August 04, 2009
We, the Jury
Yesterday, Japan held its first jury trial in over 50 years. The Japanese media has been wringing its hands in gleeful angst ever since the law passed, conducting countless polls, discussion groups, town halls, not to mention that cop shows have discovered jury tampering as a plot.
It's as if they're trying their hardest to to confirm every stereotype about the pull of state paternalism. It's bizarre to hear the "man on the street" complaining that it's wrong to ask people to judge others. Apparently judges aren't "people" in the same way that samurai weren't.
The rubbernecking, though, is going full tilt. The trial topped the 24-hour news cycle, complete with breathless "live" coverage and commentary, the kind of thing that turns into the media covering itself. Almost 2400 people lined up for a shot at the few dozen gallery seats.
NHK even built a dollhouse-sized scale model of the courtroom. And since the gag rule governing jurors is iron clad, we instead got to listen to people in the jury pool who'd been peremptorily challenged and basically said, "Well, I didn't get chosen. It's kind of a relief." News!
I actually think that the new Japanese system is an improvement on the American system. Japanese jurors are more like lay judges. The six jurors sit with the three trial judges in a configuration that resembles an appeals court. They can directly question witnesses.
The juror as a passive spectator giving a thumbs up or down to a contest between combating lawyers is like the NPR game show Wait, Wait, Don't Tell Me, where three panelists read news stories, two of which are made up, and the contestant has to pick the real one.
Where technical issues are involved, a "jury of one's peers" should mean people technically capable of understanding and evaluating those issues, not people deliberately chosen for their susceptibility to emotional arguments or their outright ignorance of current events.
The one big failing in Japan's new jury system is that it's the wrong solution for a much worse problem, namely the lack of due process safeguards at the law enforcement level. But I suspect the politicians didn't want to touch that hot potato with a ten foot poll.
Consider how popular entertainment treats due process in shows friendly to the law enforcement perspective. In Law & Order, Bones or CSI, for example, there's the inevitable interrogation scene. The suspect is seated at a table (usually with a lawyer), the cop across from him.
It's not a big room but not claustrophobic (and in real life not so darkly lit). Everybody talks in measured tones. The lawyer can stop the process at any time. If a cop starts getting "dramatic," somebody will tell him to calm down. "Or you're off the case, buster!"
The same scene in a Japanese cop show: the suspect is seated at a teeny tiny table in a room the size of a broom closet. And there are at least four other cops standing over him and SCREAMING at him. No lawyer (there wouldn't be enough room). Remember, the cops are the good guys!
Okay, at some point the protagonist will poke his head into the room and ask the one penetrating question that cracks the case. But habeas corpus rights don't kick in for 23 days! That means the cops can keep you on ice for three weeks before giving you a hearing before a judge!
No wonder confessions play such a significant role in Japan's 99 percent conviction rate. No wonder so many defendants later retract their statements.
Even this very first jury trial in Japan since WWII is open and shut. The defendant already confessed, so it's only a sentencing trial. I suspect one unstated intent of the new jury law is to introduce the real possibility of jury nullification as a check on police power.
(I describe my experience as a member of two jury pools here.)
It's as if they're trying their hardest to to confirm every stereotype about the pull of state paternalism. It's bizarre to hear the "man on the street" complaining that it's wrong to ask people to judge others. Apparently judges aren't "people" in the same way that samurai weren't.
The rubbernecking, though, is going full tilt. The trial topped the 24-hour news cycle, complete with breathless "live" coverage and commentary, the kind of thing that turns into the media covering itself. Almost 2400 people lined up for a shot at the few dozen gallery seats.
NHK even built a dollhouse-sized scale model of the courtroom. And since the gag rule governing jurors is iron clad, we instead got to listen to people in the jury pool who'd been peremptorily challenged and basically said, "Well, I didn't get chosen. It's kind of a relief." News!
I actually think that the new Japanese system is an improvement on the American system. Japanese jurors are more like lay judges. The six jurors sit with the three trial judges in a configuration that resembles an appeals court. They can directly question witnesses.
The juror as a passive spectator giving a thumbs up or down to a contest between combating lawyers is like the NPR game show Wait, Wait, Don't Tell Me, where three panelists read news stories, two of which are made up, and the contestant has to pick the real one.
Where technical issues are involved, a "jury of one's peers" should mean people technically capable of understanding and evaluating those issues, not people deliberately chosen for their susceptibility to emotional arguments or their outright ignorance of current events.
The one big failing in Japan's new jury system is that it's the wrong solution for a much worse problem, namely the lack of due process safeguards at the law enforcement level. But I suspect the politicians didn't want to touch that hot potato with a ten foot poll.
Consider how popular entertainment treats due process in shows friendly to the law enforcement perspective. In Law & Order, Bones or CSI, for example, there's the inevitable interrogation scene. The suspect is seated at a table (usually with a lawyer), the cop across from him.
It's not a big room but not claustrophobic (and in real life not so darkly lit). Everybody talks in measured tones. The lawyer can stop the process at any time. If a cop starts getting "dramatic," somebody will tell him to calm down. "Or you're off the case, buster!"
The same scene in a Japanese cop show: the suspect is seated at a teeny tiny table in a room the size of a broom closet. And there are at least four other cops standing over him and SCREAMING at him. No lawyer (there wouldn't be enough room). Remember, the cops are the good guys!
Okay, at some point the protagonist will poke his head into the room and ask the one penetrating question that cracks the case. But habeas corpus rights don't kick in for 23 days! That means the cops can keep you on ice for three weeks before giving you a hearing before a judge!
No wonder confessions play such a significant role in Japan's 99 percent conviction rate. No wonder so many defendants later retract their statements.
Even this very first jury trial in Japan since WWII is open and shut. The defendant already confessed, so it's only a sentencing trial. I suspect one unstated intent of the new jury law is to introduce the real possibility of jury nullification as a check on police power.
(I describe my experience as a member of two jury pools here.)
Labels: japan, law, nhk, politics, social studies
Comments
I always get a kick out of watching the interrogation scenes in Law & Order: Criminal Intent. Goren (Vincent D'Onofrio) will go into one of his big throwing-arms-around psychoanalytical sum-ups, and nobody does anything. I always think to myself, "Geez, those are lousy defense lawyers. Take your client out of the room, people!"
But then the show is really a psychoanalytical fantasy: Goren as therapist, the lawyers as Freudian symbols (and Goren is ALWAYS right). But it's a far cry from the original intent of Law & Order. And even from a lot of mysteries. As Cramer says in Nero Wolfe to Nero, "Okay, okay, I didn't say you could talk the suspect to death!"
What was the process in Japan before trial by jury?
But then the show is really a psychoanalytical fantasy: Goren as therapist, the lawyers as Freudian symbols (and Goren is ALWAYS right). But it's a far cry from the original intent of Law & Order. And even from a lot of mysteries. As Cramer says in Nero Wolfe to Nero, "Okay, okay, I didn't say you could talk the suspect to death!"
What was the process in Japan before trial by jury?
It's basically what you'd get if you waived trial by jury. The typical felony trial in a Japanese cops & lawyers show is (was) presided over by three judges. There was a drama series on last year about a judge living on a little island out in the middle of nowhere. He was the entire civil and criminal justice system.
As a result, decisions are delivered much like appeals court decisions. There's no courtroom drama with the jury handing the judge a verdict (and Japanese courtrooms are painfully austere). Since jurors in the new system are more like lay judges, I suspect that this won't change.
Things do get dramatic when a decision is rendered in an important case. Somebody will immediately run onto the courtroom steps in view of the crowds and the media and unfurl a banner reading "Guilty" or "Innocent." I'm not sure how this banner unfurling is coordinated, but it gets the news out quickly.
In practice, just as in the U.S., because the prosecution has such a strong hand, most cases are resolved by plea bargain. When I temped as a legal secretary at an ambulance chasing firm a long time ago, I was surprised to find out that cases hardly ever went to trial. Not like on Boston Legal.
As a result, decisions are delivered much like appeals court decisions. There's no courtroom drama with the jury handing the judge a verdict (and Japanese courtrooms are painfully austere). Since jurors in the new system are more like lay judges, I suspect that this won't change.
Things do get dramatic when a decision is rendered in an important case. Somebody will immediately run onto the courtroom steps in view of the crowds and the media and unfurl a banner reading "Guilty" or "Innocent." I'm not sure how this banner unfurling is coordinated, but it gets the news out quickly.
In practice, just as in the U.S., because the prosecution has such a strong hand, most cases are resolved by plea bargain. When I temped as a legal secretary at an ambulance chasing firm a long time ago, I was surprised to find out that cases hardly ever went to trial. Not like on Boston Legal.