Wednesday, May 20, 2009

"Citizen judges in court

"South Korea has started a system in which the public takes part in criminal court cases as a jury. In one case, reporters were able to talk to jury members during court recesses and interview them after the court closed. Likewise in Germany, where citizens try a case along with the judge, there are no limits to media access to the jurors.

"In both countries, participating citizens are all bound by confidentiality obligations. They are not allowed to disclose what went on in the deliberations that decided the verdict. However, they shared with reporters their thoughts and impressions of having participated in a trial.

"What is it like to pass judgment on someone charged with a crime? As we promote citizen participation in judicial proceedings, it is essential that the participants are allowed to convey these first-time experiences to people who might be chosen as the next lay judges.

"The key to the success of Japan's citizen judge system, due to begin on Thursday, is whether the public can share each other's experiences as lay judges.

"In an opinion poll conducted by The Asahi Shimbun, nearly 80 percent of the respondents said they would rather not take part as lay judges, or that they definitely do not want to take part. People are probably worried about whether they can try people. To alleviate their anxieties, sufficient disclosure of relevant information about citizen judges' experiences is crucial.

"Lay judges are bound by rigorous confidentiality duties. They face either imprisonment of up to six months or a maximum fine of 500,000 yen if they leak information about closed-door deliberations among the six citizen judges and three professional judges or confidential information learned outside the open court, including names and addresses of other lay judges.

"Understandably, if the content of the deliberations, such as what each judge or lay judge said, were to come out arbitrarily, then free discussion would become difficult.

"The new citizen judge system allows lay judges to comment on things like whether the judges, the prosecutors and defense lawyers were easy to understand and whether the presiding judge willfully moved the deliberations toward a certain conclusion.

"Lay judges are also allowed to say what they personally think after serving as a citizen judge.

"On the other hand, the comments they make during the deliberations on the verdict are regarded as confidential. But is it going too far to ban them from making those comments public after the trial, if they themselves wish to do so?

"The people with whom the sovereignty lies have a right to know what the citizen judge system is really like. That right must not be restricted as long as the fairness of a trial is preserved. Moreover, it can be said that the right of the lay judges to express their views is part of the constitutional right to freedom of expression.

"In terms of protecting the public's right to know, there is something we would like to ask of the judges, prosecutors and lawyers.

"We urge them to open to the public the pretrial proceedings where only the judges, the prosecution and defense counsel meet to identify the points of dispute and the relevant evidence. These pretrial proceedings are already in place to speed up the court process, but they are currently closed to the public.

"This gives the impression that the three parties of the justice system are cliquishly taking care of matters well before the citizens can come in. Pretrial proceedings are an important component of the trial that can well affect the outcome.

"There is also the principle that trials must be made public. The government must move toward making the pretrial proceedings public without delay."

By Asahi Shimbun (Editorial, 5/18/2009), Link to article (last visited 5/20/2009)

Saturday, May 16, 2009

"Like lay judges, court interpreter system still in nascency

"OSAKA — With the new lay judge system set to debut May 21, legal professionals, law enforcement officials and the media are busy with final preparations.

"But Mamoru Tsuda, a professor at the Osaka University Global Collaboration Center, warns that one very important group has been largely absent from the official discussions and decisions.

""The amount of attention paid to the needs of court interpretation has been insufficient," said Tsuda, who is also one of Japan's most experienced court interpreters, having been involved in over 100 trials during the past two decades interpreting in Tagalog and in English.

"When the new system is in place, six lay judges and three professional judges will be seated on the bench. Should they serve in cases where foreign defendants with limited Japanese-language ability are involved, they will see at least one court interpreter sitting next to the clerk working on a translation of what is being said by all parties involved. But their role goes way beyond mere oral interpretation during the trial. Court interpreters must attend pretrial meetings with lawyers, and often with foreigners in question, and translate many pages of written legal documents into Japanese or a foreign language in advance of the trial as well as during it.

""In the case of trials involving foreigners that require interpretation, the courts must first secure an interpreter. But this can take three or four days, which leaves the interpreter little time to prepare before the first session," Tsuda said.

"The advent of the lay judge system has raised a number of practical concerns about how court interpreters will function in the new environment.

"Under the new system, trials will be based on oral questions and arguments, which should make it easier for the average person to understand what's going on. But this also means court interpreters will now have to interpret more verbal exchanges between all courtroom participants. Interpretation of dialogue and immediate responses to ad-libbed questions will become much more common.

"Attorneys, unused to arguing cases in plain language, may find they have to repeat themselves or rephrase their statements not just for the benefit of the lay judges but also for the interpreters, Tsuda noted.

"And this raises the possibility of increased errors and omissions if only a single interpreter is being used.

""Asking one interpreter to handle all interpretation and translation is a bad idea. Ideally, the court will secure three interpreters — one to translate from a foreign language into Japanese, one to translate Japanese into a foreign language, and one to keep track and make sure nothing is missed," Tsuda said.

"But while team interpretation may work for courts in cities with large numbers of people fluent in the necessary foreign language, finding three competent interpreters to serve throughout a trial in smaller cities or in cases involving a foreign language for which there are few interpreters in general, is likely to prove difficult.

"Then there are technical issues. "If the courts go with interpretation via wireless headsets, they should not use the kind of one-ear receivers common for simultaneous interpretation, but a headset covering both ears. If two languages are entering the ear at the same time, the interpreter will have a hard time concentrating and may either misinterpret something or not hear what's being said in the original language," Tsuda said.

"Finally, the issue of interpreter competence could prove especially problematic. Under the lay judge system, it's possible that one or more of the lay judges will be as, if not more, fluent in the foreign language than the interpreter.

"Will a lay judge be bold enough to interrupt court proceedings and ask for a correction if they think the interpreter has made a mistake either from the foreign language to Japanese or from Japanese to the foreign language? Or will judges be forced to intervene if a dispute arises between a bilingual lay judge and the court interpreter over what was said, or if the foreign plaintiff or defendant complains in open court to the bilingual lay judge about the interpreter's ability?

"Unlike the United States, for example, there are no precedents for these kinds of problems in Japan. "In America, lawyers for the prosecution and the defense would likely learn during juror selection if any of them are fluent in the language of the defendant or the plaintiff. Interpreters must be very careful, because misinterpretation of key statements opens up the possibility of a mistrial," said S. McIntire Allen, an Osaka-based American attorney who is licensed in California and New York.

"David Makman, a San Francisco-based attorney who has experience dealing with court interpreters, also noted that the Fifth Amendment in the U.S. Bill of Rights grants defendants the right not to take the stand and testify under oath and refuse to answer question on grounds that their answers could be incriminating.

""Often, criminal defendants take the Fifth and say nothing that will incriminate them. Therefore, they usually do not need an interpreter except to help prepare their defense and to understand the proceedings around them," he said in an e-mail interview with The Japan Times.

"One member of the Osaka Bar Association, who requested anonymity, said answers to the above questions will likely depend on how much control judges exercise in the courtroom over the lay judges, but admitted that decisions about what constitutes fair translation or interpretation may well be subjective.

""Many judges in Japan speak English, and if that's the language being used, they'll have a better ability to understand what kind of mistakes or omissions are being made. But that's not the language of most court cases in Japan. Even if they don't understand the language being spoken, judges may decide the interpreter is doing a good enough job and that, although there are mistakes, they aren't serious," the lawyer warned.

"Makman also noted that California has published a 65-page detailed set of professional standards and ethical guidelines for court interpreters that answer many questions Japanese court interpreters are likely to have about the new lay judge system.

"The manual covers everything from paraphrasing guidelines to nonverbal communication to relationships with the jurors to dealing with the press. Tsuda said the Supreme Court has promised to publish something similar, but has yet to do so.

"Last year, according to the Supreme Court, interpreters were used in 128 out of 2,208 trials involving offenses that will be tried under the new lay judge system.

"To help prepare court interpreters for the new system, graduate students at Osaka University, where Tsuda teaches a course in court interpretation, the only one of its kind in Japan, have just put together a Chinese-language instructional DVD of a mock lay judge trial involving Japanese-Chinese language interpretation.

"The DVD, which has been posted on YouTube, offers practical advice and points out potential problems interpreting under the lay judge system, such as not being able to see a PowerPoint presentation by the attorneys.

"Similar DVDs in English and Korean are now being prepared, and will hopefully be released soon, Tsuda said.

"According to the Supreme Court, as of April 2007, there were 3,903 people nationwide registered for courtroom interpretation into 55 foreign languages. That same year, 10 major languages were used in 91 percent of cases involving 5,767 foreigners. Chinese was used for nearly a third of the total, with the figure shooting to nearly 57 percent when including Korean and Tagalog. English-language interpretation was used 3.9 percent of the time."

By Eric Johnston (Japan Times, 5/16/2009), Link to article (last visited 5/16/2009)

Wednesday, May 6, 2009

"Organ transplant rules must be revised

"Under the current rules that place strict restrictions on organ transplants within Japan, often forcing Japanese to travel abroad to receive organ transplants, it is unavoidable that Japan's laws and the behavior they encourage are regarded as self-centered by other nations.

"The World Health Organization plans at a general meeting in May to incorporate a clause in its guiding principles on organ transplantation, requesting member states to carry out organ transplants entirely in their own countries. The motivation for this clause is the WHO's criticism of Japan's current situation.

"Faced with pressure from the international community, the Diet is to start full-scale deliberation on bills to revise the Organ Transplant Law soon after the Golden Week holiday period.

"At the time of voting, both the ruling and opposition camps are expected to allow their party members a free vote on the proposed revisions. Each of the Diet lawmakers has to face up to the serious question of what they consider brain death to be and when organ transplants should be permitted.

"The current Organ Transplant Law came into force in October 1997. But only 81 transplants have been carried out in the 11-1/2 years since, a fraction of the several thousand organ transplants conducted each year in the United States and several hundred every year in many European nations.

===

"Infants let down by system


"In Europe and the United States, when it is not clear whether a person declared brain-dead wanted to be a organ donor, donation is still possible if the family agrees to it on the brain-dead person's behalf.

"In Japan, however, it is an absolute requirement for the brain-dead person to have left in writing his or her intention to donate, such as in the form of an organ donor card. Even with this, however, an organ donation can still be stopped if the family of the brain-dead person opposes it.

"Under the Civil Code, the will to donate organs is legally recognized only when a donor is aged 15 or older.

"However, it is almost impossible to transplant organs removed from people aged 15 and older into infants due to the differences in organ size.

"This has resulted in a constant stream of Japanese infants being taken overseas to receive organ transplants, often after parents have made pleas for donations.

"Japanese adults also have headed abroad for operations, some seeking organ transplants in China, where it appears most organs are sourced from those given capital punishment.

"The WHO's guiding principles will urge people to refrain from overseas travel for the purpose of organ transplants.

===

"New bills proposed


"So far, three bills to revise the law have been submitted to the Diet.

"Bill A stipulates that if a person has not clearly given permission to be diagnosed as brain dead and to become an organ donor if declared brain dead, the decision will be entrusted to his or her family.

"In doing so, the bill relaxes the conditions on organ transplants, bringing them broadly into line with the United States and European countries.

"Bill B calls for no changes to the current rules except to lower the age at which one can make a legal decision to permit a transplant to 12.

"Bill C seeks to more strictly define brain death and increase the restrictions on organ transplants.

"In addition to the three bills, a fourth likely will be submitted to the Diet after the holidays, which will call for organ donation to be permitted from those aged under 15 if his or her parents give consent.

"Many points of contention remain to be discussed, including how to correctly categorize brain death and how to provide a structure that could be used to determine whether a child has become brain dead due to abuse.

"This is a difficult issue involving viewpoints on life and death. But one thing is certain, Japanese people can no longer keep heading overseas for organ transplants.

"We cannot procrastinate any longer in reaching a decision on how "the relay of life" that is organ transplantation should be conducted in Japan."

By Yomiuri Shimbun (Editorial, 5/6/2009), Link to article (last visited 5/6/2009)

Monday, May 4, 2009

"64% oppose revising Article 9

"Almost two in three people are opposed to revising war-renouncing Article 9 of the Constitution, while slightly more than one in two thinks the Constitution needs amending, according to an Asahi Shimbun survey.

"The telephone survey, conducted prior to Constitution Day Sunday, showed entrenched public support for the pacifist clause.

"Of the 2,094 eligible voters who gave valid responses to the April 18-19 poll, 64 percent said it was better not to change Article 9, while 26 percent supported its amendment.

"Even among those who saw a need to revise the Constitution itself, accounting for 53 percent of all respondents, opponents to changing Article 9 surpassed supporters, 49 to 42 percent.

"Thirty-three percent said there was no need to change the Constitution.

"In similar surveys in 2007 and 2008, 58 percent and 56 percent were in favor of constitutional revisions, respectively, compared with 27 percent and 31 percent against.

"As for Article 9, the gap between those who opposed amendment and those in favor was smaller in April 2007 than this year, at 49 to 33 percent. Shinzo Abe, an advocate of constitutional amendment, was prime minister at that time.

"The gap widened to 66 to 23 percent in the April 2008 survey when Yasuo Fukuda was prime minister, almost the same as this year.

"Respondents in favor of change were asked what changes they would like made.

"Given two alternatives, 50 percent chose an answer that said the change should only go as far as the incorporation of the current Self-Defense Forces into the article.

"Forty-four percent said the article should clearly stipulate that the SDF is a military force, as in other countries.

"Of those who saw a need to revise the Constitution, 74 percent said new rights and systems should be incorporated. Fifteen percent said it was because of problems with Article 9, while 9 percent said they wanted to have a Constitution drawn up by Japanese.

"Of those against constitutional amendment, the largest group, 44 percent, said they were afraid Article 9 could be changed. Thirty-six percent said the Constitution was well accepted by the nation, with no problems that required changes, and 14 percent said it helps guarantee freedom and rights.

"In part due apparently to an anti-piracy mission off Somalia, the latest survey showed a marked increase in the ratio of those who approve of the SDF's use of force if the need arises during overseas missions, at 32 percent, from 17 percent a year ago.

"This year, 56 percent approved of SDF troops' overseas missions if they did not use force, while 9 percent oppose any overseas missions, against 64 and 15 percent, respectively, in 2008."

By Asahi Shimbun (5/4/2009), Link to article (last visited 5/4/2009)

"63% support death penalty as lay judges

"Sixty-three percent of people who may be called to serve as lay judges would choose the death penalty for a criminal suspect if they thought the offense merited such punishment, a Yomiuri Shimbun survey shows.

"Twenty-three percent would not seek the death penalty, the survey showed.

"Forty-eight percent of respondents said criminal trials would improve by introducing the lay judge system, which will take effect on May 21, less than the 53 percent figure reflected in the previous survey conducted in December 2006.

"However, the figure indicates many respondents held a favorable view ahead of the introduction of the system, compared with 27 percent who said they believed it would worsen the nation's criminal trial system.

"In the previous survey, 23 percent of respondents expressed a negative view.

"The latest survey was conducted on April 25 and 26, with 3,000 eligible voters randomly selected from 250 locations nationwide, with 1,810, or 60.3 percent, giving valid answers. The survey was carried out in a face-to-face interview format. Of the respondents, 49 percent were male and 51 percent were female.

"Regarding rulings handed down in past criminal trials, 34 percent said they thought that in many cases judges handed down appropriate sentences to defendants, 50 percent thought judges were too soft and 4 percent said they were too strict.

"The survey reflects expectations that the disparity between judges' rulings and the public's desire for punishment will narrow when citizens join criminal trials as lay judges.

"When asked about the new system, 4 percent responded they knew a great deal about it, and 45 percent said they had a certain knowledge level--meaning 49 percent were acquainted with the scheme, a big jump from the 30 percent indicated in the previous survey.

"However, the rate of those who wanted to serve as lay judges in a trial stood at 18 percent, down two points from the previous survey, while 79 percent said they did not want to participate, up four points from the previous poll.

"In a multiple-response questionnaire seeking reasons for not wanting to serve as a lay judge, 53 percent--the greatest number among the answers given--said they had no confidence in their ability to appropriately assess criminal cases.

"Regarding the introduction of the system, 34 percent said they agreed with it, while 62 percent were opposed.

"Citizens' weighing of the pros and cons of the lay judge system clearly has changed, as in the previous survey 50 percent said they agreed with the system's introduction, while 40 percent were against it when they were asked the same question in May 2004.

"Now that the system has gained greater recognition, people may feel the increased burden of responsibility they will have as lay judges and consequently may be very worried, analysts said."

By Yomiuri Shimbun (5/4/2009), Link to article (last visited 5/4/2009)