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 would soon seek legislative approval for pilot projects for its own, as yet undetailed, version of a consultative 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 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 democratising the administration of justice. In 1999, president Kim Dae-jung 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 installed.
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 pretrial testimony and other government evidence, with little opportunity for meaningful defence. Their goal is to create open, adversarial hearings featuring in-court testimony subject to crossexamination before impartial professional and lay adjudicators in an equal contest between prosecution and defence.
Thus far, the Korean jury affects only a small number of cases. It applies solely to specified, mostly serious offences, excluding white-collar offences 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. Juries are randomly selected, but certain professions are exempt or disqualified from serving, and prospective jurors are examined in court by prosecution and defence, who can each reject a few without giving reasons and exclude others for cause.