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In a democratic society, it is certainly desirable that civic participation should feature in the judicial process. In criminal proceedings in which a defendant's rights are at risk, it is particularly important; the influence of civic participation may increase the court's sensitivity to human rights.
This change is a natural development, as South Korea has become an increasingly democratic society and now hopes to extend this, demonstrating its sensitivity to human rights, including those of a defendant.
The new jury system may bring other benefits. It can work as an educator of citizens by imbuing and nurturing their understanding of the role of both the rule of law and human rights. It should secure political neutrality in prosecutors' exercise of their power. Korea has, historically, suffered the chronic disgrace of prosecutors bowing to political pressures. The jury system should provide a legitimate constraint upon a prosecutor's power.
However, as was noted on the Japan Today Web site, this system was adopted as part of government-driven legal reforms rather than pursued due to public consensus. Korean people are not yet close to recognizing their society's actual need for the new system. As the changes have outpaced the Korean people's perception, it seems likely that Korea's reforms will face similar challenges to those experienced by Japan.
In Korea, the new jury system has only been operating for two months, so it is too early for criticism to be confirmed or denied.
In the case of Japan, whose jury system will begin operating in 2009, the Supreme Court conducted a survey in 2006, interviewing 8,000 Japanese aged 20 or older. According to this survey, 65 percent of respondents would be reluctant to take on the role of juror. Their reasons included fears over possible threats from criminal defendants, the expectation that jury duty would be an inconvenient imposition upon their daily lives, and concern over the burdensome task of understanding complex legal terms. The same doubts are likely to burden Korean jurors.
In addition to these inconveniences, there has been no proposed remedy for a few serious problems to which the jury system is exposed in general. Firstly, Korean citizens are exposed to the influence of the media, which can shape their perceptions. Any knowledge, accurate or misleading, that jurors have of a case prior to a trial can undermine the fairness of the proceeding.
Secondly, the prosecution or defense may use tactics appealing to jurors' emotions, which could divert them from sound reasoning. Policymakers have not given serious attention to this danger.
Thirdly, although the jury produces a collective judgment, there is no guarantee that a flawed juror can be stopped from marring the whole jury's reasoning. As a possible remedy, the jury selection procedure seems limited in its ability to identify and remove such problematic jury candidates.
The first case in Korean judicial history to be tried with a jury's participation concerned a burglary, and was concluded on Feb. 18. The defendant was found innocent, and no serious trouble occurred -- although a juror was dismissed by the judge for drowsing during the proceedings. This may seem a very trivial problem that could occur in the initial operation of the jury system; however, other cases have revealed more serious pitfalls.
A jury has the authority to present to a judge its ruling concerning a defendant's guilt or innocence, and its opinion on the appropriate penalty. In two murder cases, prosecutors challenged the juries' penalty recommendations with appeals; in one of these cases, the defendant continued to claim his innocence.
If a jury's ruling or recommendation meets objections from any party, the case is sent to a normal appeals court, which follows a general criminal proceeding. This renders the jury trial, which cost the jurors time and effort, pointless. If such failures happen repeatedly, the jury system will be seen as a wasteful choice.
A common cause of such failures is a lack of trust in a juror's qualification to be a competent judge of a defendant's innocence or guilt. There has been widespread suspicion of jurors' qualifications. This issue could be of serious concern to both defense and prosecution lawyers, encouraging them to defy the whole jury system.
This issue equally concerns ordinary citizens who may be called to be jurors. In Japan, a 2004 survey by the Yomiuri Shimbun found that over 70 percent of respondents preferred not to join a jury because of their concern over their own capability to accurately determine a defendant's innocence or guilt.
South Korea's jury system needs to address the shortcomings that affect the new system to allow it to function properly and to assist democracy. Otherwise, it will merely be an indication of South Korea's democratic aspirations, rather than a key element in the advance of democracy. The most impending task is to build trust in the system. Providing jury training courses and other educational measures to enhance public recognition of the new system is recommended.
