty or not guilty in each case. Lay judges assigned to the overall cases make their conclusive judgment based on the partial judgment through deliberation and verdict with the judges on the appropriate sentence.
(6) Duty of confidentiality of lay judges and measures to protect lay judges
Lay judges, etc. are obliged to keep any information they have obtained in the course of their duties confidential, including the status of deliberations and the opinions of judges and other lay judges, etc. If the lay judges, etc. do disclose any such information they are subject to punishment, even after their duties as lay judges have been completed.
Measures to protect lay judges, etc. have also been stipulated, including a prohibition of any disadvantageous treatment at workplaces, the non-disclosure of any information to make lay judges, etc. identifiable, and a restriction on contacting lay judges, etc.