Overview of the Jury System. from the Perspective of a Korean Attorney. From the perspective of a Korean attorney, the jury system

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1 Lee 1 Hyung Won Lee Judge William G. Young Judging in the American Legal System 10 May 2013 Overview of the Jury System from the Perspective of a Korean Attorney I. Introduction From the perspective of a Korean attorney, the jury system is probably the most remarkable part of the American justice system. In recent years, Korean citizens have shown increasing interest in the American jury system. In 2008, the Citizen Participation in Criminal Trials system, created based on the American jury system, was introduced to criminal trials in Korea. Encouraged by the successful introduction of this system, lawmakers have discussed the introduction of a Grand Jury system. Under these circumstances, systematic study of the American jury system is expected to be useful for improving the Citizen Participation in Criminal Trials system and acquiring knowledge and insight to determine whether it would be beneficial to introduce the Grand Jury system. Section II of this paper provides an overview of the American jury system. Section III describes the Citizen Participation Trial system in Korea. Section IV addresses discussions in Korea regarding

2 Lee 2 whether to introduce a grand jury system. Finally, Section V provides thoughts about the jury system from the perspective of a Korean attorney. II. Overview of the Jury System in the United States A. American Jury System The right to trial by a jury of one s peers is a cornerstone of the individual freedoms guaranteed by the U.S. Constitution s Bill of Rights. 1 Both Article III of the U.S. Constitution and the Sixth Amendment require that criminal cases be tried by a jury. And the Fourteenth Amendment applies this mandate to the states. Seventh Amendment requires a civil jury in cases where the value in dispute is greater than twenty dollars. The Seventh Amendment right to a civil jury trial does not apply in state courts so the right to a jury trial in state court is governed by the state s constitution and statutes. 2 However, in practice, most states make jury trials widely available for many kinds of civil cases above the level of small claims court. B. Type of Jury There are two types of juries: petit jury and grand jury. The petit jury (or trial jury ) hears the evidence in a 1 f 2

3 Lee 3 trial as presented by both the plaintiff (petitioner) and the defendant (respondent). After hearing the evidence and often jury instructions from the judge, the group retires for deliberation, to consider a verdict. The majority required for a verdict varies. In some cases it must be unanimous, while in other jurisdictions it may be a majority or supermajority. A jury that is unable to come to a verdict is referred to as a hung jury. The size of the jury varies; in criminal cases involving serious felonies there are usually 12 jurors. Petit jury is the most common type of jury system. 3 A grand jury determines whether there is enough evidence for a criminal trial to go forward. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes and issuing presentments. A grand jury is traditionally larger than and distinguishable from the petit jury used during a trial, with at least 12 jurors. 4 C. Advantages of the Jury System First, the jury system serves as a safeguard against governmental abuse. The jury may counteract both judicial bias as well as corruption. 5 Juries provide an inestimable safeguard against the corrupt or overzealous prosecutor and against the 3 Id Ala. L. Rev. 441, 475.

4 Lee 4 compliant, biased, or eccentric judge. 6 Second, the jury system serves as a sort of educational institution, communicating civic values to all called to jury service. 7 While observing and impartially weighing the interests of others, jurors are educated about the role that they, as citizens, are expected to play in society. 8 Third, the jury adds to the legitimacy of the adjudicatory process. 9 The fact that the jury represents a group of individuals selected from the community as opposed to the singular person of the judge increases the legitimacy of the jury s verdict. 10 The jury, it is thought, is more likely to represent community values than would a single judge. 11 Also, the practical experience and knowledge of jurors from the community are considered advantages to the adjudicatory process. 12 D. Disadvantages of the Jury System Jurors, however, are sometimes criticized as incompetent in their roles as fact finders and in their ability to understand the law that they must apply to the facts of the case. Particularly in more complex cases, there have been concerns about juror incompetence. 13 Second, jurors, unlike the judge, 6 Duncan v. Louisiana, 391 U.S. 145, 156 (1968) 7 48 Ala. L. Rev. 441, Id. at Id. at Id. 11 Id. 12 Id. at Id. at

5 Lee 5 have not seen a number of cases and therefore cannot treat like cases alike as well as the professional judge. The ability of the adjudicatory process to treat like cases alike is arguably one of the requirements for its being deemed just in the outcomes it reaches. 14 Third, jury trials have also been criticized for being unduly lengthy and expensive. 15 III. Citizen Participation Trial in Korea A. Introduction of Citizen Participation Trial in Korea Citizen Participation Trial was introduced to the criminal justice system in Korea to democratize the judiciary and build public trust. Five years have passed since the Citizen Participation Trial system took effect on January 1, The Korean system was created with reference to various jury systems in other countries, including the American jury system. The Citizen Participation Trial System was scheduled to make a final decision on full adoption by evaluating enforcement results five years after the enactment. 16 The Citizen Participation Trial system was highly controversial from its inception. After heated debates and consideration, the current system was established, but with many variances from the American jury system. B. Features of Korean Citizen Participation Trial System 14 Id. at Id. at Act on Citizen Participation in Criminal Trials Article 55.

6 Lee 6 1. Limited Range of Subject Case Subject cases were enumerated in the statute in order to limit the number of cases to approximately one hundred to two hundred annually in consideration of the burden on the courts. Other criminal cases were entirely up to regulations of the Supreme Court. However, the number of Citizen Participation Trials was fewer than expected for one year after the enforcement of the act, so the subject cases have been expanded since July 1, The Citizen Participation Trial can be initiated upon the defendant s request when the case meets the subject case requirements, and the request of the defendant can be withdrawn. 17 Furthermore, the courts can exclude cases from the Citizen Participation Trial when the courts believe the case is inappropriate for it. 18 Thus, under the current system, it cannot be said that defendants have the right to a jury trial because the range of the subject cases is very limited, and the courts have broad discretion to exclude cases from the Citizen Participation Trial. 2. Jury Selection Process The statute provides that jurors and prospective jurors in the Citizen Participation in Criminal Trials must be Korean citizens over age twenty. The number of jurors is determined as 17 Act on Citizen Participation in Criminal Trials Article 5, Section Act on Citizen Participation in Criminal Trials Article 9, Section 1.

7 Lee 7 follows: (1) Nine jurors for cases equivalent to statutory penalties, such as capital penalty or life imprisonment; (2) Seven jurors for other cases; and (3) Five jurors for cases in which a confession was made regarding major facts charged in trial preparation process. Courts, prosecutors, defendants, and lawyers can ask questions to determine whether jury candidates are likely to judge unfairly. 19 A motion to challenge includes both a challenge for cause and peremptory challenge. The challenge for cause is made by prosecutors, defendants, or lawyers on the grounds that a specific jury candidate is inappropriate for the case. 20 In addition, the peremptory challenge is made by prosecutors, defendants, or lawyers without providing any reason within the scope of a certain number of jurors. 21 This is the direct adoption of procedures of challenge used in the United States. 3. Features of Juror Deliberation and Verdict Jurors and prospective jurors are equally involved in hearings because a court shall be convened in their presence. 22 Legal experts, such as judges especially presiding judges prosecutors, and lawyers, are legally obligated to conduct a speedy and easy-to-understand hearing because jurors and 19 Act on Citizen Participation in Criminal Trials Article 80, Section Act on Citizen Participation in Criminal Trials Article 28, Section Act on Citizen Participation in Criminal Trials Article 30, Section Act on Citizen Participation in Criminal Trials Article 39, Section 1.

8 Lee 8 prospective jurors are unfamiliar with legal proceedings and legal terms. After the conclusion of the hearing, jurors are required to deliberate and reach a verdict. Deliberation involves discussions around guilt or innocence, and verdict means a final decision by jurors on the relevant case. The verdict of guilty or not guilty is eventually made by a simple majority of jurors. In this regard, criticism has emerged around the idea that the simple majority requirement of the current law is not suitable for the jury system. Critics say that the unanimity or stricter majority verdict (requiring more than seven votes of nine jurors) should be required instead. 23 In case of a conviction, jurors are required to discuss sentences with a judge and state their own views. Verdicts of guilty or not guilty, and opinions on sentences, do not bind courts. Thus, it can be said that the acceptance of only hortatory effects of verdict results by jurors is the most distinctive feature of the current Citizen Participation in Criminal Trials system. C. Future Issues of Citizen Participation Trials System 1. Pros and Cons of Expanding Subject Cases As for the subject cases of the Citizen Participation in Criminal Trials system, serious cases were enumerated and, at the same time, other cases were supposed to be specified based 23 Eun mo Lee, Problems of current Citizen Participation in Criminal Trials System, 2009, p.418.

9 Lee 9 on regulations of the Supreme Court in consideration of the pressure on courts during the initial stage of introduction. According to the revision of regulations of the Supreme Court, the subject cases have been expanded since July 1, As a result, most cases under the jurisdiction of the three-judge panel except for cases involving election, public safety, and property crime have been included. Opinions differ regarding the current regulations with respect to the subject cases as follows: one opinion holds that there is no need to expand the subject cases; the second is that it is necessary to expand the Citizen Participation Trials to the entire range of criminal cases; the third is that the subject cases should be partially extended. The first opinion is based on the needs of selection and concentration in order to maintain the Citizen Participation in Criminal Trials system effectively. The second opinion indicates that it is necessary to extend the Citizen Participation Trials to the entire range of criminal cases in order to fulfill the purpose of introducing the Citizen Participation Trials system, such as democratizing the judiciary and ensuring public trust. Those who advocate for the second opinion imply that the request rate of defendants is not expected to increase rapidly, even if it is extended to all cases, and it is possible to adjust the number of Citizen Participation Trials by the exclusion decision of the courts. I

10 Lee 10 agree with the second opinion, in principle. However, because it takes so much time and money to conduct a Citizen Participation in Criminal Trial (12 million won, equivalent to 10,000 U.S. dollars, is spent per defendant in the Citizen Participation Trial) and that all countries in the world limit jury trials to serious crimes, it seems that the opinion to extend subject cases in full scale is unrealistic. Therefore, it seems desirable to extend the subject cases with a focus on property crimes, which are easy for jurors to judge, including cases of fraud, embezzlement, and breach of trust. 2. Simple Majority Verdict Unanimity is the most distinctive feature of the American jury system. If the jury cannot reach a unanimous decision, a hung jury is declared, and the procedure ends. This unanimity is not absolute, and a majority of ten to two or nine to three can be required for conviction in state cases. Unlike the unanimity requirement in the United States, a simple majority verdict has been introduced under current Korean law, and that verdict has been criticized because it considerably degrades the meaning of jury trials. It is understandable why the current Korean system does not adopt unanimity and the hung jury because the Citizen Participation Trial remains in the introductory stage and only has a hortatory effect. However, the simple majority requirement negates the purpose of the jury system because unanimity of the

11 Lee 11 jurors is an essential attribute of a trial jury in criminal cases. In certain aspects, both unanimity and the simple majority requirement are not appropriate for the current situation in Korea. Therefore, it seems necessary to introduce the two-thirds voting requirement. I believe that requiring affirmative votes of two-thirds or more of the jurors for conviction would be an appropriate compromise between the characteristics of the U.S. jury system and the uniqueness of the Korean Citizen Participation Trial. 3. Controversy over Jury Participation in Sentencing Procedure Under the current Act on Citizen Participation in Criminal Trials, jurors participate in both fact-finding and sentencing procedures. Examining the enforcement results of the Citizen Participation Trials up to now, they are operated with a focus on sentencing because more cases involve sentencing than guilt or innocence. In light of the fact that one of the major characteristics of the jury system is fact-finding by jurors and sentencing by judges, criticism has arisen because these activities are inconsistent with the original purpose of the system. 4. Controversy over a Hortatory Effect of Jury Verdicts If a final sentence differs from a jury verdict, the Citizen Participation in Criminal Trials system will become a mere formality, and the meaning will be lost. In other countries

12 Lee 12 that have some kind of jury system, such as the United States, England, Germany, and Japan, judges are bound by jury verdicts in principle. The Citizen Participation in Criminal Trials system was implemented only after investing enormous time, effort, and money. Nevertheless, if the binding force is denied, and the courts maintain the attitude that they have the right to make the final decision without regard to jury verdict, it is not possible to find the meaning of introducing jury trials. It, therefore, seems necessary to adopt a binding effect of jury verdicts on courts in the long term. D. Conclusion After the introduction of the Citizen Participation in Criminal Trials system, many changes occurred in criminal trials. Not only have formal changes such as the promotion of speedy trials occurred, but also actual changes, such as more frequent verdicts of not guilty, justice department s respect for judgment of acquittal by juries, appeals court s respect for unanimous not guilty verdicts have been perceived. The Citizen Participation in Criminal Trials system was created with reference to the American and British jury systems and, at the same time, it includes Korea-specific features while it continues in its introductory phase. However, the establishment of this unique system results not from reflecting the particularity of Korean society, but from the courts reluctance

13 Lee 13 to introduce a jury system. Before introducing the Citizen Participation Trial in Korea, many judges expressed their opinions that the jury system was not appropriate for the Korean legal system and Korean society because jurors are not legal experts. Currently, five years have passed since the Citizen Participation in Criminal Trials system took effect, and the concordance rate has exceeded ninety percent between jury verdict and the final judgment of the court. Based on this, the court s concerns of jurors being incompetent to participate in trials have proved unfounded. Now is the time to re-establish the direction of reshaping the current Citizen Participation Trial system. I believe it is desirable to revise the current system into a new system closer to the original jury system. I think it is necessary to expand subject cases and change the simple majority verdict into a two-thirds majority verdict. Also, although the pros and cons of accepting the binding force of the jury verdicts remain highly controversial, I think it is necessary to accept the binding force of jury verdicts in principle, removing skeptical eyes from the jury system. IV. Grand Jury A. Grand Jury in the United States The grand jury originated over eight hundred years ago when King Henry II created it as a tool in his political battle

14 Lee 14 against both the Church and the nobility by limiting the power of their court systems. 24 The grand jury was originally a body of twelve and later twenty-three men who served as accusers presenting indictments at the request of not only the prosecutor of the king, but also at the request of individual citizens. 25 The grand jury was brought from England to the American colonies. Grand juries provided a means for citizens to protest abuses by the king s agents. 26 The Fifth Amendment right to be indicted by a grand jury is one of the few provisions in the Bill of Rights that has not been incorporated into the states through the Fourteenth Amendment. This means that this right applies only to the federal government. Most states, however, use some form of grand jury for criminal indictment. B. Function of the Grand Jury The grand jury served the public in two ways. First, it limited the power of government to prosecute citizens by permitting the grand jury to vote for or against an indictment. Second, it had the power to make a presentment. A presentment was a public report of the grand jury s activity. Through a presentment, the grand jury could make criminal activity known B.U.L. Rev. 1, Id.

15 Lee 15 to the public, including criminal conduct committed by government officials, judges, or prosecutors. 27 C. Advantages of the Grand Jury The grand jury has value as an impartial and neutral screening panel. 28 It prevents false accusations against the innocent, so it has a reputation as a protector of liberty. 29 Also, the grand jury provides the criminal justice system with a critical input of real-life experience, allowing the enforcement and application of criminal laws to undergo a regular review by ordinary citizens. In doing so, the grand jury helps to legitimize the very process of enforcing and applying the laws. 30 D. Criticism over the Grand Jury Critics of the grand jury argue that it is almost entirely an ineffective institution, and that when it has any effect at all, it does more harm than good. 31 These critics think the grand jury is fundamentally incapable of being anything other than a rubber stamp that is willing to indict any case a prosecutor presents. 32 However, other commentators say that criticisms of the grand jury are based on a number of fundamental 27 Id B.U.L. Rev. 1, Id. at Id. at Id. at Id. at 3.

16 Lee 16 misconceptions about the institution s history, its effectiveness, and its diversity across jurisdictions. 33 These proponents argue that many critics of the Grand Jury focus exclusively on the anemic federal grand jury without examining the functions and influence of grand juries at the state level. 34 E. Possibility of Introducing Grand Jury system in Korea Recently, Korean citizens have developed a critical attitude toward prosecution, police, and courts in Korea and have called for the reform of judicial proceedings. The Citizen Participation in Criminal Trials system was introduced as one result of this public dissatisfaction. Also, it has been claimed that it is necessary to introduce the Grand Jury system for prosecution reform. Unlike the traditional system, if a new system is introduced from foreign countries, it will be necessary to objectively analyze the positive and negative aspects of the system by examining the problems related to the operation of the system. The Grand Jury system plays a role in ensuring the legitimacy of the judicial process through the public participation in that process and protecting citizens basic human rights from the abuse of government power. Because of these characteristics, the Grand Jury system has been supported by American citizens, regardless of its high cost and 33 Id. at Id.

17 Lee 17 inefficiency. In particular, the Grand Jury system plays a crucial role in the investigation and indictment of white-collar crime. I think it is appropriate for Korea to introduce the Grand Jury system to improve fairness and transparency in the process of investigation and prosecution. There has been criticism concerning the Grand Jury system s disadvantages, such as inefficiency and high cost. However, if we refer to various models to find the most effective system that is also harmonious with the Korean judicial process, it seems possible to overcome such criticism sufficiently. In the United States, various types of Grand Jury systems have been implemented in the federal courts and the state courts. The Grand Jury system of New York State may provide the best example of a Grand Jury with the strongest power and influence. So I think the Grand Jury system of New York State offers many ideas for Korea. If the Grand Jury system is introduced to Korea, it will be desirable to implement the system for important or high-visibility cases in the early phase before expanding the subject cases gradually. V. Thoughts about the Jury System from the Perspective of a Korean Attorney It has been five years since the Citizen Participation Trial system took effect. Considering the enforcement results

18 Lee 18 and the people's responses over the last five years, it is generally believed the Citizen Participation Trial system has been successful. Currently, the Citizen Participation Trial system is being reevaluated, and the discussions regarding whether to expand the subject cases of the Citizen Participation Trial and whether to introduce the grand jury system are ongoing. Until now, it is true that Korean judicial circles generally held negative views of the jury system. Many Korean legal experts doubted whether a fair trial could be conducted through the jury system, citing the O.J. Simpson case from the U.S. as an example. These experts argued that the possibility of an unfair trial is serious because juries lack legal expertise and are subject to outside lobby, threats, and prejudices. Also, given Samsung and Apple's lawsuits regarding patents, the Korean legal experts pointed out that a trial by jurors who are not experts is inappropriate for cases that are complex or that require technical knowledge. But as I study the jury system more and more, I believe the advantages of the jury system avoiding governmental abuse, providing an educational function for citizens, and securing the legitimacy of judicial proceedings outweigh the disadvantages. It is understandable why the jury system is regarded as the cornerstone of the American justice system and jurors are often described as the conscience of the community in the United States.

19 Lee 19 However, in launching and expanding the jury system in Korea, one problem still remains regarding whether the jury system is appropriate for Korea. The jury system was founded upon long historical experiences in other countries that have different systemic, social, and cultural traditions, so there arise arguments stating that the jury system is not fit for Korea, and that the introduction of jury system must stop at the minimum. However, such an argument does not seem to be persuasive when looking at the successful enforcement results of the Citizen Participation Trial system over the past five years. J.H Jearey argues that three conditions are necessary for a jury system to function effectively: First, the society must be for the most part racially, culturally, linguistically, and religiously homogeneous. Second, the members of the society must be sufficiently educated to understand their responsibilities as jurors and understand that they must set aside private prejudices when fulfilling these responsibilities. Third, the members of the society must generally agree with the laws which, as jurors, they are required to enforce. 35 Korea is, overall, one of the most socially homogeneous societies in the world because almost all Korean citizens have the same ethnic and historical background. Korea is also one of the most educationally advanced countries in the world considering the 35 Law & Contemp. Prob. 261,

20 Lee 20 literacy rate and the rate of advancement to universities. Finally, the Korean people are in basic agreement with the criminal laws of Korea. Because all three of Jearey s conditions are present in Korean society, it seems that the jury system can effectively function in Korean society, at least in criminal cases. Surely, instead of introducing the American jury system or other country s system uncritically, a form of jury that is most appropriate to the Korean situation must be introduced based on a through comparative study of other countries jury systems and an understanding of Korea s distinctive characteristics. In the current situation in Korea in which people s trust in the judicial branch has decreased and people s desire to participate in the realization of justice has increased, I think it is reasonable to consider more active acceptance of the jury system, such as expansion of the range of the Citizen Participation Trial System and introduction of the Grand Jury.