The 4 th International Congress of Psychology and Law

1. The 4th International Congress of Psychology and Law Trial by Citizen Participation (국민참여재판) in Korea Kwangbai Park Dae-gu, Korea February 12, 2008

2. The Introduction • Presidential Committee on Judicial Reform (2005-2006). • Purpose: Democracy & Transparency of judicial processes. • Constitution (Article 27): “Right to be tried by tenured judges”. • Public polls: Overwhelming percentage (70% - 90%) favored. • “The Criminal Trial by Citizen Participation”: Drafted in 2006. • The Bill passed the National Assembly: 2007. • Launching: January, 2008. • The definitive system: After 2013.

3. The System • Mixed characteristics. • Features of the US jury: Independent jury • (1) Jurors sit in the jury box, not in the bench, separated from the judges. • (2) Jurors deliberate in the absence of the judges, and independently render a unanimous verdict. • Features of Escabinado system: Tribunal jury • When the unanimity is impossible, • Vote-taking under the simple majority rule (in the absence of the judges). • (3) Upon the “guilty” verdict, jurors discuss with the judges to recommend sentencing options individually.

4. The System • Eligible Cases • Felony cases assigned to a tribunal bench of 3-judges (合議部) • Cases involving public health, environment, narcotics/drugs, or bribery • Choice by the Defendant • A signed request from the defendant is required. • Exclusion by the Court • When a risk for the safety of jurors and their family is expected. • When at least one of accomplices wants to be tried by a bench.

5. The System • Jury size • 9 when capital punishment or life imprisonment is possible • 5 when the defendant admits the charge • 7 otherwise • Jury Selection • Random selection of juror candidates residing in the district of the court • Voir dire procedure: • Challenge for cause has no limit • Peremptory challenge is limited in the maximum of 5 for each party

6. The System • Jury Decision Making Primary Path Jury Deliberation WITHOUT the Judge Unanimous Decision Judge Is Called Verdict Recommendation Majority (50%) Vote Secondary Path

7. The System • Jury Decision NOT Legally Binding the Court • A “recommendation” for the bench • However, Practically (Psychologically) Binding • Announced by the judge in the open court. • Attached at the end of the court ruling • The judge is obliged to explain the reasons for the difference by writing • Jurors’ Other Rights • Questions to witnesses and defendants during the court hearing. • Note taking

8. The Trend (As of October 31, 2010) • Requested (by defendants): 911cases. • 355 (39%) withdrawn by the defendant • 210 (23%) excluded by the court • 72 in process • Tried: 274 cases • “Not Guilty” plea cases: 217 (79%) • Murder or Manslaughter: 52% • Defense counsels for 233 cases (85%) were appointed by the court. • 111 cases (86%) were completed within a single day. 18 cases took two days.

9. The Trend (As of October 31, 2010) • “Not Guilty” plea cases (217): • Unanimous Jury: 178 (82%) • Acquittal: 61 (28%) • Congruence: 195 cases (90%) • 20 cases: “Not Guilty” by the jury; “Guilty” by the court • 2 cases: “Guilty” by the jury; “Not Guilty” by the court This acquittal rate was at least twice as high as the acquittal rate of similar felony cases tried by the bench during the same period.

10. The Trend (As of October 31, 2010) The rate of appeal is significantly higher than the appeal rate of the cases from bench trials. • Appealed:187 cases (86%) out of 217 • 61 cases solely by the defendant; • 126 cases by the prosecution or both. • Possible reasons for the prosecution • Serious felony cases • High acquittal rate • Possible reasons for the defendant • Expected leniency of jury trial. • High court decisions for the appeals • Reject: 135 cases (72%) • Reverse: 52 cases (28%) The reversal rate for the appealed cases from bench trials during the same period:42%:

11. The Trend (As of October 31, 2010) • “Show-up”: 59% (among the receivers of the summon) • 121 summons issued per case. • 38 showed up per case. • 9.2 jurors and stand-by jurors served per case. • The selected jurors were evenly distributed on sex, age, and occupation. • Most of them (58%-79%) expressed satisfaction with the trial proceeding • 95% expressed satisfaction for serving as a juror. • 87% indicated that they understood the trial, the evidences and instructions “fairly well” or better.

12. Research: Supreme Court • Participants’ Evaluation, Perception, and Satisfaction • The Supreme Court is collecting and analyzing extensive questionnaire data from judges, jurors, attorneys, and defendants of each and every trial by jury. • Deliberation Content • For at least 1/3 of all trials by jury, a shadow jury consisting of law school students and/or media reporters attend the trial proceeding, deliberate, and render independent verdict. • The shadow deliberation is video-taped.

13. Research • Decision Validity (Judge Kim Sangjoon, High Court) • For the entire 274 cases tried by jury • Latent Class Analysis • Observed variables: • (1) Jury’s verdict recommendation • (2) Judicial verdict • (3) The Strength of evidence • Estimated conditional probability of the correct decision

14. Potential Issues for 2013 • Binding Power of Jury • If the decisions by the jury and the bench are the same, the utility of the trial by lay participation can be questioned. • If two judgments are different from each other, the validities of BOTH judgments can be questioned.

15. Potential Issues for 2013 • Deliberation process • The dual paths of deliberation can create confusions for the jurors. • Assuming the majority voting may deteriorate deliberation quality. • Jurors may consider the independent primary deliberation as a kind of preliminary, a warming-up, or even an exercise discussion. Jury Deliberation WITHOUT the Judge Primary Path Judge Is Called Unanimous Decision Majority (50%) Vote Verdict Recommendation Secondary Path

16. Potential Issues for 2013 • Appeal by the prosecutor • Double jeopardy. • When the acquittals are frequently appealed by the prosecution, the defendants will avoid the jury trial. • Korea should decide whether to allow, limit, or abolish appeal by prosecution for jury trials.

17. Potential Issues for 2013 • Sentence recommendation of jurors • Information for sentencing can contaminate the jurors’ determination of fact. • Sentencing needs to be procedurally separated from fact-finding. • If separation is difficult, sentence recommendation by the jurors needs to be eliminated.

18. A nursery tree was carefully planted in Korea. If trimming is undertaken by good hands, it will grow to give pleasant shades to everybody underneath.