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Japan: Bar Association Guidelines for Defense Counsel in Death Penalty Cases

(Nov. 27, 2015) The Japan Federation of Bar Associations (JFBA) created Guidelines for Defense Counsel in Death Penalty Cases and sent them to local bar associations throughout Japan in October 2015. (Guidelines Exclusively for Capital Defense, JFBA “Special Defense Required,” NIKKEI (Oct. 19, 2015) (in Japanese).) The guidelines are modeled after the American Bar Association (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases of 2003. (Meredith Gallen, Japan Federation of Bar Associations to Create Death Penalty Representation Guidelines Modeled After ABA Guidelines, 8:1 PROJECT PRESS (Winter 2015).)

There has been controversy over the new Guidelines because they recommend that a defense counsel in a capital case should oppose the participation of a victim or a victim’s family in the trial. Because a victim’s statements have a powerful impact, especially on quasi-jurors (citizens serving as lay judges, see Hiroshi Matsubara, Quasi-Jury System Earns Diet Approval, JAPAN TIMES (May 22, 2004)), it is better for the defense to avoid using them, the Guidelines reportedly state. Lawyers who are committed to supporting crime victims criticized this recommendation. They also questioned how the JFBA developed the Guidelines, because publication proceeded without the solicitation of opinions from members of the Bar with different views. (Opposition to Guidelines of “Defense for Capital Cases” by JFBA, Crime Victim Support Lawyers Forum website (Oct. 19, 2015) (in Japanese).)