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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 
 
NAHA 00000029  002 OF 006 
 
 
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 
 
NAHA 00000029  003 OF 006 
 
 
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 
 
NAHA 00000029  004 OF 006 
 
 
 
¶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. 
 
 
NAHA 00000029  005 OF 006 
 
 
¶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. 
 
NAHA 00000029  006 OF 006 
 
 
 
¶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