[Daniel Fiedler] Korea needs grand jury system

This month another new slate of judges will be appointed to serve in the South Korean courts. One of the most striking aspects of this process is the large number of youthful faces among the new appointees. Many of the new judges will be less than 30 years old as they are appointed to one of the most powerful positions in Korean society. In this position they have the power to free or imprison their fellow citizens, to separate parents and children or to make or break the businesses and livelihoods of others. 

Yet there is no age requirement that guarantees these judges have significant life experience, nor that they have even practiced law prior to appointment. Nothing is required beyond the ability of rote memorization of large amounts of statutory law and a short two year program isolated in an ivory tower at the Judicial Research and Training Institute run by the Ministry of Justice. Nothing in this process is designed to ensure that these individuals have empathy, sympathy or the ability to identify with the average members of Korean society.

A recent study showed that a large percentage of these judges come from one elite area in Seoul, over 30 percent of them have attended the same private high schools, and two-thirds of them graduated from Seoul National University.

Despite this sheltered upbringing many of these judges will develop an arrogant certainty that they have a unique ability to determine the facts of every situation and to reach the correct decision in all cases. They believe that their ability to distinguish truth from lies far exceeds the ability of the average citizen.

Despite this arrogant belief, a visit to any local courtroom reveals judges who are uncertain as to the veracity of the parties before them. Often these judges are misled by individuals who passionately hold irrational beliefs, who suffer from mental disorders or illnesses, or even by young children trained to lie by vengeful divorcees.

Often these judges reach decisions that confound the average citizen and fly in the face of common sense. In criminal cases these judges almost always abdicate their judicial role and rely solely on the skills and judgment of the prosecutors. Former judges freely admit that the respect that they held for prosecutors overwhelmed their own decision making ability.

How is it that Korea is allowing its judges to be chosen from such a small and inexperienced portion of its population? Where are the judges that grew up in the countryside and have lived life practicing law in a small town? Where are the judges who have called Hamyang or Gokseong their home town for years or decades? How can these young judges with their limited life experience spent coddled in private high schools and private academies in one wealthy area of Seoul be expected to understand the variety of life in South Korea?

They cannot, and that is why prosecutors and the lawyers often must do their work for them. In criminal cases the inexperience of these judges forces prosecutors into the judicial role. These prosecutors are required to assume a neutral demeanor when dealing with victims of rape and other heinous crimes and often force the victims to relive their horrendous experiences over and over as they try to convince the judge of the guilt of the accused.

But forcing prosecutors to determine the guilt or innocence of criminal defendants means that society is deprived of passionate advocates for its defense. The role of a prosecutor should be to advocate on behalf of victims and society. Instead victims of these heinous crimes, such as rape, are effectively tried by the prosecutor when the prosecutor tries to determine whether to punish the accused.

Further, while these victims are deprived of their champions, the defendant is free to hire a lawyer to passionately defend them. In some cases the family of a victim is forced to hire their own lawyer to ensure the accused is vigorously prosecuted.

In 2008, in an attempt to address these judicial deficiencies, South Korea introduced a limited jury system for certain crimes. Yet to date these juries have been limited to an advisory role and their opinions have yet to replace the judgment of the prosecutors to any significant extent. Recent data shows that judicial trials have maintained a 97 percent conviction rate while jury trials have had a 90 percent conviction rate. Further, the courts have been reluctant to grant requests for jury trials in many cases.

As a further step South Korea is exploring the introduction of a grand jury system. The grand jury system offers much more promise since the function of a grand jury is to determine whether to indict the accused. By taking the decision to indict the accused away from the prosecutor, the prosecutors are freed to vigorously advocate on behalf of the victims of crimes and on behalf of society in general.

Thus as long as South Korea continues to appoint young and inexperienced individuals as judges it will have to expand its use of grand juries and juries. While the grand jury system will allow prosecutors to move fully into their appropriate role as advocates on behalf of society, the jury system will allow these young judges to access the life experience and wisdom of average citizens. Instead of being judged by a single individual from Seoul with an elite and sheltered background, an individual can be judged by the average citizens that are his peers. Thus a plaintiff from Hamyang can explain his complaint to his fellow Hamyang citizens and an accused from South Jeolla province can be indicted and judged by people from South Jeolla province.

The jury system has operated successfully for over 800 years in the common law and has throughout that period provided the opportunity for the average members of those countries to actively participate in the government under which they are ruled. In modern times the jury system has been one of the most effective systems for getting average people involved and interested in participating in their societies. South Koreans should push for the full adoption of the jury and grand jury systems so that they also can participate as full members of their democracy.

By Daniel Fiedler

Daniel Fiedler is a professor of law at Wonkwang University. He also holds an honorary position as the lawyer representative for international marriages in Namwon. ― Ed.