In response to the resurgence of the “White Rose” movement, initiated after several child molestation cases resulted in minor verdicts last year, the Judicial Yuan has proposed the creation of two mechanisms — a public observer jury system and a system for determining the length of sentences for offenses against sexual autonomy — in the hope that these can prevent the creation of “dinosaur judges” and “dinosaur decisions.” Can such mechanisms really stop arbitrary decisionmaking by judges?
According to the Judicial Yuan’s current plans, legislation will be completed and a public observer jury system dealing with felonies implemented next year. This judicial tribunal would consist of three judges and a public observer jury made up of five civilians. These civilian members would have to attend the entire case proceedings and be able to express their opinions. If judges do not agree with these opinions, they would have to list the reasons for not adopting them in their verdicts.
According to the Judicial Yuan, in this system it would not only be the duty of members of the public to take part in the entire process, they could also discuss the details of the case with judges and express their opinions, while judges would have a duty to respond to the public’s doubts.
This is of course different to passively observing the proceedings from the sidelines and the compulsory civilian participation would prompt judges to be more cautious and less likely to make arbitrary decisions, thus making the trial process fairer and more objective.
This system states that whenever judges disagree with the opinions of the public observer jury, they have to provide an explanation in the verdict. While this may seem to be a form of monitoring, this is not necessarily the case, because the opinions of the jury are merely for reference and would have no binding force on judges. Also, given a judge’s expertise, it would not be very hard to rebut the opinions of the jury. Also, when the jury and judge have different opinions, these differences will most likely become the major point in an appeal by the accused, which will only further complicate the proceedings.
Thus, if judges do not change their arbitrary attitudes, the duty to explain themselves might only serve to further highlight their arbitrary practices and make verdicts even less convincing to the public. In addition, to meet the requirements of the jury system, courts would surely have to be redesigned and a fee may have to be paid to members of the jury. After going to all this trouble, the jury would only play a consultative role that probably would have a very limited effect on stopping judges from making arbitrary decisions.
The system for determining the length of sentences for offenses against sexual autonomy set up by the Judicial Yuan has involved gathering information on more than 5,000 verdicts on sexual assault cases from the past four years. This system would allow judges when processing cases to click on options in the system such as age, the specific nature of crimes such as whether a weapon was used or whether oral sex was involved, so they can ascertain the average length of sentences given out in the past, how heavily or lightly a criminal was convicted and how these past decisions relate to their current cases.