Brave New Judiciary

By Sean Hayes

Appeared in the Korea Times on December 19, 2007

Korea is presently preparing for the adoption of a jury system. The system will allow jurors to give an “advisory opinion” to the presiding judge.

After speaking to many judges and other legal professionals most believe that it is unlikely that a judge, except in the most extraordinary of cases, will stray from the decision of the jury. This may be attributable to the keen attention jury cases will receive in the media.

The system is a great step in the right direction and will play a significant role in: (1) acting as a check on government, (2) increasing civil participation, (3) promoting judicial independence, and (4) fostering more factually accurate decisions.

Check on Government

The renowned American Supreme Court Justice Byron White stated that, “The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power ― a reluctance to entrust plenary powers over life and liberty of the citizens to one judge or to a group of judges.”

This American concern is increasingly becoming a concern for the Korean people. Often the Korean people believe that judges are too young, lack real world experience, and are incapable and sometimes unwilling, in certain cases, to decide based on their true “free will.”

Thus, many NGOs have pushed to have jury trials in order to strip the prosecutor of the near absolute power to receive a conviction.

Civil Participation

Juries also promote participatory democracy and self-government by allowing the general population the opportunity to participate in the judicial process. A few years back Russia adopted a jury system since it believed that it needed to restore the public’s confidence in the judicial system. This is the main, facial, reason why Korea is adopting the system.

Judicial Independence

A judge often comes under pressure from the population, more senior judges and ex-judges, law firms and the media. This pressure may eschew the outcome of a case and may also lead to a perceived destruction of the independence of the judiciary.

U.S. Federal Judge William Schwarzer has noted that, “Even under the best of circumstances, a single judge making an unpopular decision comes under public and sometimes official criticism that may have adverse effects on his person, his family and his career.”

“Juries, being anonymous and out of the public eye as soon as the case is over, are well suited to decide controversial cases that could be difficult for judges to decide. And because they hold no office, have no other continuing connection with the government and have no political ambition, they are genuinely independent.”

Factual Accuracy

A study by Dean Barnlund, on group dynamics, tested university students on their syllogistic reasoning skills. Barnlund paired the best individual reasoners singly against groups of the poorest reasoners.

When it came to dealing with syllogisms whose premises and conclusions were statements that created strong feelings and value preferences such as issues about communism, college school rules and unpopular wars, the best individuals did worse when pitted against the groups of the poor reasoners.

The explanation of the reason for this stems from the premise that an individual or very small group is misled by their emotional responses. The larger group is misled also, but the group, as a whole, was able to straighten itself out. The misled in the group were corrected or balanced out by others who had a different reaction.

Another study concluded by the preeminent legal scientist Fred Strodtbeck that the most important issue in finding the truth in a case is not education, but diversity.

The problem, he found, is that those that were judges lacked a sufficiently diverse social background because of their high level of education and high social status that they were more likely to come to an inaccurate conclusion compared to a jury with socially diverse individuals.

We should congratulate and welcome this brave step by the judiciary.

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SeanHayes@ipglegal.com