Achtergrondinformatie om de rechtszaak van Kijima Kanae beter te kunnen kaderen tegen de achtergrond van het maatschappelijke debat over de rol en functie van de juryrechtspraak in Japan

Interview by D. Vanoverbeke with Taguchi Masayoshi

(member and one of the founders of the Japanese Network for Former Jurors -- Saiban’in Keikensha Network-- and former juror in the jury trial of actor Oshio Manabu)

January 5, 2012

Keio Plaza Hotel (translated from Japanese to English)

More information about the experience of Mr. Taguchi can be found in the Asahi Shinbun of December 22, 2011 & Mainichi Shinbun of September 17, 2011.

1.    Can you tell me more about the Saiban’in Keikensha Network?

"The members of the Network meet once every two months. The next meeting is planned on January 15th , 2012. The association is meant for people who were juror in a trial and want to meet other people to talk about their experience. This helps for decreasing the psychological burden of the participation in a criminal trial. The number of people participating in these meetings range between three and nine. Many lay judges carry a heavy psychological burden and need to be taken care of (心のケアの必要性) which unfortunately is not done by the Supreme Court. The Supreme Court does provide some form of assistance but this is limited to receiving a phone number and a web-address and when the lay judges contact the center for psychological assistance they are informed that they can be helped for free only for five sessions and for the duration of up to one year. This is for some lay judges insufficient and is the main motivation for the creation of the Network. I heard that a similar kind of network exists in France…"

2.    Can you tell me more about your experience as a lay judge and if you would agree to be a lay judge again if this were possible?

"I felt it was a very positive experience and I certainly would do it again because I felt it to be very meaningful (意義のあること). By ‘meaningful’ I mean that I felt that this case was not unrelated to my own life. I learned that the accused was a normal person and that it could have been me in the same position. This kind of system did not exist previously. The participation of civilians is very important and should be extended to civil cases. By the participation of ‘fellow citizens’ (note: Mr. Taguchi uses the word ‘citizenship’ シテゼンシプ and 同じ国民) the fairness of the trial is guaranteed for the first time.
There are problems though with the lay assessor system as it exists now. It is important to improve the system and to promote the primary function of the lay assessor system in Japan which is to develop ‘legal literacy’ (司法リテラシー). The promotion of the this kind of literacy will avoid the main social problem here which is a feeling of irresponsibility and indifference. People feel disconnected from society and therefore become indifferent (無関心さ). The legal system should be known better."

"I think my own experience as a juror was positive (よかった) because I was allowed to enter a different world and realized that I was blind for many important things (とんでもないことを見過ごしていた). I mean that I realized that the procedure and norms are very strictly defined (e.g. the trial and the sanction) and that no exceptions are allowed. Within this very well defined procedural framework the trial is functioning well and decisions are rendered on the accused. There is definitely a lack of flexibility in the legal system which maybe can be changed by the participation of citizens. This can for example be the case with the so-called Nakayama Criteria for the death penalty. The jurors could be making these criteria more flexible. It is hard to understand why the criteria about the death penalty are kept secret. I do not understand this and aside from the question whether I am for or against the death penalty I think that it is more difficult to explain the reason why the system is as it is if all the criteria are kept secret. More openness is necessary. I visited twice a prison after I had been a lay judge and realized that we know not enough how life is in prison. I heard a strange story from a member of the jury in a case that sentenced the accused to the death penalty. That person told me that he was for the death penalty but only as a sentence (宣告としての死刑) and that he was against the death penalty being executed. He would feel bad, so he said, if the death penalty would be carried out but did not feel bad to tell the accused that what he did was worth the death penalty (死刑に与えする)."  

3.    How should the current lay assessor system be reformed?

"The atmosphere surrounding the system and the fundaments of the system should be reformed so that society can accept the lay assessor system better. It is essential for the success of the saiban’in system that it becomes ‘normalized in a positive sense’ (いい意味での一般化) so that the citizens can face their social responsibility in a straight way (正面から受け止める). The danger now, exists in the system becoming normalized in a negative way which means that the citizens loose interest in the system and that it gradually will become useless for its primary task of developing legal literacy. The jury stays behind the screens but should be accepted as normal in society. When I was a juror, my neighbour told me how she felt for me that I had to be a lay judge (可哀そうに) and showed compassion. I think that the system should become normalized so that people can be proud of the system and not feel sorry for someone who is drafted for jury duty. Fortunately the obligation of secrecy (守秘義務) is defined in a very general way so that we have the opportunity to talk freely about the experience and can communicate with the media about the system. I hope that the saiban’in system will become known to everyone thanks to the lay judges speaking out.
I also think that the first stage of the composition of the panel should be more public like in France. At least there should be more openness towards the potential jurors. We have no idea if the selection procedure is really at random (無作為) as the selection is done behind closed doors and it is post facto said to us that the selection was done at random but we just have to believe that.  The only questions that we are asked is at the very beginning when the case is very briefly explained to us and asked whether there is any reason why we cannot try this case."

4.    Why did you decide that you had to become active after having served as a lay judge?

"When I realized that the accused was very similar to myself (自分と同じ国民・同じ文化の被告人) and I could not do otherwise than to see myself in him (被告人を自分と重なって見える), I had the impression that this trial was for me but that the interest of this trial was beyond my own person. I felt it was my duty to tell about this experience. Moreover it is only now that this can be done efficiently. The deficiencies in this system can be changed now but if we just leave it as it is now, it will be too late and the crucial point of success (normalization in a positive sense) will be decided by actions at this time. Time is crucial and I realized this.
I did not see the accused as a ‘criminal’ (犯罪者) but as a normal person who somehow crossed the line (本線を外して、そこのいる人). If something happens or if one ‘falls victim to temptation’ (魔が差せば) it can happen to everyone. Crime is not something that does not belong to social life but that is inherent to society; it is  ‘set’ in society and an integral part to it. The court is maybe even the entrance to real society (法廷は本当の社会の入り口かもしれない).
My wife does not support the same opinion than me about participation in the jury trial. She would refuse to participate, so she told me. I respect her opinion because she thinks seriously about the jury and is not indifferent. Indifference and just refusing to serve on the jury trial because it is a burden (メンドクサイ) should not be allowed but for people who really do not want to serve because of ideological reasons there should be the possibility to choose for an alternative service to society in a similar way that some countries allow the citizens to choose an alternative to service in the army."

5.    How do you see the role of the media in the lay assessor system?

"For the normalization of the system the role of the media is of primary importance. The problem is that the media will not be able to write about the jury system if they cannot speak with the people who were lay assessor judge in the system. The way that the media is reporting about the system now is very superficial. The media have no way to communicate with the jurors except for the formalized press conferences. The jurors now do not want to talk to the media out of fear that their privacy will be exposed. That is the reason why I organize once a month an informal meeting at a bar (飲み会) between lay judges and journalists. This meeting is informal and the journalists have to promise not to take notes or to record anything that is said but at least they can understand how the jurors really think about the saiban’in system. That is not possible in the formal press conferences after the trial because first, the lay judges are still too impressed by the trial (緊張しすぎている) and very defensive towards the media so that they do not say anything but very predictable replies to the as predictable questions of the media. Recently some courts have stopped the press conferences because of the lack of journalists interested in them. The journalists apparently have nothing to write about and do not want to lose precious time by attending useless press conferences. I think that the press conferences should have to take place sometime after the end of the trial so that the lay judges can digest their experience and answer in a relaxed way to the questions of the journalists."

6.    Is it possible to have open debates in Japan? Do you think that culture and customs make it difficult to debate on the guilt and the sanction for the accused?

"No, I think that everyone has the same possibilities to voice their opinion and did not feel that any member of the lay judges had a problem with voicing their opinion. The judges were not at all a barrier to the open discussion and sometimes I even turned my back to the professional judges to talk only to my fellow lay judges. The professional judges though are important but only to explain legal concepts that we have to understand in order to reach a fair decision. I was not afraid to go against the opinion of the professional judges and did my utmost best to ignore the professional judges (裁判官を極力無視していた) so that I would not be influenced by their positions (誘導されないように)." 

7.    How do you evaluate the future of the lay assessor system?

"I hope that the system will become one where the citizens can be proud of as Japanese (日本人として誇りを持って言えるようになりたい). I travel around the country to try to motivate people to form networks of lay judges to improve communication. Now there are initiatives by civil society (市民団体) and by for example a university professor at Aomori. It is important, I think, to respect the regional character of the lay judges who should be able to use their own dialect and culture when talking about the cases and about the system.  We should not be using too big statements such as ‘democracy will change through this system’ but there is something that I feel that is only possible because it happened in here Japan (日本だからできたところがある), because there was some form of indifference we could create this system (ある程度無関心な国民性だからどうにかできた)."