American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ the change and said that they did not want to serve as jurors. Why not? The jury system violates several deep-seated cultural norms shared by Japanese: “a reluctance to express opinions in public, to argue with one another and to question authority.”^a The mock trials and play-reading sessions attempted to overcome those obstacles.

^a Norimitsu Onishi, “Japan Learns Dreaded Task of Jury Duty,” The New York Times, July 16, 2007.

The new Japanese jury system is quite different from the one used in the United States. In Japan, six jurors sit with three professional judges. When weighing guilt or innocence and determining sentences, the jurors must arrive at a majority decision and have the support of at least one of the three judges.^b Unlike American jurors, they can question witnesses.

^b Justin McCurry, “Trial by Jury Returns to Japan,” The Guardian, August 3, 2009, http://www.guardian.co.uk/world/2009/aug/03/japan-trial-by-jury-returns

Potential jurors were not the only ones nervous about the change. Lawyers were not used to making closing arguments or having to speak in terms that ordinary people could understand.^c Experts expressed concern that randomly selected jurors would not be qualified enough to render verdicts in complicated criminal cases.^d Prosecutors were afraid that conviction rates might fall.

^c Richard Lloyd Parry, “Trial by Jury Returns to Japan and the Lawyers Aren’t Happy,” The Times, February 28, 2009, http://www.timesonline.co.uk/tol/news/world/asia/article5818123.ece

      ^d “Japan’s Landmark Jury Trial Ends,” BBC News, August 6, 2009, http://news.bbc.co.uk/2/hi/8188447.stm

In Japan, only those cases in which conviction is almost certain are brought to trial. The conviction rate for all prosecutions in Japan is over 99 percent, and failure to obtain a conviction can be a career setback. Jurors might also question the tools used by prosecutors, whose investigatory powers are largely unchecked. Unlike the United States, where Miranda warnings and other procedural guarantees protect criminal defendants, suspects in Japan can be held for up to 23 days without access to a lawyer. Confessions of guilt are common during that time.^e

^e Bennett Richardson, “In reform bid, Japan opts for trial by jury,” Christian Science Monitor, June 4, 2004, http://www.csmonitor.com/2004/0604/p06s02-woap.html

      The first case utilizing the new system took place in August 2009. More than 2,000 people lined up to watch the proceedings. Katsuyoshi Fujii, age 72, had already confessed to stabbing a neighbor to death; the jury was charged with determining a sentence. They questioned Fujii and the victim’s son, and heard from Fujii’s lawyers, who sought leniency. Prosecutors could have asked for the death penalty but suggested 16 years in jail; the jurors sentenced him to 15. This first case went smoothly, but a survey of potential jurors continued to show that one in four remained unwilling to serve—even though refusal would subject them to a fine of 100,000 yen (roughly $1,300).

Now, some years after the implementation of the new system, citizens are often still unhappy to be chosen to serve as jurors. Yet interviews with those who have served suggest that the overwhelming majority come away with a positive impression of the experience.^f No significant reduction in convictions was noted in the first five years of the new system.^g To the extent that the system contributes to the public’s understanding of the judicial system and their confidence in it, the reform appears to be a success.

^f Dimitri Vanoverbeke, Juries in the Japanese Legal System: The Continuing Struggle for Citizen Participation and Democracy (New York, NY: Routledge, 2015), 159, 175.

      ^g Ibid., 157.

      Questions to Consider

      1 Might the use of jurors in Japan lead to greater protection of civil liberties? If so, how?

      2 What do you think of the concern that randomly selected jurors in Japan are not qualified to decide complicated cases? Is that a valid concern for American juries?

      3 The right to trial by jury in criminal cases is a guarantee of the Sixth Amendment of the U.S. Constitution. Why is that right so important?

      We take jury trials for granted, but they are largely a by-product of the common law system that originated in England. Many other countries with a civil law tradition (where law is codified in statutes rather than being based on legal precedents) do not have trial by jury. This includes countries such as France, Germany, and Italy. Others, such as Japan, have only recently instituted jury trials in some cases (see “Picture Yourself”).

      Judicial Expansion of the Rights of the Criminally Accused

      In addition to specific guarantees in the Bill of Rights, the Supreme Court has used judicial opinions to expand the rights of the criminally accused. For example, it ruled in Gideon v. Wainwright (1963) that the Sixth Amendment right to legal representation applies to those who cannot afford a lawyer.¹¹⁷ If the accused is too poor to hire one, the court must assign one. Many states have responded by creating a system of public defenders: lawyers whose full-time job is defending indigent criminal suspects.

      The so-called Miranda warnings are another prime example of the Court expanding rights. After watching countless movies and television shows in which criminal defendants are read their rights, you can probably recite these warnings by heart:

      You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer of your own choice before questioning. If you cannot afford to hire a lawyer, a lawyer will be provided without charge.

      These warnings are the result of the 1966 case Miranda v. Arizona.¹¹⁸ Prior to this case, the admissibility of confessions in state criminal cases was judged on a case-by-case basis using the basic standard of due process, with the Fifth Amendment right against self-incrimination not applying to police interrogations. Miranda required police to warn suspects, prior to questioning, that they had the right to remain silent and to request a lawyer. Absent such warnings, information obtained from suspects may not be admitted as evidence in court. Although some criticized the Miranda warnings as an example of the liberal Warren Court affording too many rights to criminal defendants, the conservative Rehnquist Court upheld the central holding of Miranda by a 7–2 vote in Dickerson v. United States (2000).¹¹⁹

      Yet another judicially created principle is the exclusionary rule, which prevents evidence that was discovered by illegal means—for instance, through an improper search without a warrant—from being introduced in criminal trials. Created by the Supreme Court in Weeks v. United States (1914), the exclusionary rule was originally limited to federal cases.¹²⁰ Even when the СКАЧАТЬ