A bit of legal history was made in February in Taegu, South Korea, where the regional court considered the criminal case of a 27-year-old man charged with the petty criminal offenses of assault and trespass. From all outward appearances, this case is no different from the thousands of others previously heard by this court, save for one small procedural detail. The presiding judge deciding this man’s fate was aided by 12 South Korean citizens who made up that country’s first-ever jury. After several hours of deliberation, those jurors recommended to the court a guilty verdict and a suspended sentence of 2 to 4 years.
In the United States, jury trials are an everyday occurrence and a constitutional right of the criminal defendant. But many countries like South Korea that have no common law tradition also have no experience with juries. Instead, they rely entirely on judges to determine an individual’s guilt or innocence. The idea of entrusting the liberty of the defendant to random citizens, who for the most part lack any legal training and are accountable to no one, is truly revolutionary to them. Yet, despite this lack of familiarity, more and more countries, especially in Asia, are re-examining their legal systems to see if they, too, would benefit from greater lay participation in criminal trials. For example, China, although to a lesser degree, has already undertaken similar reform measures, and next year, after a 65-year absence, Japan will reinstate trial by jury.
The questions on the minds of those following the trial in Taegu both locally and internationally are: Why the sudden interest in juries, which have been around for centuries? And will jury verdicts be as readily accepted as those rendered by judges? According to noted jury scholar Hiroshi Fukurai, the current push to use juries is in large part due to social changes brought on by the end of the Cold War and the growing influence of the United States, the lone superpower. In South Korea, American power is an everyday fact of life and is epitomized by the large presence of U.S. military forces, which have been there since the early 1950s. However, this viewpoint doesn’t necessarily explain the actions of countries like China and Russia, which aren’t trying to emulate or curry favor with the United States, but have nonetheless turned to juries or expanded their application.
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.
Whether juries will work effectively in any country that has no history of lay participation in criminal trials remains an open question. The steps necessary to address this question, at least in the case of South Korea, start with a determination of which jury system, the German or American model, would best serve the needs of the country. In the German model, favored by South Korean judges, citizens sit with judges but play a lesser role in the rendering of the verdict. Some legal commentators have suggested that this would work well with South Korea’s embryonic juries. In contrast, the American model separates the judge and jurors, giving the latter a much greater role in determining the verdict. Most South Korean citizens favored the American model, which was ultimately adopted, albeit with modifications. For example, South Korean juries will vary in size depending on the complexity of the case. And, most important, their verdicts, which will be based on majority votes, are nonbinding at least in the initial years of this pilot program. Also, the South Korean model allows jurors to participate in sentencing, which is not true in many American jurisdictions.
Obviously, deciding which model to follow is important, but what is essential and probably the key indicator of whether juries will succeed or fail in South Korea is education. Judges and attorneys must learn how to work with jurors and present information to them. Furthermore, jurors have to know what is expected of them during trial. This initial learning process has been facilitated by the South Korean government, which is running commercials about jury service and conducting mock trials. 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.
Thaddeus Hoffmeister is an assistant professor of law at the University of Dayton School of Law. He practiced law in both South Korea and Japan.