Creating the right mentality: dealing with the problem of juror delinquency in the new South Korean lay participation system.

• Author: Seo, Eric

ABSTRACT

The Judiciary Reform Committee of South Korea has planned to implement a five year pilot program that will allow public participation in trials. This will be the first time in the nation's judicial history that lay participation will be used. The format of the pilot program will be a mixture of the U.S.-style jury system and the German lay assessor system, with the program being more akin to the U.S. system. As South Korea has never had a lay participation system, it has a unique opportunity to create a system that will avoid problems associated with lay participation. This Note focuses on addressing the problem of juror delinquency in the form of (a) jury duty avoidance and (b) juror misconduct during trial. The Author will examine the history of this problem in the United States and the successes and shortfalls in addressing this problem. The Author argues that the root of the problem of juror delinquency is the mentality of prospective jurors and proposes a system of rules and procedures that will help to avoid what has been a chronic and incurable problem with the U.S. jury system.

TABLE OF CONTENTS I. INTRODUCTION II. JURY SYSTEMS IN THE UNITED STATES A. Advantages B. Disadvantages III. THE PROBLEM OF JUROR DELINQUENCY IN THE UNITED STATES A. Avoidance of Jury Duty 1. History a. 1796-1940 b. 1940-1995 2. Jury Duty Avoidance from 1996-Present a. King's Survey b. King's Suggestions B. Juror Misconduct 1. Prevention 2. King's Survey IV. SUGGESTIONS FOR SOUTH KOREA A. Role of the Jury 1. Different Views of the Role of the Jury 2. The View South Korea Should Adopt B. Addressing the Particular Problems 1. Jury Duty Avoidance 2. Juror Misconduct V. CONCLUSION I. INTRODUCTION

The Judiciary Reform Committee of South Korea has announced that the public will participate in trials during a five year pilot program starting in 2007. (1) This marks the first time in the nation's judicial history where lay participation will be used. (2) As such, this pilot period will help to determine the final format for a participatory judiciary by 2012. (3) This system is expected to "increase public trust in the justice system and strengthen the democratic legitimacy of the judiciary." (4) A Judiciary Reform Committee member has said that citizens' "attention and active participation in fulfilling their duty as participants in the judicial process" is a key element for the successful implementation of the system. (5)

Currently, the South Korean Constitution provides that in criminal cases, "all citizens have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act." (6) Under the pilot program, criminal defendants will have the option either to be tried solely by judges or by a mix of lay participants and judges. (7) "In criminal cases where an accused wants a participatory trial, five to nine citizens will take part in the trial to determine the verdict and decide the punishment." (8) After hearing the case, the citizen panel will decide the verdict as juries do in the United States. (9) If the jury finds the defendant guilty, it will submit a recommendation for the sentence to be applied, similar to how the German system operates. (10) However, during this pilot period, the verdicts and recommendations will be completely advisory and will have no binding effect on judges. (11)

When South Korea implements lay participation in 2012, it will drastically change the Korean Criminal Law system. Under the current system, judges make rulings after applying written definitions and subtle conditions of Korean law to each case. (12) Once the public becomes involved in trials, there will be less focus on record-oriented proceedings, with a shift to oral proceedings where persuasion by attorneys will play an important role. Furthermore, the new system will create a democratic check on judges. A current problem in Korea is the relationship between judges, prosecutors, and private attorneys. (13) "It is a well known secret that serving a certain period as a justice or prosecutor has been regarded as a mandatory procedure to become a capable lawyer at a giant law firm." (14) As such, it is difficult for junior judges and prosecutors to ignore inappropriate requests from their seniors that were hired by a law firm. (15) Justice Park Chan of the Seoul Central District Court has criticized this customary practice on the internal computer system of the court. (16) He claims that this practice prevents judges from making the right decisions. (17) Implementing a lay participation system with binding verdicts will help to provide a check to prevent judges from giving into these inappropriate requests.

The format of the pilot lay participation system will be a mixture of the U.S.-style jury system and the German lay assessor system. (18) The bulk of the program will be similar to the jury system in the United States. (19) Citizens will be chosen at random and will sit as jurors during trial. (20) Like the German system, upon a determination of guilt, the jury will recommend a proper sentence. (21) During the five year pilot period, jury decisions will not be mandatory and will serve only an advisory function. (22)

As oral proceedings will play a significant role in trials during the pilot period, the pilot system is much more akin to a jury system than a lay judge system. (23) Citizens will not be as actively involved in the trial proceedings. (24) Additionally, they will not sit on the bench with professional judges. As such, judges will not have as much influence over the jurors and vice versa. (25)

If South Korea continues to use a system similar to the pilot system, it will face the same problems as those resulting from the U.S. jury system. One of the most difficult issues to address will be citizens not taking their responsibilities seriously by either avoiding jury duty or engaging in misconduct. A reform committee official has stated that citizens' "active participation in fulfilling their duty as participants in the judicial process" is a key element in successful implementation of the system. (26) Korea has never had a jury system, and the Korean Constitution does not guarantee a right to a trial by a jury. Thus, citizens have never had to participate in trials and may view participation as more of an inconvenience than an important duty. Furthermore, the pilot system only makes a jury trial an option for the criminal defendant. The defendant could opt for a trial by a judge, which may also contribute to citizens feeling that their duties as jurors are not important.

Korea faces the problem of how to create a system that will promote responsible action by potential and actual jurors. There are two main ways in which Korea could deal with this problem: (1) using negative reinforcement in the form of punishments for avoidance of jury duty and for misconduct or (2) taking away the disincentives for participating in juries, as well as creating procedural rules that will minimize the opportunity for misconduct. In order to determine the best way that Korea can accomplish this goal, it is helpful to examine how the U.S. system has approached these particular problems. Part II of this Note provides a brief description of the U.S. jury system as well as its advantages and disadvantages. Part III critically analyzes the problem of citizens avoiding jury duty and other forms of juror misbehavior in the United States. It also examines the successes and shortfalls of the U.S. system in addressing this problem. Part IV of this Note uses the history of the U.S. juror delinquency problem to propose a solution for South Korea.

2. JURY SYSTEMS IN THE UNITED STATES

   The right to a jury in criminal cases is firmly rooted in the U.S. Constitution. (27) This right was the only guarantee to appear in both the original Constitution and the Bill of Rights. (28) Alexander Hamilton wrote in Federalist 83:

   The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury[:] ... the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government. (29) "After two hundred years, the right to a jury continues to be a valued fundamental right of American people" (30)

   Today, all criminal defendants have the right to a jury trial. The Sixth Amendment states that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." (31) Potential jurors are selected for each case at random from a master jury pool. (32) Each district court creates a jury selection plan, and either a jury commission or the clerk of the court manages the selection process. (33) Generally, "no person or class of persons" may be excluded or exempted from jury service. (34) However, under the U.S. system, prospective jurors may be excused or excluded by a peremptory challenge or a challenge for cause. (35)

   1. Advantages

      One advantage of the U.S. system is that it "provides an opportunity for the expression of 'popular sovereignty' and a 'barrier to governmental abuse.'" (36) Common law juries represent society as a whole and not any specific group, so they therefore "most directly represent[] the sovereignty of the people." (37) Juries also act as a barrier to governmental abuse of power by "injecting public opinion into the adjudication of governmental defendants." (38) This check in turn "adds legitimacy to the administration of law and increases public confidence" in the judiciary. (39)

      Another advantage of the U.S. system is that it allows for the incorporation of "common sense" into the judicial process. (40) Jurors are thought to be good finders of fact because of the knowledge "they have gained through their ordinary experiences as members of the community." (41) They are...