Japan’s Legal Revolution

“Japan’s Legal Revolution”

Dateline, SBS Television. 7th May 2008

The jury system is something that most Australians, Americans and Britons take for granted. But for the Japanese its introduction into their legal system is  something of a revolution that’s challenging a culture where “speaking your mind” is not always valued. Proponents hope it will go some way to strengthening justice in a country that has an incredibly high conviction rate – over 99%.



REPORTER: Bronwyn Adock

Hiroshi Yanagihara lives with the stigma of being convicted and jailed for
sexual assault.

HIROSHI YANAGIHARA (Translation): I was in jail for two years and one month. When I was released on parole I felt people looking at me coldly. Even after I started working I felt my colleagues whispering, “He’s been in prison.” So I didn’t last long at work.

But Yanagihara did not commit any crime. Rather, he was the victim of a gross miscarriage of justice. His is a disturbingly common story, according to some Japanese defence lawyers.

SHUNKICHI TAKAYAMA, LAWYER (Translation) He was one of the luckier cases. In these cases the truth is revealed. But there are cases in which the wrong man is accused while the real culprit does not come forward.

REPORTER: Did you ever see people go to the gallows who you thought were perhaps not guilty?

SATORU SHINOMIYA, DEFENCE LAWYER: I believe so, I believe so.

After he was released from jail Hiroshi Yanagihara left his home town, but agrees to revisit it to tell me his story. This is Himi, on Japan’s northern coast. In 2002, two women here were sexually assaulted. One helped police draw a picture of her attacker. The image apparently resembled Yanagihara. One day six policemen turned up here, where he worked as a taxi driver.

HIROSHI YANAGIHARA (Translation): Suddenly they surrounded me. They called my name and showed their police IDs. They didn’t ask me anything or explain anything but forcibly took me to the station.

Here at the police station Yanagiraha was held for two days and interrogated for up to 12 hours at a time.

HIROSHI YANAGIHARA (Translation): When I said, “I didn’t do it,” they said, “Don’t lie, you did it.” They kept saying that. This continued and I asked them to call a lawyer for me. They said it wasn’t necessary to call a lawyer.

In Japan, police can hold a suspect for up to 23 days without charge, with only limited access to a lawyer. After days of gruelling, repetitive interrogation, Yanagihara says the room suddenly heated up.

HIROSHI YANAGIHARA (Translation): I got very hot… My mind became foggy. I couldn’t bear the heat any more. I fainted once in the interrogation room. They said, “Your mother is crying.” Then they said my sisters were saying I’d done it and left me to the police. They said this again and again. It made me think my family had given up on me.

Based solely on his forced confession, this court found Yanagihara guilty. Only after he served his jail time did another man admit to committing the crime, and Yanagihara’s name was officially cleared. Lawyer Shunkichi Takayama says it’s not unusual in Japan for suspects to be placed under intense pressure to confess.

SHUNKICHI TAKAYAMA (Translation): I would say it happens very frequently. The pressure may not be beating and kicking, it’s more psychological. But it’s almost as effective at stopping him from saying what he really thinks.

According to defence lawyers, these forced confessions are usually accepted as evidence by judges. They complain that judges are too keen to convict. Takayama knows each time he heads off to court he’ll almost certainly lose.

SHUNKICHI TAKAYAMA (Translation): It appears as though everyone is treated equally. But in practice a decision has already been made. The decision is ‘guilty’. The procedure is carried out only to make it look fair. The court has become a mere formality.

The conviction rate inside Japanese court rooms is incredibly high. Once charged, there’s a more than 99% chance of being found guilty.

SATORU SHINOMIYA: I handled many, many criminal cases, and some of them my client was not guilty because of the so-called reasonable doubts on the evidence, and I tried to persuade the professional judges, but no-one was persuaded.

Satoru Shinomiya is a leading criminal defence lawyer and professor. Like most of his colleagues, he’s rarely won a case in his entire career and he blames the attitude of judges.

SATORU SHINOMIYA: I was talking to the wall, because they were not interested in my argument and they never make question on me about the case, even the contested death penalty case.

Critics of Japanese justice are now pinning their hopes on the introduction of the biggest legal reform in Japanese history.

MOCK TRIAL OFFICIAL (Translation): I’ll say, “Stand up,” the moment the door opens. So please stand up. The judge will bow before you are allowed to sit down. Bow to the judge and sit down.

Early next year, a jury system is set to be introduced into Japanese court rooms. Across the country authorities are preparing by running mock trials like this one.

MOCK TRIAL OFFICIAL (Translation): At approximately 8pm on June 30, 2007, the accused attacked Yone Sugiura, aged 88, by pushing her backwards and knocking her down.

The proposed Japanese jury system is distinctly different to the Western system. While in the West the jury is separate to the judge, here the six jurors will sit alongside and deliberate with three judges. In today’s exercise the accused is charged with assault and theft. Advocates of the new system, called Saiban-in, have great hopes in the ability of lay people to restore some credibility to the judicial system.

SATORU SHINOMIYA: If we defence lawyers can succeed in persuading them just do the right thing, they will follow the law. The law will say to them acquit the defendant if you have reasonable doubt.

Defence lawyer Takashi Takano believes that citizens could put an end to courts accepting forced confessions.

TAKASHI TAKANO, DEFENCE LAWYER: I believe that Japanese ordinary people don’t believe the idea that even after 30 hours of custodial interrogation police can get voluntary confession.

REPORTER: So you think ordinary people will be more sceptical of these confessions?

TAKASHI TAKANO: They don’t need to be sceptical to reject those kinds of confessions. Do you believe that people can to be voluntary after 30 hours of interrogation?

The new system is striking fear into the hearts of many Japanese. Opinion polls show the vast majority do not support it and do not want to serve as jurors.

ROBERT PRECHT, US DEFENCE LAWYER: This is not just a legal reform, this is in many ways a cultural reform, or some people might even say, revolution.

Robert Precht is an American criminal defence lawyer. He’s been visiting Japan regularly for the past two years, holding workshops and meetings about the new system. He thinks Japanese are nervous because the whole concept behind a jury system is at odds with mainstream attitudes.

ROBERT PRECHT: For Americans and for Australians and for citizens of the UK a jury system is almost second nature to us because we’ve been taught from an early age that it’s healthy to distrust the government. So we view the jury system as an essential feature of our democracy in that it protects us from the government. But what’s striking to me is distrust of the government is not a widespread attitude here in Japan. Indeed most citizens, I’m told, trust the government.

For citizens to suddenly take on the role of being a watchdog on the state is a huge step.

ROBERT PRECHT: So this new system really is asking Japanese to behave in a new way and to become new citizens. And so it goes much further than simply how do we decide guilt or innocence in a particular case. The real significance is how do we, remake citizens into a more active, less passive group of people who will not just be led by government but will ultimately tell the government what to do.

MAN IN THEATRE GROUP (Translation): He was having an affair with another woman. You didn’t want to be kicked out. You loved him too much. The love turned to hatred.

WOMAN IN THEATRE GROUP (Translation): How could killing my husband make me happy? We have children together.

In a small town a few hours north of Tokyo a community theatre group is rehearsing for its latest production. It’s based on the true story of a woman falsely accused of killing her husband.

WOMAN IN THEATRE GROUP (Translation): Detective, you can’t frame me by making it look like that, because I didn’t do it. I didn’t do it!

The director and star is 73-year-old Fukiko Kimura, a veteran of Japanese theatre. A keen supporter of the Saiban-in system, Fukiko’s timed this play to coincide with its introduction.

FUKIKO KIMURA, DIRECTOR, (Translation): In Japan, judgment has been a matter for the authorities. We’ve been apathetic about justice. We watch court cases as if they were TV variety shows. When the jury system begins we’ll have to participate. We’ll have to learn what to watch out for.

Fukiko is concerned that ingrained cultural beliefs will make it difficult for Japanese jurors to speak their minds.

FUKIKO KIMURA, (Translation): In Japan we traditionally place an emphasis on harmony. In our culture we try not to stand out. We listen to others as much as possible and agree with everyone else. The great poet Basho wrote in his famous haiku, “If I speak out, my lips are chilled by the autumn wind.” If you don’t say anything, no trouble is caused.

Fukiko Kimura and others fear that these problems could be exacerbated by the unique structure of the Japanese jury system that places judges and jurors together. This requires citizens to potentially speak up against someone higher in the social hierarchy.

FUKIKO KIMURA, (Translation): We citizens have long accepted the idea, “The power above, the people below.” The officials are placed high and we’re below them. For ages that’s the way we’ve been mind-controlled.

ROBERT PRECHT: I was at a program a couple of weeks ago involving Japanese college students, and one said, “I am looking forward to deliberations, but frankly, if I had an opinion that the defendant was innocent and then the judge expressed his opinion that the defendant was guilty, even though I thought the defendant was innocent, I would have to follow the judge because the judges knows more than me, the judge is older than I am.”

In Fukiko’s play, a true story, the accused woman is convicted based on forced testimony. She dies in jail before her name is cleared. Fukiko Kimura hopes watching plays like this will encourage potential jurors to speak their mind.

FUKIKO KIMURA, (Translation): To save an innocent person we must speak out. I hope people will realise this and change their attitude. I’m really hoping for that.

Back at the mock trial, the young man accused of assaulting and robbing an old lady has failed to provide an alibi or an explanation for the money found on him. Nevertheless, there’s still no hard evidence he was at the scene. Before the jury retires, the judge outlines the case.

MOCK TRIAL JUDGE, (Translation): There’s no dispute that the attacker was a young man in a white, long-sleeved T-shirt. What’s disputed in this case is whether the attacker was the accused or not.

Inside the jury room, conversation is initially dominated by the three judges who sit at the head of the table and the male members of the jury. Eventually, some of the women jurors admit they’re finding it difficult because they were afraid to ask questions during the trial.

WOMAN, (Translation): I would’ve asked that. But I thought the judge might use his power to stop me and say that my question was irrelevant. Wouldn’t it have been embarrassing? I thought I’d hate it if I were corrected like that.

The jurors are clearly undecided about the verdict.

MAN, (Translation): After hearing the case today, we have nothing to base a verdict on but circumstantial evidence. On this evidence, the accused seems guilty and we’re moving in that direction. But we’re judging a person. The case is unclear and we’re meant to make a decision.

The chief judge suggests that the vague evidence of the accused is an indication of guilt.

MOCK TRIAL JUDGE (Translation): If the accused was telling us what really happened, would we be left with these doubts? It’s the vagueness that’s the problem.

Eventually all jurors agree on a guilty verdict. Afterwards, the juror who admitted to not speaking up says with a bit more practice she could do it in a real trial.

JUROR, (Translation): I think I could. It’s my responsibility to express my opinion. It’s the way I live my life. With my personality, I would speak up.

Another juror says he relished the chance to finally be involved in such a process.

JUROR 2, (Translation): In the past, I’d say there were no opportunities at all or very few except for the people in high positions. Now it’s open to ordinary people.

LAWYER: I want to talk to you about the purpose of an opening statement.

It’s not just civilians who need new skills, though. Until now, Japanese court cases have largely been decided on written evidence. American trial lawyers are training Japanese lawyers in the arts of presenting a case to the jury.

LAWYER: You have to remember we want to have drama and immediately capture their idea in their head that you are right.

Observers say this new dynamic will fundamentally alter the nature of the trial.

ROBERT PRECHT: For the last 60 years, trials – criminal trials in Japan have basically been non-adversarial in the sense that cases are largely decided on the basis of written records submitted by the prosecutors to the judges, and there has been very little role for defence counsel either to challenge the evidence or to complain about police misconduct. But with this new system with live witnesses and police coming to court and having to argue your case in front of citizens, the whole prosecution process will become more visible to citizens and if there is misconduct that will be more visible.

Not everyone has faith in the new jury system. This meeting is of legal professionals opposed to Saiban-in. Their spokesman is lawyer Shunkichi Takayama, an outspoken critic of the current judicial system.

SHUNKICHI TAKAYAMA (Translation): If it were a sick person, I’d say it’s in a critical condition. Because the human rights of the accused are not protected and it’s producing a great number of wrong decisions, declaring the innocent guilty.

But Takayama says the Saiban-in system is little more than window dressing, covering up but not fixing these problems.

SHUNKICHI TAKAYAMA (Translation): The new system will not change the situation. Worse than that, it will give publicity to the misleading impression that there are no problems in the current situation.

According to Takayama, because the judges and the jurors sit and deliberate together, the judges’ views in Japan will always prevail.

SHUNKICHI TAKAYAMA (Translation): The citizens are not allowed to reach a conclusion alone. They’re made to listen attentively to the views of the judges, who are professionals. They’re expected to learn how the pros think about it and then go home. There’s no idea that the state could be wrong. So the idea behind the Saiban-in system is totally different from that of the jury system.

ROBERT PRECHT: There is frankly no evidence that jury systems – whether it is the Saiban-in system or the American and Australian jury system – there is no evidence that jury systems produce better or more accurate fact-finding than professional judges, so I don’t know whether the new system will lead to fewer miscarriages of justice. However, I can say with some confidence that since the trial process is more transparent, with live witnesses, that where there are miscarriages of justice they will be visible now, and hopefully correctable, whereas under the current system, where a lot of these cases are decided by written records, miscarriages of justice go unnoticed.

Hiroshi Yanagihara, jailed for two years for a crime he didn’t commit, is sceptical that the introduction of lay people will make the judicial system any fairer.

HIROSHI YANAGIHARA (Translation): The police and the prosecutors, they fabricate statements and make it look like it’s what the suspect said. The court just swallows it. Unless we stop that, innocent people will continue to be convicted.





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