Taiwan Today

The “observer jury” pilot program represents the first step toward citizen participation in Taiwan’s justice system.

In the wake of several lenient rulings in child molestation cases, thousands of demonstrators took to Ketagalan Boulevard in Taipei on September 25, 2010 to call for reforming Taiwan’s justice system. The demonstration was widely viewed as a public expression of declining trust in the nation’s courts and judges. At around the same time, the term “dinosaur judge” was gaining currency in Taiwan, a reflection of the growing perception that the nation’s justices were out of touch with the views of society.

The groundswell of public opinion led the government to mull new directions for judicial reform. “We asked ourselves why people were unaware of the reforms we’d already made, and then we began to consider shifting our focus to giving the public a deeper feeling of connection to the reform effort,” says Su Yeong-chin (蘇永欽), vice president of the Judicial Yuan.

One government response to the growing clamor for reform came in June 2011, when the Legislative Yuan passed the Judges Act, which establishes a mechanism for dismissing judges who perform poorly. With that important step taken, Su says that the time is now ripe to increase public confidence in the nation’s courts by implementing a jury system.

The Judicial Yuan has worked on legislation to allow some form of jury trials for decades. The latest effort came in January this year, when the judicial branch submitted a draft of the Provisional Act Governing Lay Participation in Criminal Trials to the Executive Yuan. The draft, which calls for the creation of an “observer jury” pilot program, received the green light from the Executive Yuan in May and is currently under review in the Legislative Yuan. If the act is approved, the pilot program will run for three years in Chiayi District Court in southern Taiwan and Shihlin District Court in Taipei City—two out of the 21 district courts in the country.

In Taiwan’s current bench trial system, felony cases are heard jointly by three district court judges, who are expected to act as impartial referees as they consider questions of law and the arguments of defense attorneys and prosecutors. If the defendant is found guilty, the judges also determine the sentence.

In the pilot program, five members of the observer jury will sit on the same bench as judges to hear cases involving felony offenses that are punishable by the death penalty or a prison term of seven years or more. Juries will consist of citizens who are 23 years old or older and will be chosen by a lottery. Jurors will be allowed to discuss court proceedings with judges and question defendants, alleged victims and witnesses. After the prosecution and defense have concluded arguments, the jury will deliberate the case and render its decision on the defendant’s guilt or innocence and appropriate punishment, if any. Judges will then take the jury’s decision into consideration, but will retain authority over the final verdict and any punishment. If judges disagree with the jury’s decision, they must provide verbal and written explanations.

Su says that the decision to propose an observer jury system was reached after a year-long series of meetings attended by legal professionals including judges, prosecutors, attorneys and law professors. The Judicial Yuan also reviewed how jury trials are conducted in several other countries before coming up with the proposed system, which shares common elements with those in Japan and South Korea. Jury trials began in Japan in 2009 with six citizen judges sitting alongside three professional judges, all of whom vote on verdicts and sentences. Verdicts are reached through a simple majority, although at least one professional and one citizen judge must vote with the majority.

In 2008, South Korea launched a five-year pilot trial system in which 12-member juries sit apart from judges and are not permitted to consult with justices during trials or sentencing. South Korean juries render a decision on the defendant’s guilt or innocence and suggest a sentence, but judges are not bound by the jury’s findings.

Lin Feng-jeng (林峯正), a former practicing lawyer and executive director of the Taipei-based Judicial Reform Foundation (JRF), says his organization began advocating the use of jury trials at the end of 2009 as a way to check the influence of substandard judges. At that time, legislation similar to the Judges Act had been discussed for around 20 years, but little action had been taken. “Without that kind of law, there was no way to get rid of judges who failed to live up to the public’s expectations,” Lin explains. “But then it dawned on us that there might be another way out: handing some of the judges’ power to citizens.” Although the Judges Act now provides a way to dismiss judges, Lin says additional measures—including allowing some form of public participation in trials—are still needed to prevent verdicts that are greatly out of step with mainstream public opinion.

Although Lin and other local activists who promote legal reforms are strong supporters of jury trials, many are clearly disappointed that jurors will have only observer status under the new system. “‘Observer jury’ was a term we’d never heard before the Judicial Yuan proposed the idea,” Lin says. “The concept of having jurors but only allowing them to observe, listen and give their opinions is also unusual.” Most countries conduct jury trials in a manner similar to the United States and United Kingdom, which have separate jury panels, or to Germany, which relies on “lay judges,” Lin says. Under the British and American systems, juries have binding power to determine the guilt or innocence of defendants, while sentencing is handled separately by judges. In the German system, “lay judges” are chosen by selection committees working under municipal councils, sit alongside professional judges and jointly determine culpability and sentencing.

Constitutional Concerns

The proposal of the observer jury system was partly a result of the need to draft viable legislation, according to Su. The Provisional Act Governing Lay Participation in Criminal Trials is the latest in a series of four draft jury acts the Judicial Yuan has drawn up since the late 1980s. The Executive Yuan rejected the first two bills because the binding powers they gave juries were viewed as potentially contravening Article 80 of the Constitution, which states that judges “shall try cases independently, in accordance with the law, and be free from any interference.”

Lin takes issue with that argument, however, by referring to Article 2 of the Constitution, which states that “The sovereignty of the Republic of China shall reside in the whole body of citizens.” That provision means citizens hold the ultimate power over the government’s executive, judicial and legislative branches, he says. While voting gives the public power to choose the nation’s legislators and president, as of yet citizens have no equivalent role in shaping the judiciary.

The third draft of the jury act failed to gather a consensus even within the Judicial Yuan due to concerns over awarding binding powers to juries. “One thing we learned from that experience is that grave doubts arise if we give citizens rights similar to those of judges immediately,” Su says of the third draft’s failure. Such concerns could have derailed this attempt to introduce juries, too, hence the observer jury proposal was put forward as
a compromise.

On the other hand, Su points out that a mid-2011 survey conducted by the Election Study Center at National Chengchi University in Taipei indicated clear public support for observer jury trials. When asked about their stance on such trials, 76.8 percent of the 1,073 respondents supported them. When asked if they would be willing to be tried as defendants under the proposed observer jury system, 71.3 percent responded yes, while 72.4 percent indicated willingness to have a case in which they were the victim tried by such juries. Nearly 72 percent of the respondents said they would perform jury duty if selected.

Lin is not convinced of the survey’s soundness, however. “That poll was done when most people still knew nothing about the [observer jury system],” he says, adding that the Judicial Yuan should hold many more simulated trials, invite more people to participate, allow live courtroom broadcasts and then conduct another survey.

The JRF’s executive director also harbors doubts about the degree to which judges will take the decisions of observer juries into account. Nongovernmental organizations in Taiwan like the JRF frequently raise issues about court cases, he notes, but seldom gain a response from legal authorities. “If the same logic applies and the jury is given no decision-making power at all, how can its opinion have any sway over judges?” he asks. “If judges choose to go their own way, the whole system will fail to achieve the desired effect.”

Moreover, the proposed system will place jury members beside judges, but Lin says this might enable judges to influence jury members easily. Juries that sit separately are more capable of reaching independent conclusions, he maintains. Furthermore, the observer jury system specifically excludes legal professionals from jury duty, according to Lin, which means that jurors will likely have little or no legal background and might easily be intimidated while sitting beside judges. It is quite unlikely that jurors will ask questions freely in court for the same reason, he says.

Wu Ching-yuan (吳景源), chief judge of Shihlin District Court, has a different opinion of jurors’ willingness to participate in court. During two simulated jury trials held in Shihlin earlier this year to test the proposed system, Wu says that jurors were generally keen to raise questions and express their views. In the first case, when a “defendant” accused of murder mentioned his habit of leaving detergents on his living room table, members of the jury challenged him, as they found it unusual to keep cleaning products within such easy reach, Wu says. During the second simulated trial, a drug case, the “accused” claimed to have believed he had bought sleeping pills instead of drugs. The jury questioned the amount of money involved in the transaction, however, as it was much more than the amount needed to buy sleeping pills. “It’s really good that [jurors] can see a case from the perspective of ordinary people and raise questions based on their life experience,” Wu says.

Confidence in Judges

Wu also believes that the observer juries will increase the public’s faith in the justice system. By participating in trials, “people will gain more confidence in judges and their decisions,” he says, adding that his assertion is backed by surveys conducted before and after the simulated trial held at Shihlin District Court in May this year. None of the regular or alternate jury members indicated great faith in the nation’s judges before the trial began, Wu says, but after serving as jurors, more than 70 percent described the judges as “very trustworthy.”

For some, however, the limitations of the pilot program have given rise to concerns over judicial fairness. In South Korea, the United Kingdom and the United States, defendants in some types of cases have the option of choosing between a jury trial and a bench trial. In that light, Lin says one of the biggest problems with the pilot program is that defendants in Chiayi District Court and Shihlin District Court will not have the option of choosing a bench trial, while defendants in other courts will not have the option of choosing an observer jury trial. “That’s ‘one country, two systems’ … and not being given a choice will infringe on the right to a fair trial,” Lin says, as cases involving similar offenses will be tried under different systems only because they take place in different districts.

If there is one thing that those on either side of the observer jury debate agree on, it is that there will be a heavier workload for all involved. “Judges will have to take on the additional role of legal adviser,” Wu says. “They’ll need to observe the jurors’ reactions, make sure they fully understand the facts and evidence and explain points of law whenever necessary.” Wu adds that judges, prosecutors and lawyers will also have to explain legal jargon to help jurors understand courtroom proceedings.

Lin says that a huge social cost will accompany the new program, as government agencies will have to prepare jury rolls, devise a selection process and deliver summonses for jury duty. Jurors will have to take leave from work and employers will have to cope with their absence, a situation that will particularly affect small and medium enterprises, he says. While Lin believes having a jury system with binding powers would be well worth bearing such costs, he questions whether the same can be said for observer juries. He notes that if the goal is merely to increase transparency, there are easier ways to give the public a look at the justice system in action. “If [the Judicial Yuan] just wants to open the gate [of justice], a low-cost, online live broadcast would suffice,” he says.

Those involved in developing the observer jury initiative emphasize, however, that it is a work in progress. “There’s still great room for expanding the program and we’ll remain flexible about how we do it,” Wu says, adding that the government retains the option of granting juries more decision-making power. “[The pilot program] is just the first step toward citizen participation in trials. After that, we can choose to take a step to the right, to the left, or take a bigger stride forward. The possibilities are limitless.”

Write to Audrey Wang at ycwang06@mofa.gov.tw