Business law essay

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BUSL377 Week 4 Tutorial Class Mock Trial Class Activity

This Class Activity is adopted from the case: 1988 (O) No.436 (Judgment of the Supreme Court on 8

March 1989). The Judgment (in English) can be found online at:

<http://www.courts.go.jp/app/hanrei_en/detail?id=90>.

There are some modifications in the facts from the real case as follows:

1. The Plaintiff was an American lawyer. 2. The criminal trial was in Tokyo District Court, not Osaka District Court. 3. I have also changed the name of the accused in the criminal trial.

Judgment in the real case:

(majority opinion was given by 14 of the 15 Justices in the Supreme Court Grand Bench hearing; the

remaining Justice concurred in the conclusion but with different reasoning)

The main points of the majority opinion are as follows:

a. Paragraph 1 of Article 82 of the Constitution guarantees the system of pubic trials but it does not go as far as guaranteeing spectators rights to take notes.

b. Note-taking done by a spectator in order to understand and remember the trial seen and heard should not be hindered without due reasons. However, there can be “certain reasonable

restrictions” on such note-taking in order to “reconcile with other people’s human rights” or due

to the necessity of securing “some superior public welfare”.

c. In a court room, the “realization of a just and speedy trial should be most highly respected”. Therefore, the administration of a fair and smooth trial proceeding has a legal interest superior to

the spectators’ interest in note-taking.

d. If note-taking interferes with the administration of a fair and smooth trial proceeding, it should be restricted or prohibited.

e. Note-taking may “give rise to an atmosphere which is not appropriate for the place of trials” or may cause “unjust psychological pressure on witnesses or [the accused]” so that there may be

interference with the administration of a fair and smooth trial proceedings.

f. It is however “an unusual case that note-taking by spectators may interfere with the administration of the fair and smooth trial proceedings and therefore, without special

circumstances, spectators should be left free to take notes and such freedom should be considered

as being in consonance with the spirit of Paragraph 1, Article 21 of the Constitution”.

g. Under Article 71 of the Court Law/Act and Paragraph 2 of Article 288 of the Code of Criminal Procedure, the presiding judge “is entitled to take reasonable measures to maintain order in the

courtroom against those who interfere with the exercise of the functions of the court or those who

behave improperly in the courtroom”.

h. “[Decisions] of the presiding judge as to whether to exercise his/her authority and as to what measures to be taken must be respected to the maximum extent”.

i. The presiding judge is entitled “to take measures to prohibit or regulate note-taking by spectators … when it is probable that note-taking might interfere with the administration of the fair and

smooth trial proceedings”.

j. It “is desirable that the presiding judge imposes restrictions or prohibition against note-taking ... only when there are especially concrete probabilities that note-taking might interfere with the

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administration of the fair and smooth trial proceedings”. However, “it should be allowed as a

measure within the discretion of the presiding judge” to impose a general prohibition on note-

taking by spectators and, dependent on circumstances, allow it individually, “so long as it does

not amount to hindering note-taking by spectators without due reason”.

k. Regarding the rejection of the Plaintiff’s application but allowing journalists of the Judicial Reporters’ Club to take notes, it is not against Paragraph 1 of Article 14 of the Constitution. The

latter does not guarantee each individual an “absolute equality”. It prohibits discrimination

without due reason. Freedom of news-gathering for the press is “worth respecting under the

spirit of Article 21 of the Constitution”. On the basis of “consideration in favor of the public

interests of the press and freedom of news-gathering therefor”, it is not unreasonable for the

presiding judge to allow only the journalists belonging to the Judicial Reporters’ Club to take

notes in the court-room.

l. It cannot be found that note-taking by the Plaintiff “might possibly interfere with the administration of the fair and smooth trial proceedings in that it might disturb order and quietness

in the courtroom, might give rise to an atmosphere which is not appropriate for the place of trial

or might have unjust effects on the witnesses or the [accused]”. The measure taken by the

presiding judge “should be supposed to be the exercise of authority ... without reasonable

grounds”.

m. “[In] the past when many of so-called public security cases were filed before the courts and rude behavior occurred daily in the courtroom, it used to be necessary to take measures of prohibiting

note-taking generally in the courtroom in order to expedite the smooth proceedings in those cases

…”. However, at the time of the criminal trial concerned in this case, “the vast majority of

people had already come to deeply understand the court and there have been becoming few cases

in which spectators in the courtroom interfered with the administration of the trial by the court.

At present the courts should admit frankly that note-taking by spectators is at a stage of not being

given sufficient consideration and should acknowledge that sufficient consideration to note-

taking is required hereafter”.

n. However, “this conclusion presupposes naturally that note-taking does not hinder order and quietness in the courtroom nor interfere with the administration of the fair and smooth trial

proceedings”. The presiding judge “also owes a duty and has the obligation to exercise the

authority of maintaining court order strictly and decisively against any activities by spectators

which, if ever, may be regarded as ones leading to the said harmful situation.”

o. Judgment by the presiding judge in the exercise of his authority to maintain court order “should be respected to the maximum extent”. Measures “taken by the presiding judge under the

authority of maintaining court order cannot be regarded as an illegal exercise of the public power

… unless there are special circumstances such as the measure taken deviates markedly from the

purpose and scope of the authority or the manner of taking the measure is utterly inappropriate”.

p. At the time of the criminal trial concerned in this case, the view “broadly adopted” was that “the

court can properly open the court, generally prohibiting spectators from taking notes under the

authority of maintaining court order”. “[Considerable] numbers of courts had taken similar

measures”. The measure taken by the presiding judge in this case cannot be said as falling within

the aforesaid “special circumstances”. Therefore, such measure does not amount to an

illegal/unlawful exercise of the public power/authority although it “was lacking in sufficient

consideration”.