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Assessment of the Jury Systems in Asia: A Comparison of Korea and Japan

Published online by Cambridge University Press:  10 July 2019

Jae-Hyup LEE  and
Jisuk WOO
Jae-Hyup LEE
Affiliation:
Seoul National University, Republic of Koreajhyup@snu.ac.krjisuk@snu.ac.kr
Jisuk WOO
Affiliation:
Seoul National University, Republic of Koreajhyup@snu.ac.krjisuk@snu.ac.kr
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Abstract

This article compares the Korean and Japanese jury systems, evaluating the performance of jury trials as reflected in empirical studies in these countries, and identifying some innovative practices in Korean and Japanese systems that can be adopted by other jurisdictions. This comparative study of Korean and Japanese jury systems will also address common problems and investigate different approaches to those problems. At this juncture, numerous existing empirical studies conducted in both countries provide a good framework for comparison. Although jury trials are firmly entrenched within the Korean and Japanese legal systems, there are several common challenges faced by each country that uses lay juries: avoidance of bias, judicial oversight and intervention for reasoned decision-making, importance of rationality in the jury deliberation process, etc. A careful analysis of the Korean and Japanese experiences will provide useful guidance to not only policymakers in Asia but also criminal justice scholars around the world.

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Type
Article
Information
Asian Journal of Comparative Law , Volume 14 , Supplement S1 , October 2019 , pp. S77 - S96
Copyright
Copyright © National University of Singapore, 2019 

More than forty countries within the common law tradition use the jury system, and a number of civil law countries practise other forms of civil participation.Footnote 1 Jury scholars around the world have paid considerable attention to the recent adoption of different forms of jury trials in Asian countries, namely Korea (implemented in 2008) and Japan (implemented in 2009). Korea's experience can be easily compared to Japan's, partly because the two nations share a similar legal systemFootnote 2 and have experimented with similar legal reforms over the past few years.Footnote 3

In both countries, the jury system was introduced by a legal reform initiative to model civil participation after a system originating from a different legal tradition, eg, the Anglo-American and German Continental legal systems. The Korean jury system, as envisaged in the Act for Civil Participation in Criminal Trials of 2007 [Gukminui hyeongsajaepan chamyeoe gwanhan beoprul] (the Jury Act),Footnote 4 incorporates elements of both the US-style system and the German lay assessor system to be implemented during an initial five-year experimental phase.Footnote 5 The idea of utilizing the two primary styles of lay participation was to experiment with each of them in the Korean context in order to come up with the most appropriate model.Footnote 6

Unlike Korea, Japan had a quasi-jury system that existed from 1928 to 1943.Footnote 7 The Prosecution Review Commission (PRC), which was introduced after World War II as a unique Japanese variant of the grand jury system, was another notable development.Footnote 8 Japan's lay assessor (Saiban-in) system seems to follow the Germanic legal tradition whereby lay and professional judges deliberate and decide not only the guilt of the accused, but also the sentence of a convicted person. However, it also has some unique features: Saiban-ins only serve for a specific case, and they outnumber professional judges on the combined panel.Footnote 9 Japan's Saiban-in system, like other mixed tribunals, was the result of a compromise between democratic reformers pushing for full-scale common law jury trials, and conservative political elements who were reluctant to grant a high level of operational independence to untrained laypersons.Footnote 10

This article aims to (1) compare the Korean and Japanese jury systems; (2) evaluate the performance of jury trials as reflected in national surveys and some empirical studies in both countries; and (3) analyze some innovative practices in the Korean and Japanese systems that could be fruitfully exported to other jurisdictions such as the United States.

Comparison of different jury systems will provide meaningful practical lessons. As many empirical studies on the Korean jury trials and Japanese lay assessor trials are now available, assessing both countries’ experiences will help us evaluate the pros and cons of each types of jury system. A comparative study of the Korean and Japanese jury systems will also help to identify common problems and investigate different approaches to those problems. In this respect, numerous existing empirical studies conducted in the United States will provide a useful framework.

Although jury trials are firmly entrenched within their legal systems, there are several common challenges faced by each country that uses lay juries: avoidance of bias, judicial oversight and intervention for reasoned decision-making, enhancement of rationality of the jury deliberation process, etc. The two Asian countries have coped with these challenges in different ways. A careful analysis of their respective experiences will inform not only policymakers in Asia, but also criminal justice scholars around the world.

I. COMPARISON OF KOREAN AND JAPANESE JURY SYSTEM

A. Rationale

1. Korea

The adoption of the jury system in Korea was mainly driven by participatory democratic concerns. Concern over professional judges’ dogmatic judgment and their monopoly on fact-finding motivated the introduction of the new jury system.Footnote 11 The judiciary has also been criticized for being too elitist and self-serving.Footnote 12 The judicial process and judicial decision-making were obscured from the public, and judgments sometimes appeared to be biased in favor of the rich or the powerful at the expense of justice and fairness. Practising attorneys share the view that judges extend preferential treatment (jeongwanyeu) to judges-turned-attorneys who were former colleagues or superiors.Footnote 13

The two main purposes of the jury system, as reflected in the Jury Act, are to reinforce the democratic legitimacy of the judicial process, and to enhance the transparency and credibility of the judiciary. The Act was promulgated during the progressive Rho Moo Hyun Administration in conjunction with a major revision of the Criminal Procedure Code (CPC)Footnote 14 that sought to enhance due process and public criminal trial principles. In essence, the jury trial functioned as the de facto test case for fully implementing CPC principles. Originally introduced in 2008 on a five-year experimental basis, the jury system has become a very important and increasingly well-established part of the Korean criminal justice system.

2. Japan

The Saiban-in system was introduced in order to advance the public's understanding of and support for the Japanese justice system.Footnote 15 Many commentators have blamed wrongful convictions or miscarriages of justice in Japan on professional judges’ bias in favour of the prosecution.Footnote 16 The Japanese public also took the view that criminal trials were too lenient with defendants and deviated from common sense.Footnote 17 Infusion of non-bureaucratic legal participants into the traditional judicial process was expected to alter the nature of the trial process, the quality of deliberations, and, ultimately, the outcomes of criminal cases.Footnote 18

Citizen participation in criminal processes aims to secure the legitimacy of the justice system. Some argue that Saiban-in may potentially provide Japanese judges more autonomy and independence from prosecutors and from their colleagues and superior officers at the court.Footnote 19 For instance, judges can now invoke the authority of Saiban-in when they recommend unfavourable judgments against the interest of prosecutors or accepted practices of their colleagues.

Similar to Korea, the introduction of Saiban-in seems to have brought more visible changes to practices during hearings and trials rather than actual trial outcomes.Footnote 20 Introduction of the Saiban-in system was an essential step for achieving other criminal reforms, such as the disclosure of the list of evidence in the custody of the public prosecutor, the enlargement of the categories of offences subject to electronic surveillance, and the adoption of a plea bargaining system between the prosecution and the defence. The most notable change is said to be the videotape recording of investigative questioning of suspects.Footnote 21

In short, Korea's jury system aims to reinforce the democratic legitimacy of the judicial process and to enhance the transparency and credibility of the judiciary. Japan's Saiban-in system, by contrast, was introduced to promote the related but distinguishable objectives of advancing the public's understanding of the judicial system and raising their confidence in it. Participatory democratic concerns led Korean reformers to model their system after the American jury system, whereas Japan's Saiban-in system more closely resembles the German lay assessor model.

B. Key Features

1. Korea

The Korean jury trial is limited to certain types of criminal cases and is only invoked upon the defendant's election.Footnote 22 Jury verdicts are also advisory in nature.Footnote 23 These two latter qualities are necessary to avoid a potential constitutional challenge.Footnote 24 The Jury Act specifies the charges on which the defendant may be tried by jury as murder, manslaughter, rape, robbery, bribery, kidnapping, and crimes involving narcotics.Footnote 25

The number of jurors varies according to the severity of the case and the defendant's plea. There are nine jurors in cases in which the defendant may receive capital punishment or life imprisonment, five in cases in which the defendant pleads guilty to most indicted counts, and seven in all other cases.Footnote 26 Jurors are selected by voir dire, and both challenges for cause and peremptory challenges are allowed.Footnote 27

During the trial, jurors may ask questions (directly or through a presiding judge) and may take notes.Footnote 28 Jurors are prohibited from discussing the matters before deliberation and from collecting information or independently investigating the case.Footnote 29 They must not disclose details of jury deliberations to anyone,Footnote 30 and no person can contact jurors for the purpose of obtaining confidential information, except for research purposes after the completion of a trial.Footnote 31

Korean jurors deliberate in secret. The jury verdict process combines the US and German systems: the first half more closely resembles the US system and the second half the German system. Jurors first discuss the guilt of the defendant among themselves and try to reach a unanimous verdict.Footnote 32 If the jurors cannot reach a unanimous verdict, then they must hear the judges’ opinion.Footnote 33 After the judges and the jurors have discussed the guilt of the defendant together, the jurors, again without the presence of the judges, enter a verdict based on a simple majority.Footnote 34

Korean jurors must discuss the sentence with the judge and submit their opinion.Footnote 35 This is a significant departure from the US jury system. Because the Korean public's distrust of the judiciary in criminal trials had focused on the sentencing issue, lay participation in sentencing deliberation was inevitable from the start.Footnote 36 The presiding judge explains to the jurors the scope of punishment and the conditions for sentencing before deliberation begins.Footnote 37 Oftentimes, the applicable sentencing guideline is presented to jurors during the sentencing discussion.

2. Japan

Japan's Saiban-in system entered into force in 2009, one year later than Korea's jury system, even though the law introducing the reform was enacted three years earlier than the Jury Act in Korea.Footnote 38 Serious crimes, such as murder, robbery, causing death by injury, drug smuggling, kidnapping, arson, and rape with injury or death, are tried under the Saiban-in system.Footnote 39 Unlike the Korean system, the defendant cannot opt out from a Saiban-in trial. Some have argued that it is unconstitutional because it violates the defendant's right to trial by an impartial tribunal and because it imposes an impermissible burden on the people serving as Saiban-in. In 2011 the Japanese Supreme Court ruled that Saiban-in trials are constitutional.Footnote 40

The panel in the Saiban-in trial is composed of six ordinary citizens and three professional judges.Footnote 41 Saiban-ins are selected through a voir dire process, where up to four Saiban-in candidates can be challenged without cause.Footnote 42 The nine members of the Saiban-in panel deliberate together to determine the defendant's guilt and, if they reach a conviction, the applicable sentence. The chief judge usually becomes the foreperson of the panel. While professional judges have sole discretion in deciding matters of procedure and interpretation of the law, the nine members have an equal vote on fact finding, application of the penal law to the facts of the case, and sentencing.Footnote 43 The basic rule is that decisions are to be made by a simple majority.Footnote 44 However, a conviction requires five votes in favour, at least one of which must come from a judge. Five votes from the Saiban-in are sufficient for an acquittal.Footnote 45 The collective decision by the panel is legally binding.

Saiban-ins have a confidentiality obligation as to the contents of deliberation. The confidentiality rule prevents ex-Saiban-ins from either speaking about the deliberation process or expressing their opinions on the verdict itself.Footnote 46 While Korean law provides an exemption from confidentiality for research purposes, Japanese law provides no such exemption.Footnote 47

C. Performance of the Korean and Japanese Jury Systems

1. Korea

According to the Supreme Court, a total of 2,267 jury trials were held between 1 January 2008 and 31 December 2017. The majority of cases (89.8 per cent) were concluded in a single day in court, beginning with voir dire and ending with the jury verdict.Footnote 48

About 27.5 per cent of the jurors summonsed were present in voir dire. If unreachable jurors and cancelled cases are counted, the real attendance rate was slightly more than 50 per cent.Footnote 49 At the end of voir dire, seven jurors were most frequently selected (68.3 per cent), whereas nine jurors were selected in 26.8 per cent and five jurors were selected in 4.9 per cent of the cases.Footnote 50 An average of 4.8 juror candidates per case have been peremptorily challenged during voir dire.Footnote 51

Juries participated only in sentencing about 32.9 per cent of the time, as in those cases the defendant had already admitted guilt.Footnote 52 In a clear majority of cases (92 per cent), the jury found the defendants guilty. This conviction rate is slightly lower than the non-jury three-judge panel criminal cases (96 per cent).Footnote 53

The average length of jury deliberations was 100 minutes,Footnote 54 and the longest jury deliberation took 340 minutes. The judge agreed with the jury and adopted their verdict as the official judgment in 93.1 per cent of the cases.Footnote 55 Among the 155 mismatched cases, the jury verdict was not guilty and the judge's verdict was guilty in a majority of cases.Footnote 56 The high level of agreement between jury verdicts and judge-made decisions in Korea may suggest a positive outlook on the credibility of jury decision-making.

Regarding sentencing, relatively small discrepancies were found between the majority opinion of the juries and the sentencing judgment.Footnote 57 In 89.6 per cent of the cases, the majority of sentencing opinions of the jury and the sentencing judgment did not differ substantially.Footnote 58 It is not clear why there is little discrepancy between jurors’ opinions and the judge's sentencing decisions. It may be that the judges have taken the jurors’ opinions into consideration, or it may be that the jurors and the judges tend to reach similar conclusions about sentencing independently. It is also possible that jurors tend to follow suggestions and guidance given by judges about the sentence during the deliberation process. At present, no empirical studies have been conducted to examine this.Footnote 59

Notably, the Supreme Court of Korea has ruled that the appellate court cannot reverse the decision of a lower court, unless a clear and convincing situation emerges through a new investigation of evidence, when (1) a criminal case is tried by a jury; (2) the jury returns a unanimous verdict that the defendant is not guilty; and (3) the bench adopts the verdict and rules accordingly.Footnote 60 With this ruling, a jury acquittal can be regarded as de facto binding.

One study found that people perceive and evaluate the jury trial system quite differently along the political and ideological spectrum. Perceptions, attitudes, and intentions regarding the jury trial system in Korea are significantly influenced by partisan news media. Females, conservatives, and people who rely on conservative news media are much less likely to appear in court as a juror if requested.Footnote 61

Based on a post-trial survey, most jurors (96.5 per cent) were generally satisfied with the jury trial system, especially with the open trial proceeding. A majority of jurors (88.4 per cent) said that they understood all or most of the trial procedure. The most frequently mentioned difficulties were the length of the trial (42.5 per cent), and difficulty in understanding legalese (25.6 per cent). Most jurors reported that they focused attentively during the trial and actively expressed their opinions during deliberation. A majority (69.4 per cent) found the given jury instruction to be very helpful.Footnote 62

Apart from the actual jury trials, a number of district courts in the country have conducted a ‘shadow jury program’ since September 2010 in order for people to actually experience the judicial process through voluntary participation. The courts intended to improve the public perception of the judiciary's credibility through this program. Anyone who wishes to participate in the program can apply online. Shadow jurors appear on the court date, watch the entire proceedings, and deliberate with peer shadow jurors, just like the actual jurors. So far, the public and the judiciary have helped to make the shadow jury system a success. The Seoul Central District Court, for instance, has administered the shadow jury program more than thirty times between January 2011 and December 2013. More than 400 people volunteered to become shadow jurors during that period.Footnote 63

Many legal practitioners who are involved in jury trials have witnessed positive effects of the new system towards open and concentrated court proceedings.Footnote 64 Some judges have confessed that they became more respectful of lay decision-making after presiding over jury trials.Footnote 65 They also noted that jurors are not easily swayed by emotions but are conscious of the need for rational deliberation, and that they are conscientious in executing their duty to be impartial decision-makers.Footnote 66

Amidst this divergent assessment about the jury system and the newly developed shadow jury program, the Committee on Civil Judicial Participation (the ‘Committee’)Footnote 67 established by the Korean Supreme Court recommended a final format of the Korean jury system to the National Assembly in March 2013, which it presented after assessing the performance of the jury trials over the past five years.Footnote 68 The recommendation consists of major changes in the system in relation to jury deliberations. First, the jury verdict would become de facto binding, meaning the court must respect the jury verdict, unless it is clearly contrary to the Constitution or statutory law. The jury opinion on the sentencing would remain advisory in nature. Second, the decision-making rule of the verdict would be strengthened to require a three-fourths majority to reach a verdict. If the three-fourths majority is not reached, the court nevertheless would render a judgment, with reference to the jury's opinions. Third, the number of jurors would remain either seven or nine, but not five.

On 12 June 2014, the Ministry of Justice submitted a bill to the National Assembly for consideration.Footnote 69 This bill generally follows the Committee recommendation, but two important additions were made. First, the Court would be permitted to conduct a jury trial if, upon the prosecution's application, the Court decided that a trial by jury would reinforce the democratic legitimacy of the judicial process and enhance the transparency of the judiciary. The Court would be permitted to do so even if no application for a jury trial had been made by the defendant. Second, the prosecution would be permitted to request that the Court deny the defendant's application for a jury trial if the jury trial may lead to an unfair judgment due to the character of the crime or other circumstances. Many commentators criticized the bill as an attempt to increase the power of the prosecution in jury trial management.Footnote 70 Several alternative bills have been presented by legislators since then. Both the Committee recommendation and the Ministry of Justice bills have not been passed by the time the 19th National Assembly reached the end of its term in 2016. As of 1 June 2018, the final format of the Korean jury system has still not been determined.

2. Japan

By the end of 2017, Saiban-in panels tried 11,612 defendants. Out of 156,021 people who were required to appear for the selection process, 123,388 actually came to court, which makes a final appearance rate of 79.1 per cent or a gross appearance rate of 35.0 per cent of the summonsed population.Footnote 71 The average length of trial was 7.7 days (4.4 trial days) where the defendant did not contest guilt, and 10.6 days (5.3 trial days) for contested cases.Footnote 72 In general, Saiban-in trials took longer than jury trials in Korea.

In total, 10,422 out of the 10,732 defendants (97.11 per cent) were convicted. Acquittal rates of Saiban-in and non-Saiban-in courts were nearly identical. This tendency is in contrast with Korea, where the acquittal rate in jury trials is higher than bench trials.Footnote 73

Saiban-in courts would sometimes impose a sentence that exceeded the prosecution's recommendation. A wider variety of sentencing outcomes were observed in Saiban-in courts as compared to professional courts; this also means that sentencing became less predictable. Among the cases in which suspended sentences were handed down, probationary supervision was more frequently also ordered in Saiban-in trials than professional courts.Footnote 74 This possibly reflects the public's expectation that provisionary supervision is a sanction that will facilitate rehabilitation.Footnote 75 Saiban-in panels seem to have more faith in rehabilitation.Footnote 76 Recently, the Supreme Court overturned the sentence imposed in a Saiban-in case for being too severe in light of sentencing standards in similar cases.Footnote 77 The court concluded that the Saiban-in panel had failed to show the basis for a more severe sentence and subsequently reduced the sentence according to the prosecution's request.Footnote 78 Although it may be difficult to predict how this Supreme Court decision may impact subsequent Saiban-in sentencing decisions, there was considerable public discussion as to the appropriate balance to be set between legal predictability, and the Saiban-in panel's independent authority to deviate from sentencing precedent.

A survey of the general public shows their reluctance to serve as Saiban-in.Footnote 79 This result was confirmed by a survey of former Saiban-in. More than half of former Saiban-ins said they had not wanted to serve as Saiban-ins before they were selected. They were not particularly proud of being selected as a Saiban-in, and were worried about making a proper judgment or coming under social pressure in a highly publicized case or in a capital case.Footnote 80

However, 95 per cent of former Saiban-ins said that, in retrospect, they had a positive experience during their service as Saiban-ins. Even the respondents who did not want to serve as a Saiban-in evaluated their experience positively.Footnote 81 More than 70 per cent of former Saiban-ins said they were able to have in-depth discussion of the case during deliberations. More than 60 per cent of them said the trial was easy to understand. Apparently, the Saiban-in system has also contributed to a better understanding of the criminal justice system among the public.Footnote 82 Although opponents of the Saiban-in argue that laypersons lack the proper ability or training to render adequate judgments, Japanese judges who have worked with Saiban-in reacted positively to the lay jury's sincerity and ability to evaluate evidence and arguments.Footnote 83

A majority of Japanese people think that a Saiban-in trial is more desirable than a judge-only trial.Footnote 84 Moreover, a majority of the public believe that a Saiban-in trial is more suited to the principle of democracy than a judge-only trial. However, the public has a mixed opinion about their own contribution to the Saiban-in system. Many seem to support the Saiban-in system in principle, but regard serving as a Saiban-in as a different matter.Footnote 85

Members of the public strongly believe that a case with strong political aspects, such as an election case involving politicians or high-ranking government officials, is suitable for a Saiban-in trial.Footnote 86 This suggests that the Japanese public has projected their populist image of criminal justice system onto the Saiban-in trial system.

Interestingly, more members of the public believe that it is improper for an appellate court to vacate a conviction from a Saiban-in panel. On the other hand, a majority found it proper for an appellate court to vacate an acquittal from a Saiban-in panel.Footnote 87 Contrary to the popular opinions reflected in the survey, the Supreme Court of Japan reached a similar decision to the Supreme Court of Korea, that the appellate court must respect the Saiban-in panel's decision of acquittal. In order to reverse such a decision, the appellate court must demonstrate in concrete terms that the fact-finding by the Saiban-in panel was unreasonable according to logic and experience.Footnote 88

II. EMPIRICAL STUDIES ON LAY PARTICIPATION

A. Assessing Potential Bias in Lay Decision-making

In a classic study, Harry Kalven and Hans Zeisel revealed a high rate of agreement between judges’ and juries’ decisions. They also suggested that judge-jury disagreement is related to different interpretations of the ‘beyond a reasonable doubt’ standard, and different evaluations of the evidence, among other matters.Footnote 89 The Korean data shows an even higher matching rate and generally confirms that jurors tend to apply a higher standard of proof.Footnote 90 Although further and more focused research is needed to examine the reasons for mismatched cases, the high level of judge-jury agreement has eased concerns about jury competence in making legal judgments according to the law.

A number of mock studies conducted in Korea tried to assess jury decisions and compare them with judges’ decisions. Most studies seem to demonstrate that jurors are generally capable of making reasoned decisions. One study found that insights from psychology and behavioural economics were relevant to jury decisions: ‘anchors’ (suggested reference points) influenced the decisions of both actual judges and mock juries composed of college students.Footnote 91 As laypersons are likely to apply a higher standard of proof in criminal trials than judges, laypersons are less likely to commit Type 1 errors (false positives) than judges, whereas judges are less likely to commit Type 2 errors (false negatives).Footnote 92

In other jurisdictions, there is increasing interest in having jurors explain the reasons underlying their decisions. In Spain, jurors are required to give reasons for their verdict. After the European Court of Human Rights’ decision in Taxquet v Belgium,Footnote 93 Belgium joined Spain in requiring juries to give reasons for their verdicts.Footnote 94 However, such a requirement has not gained support in Korea and Japan.

Many studies have been conducted to examine the effect of extra-legal factors in jury decision-making. So far, there is no conclusive evidence that jurors are more influenced by non-legal aspects of the trial than judges. One study found that when a voluntary intoxication defence was accepted, juries were more lenient in sentencing than judges. However, when it was not accepted, juries supported harsher sentences than judges.Footnote 95 In a Japanese mock study, jurors who were exposed to emotional testimonies from witnesses rendered significantly more guilty verdicts than those who were not.Footnote 96 On the contrary, in Saiban-in trials where victims’ family members testified, Saiban-ins were not overly influenced by this factor in determining sentences.Footnote 97 Another study shows that Japanese lay people are more cautious about accepting emotional statements as compared to judges.Footnote 98 Moreover, Saiban-ins are more willing to ask critical questions about the credibility of confessions, and are more concerned about the transparency of criminal processes.Footnote 99

Numerous experimental studies have been conducted to examine potential errors that juries can make, in order to identify means of eliminating or mitigating those errors. One of the most frequently conducted studies relates to jury instructions.Footnote 100 This study found that Korean judges provided clear instructions to juries on principles such as the right to remain silent, adjudication based on evidence, and presumption of innocence.Footnote 101 The same study, however, also found that judges were not nearly as clear in their explanations of the elements or degrees of a crime, and that jurors sometimes faced difficulties during deliberations as a result.Footnote 102 Some scholars have suggested that to increase the effectiveness of jury instructions, obscure legal terminology must be replaced by plain Korean language, and standardized jury instruction manuals need to be developed.Footnote 103 A recent empirical study shows that providing more explanations and examples in jury instructions improved jurors’ understanding of legal concepts such as ‘beyond a reasonable doubt’.Footnote 104 In one study, where several different explanations of ‘beyond a reasonable doubt’ were used, it was found that explanations with simple psycholinguistic structures and those accompanied by visual aids enhanced jurors’ understanding.Footnote 105

B. Rationality of Deliberations

Deliberations can play an important role in shaping a jury verdict. The democratic ideal of the jury system would not be sufficient to justify jury trials if, in practice, juries failed to perform competently in their role as adjudicators. The success of the jury system, therefore, requires public support and respect for jury verdicts.

Systematic studies of jury decision-making can provide data as to whether juries are competent decision-makers. However, due to the confidentiality of jury deliberations, very few studies base their analysis on actual deliberations. Most of the previous studies are experiments that examine mock juries. Most of the mock jurors are college students, and hypothetical cases are used to recreate the actual trials. Shadow juries, which may more closely resemble true juries, are rarely used for research purposes, but limited research using shadow juries is worth careful consideration.

In a Korean study, one official jury and two shadow juries convened in a mock trial.Footnote 106 Despite initial vote splits at the beginning of deliberations, all three juries reached unanimous verdicts of acquittal at the end.Footnote 107 The study concluded that the shadow jurors reached unanimous verdicts not because the minority jurors capitulated to social pressure, but because they had reasonable doubt about the guilt of the defendant based on the convincing arguments of the majority jurors.Footnote 108 Studies like this demonstrate that active discussion occurs among jurors even in so-called ‘verdict-driven’ deliberations.

Gauging the quality or the rationality of jury deliberation is difficult because of limited access to the actual deliberations. One Korean study tried to examine jury deliberation in shadow jury groups. This study is based on observation and a survey of shadow jurors in 20 real jury trials in Korea. There were two shadow jury groups: one composed of juror candidates who were not selected in voir dire, and another composed of court-recruited shadow jurors. The rationality of jury deliberations was analyzed by six factors: (1) comprehension of the jury instructions; (2) evidence-based review; (3) factual focus; (4) systematic participation; (5) exclusion of influence; and (6) exclusion of emotion. The results show that jurors understand the judges’ instructions well, and understand and recollect the evidence of the case well. Misunderstanding of law and the intermingling of facts relevant to conviction or sentencing were not as frequent as many people expected; when such problems occurred, they were most often corrected through the intervention of other jurors or judges.Footnote 109 Generally, jurors speak sufficiently and participate in deliberations actively. The deliberations proceeded in an open and equitable manner. On the other hand, they tend to pay closer attention to the court proceedings rather than to the deliberation while finding facts, and this tendency leads to less evidence-based discussion. In some cases, a few jurors dominated the deliberation process and emotional factors often dominated the deliberation.Footnote 110 The level of deliberation rationality was found to be positively correlated with the jurors’ satisfaction with the deliberations and the degree to which there was a positive change in their perception of fairness of the criminal justice system.Footnote 111

Representativeness of the jury has been regarded as an important element of a litigant's right to a fair trial. Previous studies in the US have demonstrated that jurors who participated in more diverse juries were more satisfied with the deliberations and the verdict.Footnote 112 A Korean shadow jury case study examined how the structure of jury composition and the dynamics of the deliberation processes influenced deliberation. It found that gender and age diversity negatively influenced the quality of deliberation; however, speech diversity (ie, how evenly distributed was the amount of time each juror spent speaking during the deliberation) was an important factor that promotes better deliberation. This suggests that demographic diversity itself may not be sufficient to enhance the quality of deliberation.Footnote 113

Many tools have been used to help jurors better perform their role. In the US, jury reforms have centered on allowing note-taking during the trial, or on providing a written copy of the judge's instructions.Footnote 114 More explicit aids, such as decision trees, question-trails, or flow-charts, have been used to guide deliberations in countries like Australia and England.Footnote 115 In Korea, jurors are provided a juror's guide prepared by the court.Footnote 116 It begins with a summary of facts and applicable law, along with a preview of arguments and the evidence to be presented. It also includes a description of trial procedure and guidance on deliberations. This type of material is rarely provided in other jury systems. Most Korean jurors found them to be helpful in making a decision.Footnote 117

C. Foreperson's Role and Judge's Intervention in Deliberations

Jurors are likely to perceive the foreperson as influential because he participates so actively in deliberations.Footnote 118 Forepersons and highly-participatory jurors are, unsurprisingly, influential in deliberations.Footnote 119 Empirical studies suggest that jurors were less satisfied with their jury experience if one or two jurors dominated the deliberations.Footnote 120 In the Korean shadow jury study, forepersons generally managed the deliberations in an open and democratic manner. When the foreperson invited each individual juror to speak, and a majority of jurors spoke, jurors were more likely to refer to evidence in their deliberations. On the other hand, when the foreperson did not provide the opportunity to talk and a minority of jurors spoke, the frequency of indecorous discussion increased. Thus, this study confirmed the important role the foreperson plays during deliberations.Footnote 121

In a Saiban-in trial, the foreperson is generally a presiding judge. Researchers have noted that information asymmetry between professional judges and laypersons may pose a problem. Professional judges have superior legal knowledge and a better understanding of the facts than most Saiban-ins. If the Saiban-ins are disadvantaged at the outset in the amount of their case-specific knowledge and legal expertise, it may be difficult for them to carry out their judicial duties effectively.Footnote 122 The situation in which the presiding judge has relevant information that is not disclosed to the Saiban-in is desirable only from the perspective of facilitating group decision-making processes. However, it may not be desirable or even legal from the perspective of trial procedures.Footnote 123

This potential influence of the judge during deliberations may also be significant in the Korean jury system. Although Korean law mandates that judges are not permitted to make a definitive statement on guilt when they discuss the trial with the jurors, the possibility of influence may nevertheless arise. However, an empirical study suggests that judges rarely exert undue influence in their explanations and opinions over the jurors’ independent decision-making. On the contrary, judge intervention in deliberations can enhance the jurors’ understanding of the case. Besides this positive effect, judges may also be affected by jurors as well. Through interaction with lay jurors during deliberations, judges may re-examine the matters that are often overlooked if they discuss the case only with professional judges. This two-way influence fulfils the legislative purpose of the Act, which is to bring together common sense and lay perspectives with professional judgment.Footnote 124

The role of the judge has another dimension: it can be a determining factor in shaping the jurors’ perception of the criminal justice system. Being clear and comprehensible in their statements, treating the jurors with respect, and providing appropriate explanations of the trial process are all ways that judges influence how jurors perceive the fairness of the trial.

An experimental study in Japan shows that Saiban-ins gained a better understanding of the case when the presiding judge explained the case prior to deliberations. The order in which each member speaks also seems to affect the dynamics of the deliberations. Saiban-ins felt freer to participate in deliberations when they spoke at the beginning of deliberations before the judges.Footnote 125 Consequently, this arrangement increases the Saiban-in’s satisfaction with the deliberation outcome. This result suggests that judge-dominated deliberation is expected when judges express their opinions early in the process, and this may affect the Saiban-in’s overall perception of their experience.Footnote 126

It is interesting to note that, in some cases in other jurisdictions, an intermediary intervenes to assist jurors to make reasoned decisions. In Spain, the Clerk of the Court is permitted to enter the jury room to assist the jury with the writing of their responses. Clerks have become important intermediaries between the demands of the applicable law on jury trials and the participation of lay citizens. Jimeno-Bulnes and Hans's research indicates that they have been able to help jurors avoid incomplete and contradictory responses.Footnote 127

D. Efficacy and Deliberative Democracy

Lay participation has the potential to achieve much more than merely earning the public's trust. Alexis de Toqueville argued that, above all, the American jury was a political institution in the sense that it teaches laypersons important lessons in self-governance.Footnote 128 As Gastil and others found, the experience of serving on a jury increased the likelihood of that person voting in future elections and engaging in civic activities.Footnote 129 Thus, the jury system contributes to the enhancement of civic virtues and provides opportunities for civic education.

Both Korean and Japanese scholars have paid attention to this educational function of the jury system. The jury system and the Saiban-in system can serve as a forum for public deliberation on criminal cases. The model of deliberative democracy assumes that exchange of viewpoints and persuasion occurs during deliberations, which in turn improves the quality and legitimacy of decision-making. Some scholars argue that the Japanese Saiban-in’s strong confidentiality obligation is a means of advancing free deliberations and guaranteeing the public's trust in the justice system.Footnote 130 There is even an organization composed of former Saiban-ins in Japan, and the members meet on a regular basis to discuss their experiences and take action as to drafting petitions to judicial authorities, thereby contributing to the democratic character of the Saiban-in system.Footnote 131

More empirical data is necessary to support the deliberative democracy thesis. Whether the laypersons who served as jurors or Saiban-ins have transformed their experience into further civic engagement will require longitudinal analysis. The existing survey results in Korea and Japan have shown that jurors and Saiban-ins are generally satisfied with their experience.Footnote 132 The Korean shadow jury study confirms that there is a positive correlation between the quality of deliberation and juror’ satisfaction. Those jurors who have engaged in high-quality deliberations are more likely to have satisfying experiences, and consequently are expected to have increased confidence in the jury system and the legal system as a whole.Footnote 133 Although intriguing, these are but mere snapshots of the overall process. More studies need to be conducted regarding the efficacy of lay participation on civic engagement following the jury or Saiban-in experience.

III. CONCLUSION

It has been almost ten years since the lay participation system was established in Korea and Japan. The recent growth of lay participation systems around the world, especially in East Asia, illustrates the diffusion of ideas and institutional mechanisms. The Korean jury system and Japanese Saiban-in system share common motivations as well as similar features. They were introduced to fulfill specific purposes, yet they have different driving forces and developmental histories. Based on survey results and case precedents, the Korean jury system appears to have slightly greater faith in lay decision-making. This is understandable because the Korean jury system is more driven by participatory democratic concerns, while the Japanese Saiban-in system is motivated by strengthening the public's understanding of and support for the justice system.

The performance record of the new lay participation systems in both countries have been generally positive. The sheer number of trials conducted under the lay participation systems demonstrate that they are gaining in domestic acceptance and support. The major players in the system—judges, lawyers, and lay decision-makers—have expressed satisfaction, and the new system has renewed interest in and understanding of the judicial process. Although there are still many areas for improvement, the first ten years of implementation have been successful.

Initially perceived as a foreign legal transplant, the jury and the Saiban-in systems have been steadily incorporated as an integral part of the criminal justice system. By learning from jurisdictions from which the jury and the mixed tribunals originated, Korea and Japan have developed new practices and innovative tools to face common challenges, such as the avoidance of bias and achieving an appropriate degree and method of judicial oversight. Indeed, the newly introduced lay participation system inspired many empirical studies to examine the effectiveness of their respective technical and legal approaches. In many ways, it has functioned as a natural laboratory to test the validity of various tools. In the case of the Korean jury system, the advisory character of the jury verdict, the number of jurors, the decision-making rules, and the style of deliberations are all subject to evaluation in order to ultimately implement an optimal system. These empirical studies provide a fresh new look into established practices in countries (like the US) and offer broad perspectives on global changes to countries (such as Taiwan) that are contemplating the adoption of a similar lay participation system.Footnote 134 Providing jurors various tools and materials to make informed and rational decisions (eg juror's guide, judges’ feedback during deliberation) without unduly influencing the jury's independence may have helpful policy implications in discussing jury reform measures in other jurisdictions.

Footnotes

*

Professor, School of Law, Seoul National University. First author.

†

Professor, Graduate School of Public Administration, Seoul National University. Corresponding author.

This article was supported by the Asia-Pacific Law Institute of Seoul National University in 2019. Our thanks to the Centre for Asian Legal Studies (CALS) and the Asian Law Institute (ASLI) at the National University of Singapore (NUS) for supporting my participation at the conferences entitled ‘The State of Comparative Law in Asia’ and ‘Teaching Comparative Law in Asia’ on 27 and 28 September 2017 which led to this article and this Special Issue.

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124. Lee and Woo (n 110) 193.

125. Shozo Ota, ‘Hyōgi no arikata ni tsuite (評議の在り方について) [Desirable Attitude of Deliberation]’ in Matsumura, Manako and Ota (n 79) 81, 85–87.

126. ibid.

127. Jimeno-Bulnes, Mar and Hans, Valerie P, ‘Legal Interpreter for the Jury: The Role of the Clerk of the Court in Spain’ (2016) 6 Oñati Socio-Legal Series 197Google Scholar.

128. de Tocqueville, Alexis, Democracy in America (Mansfield, Harvey C and Winthrop, Delba trs, University of Chicago Press 2000) 96CrossRefGoogle Scholar.

129. Gastil, John and others, The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement and Political Participation (OUP 2010) 101Google Scholar.

130. Yanase, Noboru, ‘Deliberative Democracy and the Japanese Saiban-in (Lay Judge) Trial System’ (2016) 3 Asian Journal of Law and Society 327, 344–45Google Scholar.

131. Vanoverbeke, Dimitri, Juries in the Japanese Legal System (Routledge 2015) 179CrossRefGoogle Scholar.

132. Croydon (n 10) 9–11.

133. Lee and others (n 59) 44.

134. For an introduction to the lay participation system in Taiwan, see Huang, Kuo-Chang and Lin, Chang-Ching, ‘Rescuing Confidence in the Judicial System: Introducing Lay Participation in Taiwan’ (2013) 10 Journal of Empirical Legal Studies 542CrossRefGoogle Scholar.