September 1, 2011
Are criminal trials too important to be decided by professional judges alone? That question is increasingly being asked – and answered – in various Northeast Asian jurisdictions. South Korea has used non-binding “consultative” juries since 2008. The following year, Japan instituted “mixed tribunals” composed of three judges and six laymen to decide both guilt and punishment. Even some courts in Mainland China, which has long authorized one or two Soviet-style “people’s assessors” to join judges in decision-making, have recently been experimenting with consultative “people’s juries.” Now Taiwan is considering an official proposal for five laymen to sit with and advise three judges in serious criminal trials.
This is not the first time that the island’s judicial branch, the Judicial Yuan, has suggested citizen participation in criminal cases. Its previous attempts to introduce “lay assessors” date back to 1987 — the year when martial law was lifted. Yet, those plans called for assessors to share decision-making power with judges, which raised constitutional doubts about authorizing citizens with no security of life tenure to act as judges while depriving defendants of their right to trial by professional judges alone. Last October, however, the newly-appointed leaders of the Judicial Yuan introduced this new effort in response to public anger at recently-exposed judicial corruption and at court decisions that were widely condemned as too lenient to child molesters and out of touch with common sense and humanity.
This new lay assessors system, designed by the Judicial Yuan to minimize constitutional doubts, is a distinctive blend of various features already familiar to neighboring countries. Like Japan’s lay assessors, Taiwan’s citizens, after hearing the case together with professional judges, will deliberate with the judges. Yet, unlike Japanese counterparts, they will have no voting power. Their views will only be “consultative”, like South Korea’s jury.
According to the official plan, after the legislature’s approval, this new system will operate in two district courts beginning 2013. The experiment will initially be limited to cases in which the first instance court might mete out the death penalty or a life sentence. The defendant will have no right to choose trial by professional judges alone, and his fate will be determined by the judges after they consult the assessors. As in Japan, assessors will be selected randomly for each case but some may then be excluded by prosecutors and defense lawyers. Also as in Japan, assessors will not attend pre-trial hearings where judges, prosecutors and lawyers clarify the issues to be decided in the case and the evidence to be investigated or excluded. Nor will assessors have access to pre-trial case files. At trial, they may question witnesses and defendants with the approval of the presiding judge. During their post- trial deliberation, assessors will give judges their opinions on facts, application of law and sentencing, but only judges will decide. They will, however, be expected to take the assessors’ majority opinion into account and, if they disagree, to state why in their judgment. After three years, Taiwan will evaluate the experiment and determine what to do.
Like Japan and South Korea, Taiwan’s motivation in undertaking this reform is mainly to increase the legitimacy of the judicial system by democratizing adjudication. Citizen participation also promises to increase transparency and popular understanding of the judicial process. Thus far, in both Japan and South Korea, although many citizens were initially reluctant to take part in criminal trials, their countries’ differing experiments have, by and large, met with a favorable response, not only among participants but also the public. Moreover, in both countries, citizen participation has given new importance to open court hearings and strengthened their adversarial nature. Especially valuable for defense counsel is the chance to cross-examine prosecution witnesses and present defense evidence and arguments before representatives of the broader community. This should be good news for Taiwan’s struggle to implement the adversarial system that it launched in 2002 in order to promote greater fairness and accuracy in criminal trials.
The Judicial Yuan’s proposal will probably be enacted. Yet, not surprisingly, given Taiwan’s sophisticated and vibrant democracy, some experts and civic groups criticize the assessors’ lack of power to decide cases. They claim that the judiciary wants to retain its decision-making monopoly. They also argue that the benefits of popular participation in first instance trials will be seriously diminished by failure to reform procedures in higher, second instance courts, where cases can be tried again, without any popular participation. Critics maintain that the Judicial Yuan should have given greater consideration to other options and fostered more public debate before presenting its proposal.
The greatest challenge confronting any type of citizen participation in criminal trials in Taiwan’s acutely polarized society will arise in politically sensitive cases. Will popular participation enhance the legitimacy of the judiciary’s handling of such cases or add fuel to the fire? In some quarters, recent prosecutions of former president Chen Shui-bian and other political figures, and the current indictment of former president Lee Teng-hui, have deepened skepticism about the impartiality of the judiciary. What might happen if such cases are tried before a Japanese-style mixed tribunal, an American-type jury or even the Judicial Yuan’s consultative panel? The question suggests that in the debate ahead the devil will be in the details of selecting assessors and regulating their interaction with judges.
Whatever the difficulties, one positive sign is that a recent poll showed that Taiwan citizens welcome the opportunity to participate in criminal trials. Over 70% said they would be willing to try cases together with judges. Ironically, slightly over half the judges surveyed disapproved of the Judicial Yuan proposal. Judges, of course, are understandably concerned about increased workloads and popular pressures interfering with independent professional decision-making. In addition, some caution that, because assessors will merely advise, the new system will only amount to democratic window-dressing. Can the Judicial Yuan address the concerns of judges and persuade them to implement this reform? The stakes are high for democracy and justice.
This article was published with some editing in the South China Morning Post on September 03, 2011 under the title “Open to Debate.” It was published in Chinese in the China Times (Taiwan) on September 1. 2011.
Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. Yu-Jie Chen is a Taiwan lawyer and research fellow at the US-Asia Law Institute. See also www.usali.org.