Wednesday, March 16, 2005

Jury System in Korea

South Korea is experimenting with the jury system. According to this story, juries will start participating in certain types of criminal cases on a trial basis starting 2007. The system will be reviewed in 2012, at which point the Supreme Court will consider instituting it permanently. During the test period, juries' decisions will not be binding and will only be advisory.

(Some background: The Korean Constitution contains a number of procedural protections for criminal defendants such as due process, the right to counsel, the right not to incriminate oneself, and prohibitions of warrantless searches or arrests (with some exceptions) and of double jeopardy and ex post facto prosecutions. There is even an explicit prohibition of "unfavorable treatment on account of an act not of his own doing but committed by a relative." The Constitution also has a general guarantee of "human dignity.")

Given the current controversy over the precise contours of the right to jury trial in the U.S., it is interesting that the jury system in Korea is being promoted as a democratic measure to serve as a check on arbitrary decisionmaking by judges and to build public confidence in the criminal justice system and the rule of law. I was in Korea during the O.J. Simpson trial, and I remember encountering some skepticism about the jury system among some Koreans. And I know that a large segment of the population there remains skeptical. In any event, this is something to be watched closely in the next several years.

But for now, a question: Is there a constitutional issue here? Article 27 of the Constitution provides, "All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act." Could someone bring a challenge against the jury system on the basis that he or she has a right to be tried by a judge under this provision? The current arrangement appears to be partly designed to avoid this problem; a jury can participate in a particular case only with the defendant's consent. In other words, if what the Korean government does is simply add an option to be tried by a jury, as opposed to take away the option of being tried by a judge, then there may be no constitutional problem.


Post a Comment

<< Home