Acting on a resolution by the national affairs conference on judicial reform, the Judicial Yuan has proposed a draft act regarding citizens’ participation in criminal trials. This indicates that the changes to the law would be different from the previous administration’s idea of lay judges, who were to be able to observe the judicial process, but not have any say in the verdict, and to voice opinions, but not give rulings.
The draft act conceives of members of the public as taking on the role of “citizen judges,” who would be able to participate fully in the proceedings, with the right to observe and make judgements.
Given the hundreds of clauses and tracts in the draft that would need to be amended, it seems that the people responsible for reform have got their work cut out for them.
However, after taking a closer look at what changes are actually being proposed, it is difficult not to feel that the strategy remains mired in the old thinking of “reform on a shoestring.”
An overview of the draft act reveals that it envisages panels composed of judges and members of the public at a ratio of 3:6, who would sit together and confer during the trial proceedings. When it comes to deciding the verdict, the votes of each member of the panel — be they a judge or a member of the public — would be given equal weighting.
From these, it seems that the strategy in forming the proposed draft is not to create a US-style jury system, but a lay judge system as employed in Japan. One is not necessarily better than the other: The success or failure of the system is tied more to the motivation of the people participating and their sense of social responsibility.
South Korea has adopted a jury system similar to the US’, but it was not used in the criminal trial brought against former South Korean president Park Geun-hye on charges of influence-peddling.
It is pertinent to ask, then, whether the “citizen judge” system should be used in major cases, such as the corruption trial against former president Chen Shui-bian (陳水扁), and whether it could ever take root in Taiwan and increase the public’s trust in the judiciary, as well as improve the nation’s standing in the international community.
According to figures released by Japan last month on how the lay judge system there is being implemented, of about 800 cases so far this year for major crimes like homicide, theft and arson, Japanese citizens have participated in about seven days of trials, in which there were, on average, less than five sittings, including a total of about 11 hours spent in deliberations on verdicts.
As much as 90 percent of Japanese citizens participating in the trial process expressed satisfaction with the discussion and communication between the respective parties.
The lay judge system has a high level of support among Japanese and the international community, and the main reason for this is the legislative changes made to Japan’s Code of Criminal Procedure, which have increased transparency in the trial process and greatly reduced trial times, lightening the pressure on citizens and removed much of the barriers between the public and court proceedings.
Non-fiction collections of case studies, such as Thirty Years Languishing in the Legal System (流浪法庭3十年) notwithstanding, judicial statistics in Taiwan have none of the aforementioned details about trial lengths or numbers of court sessions, the number of witnesses or awareness of the issues.
At the same time, there is much public support for making the rather inscrutable rules of the appeals process for criminal cases simpler and easier to understand.
Taiwan can benefit from Japan’s experiences in the lay judge system when deciding on details such as the role that ordinary citizens would play during criminal trials, how their roles would be defined and what these would be called.
For example, the draft act would not give members of the public the same powers to direct the trial or interpret the law that professional judges have, simply requiring them to bring the benefit of their life experiences in a diverse society to deliberations on assessing guilt and the severity of punishment.
For this reason, the term “trial judge” is to be avoided for members of the public selected at random, with the term “referee” being more appropriate.
In the US and continental Europe, members of the public can participate in trials as jurors or lay assessors. In Taiwan, “judge” is an appropriate term.
In Japan, the seating of the judges and referees within the courtroom has been lowered to bring them down to the same eye level as the defendant. This is an expression of the concept that those presiding over the trial proceedings and those being tried are social peers, so that the citizen assessors are not perceived to be somehow above the defendant.
However, with Taiwan’s “reform on a shoestring” approach, individual regulations would be amended in favor of an overhaul of criminal trial procedures. As a result, the “presumption of guilt” in Taiwan would not be changed any time soon.
Even though people might be referring to members of the public participating in trials as “citizen judges,” there is little hope that trials in the nation are to follow the principle of letting the evidence speak for itself.
Lin Yu-shun is a professor at Central Police University’s Department of Criminal Investigation.
Translated by Paul Cooper
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