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Prime Minister Koizumi with members of Mansfield Center and Foundation |
Japan is in the middle of a dramatic reform of its judicial system that would have appealed to the democratic instincts of Mike Mansfield. In 2001, the Japanese Diet enacted the Saiban-In law ("Lay Assessors Act"), which takes effect in 2009. This law creates a new quasi-jury system in Japan whereby persons charged with major crimes will have both their guilt and sentence determined by a judicial panel composed of three professional judges and six lay persons, rather than by professional judges alone. Japan had a classic jury system briefly in the pre-war period, but the return to citizen participation in the judicial process is a big break with the past and signifies a bold commitment to promote democracy. Japan also has a system of prosecution review commissions that provide for lay participation in the decision about whether to initially prosecute a case.
According to Robert Precht, co-director of the Mansfield Center Legal Reform Initiative, the Lay Assessor's Act has ambitious goals, and Japan faces a number of challenges in implementing the new system. "For starters," he said, "the Japanese have no modern experience with juries. Thus, lawyers and judges will have to learn new trial advocacy techniques adapted to persuading lay persons. Ordinary citizens who are not used to playing any role in the judicial process will also need to be educated about their new responsibilities and, in order to get their cooperation, there must be substantial efforts to explain the reasons for moving to this new system and why it is advantageous for all Japanese." "Finally," he said, "as judges and the other participants take on new roles, new criminal procedures and ethical guidelines will have to be developed." Mr. Precht has given a series of lectures in Japan about the saiban-in system, and its similarities and differences with the United States jury system. He was recently interviewed by the BBC about the Japanese system.
The Mansfield Center wants to observe the implementation of the new saiban-in system, and to try and be of some assistance with the transition. According to Terry Weidner, Director of the Mansfield Center, UM is ideally situated to be involved in the project. "Mike Mansfield was probably the most respected American ambassador ever to serve in Japan," he said, "and the Mansfield name is still identified in Japan with honesty, integrity, and cultural sensitivity. As a Center dedicated to those same values, we engender more trust in Japan than some U.S. institutions." Involvement in training and research related to the Lay Assessor's Act also makes sense because it coincides with one of the great strengths of UM's Law School. "The Law School not only has a strong academic program in criminal law," Weidner said, "but a very strong track record in practical training programs related to criminal law, including U.S. style jury trials. This couldn't be a better fit." The University of Montana School of Law has been a leader in clinical legal education in criminal law for over 40 years.
According to UM Professor Jim Taylor, the other co-director for the program, everyone involved on the Montana side sees this as a two-way street. "We are excited to learn about the Japanese legal system, to make new colleagues, and to share what we know about our system of jury trials. There will be tremendous opportunities to exchange ideas and to create a new synergy between the two legal systems." “We are also looking forward to the exchange of ideas between Japan and other Asian countries about their experiences in implementing a system that provides for lay participation in the criminal justice system.
In a recent article, Setsuko Kamiya reports in the Japan Times on legal reform efforts to increase the overall number of lawyers in Japan, and some of the obstacles to those reforms. http://search.japantimes.co.jp/cgi-bin/nn20080318i1.html
Editor’s Note: Photo of the Mansfield group with Japanese Prime Minister Koisumi is available by calling Rita Munzenrider at University Relations, (406) 243-4824.
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