[Feature: 10 Years of the Lay Judge System] Roundtable Discussion: What Has "Public Participation in Justice" Changed? — Looking Ahead to the Next 10 Years

The Lay Judge System reached its 10th anniversary of implementation this May. During that time, over 12,000 judgments have been handed down in courts nationwide, and the number of people who have participated in criminal trials as lay judges or alternate lay judges has exceeded 90,000.

Under this system, six lay judges selected from the general public, together with three professional judges, conduct the proceedings and deliberations for trials of serious cases such as murder, injury resulting in death, and robbery resulting in death or injury. The purpose of its introduction is said to be to increase public understanding of and trust in the judiciary by reflecting the perspectives and sensibilities of citizens other than legal professionals in the way trials are conducted and in their content. In this roundtable discussion, I would like to hear your thoughts on whether this goal has been achieved and what the operational challenges of the system are.

First, after 10 years since implementation, I would like to ask each of you to share your frank thoughts on the Lay Judge System from your respective positions.

I am in my 20th year as a judge. I belong to the criminal division of the Tokyo District Court and participate in panels for lay judge trials.

Over the past 10 years, because I spent time at the High Court and the Supreme Court, the period I have actually been in charge of lay judge trials at the District Court is just over the last two years. The number of cases I have handled is not large, but in every case, the lay judges I deliberated with faced the evidence and engaged in discussions with great enthusiasm and sincerity.

Expressing one's own opinion based on one's own sensibilities among members one has never met before is not something most people experience in their daily lives, and I think some people may feel bewildered. However, when we exchange opinions while I tell them, "Opinions that survive after being examined from multiple perspectives are precisely what will become the best conclusion for our team, so please do speak up," I feel that insightful remarks are made everywhere.

Such exchanges of opinions have become a reliable driving force that adds depth to the reasoning of the judgment, and I truly feel that we are making decisions that reflect various perspectives and sensibilities.

While there are still many operational challenges, as a judge on the front lines, I feel no sense of incongruity with the assessment that the Lay Judge System has been operated generally smoothly so far with the understanding and cooperation of the public. I believe this is thanks to the cooperation of not only those who served as lay judges but also their workplaces and families who sent them off. It is truly a matter for which I am grateful, and I would like to express my thanks.

I was appointed as a prosecutor in 1999, so I have experienced exactly the 10 years before the lay judge trials began and the 10 years since they started.

Before implementation, I was involved in public relations at the Criminal Affairs Bureau of the Ministry of Justice to help the public understand the Lay Judge System. At that time, to be honest, I felt uneasy, wondering, "Will this system really work?"

However, when I stood in a lay judge trial courtroom for the first time, I remember being struck by a shivering impact, thinking, "This is an amazing system." I felt a sense of great potential, that the judiciary and the relationship between the judiciary and the public would change significantly through this system.

I believe the Lay Judge System is a system built through the collaborative work of the public and the judiciary. And over these 10 years, while the system has changed so drastically, I believe it has been operated steadily without major confusion. While there have been efforts on the part of the judiciary, I believe it is above all because the lay judges have approached it with a sense of mission and responsibility. The lay judges are truly serious, and the content of their questions to witnesses and defendants is sometimes sharper than those of the judges, which can completely change the atmosphere of the courtroom. I feel a sense of Japan's underlying strength through this system.

I joined the Lay Judge Headquarters (then the Lay Judge System Implementation Headquarters) within the Japan Federation of Bar Associations around 2008, the year before the system began. Then, in 2010, the year after the system was implemented, I formed an exchange group for former lay judges called the Lay Judge Experience Network with volunteers, and we have been working on mental care for former lay judges and sharing their experiences with society.

I also had very strong feelings of both expectation and anxiety before implementation. Originally, I was dissatisfied with the fact that judgments were written in closed deliberation rooms only by professional judges, and I had high expectations for citizens participating in the judiciary.

But at the same time, I wondered if we could create a mechanism that the public could accept. Also, would citizens really participate? Wouldn't they dislike jumping suddenly into a place that deals with crime? I also had anxieties about whether they would be able to speak their minds clearly within the court and collaborate as equals with the judges.

Therefore, I actively participated when the courts, the public prosecutors' offices, and the bar associations conducted mock trials across the country as rehearsals before the system began. Once it started, the actual state of operation was wonderful and exceeded my expectations, and I am very pleased. I think the fact that the three branches of the legal profession prepared properly was significant, and the preparation of civic groups doing educational activities was also good, but I believe the serious national character of the Japanese people is supporting it.

Regarding the content of the judgments, the fact that the simple common sense of citizens is being utilized seems to have stimulated the judges as well, and I believe that this system has realized the principle of the presumption of innocence.

Ms. Sawada is participating today as someone who has experienced being a lay judge.

I served as a lay judge last year. The case was for the crime of non-consensual sexual intercourse resulting in injury.

At first, I thought it would be an ordinary injury case, but when I went on the day of selection, it was a sex crime, which was something I hadn't expected. Seeing the outline of the case, I suddenly became tense and very anxious.

After being selected, the judges and lay judges introduced themselves to each other, and I remember saying, "It's a very serious case, and I'm worried if I can handle it." To calm my anxiety, I bought two books on sex crimes for laypeople on my way home.

Since experiencing being a lay judge, have there been aspects where your view of criminal justice or trials has changed?

Yes. Since serving as a lay judge, I have started to look at society more consciously, and things I could remain indifferent to before, I can no longer be indifferent to.

I think it's the same for everyone, but your eyes naturally turn toward cases similar to the one you handled. When there was a series of innocent verdicts in sex crime cases this March, I couldn't sit still and went to a symposium on sex crimes and even participated in a Flower Demo. This would have been unthinkable for my former self, and I am moved by the fact that I can take a step toward action. I think this is the result of thinking about various things through my experience as a lay judge.

As Mr. Ishida mentioned earlier, lay judges are serious, and I could tell from the attitude of the judges toward us during deliberations that past lay judges had worked with all their heart and soul. They trusted us, and from the moment we entered the deliberation room, there was a welcoming atmosphere.

Now, I would like to look at how criminal trials are changing with the participation of lay judges. First, how has the method and progress of trials changed?

A catchphrase often used is "From precise justice and trial by dossiers to core justice and trial-centeredness." It was said that conventional criminal trials with only judges involved investigators summarizing what the defendant, victims, and witnesses said into deposition dossiers, and those documents would come out in large quantities as evidence. Judges would take them home, read them, and meticulously determine even minor facts.

In contrast, in lay judge trials, the focus is narrowed down to the core of what truly needs to be decided in the case. Basically, instead of dossiers, the parties involved are asked to speak in court, and the judges and lay judges make a judgment of guilty or not guilty based on what they saw and heard in the courtroom.

Originally, there was criticism that trials were "too dependent on documents," and it had long been said that people wanted "a back-and-forth exchange of raw words in the courtroom." This was difficult to achieve, but it changed dramatically with the Lay Judge System. This is remarkable. In order to have citizens participate as lay judges and understand by seeing and hearing in court, direct verbal exchanges on the spot have come to be realized.

Furthermore, since citizens cannot come to court for long periods, it is necessary to hold court sessions intensively. For intensive proceedings, all issues must be organized in advance, and defense attorneys now have to make their arguments and present evidence from the beginning. I believe this is the most important point of change.

And while previously prosecutors decided for themselves which evidence to submit to the court and other things were difficult to see, because defense attorneys cannot prepare unless they see certain evidence in advance, "pretrial discovery of evidence," which had been a long-standing wish, has been realized.

This is a significant byproduct of the Lay Judge System. I think it is wonderful that things we had been saying "should be realized" for a long time were achieved all at once by the inclusion of citizens.

In criminal trials around the time I was appointed 20 years ago, it was considered good to clarify as much as possible not only the facts written in the indicted counts but also the details of the case. This was expressed as "clarifying the truth," and it was considered important.

I don't think that in itself is wrong, but I believe the emphasis of the "truth" spoken of then was on firmly handing over to the court the deposition dossiers of suspects/defendants or dossiers of related parties created through interviews at the investigation stage.

Also, witness examinations and the like were a continuous series of questions and answers that felt like a complete reproduction of the content of the deposition dossiers. On the other hand, the side trying to impeach this tended to attack by pointing out minor points, such as, "It was written like this in the deposition dossier, but isn't what you are saying in your testimony now a little different?"

As a result, witness examinations and defendant questions would last for a long time, making it difficult to follow in the courtroom. It is said that impressions were then formed by later turning the examinations into documents called trial records and reading them thoroughly after the date had ended.

So there were problems with that method.

What truly should be clarified in a criminal trial is deciding whether the criminal facts existed or not, and whether it was by the hand of the defendant. If not, they should be found innocent, and if they are found guilty, the circumstances necessary for sentencing judgment must be clarified.

Also, from the philosophy of trial-centeredness, which holds that proceedings should be conducted in a way that allows for accurate formation of impressions in the courtroom, the previous method was indeed not the ideal. That is why I recognize that the movement to amend the Code of Criminal Procedure itself was being discussed in parallel with the Lay Judge System within the judicial system reform.

The introduction of the Lay Judge System likely had the effect of being a driving force to improve the operation of the criminal procedure system.

That's exactly right. From the philosophy of criminal trials, we should have realized that it is strange for the clarification of the truth to be mostly done at the investigation stage as it was before, and for the trial to become a procedure that just takes that over like a review. But even if we tried to fix it, the problem was so large that we didn't know where to start.

I believe that it was precisely because of citizen participation that criminal trials as they should be were realized.

In the case of proceeding with such core justice and trial-centeredness, were there aspects where prosecutors, who prove the facts, had to change their previous methods?

Prosecutors conduct investigations as well as trials. Since prosecutors with the authority to indict must never allow erroneous indictments, such as indicting an innocent person, they must thoroughly collect evidence at the investigation stage, listen carefully to the stories of suspects and victims, and make cautious judgments. Striving thoroughly to clarify the truth and making error-free judgments—this has not changed before or after the introduction of lay judge trials.

However, in lay judge trials, it is necessary to have lay judges, who are facing a trial for the first time, understand. Therefore, we use various techniques to ensure that lay judges understand the overall picture of the case accurately and precisely. First, instead of trying to bring the entire progress of the investigation into the courtroom, we have come to reconstruct the truth revealed as a result of the investigation from the perspective of how to convey it to lay judges in an easy-to-understand way.

And to help them understand by seeing with their eyes and hearing with their ears in the courtroom, we use PowerPoint and avoid technical terms, using easy-to-understand language instead. Thanks to this, in surveys of former lay judges, we receive many evaluations that the prosecutor's presentation of evidence was very easy to understand.

However, it is very difficult to decide what evidence to prove and to what extent within the limited number of days of a lay judge trial. Proving things in a redundant manner is not allowed. But the judgment of whether it is redundant or necessary evidence is, in a sense, something you don't know until you open the lid. As a prosecutor bearing the burden of proof, I am sometimes forced to make last-minute decisions, and I feel the difficulty in such points.

In terms of ease of understanding, it is best to ask a lay judge who has experienced it. How was it?

Both the prosecution and the defense were very easy to understand, including their presentations of materials. Speaking only for the case I handled, if I were asked to choose one, I preferred the defense attorney.

That's rare (laughs).

They were very excellent, and even the judges were full of praise. They grasped the key points and considered the psychology of the lay judges. Since it was a sex crime, if they were perceived as blaming the victim and turned the lay judges into enemies, they couldn't win the trial, right? They considered such lay judge psychology and showed consideration for the victim.

There were two defense attorneys, a man and a woman, and there was consideration such as having the female attorney ask certain questions.

I had the impression that trials were "difficult to understand," but as was the case with the prosecutors, the intent of the defense attorney's questions was easy to understand, and I felt that every question was indispensable.

I think they were doing the maximum possible for the defendant. Even though it was a sex crime and the impression of the defendant was unfavorable, seeing them do their best for the defendant made me realize that the defendant also has human rights, has the right to remain silent, and is a member of the same society as us, so it's not just a matter of excluding them and putting them in prison.

I'm only praising the defense attorneys, but of course the prosecutors were good too. I was able to visualize the details of the incident in my head, and the proof was precise and easy to understand.

For the first eight years of the system, I watched trial procedures from outside the first-instance trials, and I saw an increasing number of instances where light was shed on pre-organized issues and information necessary for that judgment was revealed in the trial through witness testimony.

I felt that the first-instance judgments handed down through such proceedings contained deep reasoning that had undergone verification from various perspectives.

Returning to the District Court, that feeling has become a certainty. For example, if the defense attorney is someone who hones their skills daily, the offense and defense mesh properly. Then, during deliberations, we can point out the offense and defense of both sides and properly involve the lay judges. This allows us to proceed with deliberations while feeling that we are doing what needs to be done.

I thought both the prosecutors and the defense attorneys came to the trial fully prepared. Also, I felt that the prosecutors, defense attorneys, and judges had accumulated know-how through trial and error from a state of fumbling.

During deliberations, when I talked about things like suspended sentences or probation, a judge asked me, "Ms. Sawada, are you a graduate of the Faculty of Law?"

People use terms like "suspended sentence" in daily conversation, don't they? I thought the fact that they asked "Are you from the Faculty of Law?" over something like that was because they had felt deeply that the preconditions for themselves as judges and for general citizens are completely different.

In Ms. Sawada's case, the prosecutor's proof was easy to understand, the defense attorney's skills were high, and there was sufficient consideration from the judges, conveying that she participated with a sense of fulfillment.

Regarding how activities in the courtroom have changed since becoming lay judge trials, what are your thoughts from the respective positions of defense attorney and prosecutor?

If we compare it to boxing, defense attorneys used to be passive; the prosecutor would attack, and the defense attorney would block and try to find a way out. But defense attorneys became enthusiastic because they could engage in a slugfest from the start.

At the same time, the things that must be done have increased significantly, and defense attorneys cannot convince lay judges or judges unless they think of a "case theory." Since prosecutors are now obligated to disclose some of their evidence to us from the beginning, we have come to obtain a significant portion of the evidence in advance through evidence discovery and read through it to build a strategy before the trial begins.

Since we are showing each other our hands, we think about how to fight while also organizing the issues in the pretrial arrangement. This is rewarding, but at the same time, the work that must be done has increased, so it's a struggle in that sense.

Also, since we have to appeal to lay judges and judges to some extent, courtroom advocacy techniques have become necessary as a skill. Since the United States is a country of jury trials, there are parts where winning or losing is decided to some extent by whether one's courtroom techniques for appealing are good or bad. Bar associations are also studying NITA (National Institute for Trial Advocacy) skills.

As I mentioned earlier, since the introduction of lay judge trials, prosecutors have also used various techniques, and I feel that trials have become significantly easier to understand. I believe that easy-to-understand trials are important not only for judges and lay judges but also for defendants, victims, bereaved families, and society.

For the defendant, it will be an opportunity to understand what kind of harm the incident they caused brought about and to face their crime. For victims and bereaved families, I believe it leads to them knowing what kind of incident they were involved in. And by conveying the full picture of the incident to the gallery—that is, to society—I believe it also leads to the prevention of similar incidents. As a prosecutor, I approach easy-to-understand trials believing they are very important from these perspectives as well.

What does it mean that "evidence discovery has come to be done since becoming lay judge trials"? Isn't evidence naturally disclosed?

The investigative authorities and prosecutors, of course, hold the evidence from the investigation. However, previously, defense attorneys were not allowed to see any of it before the trial, and in principle, they could not see the evidence held by the prosecutor except for the evidence for which the prosecutor requested examination in the criminal trial.

With the advent of lay judge trials, although there are exceptions, it became necessary to produce certain evidence in advance in two stages called "type" and "scheduled." This is called evidence discovery, and it has come to be recognized.

With the introduction of the Lay Judge System as a turning point, a procedure to organize the issues and evidence of the case before the trial (pretrial conference procedure) was introduced, and along with that, the rules for what kind of evidence must be disclosed became clear under the law.

I hear that the prosecution is also responding to discovery quite flexibly at an early stage.

That's right. There were reasons why evidence discovery was restricted to a certain extent originally. Evidence obtained in the course of an investigation involves investigative secrets and individual privacy, and it also includes information from investigations of people who were ultimately not the perpetrator, so there were sensitive issues regarding how far such things could be disclosed.

Also, previously, unlike prosecutors, defense attorneys were not obligated to clarify their arguments. Defense attorneys could present counter-evidence after seeing all of the prosecutor's evidence and proof. Therefore, there was a concern that if all evidence were disclosed in advance, the defense side might make arguments and proof that exploit the gaps.

However, because the legal amendment imposed an obligation on defense attorneys to clearly state their arguments at the pretrial stage, prosecutors can now disclose evidence with peace of mind. Now, we are responding proactively, such as disclosing evidence before being requested by the defense attorney.

From the perspective of a defense attorney, I think evidence discovery is still insufficient, but I think it's a great step forward compared to when it was zero.

Now I would like to move on to how the content of criminal trials has changed.

The Lay Judge System is a system intended to reflect the perspectives and sensibilities of the public in the content of judgments in trials. Naturally, depending on the case, judgments different from conventional ones may be made, but sentencing is where change has occurred in a way that can be grasped through statistics.

The range of penalties provided by the Penal Code for crimes is very wide; for example, for the crime of robbery resulting in injury, the heaviest is life imprisonment, and if light, a suspended sentence is also possible. However, the law does not decide how specific judgments should be made. If lay judges were only shown the articles of the Penal Code and told, "Now, please think about it," they would likely be at a loss. As a court, in what form are the deliberations and judgments on sentencing being carried out?

The essence of sentencing judgment is to clarify the criminal responsibility appropriate for the criminal act. In short, the idea is not to punish someone because they have a bad character, but rather that "we punish you because you did something bad."

For example, when we scold a child for a prank, if they just chased a pet around a bit, a light warning should suffice, but if they locked it in a box and put it in a closet, the way we scold them changes. That is likely because we feel that what they did in the latter case was more terrible.

We explain the essence of sentencing using the term "responsibility for the act," but in short, what this intends is that we should make sentencing judgments in line with such common-sense feelings.

However, even if told to "measure the gravity of the criminal act," it is quite difficult, so we first focus on the facts regarding the criminal act itself and consider whether it can be understood to some extent as a social typology.

Even for the same crime name, there are various typologies, and sentencing changes accordingly, doesn't it?

For example, there is a crime called robbery causing injury, but for each typology—such as taxi robbery, bank robbery, or purse-snatching robbery—sentencing judgments naturally tend to cluster together. We call this the sentencing trend, and we proceed by saying, "Let's start by looking at this first."

Based on this sentencing trend, and taking into account the circumstances regarding the criminal act in the current case, we discuss where the defendant's criminal act is positioned within this sentencing trend.

If we can reach a general consensus during the deliberations that "it's roughly within this range," we then move to the step of considering exactly how many years and months it should be. At that point, we determine the final sentence by considering general circumstances—in short, circumstances that suggest the possibility of rehabilitation, such as the defendant's state of remorse after the crime. I believe this is the general form of sentencing deliberations.

As a result of deliberations proceeding in that manner, what is the actual sentencing in lay judge trials like? Looking at materials published by the Supreme Court, as a whole, the sentencing has not become something that lacks continuity with the era of professional judge trials, but changes can be seen depending on the type of crime.

For example, in murder cases, while the zone with the largest proportion has become slightly heavier than before, sentences with suspended execution have also increased, and there is a trend toward a wider range of sentencing. In contrast, for crimes such as injury causing death and sex crimes, it appears they have clearly become heavier.

I believe that is correct as a trend. I take this as a result of the various perspectives and sensibilities of the citizens who participated as lay judges being reflected through the collaboration between lay judges and professional judges.

Regarding sentencing, since being a lay judge is a once-in-a-lifetime event, they think about that case with considerable concentration. Since fellow citizens are both the defendant and the victim, they even think about treatment, such as rehabilitation after the sentence is pronounced or what will happen if they go to prison. I believe it is a very significant thing that this is reflected in sentencing as well.

Recently, the Public Prosecutors Office has also been working on preventing recidivism and the rehabilitation of suspects and defendants. Since I also served as the Director Prosecutor of the Rehabilitation Support Office at a District Public Prosecutors Office, I am pleased to feel that lay judges are also interested in such points.

I feel that lay judges tend to issue sentences rooted in daily life. Because it is an intense experience, they empathize in a good way and think, "What if it were me, or my family?" So I can understand the trend toward heavier punishment for sex crimes and the like.

The provisions for sex crimes in the Penal Code were amended in 2017 (from the crime of rape to the crime of forced sexual intercourse, etc.). During deliberations, when I heard that the lower limit for the crime of rape used to be three years of imprisonment, the comment came up, "Isn't that too light?" I think such aspects have changed due to the addition of lay judges.

I feel there are probably two reasons why the sentencing trends differ from when there were only professional judges.

One is that sentencing trends—for example, the fact that sex crimes fell within a range of a certain number of years—did not have a single correct answer; rather, a sense of "roughly this much" was formed as sentences were pronounced during the era of only professional judges. Consequently, the fact that "sex crimes are lighter than robbery" feels wrong to the sensibilities of ordinary people.

In other words, the sense of the protected legal interest was "out of alignment" with that of professional judges, and because it felt wrong from the perspective of ordinary citizens, the penalties gradually became heavier, leading even to the legal amendment the year before last.

The other reason is that, when considering treatment such as the possibility of rehabilitation or remorse as general circumstances rather than just responsibility for the act, there is considerable fluctuation regarding which way to go at the margins within the large framework of responsibility for the act. I feel that this may have led to changes in the large framework itself.

When considering changes in sentencing trends, there is a case of injury causing death due to child abuse where a sentence 1.5 times the requested penalty was issued, which the Supreme Court subsequently overturned (Supreme Court decision of July 24, 2014). How do you feel about this decision?

Looking at the tone of the media recently, it is sometimes pointed out that if the High Court or Supreme Court overturns a sentence decided by lay judges, there is no point in lay judges participating in sentencing judgments, but I feel that is not the case.

This is not saying, "It's no good because it's too heavy." I think it is simply saying that if you are going to jump significantly outside the framework, such as 1.5 times the prosecutor's requested penalty, you must provide persuasive, specific reasons.

Behind the 2014 precedent, I believe there was the issue of having to somehow harmonize the requirement for objectivity and fairness of punishment in criminal trials with the purpose of introducing lay judge trials, which is to reflect the sound sensibilities and perspectives of the people.

I think it is fair to say the Supreme Court provided one answer to this, but reading the 2014 precedent along with the supplementary opinions, I feel this precedent is not so much a message to lay judges as it is a form of encouragement or perhaps a scolding for their fellow professional judges.

For example, in the supplementary opinions, it points out that judges should fully explain important matters and proceed with deliberations after obtaining the correct understanding of the lay judges. It says that doing so leads to substantial collaboration between lay judges and professional judges, and that managing deliberations appropriately is an important duty of a judge. Therefore, I feel there is no need to read this precedent as being in conflict with the purpose of the lay judge system.

I agree.

It is often misunderstood that prosecutors think the heavier the penalty, the better, but of course that is not the case. As "representatives of the public interest," we decide on the requested penalty from the perspective that a punishment should be commensurate with the act—a "good balance," so to speak. Therefore, I do hope that judges and lay judges will use the prosecutor's requested penalty as a reference. However, as prosecutors, we also respect the decisions of lay judge trials and I believe we are quite cautious in our decisions regarding appeals.

Next, let's move the discussion to the side of the participating lay judges and the general public who are candidates. From among those aged 20 or older with the right to vote, lay judge candidates for the following year are first selected by lottery around the autumn of the previous year. In the following year, lay judge candidates are selected by lottery again for each case. Those whose refusal has not been granted by this point are asked to come to the court on the selection procedure date, and from among those who ultimately remain, six lay judges and usually one or two alternate lay judges are selected together.

Ms. Sawada, how did you feel when you were selected?

I had a bit of a premonition, but when I was actually selected, I was surprised and stared at my number so hard I could have burned a hole in it. At that time, there was someone sighing in the back, and during their self-introduction, they said, "I didn't want to be chosen. I don't want to do this." However, once the trial started, they served more seriously than anyone else until the end, so I think there was some change in their state of mind.

As was the case with me, when I saw the victim and the defendant with my own eyes at the first trial, I felt a sense of mission: "I must give my heart and soul for these people."

There are many people like Ms. Sawada who participate with a sense of mission once selected. According to the "Summary Report on 10 Years of the Lay Judge System" issued by the Supreme Court, so far, there has never been a situation where a trial could not be held because there were no willing lay judges. However, what is concerning is that the proportion of people who refuse, or who do not refuse but are absent, is rising.

The proportion of people who refused rose from 58% in 2009 to 62% in 2012 and 66% in 2017. Alternatively, among candidates requested to attend the selection procedure date, the proportion of those who actually attended has been declining: 88% in 2009, 76% in 2012, and 64% in 2017.

The Supreme Court's "Summary Report" is actually a very soft judgment; it says there is no immediate trouble, but it is a situation where action should be taken quickly. Among those notified as candidates, 78% do not come if you include refusals and absences. They say it's fine for now because they are managing to cover the numbers, but I wonder what they will do if 90% stop coming while they are saying such things.

Why is this happening? While recognizing that low interest is a cause, based on the interviews we conduct with former lay judges, I believe there are some effective measures.

In the Supreme Court's survey results of former lay judges, although nearly half answered "I didn't want to do it" at first, over 96% said "I'm glad I did it" after the experience. This is very important; in other words, the hint lies in "why the feeling of not wanting to do it changed."

One major reason for people who "thought about refusing when the candidate notice arrived" is simply a lack of information. They don't know what being a lay judge is like. It feels like being sent to a deserted island; they don't know what clothes to wear and are incredibly anxious. The countermeasure for this is simply to provide information.

The second is a more substantive matter: the anxiety of "Am I capable of serving as a lay judge?" Whether an amateur like me can understand the proceedings. And if I can understand, whether an amateur like me can voice an opinion to a judge.

And finally, there is the hesitation about deciding a person's fate. Why should I be the one to decide someone's fate? They think they might not be able to make judgments like whether it should be imprisonment or a suspended sentence, or whether someone is guilty or innocent.

I can certainly understand that anxiety.

Then, if you ask why "96% said it was good" after it was over, it's because everything was the reverse: the proceedings were unexpectedly understandable. Both the prosecution and the defense explained things clearly, and when they didn't understand, the judges would teach them if they asked questions after returning to the deliberation room. Also, they were able to voice their opinions more freely than they had expected.

When you can understand the content and voice your opinion, it turns into a sense of fulfillment. The weight of deciding a person's fate does not disappear, but the fact that it was decided not by one person alone, but after thorough discussion by all the judges and lay judges, turns into a sense of worth.

We should let everyone know more about these things. I believe internal motivation is the most important thing. If that is communicated more, the refusal rate will improve considerably.

If I may say one more thing, I think the issue of the duty of confidentiality is also significant.

In the sense of what you just said, I think public relations activities will become very important. I believe the Ministry of Justice and the courts are making certain efforts in this regard.

It's exactly as Mr. Makino said; I think the legal profession is bad at public relations (laughs). I believe it is very important to cooperate closely with the media to communicate exactly what was just mentioned—how those who experienced being a lay judge felt about that experience and how they are applying it to their future lives.

When I was involved in public relations before the implementation, the three branches of the legal profession were working as one, but once it was implemented, I think there are aspects where they have their hands full just operating the system and cannot fully attend to public relations.

Also, if we properly communicate the lay judge system to current high school and university students so that they naturally feel from childhood that participating in a trial as a lay judge is a very important duty as a citizen, I think the sense of anxiety toward the system will disappear. In that sense, public relations is important, and so is legal education—or rather, the approach to the younger generation.

The Public Prosecutors Office is also actively working on "visiting classes," and the other day, I spoke about the prosecution in a "Law" class at Keio Girls Senior High School. Everyone listened very intently, and I felt encouraged.

The fact that 96% of experienced participants say it was a good experience means there is definitely a positive response, so we want to somehow share this.

In a letter from a former lay judge published in the court's public relations magazine "Shiho no Mado" (Window on the Judiciary, available on the court website), it said: "I listened to and saw the evidence, held doubts and thoughts in my own head, and spoke based on that. That said, I did not cling to my own opinion; I listened to other people's thoughts and sometimes let go of my own. I gained this kind of experience by participating in this lay judge trial, but that is a quality one would want to acquire as a person even without waiting for a lay judge trial." To be honest, I was moved.

At the Tokyo District Court, in addition to general public relations activities, we are conducting steady activities such as judges directly visiting companies to talk about the significance of the system and ask for cooperation, while also listening to the anxieties and questions held by those without experience to lead to improvements in operation, so that we can communicate things like what I just mentioned.

Also, the point about education was mentioned; since there are students who often come for courtroom observation as part of social studies field trips, we also have judges provide explanations of the system to such people if they apply in advance.

We also dispatch judges if there are requests from universities, high schools, etc. Actually, there was a student at Keio Futsubu School who created and submitted a record of observing a lay judge trial for their Labor Exhibition. Since there are children who take an interest from the time they are junior high school students, I hope the judge dispatch project can be utilized at Keio University as well.

I was interviewed by that Futsubu School student who wrote the observation record, so I saw the finished product. It was surprisingly wonderful content, and I believe it won an award and became a special exhibition piece.

I also want the exchange groups for former lay judges, which are private organizations, to be utilized a bit more by society as an attempt to spread the lay judge experience. It is quite difficult for individual lay judges to communicate their experiences to society. Currently, there are about eight groups where former lay judges interact. Why such groups are good is, first, because they provide a place for relaxation with fellow experienced participants. Since these groups were originally created for mental care, they are places where experienced participants can relax and say, "That was tough, wasn't it?" I also met Ms. Sawada through an experienced participant network.

If the courts could say, "If you search for 'former lay judges' on the internet, there are exchange groups, so why not try going to one if you feel like it?", more people would join exchange groups, and then those experiences would spread to those around them, so I definitely want them to say that.

Mr. Makino, you have been making arguments and proposals for the relaxation of the duty of confidentiality for some time, haven't you?

In the lay judge system, deliberations are a black box, and currently, specific details of deliberations cannot be discussed at all. I believe that, in principle, it should be possible to discuss the content of deliberations, and it should only be prohibited when there are harmful effects.

As for why the current confidentiality regulations are not good, one reason is that valuable citizen opinions are not shared. Opinions that even make judges go "Oh!" are being voiced, but they are not specifically communicated. One point is that this is a social loss.

Another point is that by not speaking, the mental tension of the lay judges remains as it is. People find relief and ease by speaking, but since that natural path is blocked, it is also a negative in terms of mental care.

The duty of confidentiality exists to ensure the fairness and trust of the trial, but above all, it is considered to be for the purpose of having people voice free opinions during deliberations. If there is a possibility that it will be revealed later that a verdict changed because of someone's opinion voiced during deliberations, people might fear that "something will be said later" and stop voicing frank opinions. This is something we are seriously concerned about.

Also, even if information is presented in a concealed form in open court, information related to privacy may be communicated directly on the monitors that the lay judges are looking at.

Furthermore, during deliberations, lay judges may reveal their names to each other, and I believe that is also information related to privacy. Since such things are very likely to be things people do not want known to others, we must ensure they are not revealed unnecessarily.

For those reasons, we currently impose a duty of confidentiality as a general rule, and I believe we have no choice but to operate based on that premise.

However, it is also pointed out that "it's unclear what falls within the scope of the duty of confidentiality."

This point should certainly be taken seriously. What the duty of confidentiality applies to is, for example, the process of how a conclusion was reached, what opinions the lay judges or professional judges voiced, the number of people who supported or opposed those opinions, and the numerical breakdown of the verdict. In addition, it includes secrets learned in the course of performing duties as a lay judge.

Therefore, for example, the content of verbal exchanges during witness examinations or defendant questioning is something seen and heard in open court, so it is perfectly fine to talk about it as much as you like. Besides that, you may also talk about things like whether you were able to voice your opinion during deliberations, what the atmosphere of the deliberations was like, or what kind of self-introduction the judge gave.

Also, when selected as a lay judge, it is stipulated that you must not make the fact of your selection public. The reason for this is that we want to lower as much as possible the risk of being contacted indiscriminately by an unspecified large number of people while serving as a lay judge.

However, it is not prohibited at all to tell your family, or your supervisor or colleagues at work, that you have become a lay judge in order to coordinate your work.

Since we also receive feedback that such things are not well understood, in the division I belong to, we make sure to explain on the very day of the selection procedure that it is okay to mention being selected within this scope. In this way, I believe it is necessary to explain carefully and as many times as questions are received to ensure the scope of the duty of confidentiality becomes clear.

When the notice from the Supreme Court arrives in the autumn of the previous year, making public that one has "become a candidate for lay judge" is also prohibited, although there are no penalties. Becoming a candidate at the initial stage is a large net where the probability of actually becoming a lay judge is still low, so I want the prohibition on even saying that to be stopped immediately, even as legislation.

The reason is that even if someone wants to consult with someone about "what should I do if I become a lay judge?", they cannot consult publicly, which has significant harmful effects. Also, because it is ingrained in their minds at that time that "you must not say you are a candidate," a misunderstanding arises that they must not say they were a lay judge even after the trial is over. I want them to at least amend that part first.

I cannot comment on the legislation, but I also feel that there are people who have such misunderstandings, so we are addressing this through operation. Currently, we are in a situation where we are actually asking former lay judges to "please tell those around you more and more about what you experienced."

I was also told on the day of the verdict, "Please talk to the people around you."

That's a good thing. So they are following up on that considerably through operation.

Finally, based on today's discussion, I would like to ask each of you what you hope for in the next 10 years from your respective positions.

I often hear people say, "The court is a scary place." Certainly, when I was deciding whether someone was guilty or not, I felt the pressure of knowing that I was deciding that person's life and that there must be absolutely no mistakes. Also, when deciding on a sentence, there was a fear as if I were stepping into the realm of God; I would wake up in the middle of the night before the trial and couldn't sleep until morning. However, a lay judge trial is not something you do alone; it is something everyone decides together, so I want people to know that they have colleagues by their side.

I felt that lay judge trials have become an important place for ordinary citizens to think about crimes, victims, and perpetrators, and to consider what should be done to create a society that produces neither victims nor perpetrators. I believe the lay judge system, like voting, gives each individual the power to change society, so I want to say: if you are selected, please do not decline and give it a try.

The fact that the experience of being a lay judge is wonderful has still not been fully communicated. Over the next 10 years, I would like to see the lay judge experience shared more widely, so that those who are about to become lay judges understand what it is like beforehand, leading to an era where everyone wants to do it.

I believe the most important thing to watch out for in criminal trials is the prevention of false accusations. In that sense, with the start of lay judge trials, the realization of evidence disclosure to some extent, and the shift from investigation-centered to trial-centered proceedings, I think one major trend has been established.

However, even though the trial and the period immediately preceding it have been considerably reformed, the status of custody and subsequent interrogation after investigation and arrest are still at a pre-civilized stage. I hope to change the principle of 20-day detention and move toward an era where the right to have a lawyer present is recognized, so that lay judges can conduct trials with peace of mind using proper materials.

In a sense, a trial is "someone else's business." Despite it being someone else's business, lay judges adjust their work and daily lives to seriously confront a case involving a stranger and reach a conclusion. Through such experiences, I hope the lay judge system provides an opportunity to think about society as a whole as a member of society, rather than just about oneself, in a trend where people often think "as long as I'm okay, it's fine."

Regarding the issues with investigations raised by Mr. Makino, we have no choice but to detain those who are at risk of fleeing or destroying evidence, but we make careful judgments based on individual cases, and audio and video recording of interrogations is widely practiced. While some countries grant the right to have a lawyer present, they also allow investigative methods not permitted in Japan, such as relatively easy arrests or searches without warrants. Therefore, I think it is dangerous to discuss the system by picking out only specific parts of it.

It is natural for lay judges to feel various stresses during a trial, as it is a once-in-a-lifetime event. That is precisely why, during trials and deliberations, we try to be mindful of the lay judges' condition and speak to them if they seem unwell. In trials, we naturally conduct the necessary examination of evidence, but we are conscious of not causing unnecessary stress.

Systemically, we have prepared a mental health support desk. We intend to take responsibility for the lay judges and alternate lay judges who participated in the deliberations until the very end, so I want lay judges to feel at ease when they come.

For the system to truly take root, we legal professionals must firmly address various operational challenges. I believe this is the responsibility of legal professionals toward the many experienced participants who have said it was a good experience. We look forward to your continued support of the lay judge system.

You just mentioned the very important point of mental care. There are two clinical psychologists who have experience as lay judges in the Lay Judge Experience Network, and both say that the tension and mental burden are greatest during the trial. If a clinical psychologist or counselor were on standby somewhere in the court at that time to check in and ask "Are you okay?" once a day, I think it would provide a great deal of reassurance.

I believe that today's discussion has provided a good opportunity for our readers, who are potential lay judges, to think about this system. Thank you very much for your time.