More Notice of South Korea’s Jury Experiment
by Brendon Carr
A little bird tipped me to a short piece in the National Law Journal by University of Dayton law professor Thaddeus Hoffmeister, concerning the Republic of Korea’s tentative first steps toward trial by jury. NLJ is one of the most widely-read professional publications for the legal industry, which means that most of the American legal profession (at least its ruling class of corporate lawyers) now knows about Korea’s jury-trial innovations.
Interestingly, Prof. Hoffmeister notes Japan is also reintroducing trial by jury after an absence of 65 years—Since 1943? Guess it was suspended by Japan’s military government during the war—raising the possibility that these two outposts of American imperial power are being seduced by Yankee TV, but also points out that the wisdom of lay participation in criminal justice is also spreading to China and Russia:
Another explanation is that authoritarian countries or those with fledgling democracies see juries as a way to foster stronger democratic values. Besides voting, few rights are more essential to maintaining or creating a democracy than that of individuals, rather than the government, sitting in judgment of citizens. Juries serve as a check on governmental power and build trust in legal institutions. Also, public input into the legal process results in greater transparency and increases the likelihood that society will better understand and accept the verdict regardless of how the case is ultimately decided.
I agree with his conclusion about the difference between rule of law and mob rule, too:
However, the biggest hurdle will be educating and preparing the country as a whole for those occasional verdicts that run contrary to the values and beliefs of Korean society. For it is only after the public accepts those verdicts will we know whether South Korea’s grand experiment has worked.
Good stuff—I recommend the whole article. Apparently Prof. Hoffmeister concentrates his research on juries—my guess is, although I don’t know, the guy is attracted to the democratic elegance of the idea, despite the occasional grotesque outcome. I remain convinced that fear of being beaten up in the parking lot—China style—was a key motivating factor for the judges in the first Lone Star trial to render a guilty verdict and punt the thing to the next trial level.
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Japan’s old jury system is pretty interesting. They started it in 1928 in the midst of a nice little democratic era that preceded all the fascist BS leading up to WWII. When they repealed it in 1943, it was mainly because it was too expensive to pay jurors in every capital criminal trial while the government was losing a war overseas. The repealing statute actually said that the system would be reinstated after the war, but that never happened…
There were a few serious structural flaws with the whole process. The main problem was that a jury’s determinations of fact were not subject to appeal. Ever. In a bench trial, on the other hand, you could appeal factual determinations twice (at least in theory). It was also possible for the court to saddle the defendant with the costs of convening the jury. So many defendants were very reluctant to invoke their right to a jury trial.
Anyway, the new Japanese system is going to be pretty interesting. There’s a lot of PR for it here; every time you go into a government office you see silly posters of, e.g., high school girls saying “When I’m an adult I can be a juror!”
The big structural screwup, though, is that six jurors will be placed alongside three judges, and then the nine will vote as a group on the legal AND factual merits of the case. (This is like the “German system” which Hoffmeister mentions.) The problem with this is that most people without legal training are very inclined to accept the judges’ word at face value, which makes deliberation pretty difficult under such a system.
The good news for Korea, I suppose, is that it can monitor the situation in Japan and learn what not to do before engineering its own jury system.