【裁判員 判決要旨（上）】「証人の供述は信用性高い」
【裁判員 判決要旨（下）】「被告の供述信用できない」
懲役１６年の求刑に対して懲役１５年の判決です。
少しコメントしてみます。
検察官の求刑が懲役１６年であり、一般的には求刑どおりの判決はまれですから、関心はどの程度求刑から下げた量刑になるかであったわけですが、けっこう詳細に報道された被告人質問の状況から想像して、あまり下がらないのではないかと思っていましたら、予想通りでした。
あまり下がらないのではないかと思った最大の理由は、引用したニュースの見出しにあるように「被告の供述信用できない」と裁判員が思った可能性が高いと考えたからです。
なぜ、そう考えたかと言いますと、報道された範囲での印象ですが、被告人の公判供述は客観証拠を含むその他の証拠との整合性が乏しいように感じられたからです。
そうなると聞く側つまり裁判官や裁判員からしますと、被告人は言い訳がましい人間に見えることになります。
たぶん、私の想像ですが、普段から言い訳がましい被告人を見慣れている職業裁判官より、裁判員の皆さんのほうが、被告人に向ける目が厳しくなるのではないかと思われますので、裁判官よりは量刑が重くなる傾向が生じた可能性があります。
ただし、これは、本件が被告人が犯行自体は認めている事案で、裁判員の迷いも懲役１２～３年から検察官の求刑である１６年くらいまでの範囲内での話だからのことであり、被告人が犯行を否認したり、死刑の当否が問題になるような事案では全く別の様相を呈する可能性があると思います。
モトケンさんのコメントに先んじて僭越ですが、ひとまず感じたことを羅列的に。
・制度開始前、一部弁護士サイドから（ニュアンスとして）一般人の裁判参加によって「不当な検察側求刑や裁判官の判決（≒過重）」に対し「より市民的正義に適った量刑（≒従来より軽くなる）」が出るものと（誤って）期待している傾向が感じられることがあったが、本件事案において「市民感覚が正常に発揮」された結果、ほぼ検察求刑に対して満額に近い回答ならびに事実認定においても被告人側主張を退ける判断が下った。
腰縄サンダルで「勝利をもぎ取った」と酔い痴れていた方々にとっては、さぞかし痛棒であったことであろう。
・そのことと連関性があるや否やはつまびらかでないものの、判決後の会見で弁護側から、通例耳にする「検察側の言い分を鵜呑みにした判決」云々の、己の立証能力不足を棚に上げジャッジメント自体を誹謗するがごときコメントが聞かれなかったことは一つの画期である。
・上訴そのものは国民が等しく有する権利であり、これを用いるに何等の問題は存在しないが、他方「裁判員が混じって行われた」事に不満足判決の原因を（仮令表白しないまでも実質において）見出し上訴する事例が多数を占めることになるならば、裁判員裁判の制度そのものの必要性や意義が空洞化することになるのではないか。
・被告人側主張を全面的に退け、求刑ほぼ満額の判決を下したと言うことは、或いは「正常で健全な市民感覚」≒「報復感情の充足」と結びうる可能性を示唆しているのかもしれない。
本件のように加害者被害者が双方面識がある近隣トラブルに端を発するケースならまだしも、通り魔事件などにおいては一層苛烈な量刑に天秤が傾く可能性を考慮しなければならないのではないか。
・・・まあ、平たく言って私は「この制度、今回はとりあえず上手く収まったけど実は相当ヤバイ爆弾抱えてるんじゃないの？」と思っておるわけです。
そして、今回よりもうちょっとだけシビアな事件がかかったときに、そのヤバい部分がむき出しになるような予感もしています。
・・・ていうか裁判員に顔出しの会見なんかさせるなよ！報道（公知目的）も法務省（プロパガンダ目的）も！！
素人の意見ですが。
結構興味をもって、産経のライブ記事を読んでいておもったのですが、もしかしたら犯罪者に広くいえるのかもしれませんが、被告のインテリジェンスに問題があって言い訳がましくなってしまっている面があるなと。
もちろん、間接的には犯罪を行うというところと、その人の種々の能力には関連はあるでしょうが、やはり犯罪の事実に対して刑罰が加えられるわけですから、結果的にでも被告の広い意味での人間性が量刑に過度に反映されるような制度はいかがなものかと。
個人的には複数回刺していることなどから、強い殺意があったのは明確だと思うので「ぶっ殺す」という発言の有無が大きな争点になったのは理解できませんし、それが重要な争点になるのであったとしても、疑いなく信頼できるような証言でもなかった気がします。あとは、出頭したことや捜査に協力的だったことなど、もう少し考慮した量刑でもよかったと思います。
しかし、控訴審を担当する裁判官はやりにくいでしょうね。
一人殺害での死刑求刑裁判員裁判で見えてくるものがありそうですね。
今回は裁判員も裁判自体に関しては苦慮する事は多くなかったのではと考えます。最初の裁判員裁判とかマスコミから注目された点では戸惑ったかもしれませんが。
しかし、死刑求刑の裁判ならばちょっと変わってきそうですね。傍聴席からの罵詈雑言の受け止め方や死に対する考え方について簡単には答えはでないでしょうから。
まして死刑判決後に記者会見なんて出来得るのか。。。
量刑に関して言えば、検察側の求刑が分かった時点でほぼ決まっちゃう気がしますね。これから出てくるであろう死刑求刑からの減刑の場合とそのまま死刑となってしまう分岐点も気になってきますね。
厳罰化を望んではいるけど、何だか事件の真実からは遠ざかっていくのではないかと思ってしまう。
「こんなものなのかな？」と言うのが私の印象です。
被害者と被告人の双方を知っている近所の人が、証人として証言するかと思ったが、報道で知る限りはなかったように思います。
そうであるならば、短い日程故にそうなったのか、検察側も被告側も承認申請しなかったからなのか、このあたりについて知りたいと思っています。
量刑の局面では、裁判員が真面目な人であればあるほど、社会に対する責任感や使命感からも、厳罰に傾斜する傾向が出てきそうですね。
ただ犯人性を争う案件や死刑求刑案件では、社会よりも被告人の運命に対する責任を強く感じる事になると思います。
その場合、まったく別の思考が強く作用しそうですね。
裁判開始前の個人的な判決予測は「懲役12年」でしたので、量刑についての感想はモトケンさんと同じで「15年はチョット厳しいかな」という印象です。
私個人の印象論ですが、弁護側が被害者の女性とは、狭い路地の通行を巡っての小さなご近所トラブルの積み重なりを、背景事情として主張したことの功罪が気になります。
この弁護側主張が「被害者にも"落ち度があった"と主張」と報道されました。その結果、悪いのは被告人だけではない、被害者側にも責任があるんだ、という『責任のなすり付け』として受け取られた部分は無かったのだろうか？
刑事裁判としての「背後事実の認定」に対する弁護側主張と受け取られず、被告人の反省の度合いが足りない証左と受け取られなかっただろうか？
もしかしたら、弁護側は被告人に有利な要素と考えて主張した背景実が、逆に被告人に不利な要素として裁判員の心証形成に繋がっていないだろうか？
似たようなことは判決後の記者会見で伊達弁護士も言っていました。その上で、組織が基盤にある検察と、個人事務所を基盤とする弁護士の「戦力」的ハンディキャップにも、伊達弁護士は言及されていました。
こうした、「事実」の主張と「情状」の主張との区分けや、三次元CG作成に象徴される組織と金が使える検察と、現場の調査やビジュアル作成も弁護士自身が不眠不休で頑張らなければならない戦力ギャップ。この辺は今後の運用上教訓となる部分だと感じます。
大企業相手の大手障害法律事務所が在るように、刑事弁護の面でも裕福な被告人は、多数の調査スタッフを抱える大手弁護士事務所に、高額の弁護料を積んで依頼する。逆に金の無い被告人は、一人事務所の国選弁護人で我慢する。そんなアメリカ型の刑事司法に近付くような危惧を持ちます。
資金に余裕があるのなら、弁護団に広告代理店を入れることも視野に入れて検討すべきでしょう。国政選挙で、政党の選挙戦術に広告代理店が大きな役割を果たすのと同じように。
専門のプロ相手には通用しないような「テクニック」も、そこらの素人が相手なら大いに有効に作用することが期待できますから。
シロート相手に、短期決戦で、クライアントに有利なイメージを、如何に効果的に植えつけることが出来るかというノウハウにおいて、彼らほど専門特化した集団はないと思われます。
そうなると無論、検察側も国庫から拠出して「勉強会」「研修会」を開催して対抗策を練ることになるわけですね。
専門訓練を受けていない「普通の人の一般的な認識」なんかをアテにしようとすると、こういうことで足許をすくわれるようにも思います。
惰眠 様
横からすいません。
ある種のショーのようで、あまり良い気持ちはしませんが、それも有りで、しょうがないですね。
するとやっぱり裁判員の人たちは公の宿舎を用意して隔離しなければ、邪念が混ざってしまうだろうな。
だけど、裁判の公判までに何ヶ月もあると思いますんで、それまでに、いろんな意味で弁護戦術にコントロールされてしまうかもしれない。（現状でも似たようなことは、日常的にあるでしょうけど）
裁判終了後、裁判員の皆さんが顔を出して記者会見を行っていましたが、これは問題はないのでしょうか。これでは個人が特定されてしまうような気がするのですが（確か、NHKは職業まで紹介していましたが）。
また、裁判所側は顔を出しての会見は遠慮してもらいたいという要請をしていたという話を小耳に挟んだのですが、これは事実なのでしょうか。
惰眠様
＞資金に余裕があるのなら、弁護団に広告代理店を入れる
アメリカなんかでは、大きな法律事務所にはプレゼンテーション技術の専門家とか、テレビ映えのするファッションやメークのアドバイザー、証人や証拠を掘り出してくるプロの調査員とか、ローヤー以外のスタッフも非常に充実しているらしいですね。
以前、グアム島でロス事件の三浦氏が拘束されたとき、三浦氏の弁護人が最初にテレビに出てきたときは、金髪モシャモシャ頭でだらけたＴシャツにヨレヨレのショートパンツ姿。あぁ、リゾート地のグアムじゃアメリカ本国と違って、弁護士もこの程度か･･･。
と思っていたら、異議申立にか何かで法廷に現れた時のその弁護士が、ダークブルーのスーツにネクタイをピシリと締め、キレイに櫛目を入れた髪にレイバンタイプのサングラスで、大型アメ車から颯爽と降り立って裁判所の法廷に向かう。その変わり方に、ある意味日本の弁護士とは違った「格好良さ」というか、有能に見せる為の「演出センス」を感じさせましたね。
ボサボサ頭にノーネクタイ姿。或いはポケットがパンパンに膨れ上がったヨレヨレ背広に、シャツの第１ボタンを外してだらしなく締めたネクタイ。日本の弁護士の平均服装からして、裁判員裁判に向けた好感度演出のトレーニングが必要に思えちゃう。
まぁ、格好ばかり良くても、知識や経験なども重要でしょうが･･･。
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№6コメントの事故レス
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連投失礼
成田の近くの住人 様
裁判員の記者会見をセッティングしたのは東京地裁で、不適切な質問や守秘義務に抵触するような答えをチェックする役目の、地裁の職員が同席していたそうです。
（そのチェックマンから、ダメ出しの質疑は無かったそうです）
また写真ですが、これも記者会見に臨んだ報道各社から選んだカメラマンによる代表撮影です。その代表カメラマンにも地裁職員が付いて、この確度からはＯＫ、これ以上近寄ってのアップはダメ、と指示していたらしいです。
＞裁判所側は顔を出しての会見は遠慮してもらいたいという要請
これは監視役の裁判所職員が立ち会わない、報道記者と裁判員の直接の取材や会見はダメ、という釘指しはあったようです。
法務業の末席さま、詳細な解説、ありがとうございました。今後、裁判員の皆さまに、何かトラブルが無いことを祈っております。
裁判が終わると「裁判員であった者」（過去形）になり、本人が同意しているなら、特定に問題はありません。
裁判前や裁判中だと、接触や不当な働きかけ防止のために特してはいけない。
裁判員法
第百一条 何人も、裁判員、補充裁判員、選任予定裁判員又は裁判員候補者若しくはその予定者の氏名、住所その他の個人を特定するに足りる情報を公にしてはならない。これらであった者の氏名、住所その他の個人を特定するに足りる情報についても、本人がこれを公にすることに同意している場合を除き、同様とする。
まず、裁判員の皆さんにはお疲れ様でしたと言いたいです。
プレッシャーもあったと思いますが、やり遂げたのはとても立派です。
その上で疑問に思ったことを２つ挙げます。
①量刑を判断するのは無理じゃないの？
懲役１５年が妥当なのかどうかなんて、裁判員に分かるはずがないです。どうしたって検察の求刑を基準になるでしょう。
その上で、被告人に対する心証が悪いほど求刑に近づくだろうと思います。
つまり、検察が重い求刑をするほどに、判決もオートマチックに重くなるケースが増えるんじゃないでしょうか。
それが「市民感覚を反映した」ってことになるのかよ！と思います。
②真実の追求効果が弱くなるんじゃないの？
検察と弁護側のプレゼンテーション合戦になるのなら、プレゼンが上手い方が勝っちゃうケースが増えるんじゃないですか？
上手いパワポを作れる人材を確保できる方が勝つってことになりかねませんから、マンパワーで優位に立つ検察側に有利に働くんじゃないですか？
逆に、反省した演技の上手い被告は得をするかも知れませんね。同様に、生い立ちや育ちが不幸な被告も得をするかも知れません。
そういう事情って、裁判員の心証に訴えるでしょうからね。
でも、それって真実追求とは全く別の話ですよね。
裁判員制度って、日本人の感覚に馴染まない制度に思えます。
進歩派を気取るマスコミは礼賛するのかも知れませんが、早晩立ち行かなくなったり、大幅な軌道修正を余儀なくなれる可能性も否定できないなあと思いました。
「懲役12年」が、ごく普通の感覚かも知れません。
そうなると、被告側は控訴する可能性が高いと思います。裁判を受ける権利は誰にもあり、守られるべき。
嫌なのは、控訴申立が行われた場合、マスコミは被告が反省していないと批判することと、裁判員制度の批判をすること。裁判員制度の制度上存在することを、そのように報道するのではなく、被告が悪いからと矮小してしまう懸念です。
節介人 さま
法律でもうたわれているのですね。不勉強で失礼しました。また、情報のご提供、ありがとうございました。
ある経営コンサルタント 様
私が懸念するのは控訴したときではなく、控訴審での判決が裁判員が下した１審判決と大きく違った時、マスコミや知ったか評論家がどう反応するかです。例えば今回の事件は１審が15年でしたが、控訴審では被害者とのご近所トラブルの積み重なりが事件の下地にある、という弁護側の主張が大きく認められて、大幅に刑が軽くなった場合（懲役10年とか）が心配です。
素人である裁判員の判決はトンデモだとか、プロの裁判官でも大変なのに素人に真似事させるのがイケナイ、裁判員制度はケシカラン･･･高裁での判決がこれだけ大きく違ったのが何よりの証拠ダ！
多分、こんな大合唱が巻き起こるような気がしてます。
>高裁での判決がこれだけ大きく違ったのが何よりの証拠ダ！
そういう人に限って、普段は「高裁判決はケシカラン！ヤツラは検察権力に阿っている」などと批判してるんでしょうけど。
うーん、どうでしょうか。
僕は逆に、高裁の判決を「市民感覚からかけ離れた判決」として批判する声の方が大きくなるように思います。そして、それによって裁判官が萎縮することを懸念します。
司法に市民感覚を持ち込むという裁判員制度の趣旨は間違っていないと思いますが、そのやり方にはちょっと疑問を感じてます。
具体的に言えば、量刑まで判断させるべきなのかどうかは疑問です。
今回のようなケースで、どんな量刑が妥当かなんて見当もつかないと思いますし、市民感覚を発揮しようもないと思うんですよね。
これが有罪か無罪かの判断であるなら、「証拠があると言えるかどうか」ですから、まだ市民感覚を発揮しやすいと思うんですけどね。
量刑を決めるということは、場合によっては死刑判決もあり得るわけで、それを裁判員にやらせる必要があるかどうか甚だ疑問です。
またそもそも、死刑もあり得る殺人などの重大事件を裁かせる必要があるのかどうかも疑問ですし。
裁判員制度の趣旨は多くの人が認めるところだと思います。
しかし、その趣旨を認めることと、現行の裁判員制度を丸ごと許容することは別の話だと思いますし、是々非々で国民的な議論が巻き起こればよいと思ってます。
仮に高裁が一審とかなり異なる判断をしたとして、そのことが是々非々の議論を呼び込むきっかけになるとしたら、とても結構なことだと思います。
>七誌さん
量刑に関しては裁判員だけで決まる事は無いからそこまで乖離した物は出ないです。 少なくとも裁判官が一人は支持する量刑になる訳ですから。
先例主義が全て悪いとは思いませんが、事件の様態によっては市民感情を考慮した量刑を出す為にも裁判員が量刑に関わる事は重要だと私は思います。
> これが有罪か無罪かの判断であるなら、「証拠があると言えるかどうか」ですから、まだ市民感覚を発揮しやすいと思うんですけどね。
私的には有罪か無罪かの判断の判断の方が難しいのではないかと思います。 推定無罪の原則や、疑わしきは被告人の利益にという事を常に頭に入れて中立な立場で判断が出来るのか・・
>高裁が一審とかなり異なる判断をしたとして、そのことが是々非々の議論を呼び込むきっかけになるとしたら
上級審と言えど今回の裁判員制度の結果は尊重するでしょうし、事実関係に争いが無いなら余程の事が無いと量刑には立ち入らない気がします。
裁判員制度に対しては、大きく分けて二つの立場があると思います。
つまりは肯定派と否定派です。そして現職弁護士や法学者などの「専門家」の中の一部に、相当数の否定派が居ることは事実でしょう。
そうした否定派の専門家は、とかく「素人に裁判官の真似事をさせたらトンデモ判決ばかりになって、日本の刑事裁判制度の信頼性が損なわれる」という主張をなされます。
素人の裁判員が評議して下した１審判決の量刑と、控訴審の高裁でベテランの裁判官だけで下した判決とが大きく乖離したときは、どんな反応が出て来るでしょうか？
先に私が挙げた否定的専門家集団は「ソラ見たことか、素人に裁判を任せてはイケナイ」の大合唱になるでしょう。
逆に七誌さんが指摘される裁判員制度賛成推進派は「プロ裁判官の基準は、市民感覚からズレている」という大合唱になるでしょう。
すなわち、今回の懲役15年という１審判決の結果が、控訴審では大きく異なる判決となったとき、賛成派反対派の両方から百家争鳴の如く批判が飛び交うのは、間違いないことだし避けられないことと思います。
やはり、被告側は控訴したようですね。
読売2009年8月13日 裁判員裁判１号、懲役１５年判決の藤井被告が控訴
やはり、記事でコメントをしていますね。
「裁判官の間で支配的な見解になっている。」とまで、強い表現を使って良いのだろうかと思います。
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Unlike the mainstream ideas, I have to disagree with you, as there are in order that many different factors to consider. Properly if you're open for hyperlink exchange, maybe we should always keep up a correspondence with each other, so that we can construct a better blog together. What do you assume?
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Change its the only constant, nice site! Keep up the good work, Im coming back. /Bob
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