Jerome A. Cohen. The Suppression Of China’s Human Rights Lawyers: Do Foreign Lawyers Care? SCMP (South China Morning Post)

July 20, 2011

What role, if any, should ordinary citizens play in determining guilt and punishment in criminal cases? Some Chinese courts, dissatisfied with the mixed tribunals of one judge and two lay assessors that hear many of their cases, have been experimenting with so-called “people’s juries” whom they “consult” before making decisions. Taiwan’s Judicial Branch recently announced that it will soon seek legislative approval for pilot projects for its own, as yet undetailed, version of a consultative, not decision-making, jury.

Both sides of the Taiwan strait can benefit from studying the unique consultative jury system that South Korea has implemented since 2008. It is an imaginative, if tentative, effort to adapt to Korean circumstances features of both the common law jury inherited by former English colonies including Hong Kong and the Continental European mixed tribunal of professional judges and laymen that Japan established in 2009.

Like most of East Asia, Korea seemed an unlikely candidate for any type of popular participation in judicial decision-making. Yet, despite authoritarian traditions, South Korea’s dramatic transformation from dictatorship to democracy in the late 1980s brought strong demands for democratizing the administration of justice. In 1999, President Kim Dae-jung, who had himself been sentenced to imprisonment and, later, death by martial law courts, appointed a committee that recommended citizen participation in the courts. In 2007, the National Assembly promulgated the Act on Citizen Participation in Criminal Trials, which launched a five-year period of experimentation with a consultative jury. This avoided the constitutional problem that would have arisen had the ultimate decision-making authority of judges been infringed. After reviewing the results of this experiment, a more permanent system of popular participation is to be erected, reflecting Korea’s distinctive culture and contemporary society.

Supporters of Korea’s experiment hope to enhance public confidence in the legitimacy and credibility of courts that were considered autocratic, secretive, frequently corrupt and always under the influence of official and business elites. They expect jury trials to bolster broader reforms designed to end Korea’s inquisitorial “paper trials” that have largely focused on court confirmation of pre-trial  testimony and other government evidence, with little opportunity for meaningful defense. Their goal is to create open, adversarial, open hearings featuring in-court testimony subject to cross-examination before impartial professional and lay adjudicators in an equal contest between prosecution and defense.

Thus far, the Korean model only affects a small number of cases. It applies solely to specified, mostly serious offenses, excluding white-collar offenses such as fraud and embezzlement. Moreover, judges have the discretion to preclude use of juries in cases they deem inappropriate, and defendants can choose to be tried by judges alone. Usually, juries have seven members, with two added for crimes punishable by death or life sentences. If, however, defendant concedes important parts of the charges, the court may try the case with merely five jurors. Juries are randomly selected, but certain professions are exempted or disqualified from serving, and prospective jurors are examined in court by prosecution and defense, who can each reject a few without giving reasons and exclude others for cause.

In principle, juries deliberate independently, without judicial intervention, and their verdicts must be unanimous. If the majority of jurors requests, however, they may discuss the case with the presiding judge before voting. If  jurors cannot reach a unanimous verdict on their first vote, they must hear the views of the presiding judge, after which they may decide by simple majority. The presiding judge also gives jurors guidelines regarding sentencing. Jury determinations on guilt and sentencing are not legally binding on judges, but must be included in the trial record, and the judge must explain to the defendant any discrepancy between the court’s decision and the jury’s.

While it is premature at this point to evaluate the Korean experiment, a number of circumstances can be noted preliminarily. The much heavier burden on judicial resources that many thought would be imposed on the courts has not materialized. Indeed, the number of jury trials has been much lower than expected. Courts often exclude complicated cases — most jury trials conclude in a day — and most defendants choose bench trials. As expected, attracting and compelling juror participation have proved difficult. Yet most who have served come away with a favorable experience, have been more diverse in age and occupation than anticipated and claim to have understood all or almost all of the proceedings.

Trial courts accept jury verdicts regarding guilt in over 90% of the cases, and jury sentencing recommendations even more. The percentage of court judgments reversed on appeal is proving to be substantially lower for jury trials than for other criminal cases. Significantly, jury trials have resulted in an unusually high acquittal rate — 8.8% in one study and 10% in another, roughly three times the acquittal rate for non-jury criminal trials. Further evaluation will require greater and more comprehensive data, and interpreting its implications will be a subtle and challenging task.

Yet some things already seem clear. Korea’s jury system appears here to stay, if only in its non-binding capacity. The categories of applicable criminal cases are likely to expand, including fraud and embezzlement, so that cases will increase. Criteria for allowing potential jurors to be excused from duty will probably be clarified, as will standards for allowing judges to exclude cases from jury trial. If, as some reformers advocate, jury verdicts are to become binding, a constitutional amendment or Constitutional Court interpretation may be necessary, and there is the added issue whether criminal defendants should be granted a constitutional right to trial by jury, so that this opportunity is no longer limited to cases prescribed by legislation and permitted by judges.

The South Korean experiment offers a fertile field for study. Law reformers in both China and Taiwan will have many questions about how the system works and why, and many observers are  waiting to see whether Korea will take steps to authorize ordinary citizens to make binding decisions about guilt and sentencing.

This article was published with some editing in the South China Morning Post on July 20, 2011, under the title “Justice of Peers.”  Illustration from SCMP. It was published in Chinese in the China Times (Taiwan) on July 21, 2011.(简体中文).

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at NYU School of Law and adjunct senior fellow at the Council on Foreign Relations. See also Research papers by Jae-in Yoo and Hyun-kyung Kim made important contributions to this article.