Academic journal article Vanderbilt Journal of Transnational Law

Creating the Right Mentality: Dealing with the Problem of Juror Delinquency in the New South Korean Lay Participation System

Academic journal article Vanderbilt Journal of Transnational Law

Creating the Right Mentality: Dealing with the Problem of Juror Delinquency in the New South Korean Lay Participation System

Article excerpt

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. …

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