NAHA, Okinawa — Meting out justice in Japanese courts took on a new form last month when the country switched to a jury system for major criminal cases.

In the past, defendants — American or Japanese — charged with felonies faced judge tribunals and a 99 percent conviction rate.

Under the new system, designed to provide more transparency, they will be tried in front of a panel of three judges and six citizens.

American and Japanese experts believe the major change will be felt in the sentences handed out by the jury panel, called "saiban-in," or lay judge system.

Japan’s military government abolished the jury system in 1943. After years of study, the Diet authorized the new system in May 2004, which went into effect last month after a preparation period in which hundreds of mock trials and special forums on the new system were conducted throughout the country.

Under the new system, the six citizen judges will sit with three professional judges and will be permitted to ask questions during the proceedings. They’ll participate not only in deliberating guilt or innocence but also in determining sentencing.

‘Internal Japanese matter’

Crimes that will be tried by the new jury system include murder, robbery resulting in injury or death, vehicular manslaughter, arson, rape involving injury or death, sexual assault resulting in death, violation of Japan’s drug laws, counterfeiting, kidnapping and negligent manslaughter.

In 2007, the number of cases that would have been tried by jury under the new system was 2,643 out of 97,826 cases tried in district courts throughout the country.

Critics of the new system say Japan’s culture, in which the average person is submissive to authority figures, will make it tough for the lay people to disagree with the professional judges on the panel.

"The kiss of death is to have three judges on the panel," said Michael Griffith, an international criminal defense lawyer who has been involved in several high-profile cases involving U.S. servicemembers on Okinawa.

"I don’t think it’s a good idea. Japan does not have a culture where people feel free to express themselves openly. They kowtow to authority. Do you really think the lay people on a Japanese jury will argue with the judges on the panel? Believe me, you’ll never get a situation like you see in the movie ‘12 Angry Men.’"

Military officials on Okinawa are closely watching the change.

"We’re monitoring it with interest," said Lt. Col. Douglas Powell, head of Marine Corps Public Affairs in Japan. "Our legal members will see how it affects our Marines. However, it is an internal Japanese matter that we do not believe affects the status of forces agreement."

Staff Judge Advocate officials with U.S. Forces Japan declined to be interviewed, stressing it was a Japanese matter.

American attorney Robert Precht, an international defense lawyer based out of New York, participated in the implementation of the new system, traveling across Japan to speak to different groups concerning the change and how it compares with the American jury system.

Precht, co-director of the Juries and Democracy Program at the University of Montana’s Maureen & Mike Mansfield Center, said the new system could have a profound impact not just in Japan but across Asia.

"Now they will be summoned to come to court, serve on saibanin panels and make decisions that can determine the life or death of fellow citizens," he said in a telephone interview from Beijing, where he oversees the China office of the Public Interest Law Institute.

"This is not only a big change for Japan, but something that can have important consequences for the rest of Asia, where juries are not common.

"The biggest plus is that trials will be much shorter and based on actual live testimony, with witnesses brought into court instead of the current system of relying on the introduction of paper files. With actual live testimony, the process will certainly be more visible to the people and more transparent — and fairer — to the defendants, who will be able to face and cross-examine their accusers."

‘An epoch-making change’

Trials in Japan were typically dull, paper-heavy affairs, with statements of witnesses and other evidence introduced by the prosecution as documents the defense could accept or challenge with paper motions of its own.

Trials could stretch out over months, sometimes years, in short sessions every other week or so to accommodate the schedules of the judges and lawyers while the defendants languished in jail.

Bail was seldom granted because judges feared the defendants would somehow tamper with evidence.

And because the prosecutors sought indictments only in cases where there were confessions or incontrovertible evidence, some critics of the old system say the intent of a trial was not to determine guilt or innocence, but to reveal just how sorry a defendant was for the acts he committed.

That will change under the new system, Precht predicts.

"There will be more accountability," he said.

"Cases will be determined more on the testimony of witnesses coming into court, not just on the introduction of statements on paper introduced by the prosecution."

Hiroyuki Yoshii, presiding judge of the Naha District Court on Okinawa, said he was unsure how the new system will affect Japan’s high conviction rate.

"Under the current system, prosecutors seek indictments in cases they are 100 percent sure of convictions," he said.

"Unless the prosecution system changes, the conviction rate will not change."

Takashi Takano, a Tokyo-based lawyer and a founder of the Miranda Association, a group advocating the American "Miranda Rule" for Japan, said he was encouraged by the system’s provision for pre-trial meetings between the professional judges, defense attorneys and prosecutors.

"It gives the defense side the discovery rights, allowing an access to all the evidence, which was not possible in the old system," he said.

In the past, prosecutors did not have to disclose evidence unless ordered by a judge.

"This is an epoch-making change," Takano said in a phone interview from his Tokyo office.

‘Speed before quality’

Tetsumi Takara, a professor of constitutional law at University of the Ryukyus Law School, said that he and fellow researchers at University of the Ryukyus are working with the University of California to form a group by this fall to study how the system affects U.S. servicemembers.

Tokyo-based defense attorney Yasutoshi Murakami said he is concerned the new lay judge system could harm defendants by speeding trials for the convenience of citizen judges.

"Undue emphasis might be placed on having speedy trials," he said during a telephone interview.

Murakami is the defense counselor for former USS Cowpens sailor Seaman Olantunbosun Ugbogu, who is charged with stabbing a 61-year-old Tokyo cab driver to death in March 2008 near Yokosuka Naval Base.

Murakami said he has already experienced difficulties in representing Ugbogu because of what he calls the "new speed-before-quality trend" that preceded the introduction of the new system.

During a hearing in April on the question of Ugbogu’s sanity, Murakami asked the court to allow him to call a defense psychiatric expert to refute a prosecution expert witness who claimed Ugbogu lied about hearing a voice that demanded he kill someone.

Murakami claims the court denied his motion solely for the sake of speeding up the trial process.

Deputy chief prosecutor Takafumi Sato of the Naha District Prosecutors Office said speedy trials are necessary aspects of the new system.

‘To find the truth’

Preparations for the new system have been under way in various fields since the enactment of the bill five years ago, Sato said in an interview at his Naha office.

"Introduction of the lay judge system has brought a major change in our consciousness in presenting cases and establishing evidence," he said.

Using plain language in arguments rather than legal jargon and making more use of computer technology to exhibit evidence are some of the major changes, he said.

"We will focus more on appealing to the panel during trials," he said.

"However, we are not going to make these public show trials. Our mission as public prosecutors is to find the truth under due process, and this remains unchanged."

Some procedural changes are taking place outside the courtroom, he said. One major change is video recording the pre-indictment interrogation of suspects. On Okinawa, prosecutors started taping the sessions last year and began introducing the taped confessions as evidence in April.

One of the biggest concerns critics of the current system have is that most defendants sign confessions during extended interrogations by police and prosecutors in a system called "daiyo kangoku," in which a suspect can be confined for up to 23 days and interrogated without a lawyer being present.

"As an American defense lawyer, I know that written confessions are often very unreliable," Precht said.

"With this new lay jury system there will be more accountability. Police officers will have to testify how they got confessions. There are many skeptics who say this is all window dressing, that it won’t change the legal system very much because it is really the police who control it.

"I disagree. I think this new system will put a spotlight on police abuse."

How the new system works

Criminal investigation: Evidence is collected by police and other organizations responsible for criminal investigation.Prosecution: The public prosecutor calls for a court trial of the suspect.Preparation of court hearings: In order to carry out a court trial effectively and expeditiously, judges, prosecutors and defense counsels conduct pre-trial discussions to plan for court hearings.Saiban-in are selected: The judicial panel will be composed of six saiban-in (lay judges) and three professional judges.Trial procedures: Saiban-in hear the testimonies of witnesses and evaluate evidence. The lay jurors are allowed to ask questions during the hearings.Deliberations: Judges and saiban-in deliberate and make decisions both on guilt or innocence and sentencing.Judgment: Each juror or judge has one vote each and cases are decided by a simple majority (with the exception that at least one judge must agree with the majority in a guilty finding).How the jurors are selected

Each year about 300,000 people over the age of 20 will be chosen throughout the country by lottery from electoral registers.

By December, questionnaires will be sent to each candidate.

People exempted from jury duty are police officers, members of the military, national and local government officials and attorneys.

From the roster of eligible jurors, 50 to 100 candidates will be picked for each case. The possibility of being selected as a lay judge candidate for any specific case is one out of 400 to 800 citizens.

On the day of trial, candidates will be summoned to the court.

The presiding judge will question them to see if there are any factors that would prevent them from making fair judgments.

During the lay judge selection, both prosecution and defense have the right to challenge without cause a maximum of four candidates.

Finally, six lay judges will be selected by lottery.

In most cases, the lay judges would be selected in the morning and the trials would begin in the afternoon.

The probability of becoming a lay judge is one out of 5,000 citizens each year.

During the trial, the lay judges will participate in the public trial as equals with the professional judges. At the end of the evidence phase of the trial, the entire jury panel will make a determination of guilt and, if guilt is found, decide a sentence.

Verdicts will be decided by a majority vote and at least one professional judge must support the decision, both in determining guilt or innocence and the sentence.

Sources: Japan Ministry of Justice and Supreme Court