2003 Fiscal Year Final Research Report Summary

The Criminal Justice System under the New Lay-judge System

Research Project

Project/Area Number	14520078
Research Category	Grant-in-Aid for Scientific Research (C)
Allocation Type	Single-year Grants
Section	一般
Research Field	Criminal law
Research Institution	Nagoya University
Principal Investigator	OSAWA Yutaka Nagoya University, Graduate School of Law, Professor, 大学院・法学研究科, 教授 (60194130)
Project Period (FY)	2002 – 2003
Keywords	Saiban-in / preparation for trial / discovery / sorting out of the contested issues / exclusion of prejudice / right to silence
Research Abstract	The "saiban-in" system depends on the "new preparatory procedure" for trial presided by the court, especially the discovery of evidence and sorting out of the contested issues through that procedure. Though some commentators argue that all the materials in the prosecutor's hand should be disclosed to the defense side before opening the trial session, it would not succeed in balancing the conflicting interests between the public and the defendant. Because the purpose of the defense discovery of evidence through the "new preparatory procedure" is to sort out the contested issues, it seems reasonable to adopt the step by step procedure where, at the first step, the prosecutor is obligated to disclose his/her case and evidence to be used, and only after the defense case is disclosed, prosecutor is obligated to conduct the second step disclosure of the materials relevant to the contested issues. But there are some kinds of evidence which are, as a rule, material for preparing the defense case and are rarely abused in their nature. It would also fit the purpose of the "new preparatory procedure" to obligate the prosecutor to disclose categorically such kinds of evidence even before the defense case is disclosed. Under the new system, as a rule, the defense case cannot be brought into trial unless it is not disclosed in advance in the "new preparatory procedure". It would not violate the constitutional guarantee of the privilege against self-incrimination, because no statement is "forced". The "new preparatory procedure", presided even by the trial court judge, would not violate the principle of the exclusion of prejudice, which is to prohibit the trial judge to receive one-side information from any parties before trial. In addition to the issue above, the number of professional judge and lay judge composing the collegiate panel is considered.