Lay Judges and Common Sense to Arrive in Japan in 2009

Kyodo News, Lay judges to be advised to use "common sense", in Japan Times Online (May 6, 2007):

The presiding professional judge in the incoming citizen judge system will tell the lay participants to use their "common sense" in deciding criminal cases, according to draft models of such instructions.

The models map out what presiding judges are expected to tell the lay judges, who will be randomly chosen from the general public, before they begin examining criminal cases under the system taking effect in 2009.

Among the phrases recommended are "Make a judgment in accordance with your common sense solely on the basis of evidence presented to the court," ... "Your opinion has the same weight as that of a (professional) judge," and "You are allowed to talk to others about (general) impressions you formed by serving (as a lay judge)."

...

The top court is expected to lay out some basic legal concepts, such as "who shoulders the burden of proof" and "evidence-based examinations," while allowing individual courts to decide what precisely to tell lay judges.Under the new trial system, six eligible voters selected as lay judges will hear murder and other serious criminal cases with three professional judges at the first court of instance, working with them in reaching a verdict, and in the case of a guilty ruling what kind of sentence to hand down.

Under the draft models, lay judges will be briefed on some ground rules at the beginning of a trial, such as how the trial will proceed and what they should base their judgments on.

Specifically, they will be asked to give a guilty verdict if they have concluded that prosecutors' evidence is correct and give a not-guilty verdict if prosecutors cannot prove a defendant's guilt beyond reasonable doubt.

They will be advised to exercise their common sense and to express their opinions, with an understanding that their opinions weigh as much as those of the professional judges.

The lay judges will be warned not to divulge details of the discussions among judges, so they can "exchange candid opinions" and "protect their own safety," according to the models.

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The three professional judges and the six lay judges will make decisions by majority. However, no guilty sentence will be handed down if all three professional judges find the accused innocent.