on jury systems: spreading in Asia, being rolled back in the West


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Hi Blog.  To kick this week off, here’s an interesting article from The Economist (London) about how the jury system is mutating both East and West.  For all the overdone media osawagi about the upcoming jury system in Japan (I think judges here have up to now had far too much power and unaccountability in their decisions; note how they’re still not relinquishing it by including three non-lay judges in a jury), we’re having similar systems being instituted elsewhere in Asia.

My opinion about juries in Japan is:  Just do it.  You have to have the view of regular people (not just cloistered bookish judges) in these things.  Trust people to know their public duty in a courtroom.  If you can’t do that, there’s a problem with the public education system, not with the courts system.  As I have experienced in four domestic civil lawsuits (here and here), and seen elsewhere here with cracked judges (here and here), leaving all the power in the hands of judges (usually just one of a set of three, by seniority) is a recipe for more noncommonsensical judicial miscarriages than it’s worth.  But that’s my opinion.  Fire away with yours.  Arudou Debito in Sapporo

Decent Japan Times FYI column here on the issue.

Legal scholar Michael H. Fox’s site, Japan Institute for the Study of Wrongful Arrests and Convictions (JISWAC) here.



The jury is out

Feb 12th 2009 
From The Economist print edition

European countries are restricting jury trials; Asian ones expanding them

MARK TWAIN regarded trial by jury as “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”. He would presumably approve of what is happening in Russia and Britain. At the end of 2008, Russia abolished jury trials for terrorism and treason. Britain, the supposed mother of trial by jury, is seeking to scrap them for serious fraud and to ban juries from some inquests. Yet China, South Korea and Japan are moving in the opposite direction, introducing or extending trial by jury in a bid to increase the impartiality and independence of their legal systems. Perhaps what a British law lord, the late Lord Devlin, called “the lamp that shows that freedom lives” burns brighter in Asia these days.

It is often thought that juries are a peculiarity of common-law countries such as America and Britain. Not so. Twelve-member citizens’ juries are widely used in Islamic-law countries, too. Even in civil-law ones in continental Europe lay jurors sitting alongside professional judges help reach verdicts in serious criminal cases.

Where the jury system is entrenched, it may not be common. In America, where a right to trial by jury is in the constitution, the vast majority of cases result in plea-bargains (so do not go to trial) or concern minor offences, which are normally dealt with by a single judge. In Britain, only 1% of criminal cases end up before juries, which rarely deal with inquests, either.

Britain is seeking to restrict juries even further. In 2003 the government gave itself the power to abolish juries in long and complex fraud trials, arguing that judges sitting alone or accompanied by expert “assessors” would be able to reach speedier, safer and cheaper verdicts. Such was the outcry that it agreed to seek fresh parliamentary approval before using that power. Five years and three bills later, it still hasn’t succeeded. But plans to remove juries from coroners’ courts when the public interest is involved (first proposed in a counter-terrorism bill but defeated) have resurfaced in another bill that is grinding its way through Parliament.

Russia’s bid to do away with most jury trials has little to do with efficiency. Russia reintroduced jury trials in 1993 for several charges including terrorism, hostage-taking and armed insurrection to show its commitment to the rule of law. The commitment did not last. Research showing that Russian juries are nine times more likely to acquit defendants than judges sitting alone led to a decision to revert to non-jury trials for all cases save murder.

Meanwhile, three Asian countries are going the other way. Under a law that came into force in 2005, some 50,000 “people’s assessors” have been appointed in China to serve in trials for all but the most minor criminal offences. Selected on merit and appointed for five years, Chinese assessors resemble English lay magistrates, likewise appointed for several years, rather than common-law jurors, who are usually chosen at random and serve for just one trial. Still, like jurors in civil-law countries, the assessors, sitting alongside judges, are required to reach decisions on law and fact, and sometimes help with sentencing, too.

In Japan, jury trials were once available in theory but little used in practice. Starting in May, though, six lay jurors, chosen at random from among voters, will sit alongside three judges in contested cases punishable by death or life imprisonment.

South Korea has been more tentative. In a bid to modernise an opaque legal system, it introduced juries in 2008, restricted to trials for the most serious crimes. At the moment, they are advisory. Under the constitution, all defendants must be tried by a judge, so giving juries decision-making powers would require a constitutional amendment. As elsewhere, the system has led to more acquittals. It is due to be reviewed by the Supreme Court in 2012.


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