On Jun 1, 2012, I had the opportunity to attend a Workshop on People's Participation in the Criminal Litigation hosted by the Judicial Yuan at National Taipei University. As a law student from the United States, a country where the jury plays a pivotal role in the legal system, I was curious to see how Taiwan would choose to implement public participation in its judicial system. I was especially interested in whether and how public participation would address the current challenges facing the Taiwanese judiciary such as low public confidence and lack of transparency. Would the incorporation of the public in trials help shift the power structure of the court, allowing for increased democratization and better checks and balances?
The featured speaker at the conference was a judge from Korea who had been invited to share his experience with the jury system in Korea. A number of judges, a prosecutor, and two defense attorneys were also invited as panelists. Law students made up the remainder of the participants. The lack of persons from outside the legal community was not particularly surprising considering the nature of the event, but it did make me wonder whether the general public had been invited on any other occasions or if their opinion had been solicited at all.
As the workshop got underway, I was surprised to learn that both defense attorneys present were junior associates. In an embarrassing moment, the moderator failed to have a bio prepared for one of the attorneys who was awkwardly asked to introduce herself to the room. The defense attorneys, unlike the prosecutor and judges, were also never given an opportunity to speak or ask questions beyond when the moderator opened the floor to general questions at the end. As such, their inclusion in the workshop almost seemed like an afterthought.
The law students were afforded even less of an opportunity to participate. They merely sat and watched as the featured speakers gave their presentations before being dismissed at the end. As such, calling the event a "workshop" was a bit deceptive as, in reality, only one side was able to present its views.
As for the content of the Judicial Yuan' s presentation, I was surprised by a number of the features of the Guan Shen system. In fact, the more I learned, the more it became apparent just how different the role of the public was in the Guan Shen system versus what I knew in the States. I also began to question the goals of the proposed system.
A simple example of this difference could be seen in the seating arrangement. When juries are seated separately from the judge in a jury box, this separation provides a visual cue indicating the independence of the jury in reaching its decisions. Guan Shen members, however, sit alongside the judges. While the Judicial Yuan hopes that the seating confers status to the Guan Shen members as fellow decision makers, this arrangement also creates an impression that the Guan Shen members and judges are aligned as members of the same group. The seating therefore creates a visual impression that the Guan Shen members are merely voting with the judges as opposed to independently of them.
Along similar lines, Guan Shen members are allowed to consult with the judges not only on questions of law but also to receive explanations of the evidence. As judges represent authority figures with greater legal knowledge and experience, the Guan Shen members will likely defer to their professional expertise. Allowing judges to consult with Guan Shen members will therefore influence the Guan Shen members' decisions and pressure them to agree with the judges' findings.
Advisory decisions are also reached by a simple majority among five Guan Shen members. The requirement for a unanimous verdict among a larger pool of jurors (six to twelve in the United States) ensures a very high burden of proof for the prosecution. To have to convince only three out of five people lowers this burden to the point where the level of protection for the defendant becomes trivial. The difficulty of convincing twelve people of the same thing also underscores the weight of the jury's guilty verdict thereby lending legitimacy to the decision. After all, not only does a criminal conviction carry significant consequences for the defendant in terms of abrogation of his right to liberty or even life, but a conviction also carries the stigma of society's condemnation of his actions. The requirement of unanimity properly communicates the onerous nature of the jury's decision, and I am not sure that a verdict reached by a simple majority among five people can carry the same gravitas.
Furthermore, the Guan Shen members' decision ultimately carries no legal weight as the judge can choose to disregard their verdict. What is the purpose of having the Guan Shen members reach a decision at all if it can be set aside so easily? Under such a system, judicial decisions will still rest entirely in the hands of the judges. The Guan Shen system will therefore not serve to help democratize the judiciary nor would the system be able to serve as a check on the judges' power. Rather than decision makers, Guan Shen members are merely forced spectators drafted into watching thejudges do their job.
More troublingly, under the Korean system where judges are also able to override the verdicts of jurors, judges disagreed with the jury 54 times. In 50 of these instances, the judge overturned the juries' "not guilty" verdict. Being able to overturn an innocent verdict by
the jury undermines yet another potential protection
for the defendant.
Given the above observations, I could not help but wonder what it is the Judicial Yuan hopes to accomplish with the Guan Shen system. The system as presented fails to democratize the judiciary, check judges' power, or even provide additional protections for the defendant. Even if the Guan Shen system is merely attempting to increase transparency with the hope that forcing judges to render their decisions under the scrutiny of Guan Shen members will encourage better decision making, the limitations on cases may serve to defeat this point. Allowing the court to choose which cases will be tried in front of Guan Shen members could create a bias. As all so-called "complex" cases will be eliminated, it may create the impression that the judicial system is working just fine when, in fact, the cases where abuses are most likely to occur are actually being hidden from the purview of the public. Rather than increasing transparency, the Guan Shen system might instead create a false impression that the judicial system is functioning better than it actually is.
Ultimately, the previous power structure of the courts has not been changed at all by the Guan Shen system. Almost as foreshadowing, I found that the hierarchy of participation at the workshop to be almost an exact mirror of the current power structure of the Taiwanese judiciary – judges and prosecutors taking center stage, defense attorneys in a marginalized role, and everyday people being left out entirely. Can the Guan Shen system really help to increase the legitimacy of the judiciary without any substantive changes to the current power structure? While I remain skeptical, I suppose we will see next year as the Legislative Yuan is expected to finalize the Guan Shen provisional act
approved by the Judicial Yuan before the end of 2012.