On September 13, 2014, the Japan Federation of Bar Associations (JFBA) announced plans to create performance guidelines for lawyers defending capital and potentially capital cases. The JFBA intends to model the guidelines after the American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
Japanese law currently does not provide defendants facing potential death sentences with many of the procedural protections that are now required in capital litigation in the United States. For example, Japanese prosecutors are not required to indicate that the government is seeking a death sentence until making closing arguments in a case, after the submission of all evidence at trial. This practice severely limits defense attorneys’ ability to prepare an adequate defense for capital clients. Additionally, trials in which a defendant might be sentenced to death are not bifurcated into separate guilt and penalty phases in Japan, so defense attorneys have few opportunities to present evidence that might mitigate against a capital sentence.
The JFBA, a compulsory membership organization for all attorneys practicing in Japan, recognizes that these death penalty procedures function as a barrier to justice. In recent years, the JFBA has made a significant commitment to working to improve the system by seeking a more meaningful role for defense counsel and enhancing the quality of representation provided to persons facing a possible death sentence. The JFBA hosted its first-ever capital defense trainings in August 2013, and again in 2014. A follow up seminar is scheduled for May, 2015. Both trainings, sponsored by the JFBA and the International Justice Project, were led by a team of experienced capital defense lawyers and experts from the United States, including the ABA Death Penalty Representation Project’s former director, Robin M. Maher. The faculty focused on sharing best practices from the capital defense community with Japanese colleagues and identifying the lessons they have learned in past years. The JFBA hopes that the proposed guidelines will build on these trainings and the ABA Guidelines, setting national standards that will improve capital defense practice throughout Japan.