Section 2 Lay Judge System
1 Overview of lay judge system
The lay judge system, which was established by the Lay Judge Act, aims to enable the general public to participate in criminal trials and in thereby allowing their sound common sense to be reflected in judicial judgments and deepening their understanding of and support for the judicial system, while also 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 those involving offenses that are 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 involve offenses which resulted in the death of the victim through an intentional criminal act (Item-2 cases). However, cases in which lay judges or their families are likely to be harmed and deemed to be unable to fulfill their duties because of fear can be excluded by a court decision (the number of persons to whom such decisions were conclusively made was two in 2011). Cases other than Item-1 and Item-2 cases can also be subject to lay judge trials if consolidated with a case subject to a 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 electoral register list is made every year by the relevant district court. The lay judge candidates are then selected by lottery again from the above list for the respective cases, and who are then summoned to the relevant 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 with grounds for being considered incompetent for appointment, whose refusal was approved for a prescribed reason, or whom the public prosecutor or the defendant, etc. requests not to be selected without having to present the reason in a private procedure. The 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 already appeared at a court on the date of the selection procedure as a lay judge candidate during the recent 12 months, or [6] facing 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 in thereby ensuring that the prescribed number of lay judges can appear.
Daily allowances and travel expenses, etc. are paid to those who appeared at a court as a lay judge, alternate lay judge (hereinafter collectively referred to as “lay judges, etc.” in this section), or lay judge candidate.
(4) Trials and verdicts
Lay judge trials take place over sequential days. Public prosecutors and defense counsels, etc. are required to make the proceedings easy enough to enable the lay judges to completely fulfill their duties. During the deliberations the presiding judge is required to thoroughly explain any relevant laws and ordinances, organize the deliberations, and provide the lay judges with sufficient opportunities 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), and identify the facts pertaining to a judgment of guilty or not guilty, etc., the way in which relevant laws and ordinances should be applied, and the appropriate sentence. Verdicts get rendered based on the opinions of the majority of the collegiate body, including from at least one of both the judges and lay judges (as a verdict requires the agreement of both a judge and a lay judge, a verdict of guilty cannot be rendered even if all the lay judges agree on a guilty verdict but all the judges have opposing opinions). Lay judges can question the defendants and witnesses, etc. regarding anything they consider necessary in making a decision, after 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 judgments
When a trial involves the consolidated cases of a defendant, in order to reduce the burden on the lay judges, cases can be divided into each individual case. In this case a trial is conducted for each case with different lay judges selected from those who had not been assigned to the overall cases and partial judgment is made only on whether the defendant is guilty or not guilty in each case. Lay judges assigned to the overall cases provide a conclusive judgment that is based on the partial judgment through deliberations and verdicts with the judges involving 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 the judges and other lay judges, etc. If the lay judges, etc. do disclose any such information they are subject to punishment, even after they have completed their duties as lay judges.
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 that could be used to identify a lay judge, etc., and a restriction on contacting lay judges, etc.