In continuing our discussion of criminal law in Korea, today we discuss a recent addition to the Korean judicial system: the jury trial.

Before July 2012, all criminal trials in Korea were bench trials, in which the judge decides what is true. This contrasts with a jury trial system where the judge acts like a referee, making sure the two sides follow the law, and the jury of ordinary people decides who to believe.

To qualify for a jury trial, the crime a defendant is charged with must carry a possible sentence of more than one year of imprisonment. Lesser crimes do not carry a right to a jury trial. This is actually not so different from California, where infractions (maximum penalty six months) are tried by bench and not jury.

Even when the charge is sufficient to warrant a jury trial, a trial by judge may still occur if the defendant waives his right to a jury, or if certain circumstances make the case inappropriate for a jury trial. Those circumstances include if the jurors are so intimidated by violence or loss of property that they cannot complete their duty, or if codefendants do not want a jury trial.

The first step in a jury trial is of course to select a jury. Citizens 20 years old or older are selected at random by the court. Then the judge will exclude jurors who may be biased because they know the people or circumstances involved. After that, the attorneys for each side have a chance to ask questions to try to explore the personality of the jurors and each side has a certain number of preemptory challenges ― jurors they can remove even though the juror was not overly biased, based on the attorney’s preference.

The jury, which is composed of nine people, decides by majority rule. Most juries around the world operate on a majority or supermajority rule. Even in the U.S., where historically a conviction required a unanimous jury verdict, there are many states that have abolished the old rule in favor of majority or supermajority decision-making. So Korea’s approach, though less protective of defendants, is more in keeping with most modern jury systems.

Two factors make Korean jury deliberations very different, though: First, the jurors are allowed to receive the opinion of the judge(s) handling the case, a degree of judge-juror interaction forbidden in many other jury systems for fear the judge will overly influence the jury. In fact, if the jury cannot reach a unanimous decision, it must hear the judges’ opinions. And second, the jury’s decision is nonbinding ― the judge may disregard it. There are no specific criteria for when the judge should disregard the verdict, so it remains almost completely up to the discretion of the individual judge.

Besides deciding guilt and innocence, the jury is also expected to give an opinion regarding sentencing. This is different from in the U.S. or U.K., where generally the jury does not control punishment in any way, except for American death penalty cases, where the punishment of death must be separately assessed by the jury.

This raises an interesting issue, as previous crimes are considered when determining punishment but not when considering guilt. Evidence of previous crimes is usually considered highly prejudicial, inflammatory and of questionable relevance when deciding whether the defendant committed another crime. But when punishing a person, courts usually consider the criminal’s overall conduct ― past and present ― in determining how severe a punishment is warranted.

Since a Korean jury gives a verdict on both guilt and punishment at the same time, they will hear all the evidence, including highly inflammatory evidence about the defendant’s past crimes. Many lawyers think that this biases the jury in favor of guilt, as jurors often sway towards a guilty verdict if the defendant has a past record, irrespective of the evidence, particularly if those crimes are egregious.

As we mentioned earlier, the jury verdict is not necessarily binding, but it can have an effect on the prosecution’s ability to appeal. The Korean Supreme Court ruled in 2010 that, unless a prosecutor finds new evidence that would clearly establish guilt, a verdict of not guilty accepted by the lower court should stand.

But of course, that’s yet another situation we hope not to see you in.

By Darren Bean and Yuna Lee

Yuna Lee is a Korean attorney at Seowoo & Minyul Law Firm in Seoul. You can read her blog at askakoreanlawyer.blogspot.com or if there is a legal issue you would like to be addressed, email askalawyer@naver.com. ― Ed.

Disclaimer:
This column is not intended as legal advice. No action should be taken or avoided based on this column, no attorney-client relationship is formed by reading this column or contacting the authors, and the authors expressly disclaim any liability for the content of this column. Those with legal problems in Korea should seek advice from an attorney.