Taiwan, Are You Ready? ～ Starting from the U.S. Jury System and Empirical Research

Introduction: Why Discuss the American Jury System

Today in the 21st century, the jury system remains the most prominent and dazzling feature of the American judicial system. Although the charm of the jury system, propelled by the formidable forces of American law and culture, has long crossed U.S. borders to spread across the globe—with the connection between the jury system and American adjudication mechanisms even far exceeding that of its original birthplace, Great Britain—for us here in Taiwan, a starting point for reflection is: why is it necessary to discuss the American jury system?

Rooted in the historical experience of suffering improper exploitation by the British government during the colonial era, the United States—founded on the cry of freedom for independence—believed at its inception that the "right to a jury trial" was an indispensable component of fundamental human rights protection. At the founding of the U.S. Constitution, the general public widely believed that the jury stood between the "government holding power" and the "ordinary citizen," playing the role of protecting the latter from the abuse of power by the former. Not only in criminal trials does the jury determine whether the crime prosecuted by the state is established, thereby serving to prevent the state from arbitrarily exercising its penal power, but even in civil trials, the jury has traditionally been seen as having the function of fairly resolving disputes between the state and citizens. Moreover, because judges largely hailed from educated upper-class society, they could not avoid harboring biases against social strata holding different value systems and ideologies. By contrast, juries could better reflect the diverse values from civil society and integrate them into their ultimate decisions.

In current American trial practice, cases actually resolved through jury trials account for only a quite low proportion of the total number of cases (roughly under one-tenth). Nonetheless, whether regarding the design of litigation procedures or the general image of the judicial system's operation in the minds of the people, the jury system still plays a very important role in the United States.

Selection of Juries

To fulfill the purpose and spirit of the jury system, jurors must naturally be selected from a pool of citizens covering all social strata. Although the jurors ultimately selected may not necessarily achieve complete representation across different socioeconomic statuses, religions, races, and political ideologies, specific groups must never be intentionally excluded from the source pool of jurors.

Consequently, in principle, all adult citizens are qualified to be selected as jurors and likewise have the duty to undertake this work. When a specific case requires the participation of a jury, the court first randomly selects from the list of citizens a certain multiple of candidates exceeding the number of jurors needed, and then mails a "juror eligibility questionnaire" to the selected citizens. Many people might assume that the general public would find serving as a juror an interruption to their lives and try to evade it, and in actual operation in the United States, such a phenomenon does occur to some extent; however, according to a survey conducted by the American Bar Association, the results showed that 84% of respondents agreed with the statement that "even if it causes inconvenience, one should still fulfill the duty of serving as a juror."

Upon receiving the returned questionnaires, court clerks responsible for processing will filter qualified juror candidates based on the contents filled in the questionnaires, as well as determine whether legitimate and justifiable reasons have been provided if someone indicates an inability to serve as a juror. Each state establishes its own regulations regarding juror qualifications; generally speaking, these include "lack of proficiency in English," "serious prior criminal convictions," and "severe visual or hearing impairments."

Jury Verdicts

The number of jurors has traditionally been 12, and in principle, they must reach a unanimous decision before a "verdict" can be rendered; otherwise, the judge must declare the public trial proceedings void (commonly referred to as a "mistrial"), select a new jury, and conduct the public trial proceedings anew.

Empirical Investigation

Regarding empirical research on the implementation of the jury system, the question that most easily arouses interest is usually: Is the result when a case is submitted to a jury for trial and determination different from that when it is tried and determined by a judge?

The first study to confront the aforementioned challenge was conducted by University of Chicago Law School professors Harry Kalven and Hans Zeisel in the 1960s. Out of 3,576 criminal cases and 4,000 civil cases tried by juries, the study successfully collected the views held by the presiding judges of the public trial proceedings on the outcome of the cases while the juries were deliberating on what verdicts should be rendered. For criminal cases, the results showed that in 78% of the cases, the judge reached a decision consistent with the jury; in the remaining 22% of cases where different outcomes emerged, cases where the judge judged guilty while the jury judged not guilty accounted for 19%, whereas cases where the judge judged not guilty while the jury judged guilty accounted for only 3%. In other words, apart from instances where both reached consistent decisions, for the same case, the probability of a judge adjudicating guilt was more than six times higher than the probability of a jury determining guilt.

Prospects for Introducing a Lay Participation Trial System ── Are We Ready?

If the current purpose of introducing lay participation in trials in our country is to "enhance the quality of judicial adjudication" (for example, correcting the phenomenon of so-called "dinosaur judges" resulting from an excessive fixation on legal technical expertise while ignoring the public's sense of justice and universal social values), then whether the design of a "mixed-court system" (參審制) is sufficient to achieve this goal must be weighed with particular care. As many empirical studies have clearly demonstrated, the operational result of a "mixed-court system"—where a trial bench is jointly composed of "professional judges" and "lay assessors"—is neither "combining the professionalism of judges with the common sense of the public," nor a "compromise and mixture" between a "pure professional judge system" and a "jury system," but rather a "'substantial professional judge system' where the final judgment result is almost entirely dominated by professional judges." For example, empirical research conducted by Casper and Zeisel on the German criminal mixed-court system pointed out that when judges and lay assessors had divergent opinions, lay assessors influenced the judgment outcome in only 1% of cases. Dr. Ivkovic, when examining the mixed-court system of Croatia, similarly pointed out that when lay assessors and professional judges disagreed, although the system empowered lay assessors with the majority vote to overturn the findings of professional judges, in actual practical operation, lay assessors almost invariably deferred to the opinions of professional judges during discussions; furthermore, even when dissenting opinions arose in a few cases, lay assessors rarely exercised their power to overturn the professional judges' findings by majority vote. By contrast, a system adopting a jury is better able to make lay participation in trials have a genuine and substantial impact on case outcomes when opinions between judges and jurors diverge, through the mechanism of "in principle respecting the outcome determined by the jury, with the judge exercising control over unreasonably determined results only by way of exception."

Along the extension of this discussion, it must be specially pointed out that "enabling lay participation in trials to influence judgment outcomes" and "enhancing the quality of judicial adjudication" cannot naturally be equated with one another. Nonetheless, the results of relevant empirical research indicate that in criminal trials regarding the determination of a defendant's guilt, juries hold a stricter requirement for the standard of "beyond a reasonable doubt," and consequently result in a lower probability of determining a defendant's guilty status than judges under the same mass and quality of evidence. Of course, we all hope for a "perfect" adjudication system that neither "lets bad people off the hook" nor "wrongfully executes good people"; however, while such a "perfect and error-free adjudication system" remains an "ideal" reality, we must face gravely the choice between "reducing the probability of 'letting bad people off the hook'" or "reducing the probability of 'wrongfully punishing good people.'" Although this value trade-off and choice have already been reflected on many levels in the design of criminal trial systems (such as the "presumption of innocence principle"), when these normative value choices face certain challenges and criticisms as to whether they have been put into practice by professional judges in actual practice, the benefits of introducing a jury system are brought to light. How other related institutional designs should be correspondingly amended naturally also constitutes a point that must be considered.

Needless to say, as then-Vice President Su Yong-chin (蘇永欽) remarked when discussing as a scholar the "Draft Tentative Regulations for Criminal Lay Adjudication" planned for promotion by the Judicial Yuan back then: policy makers need to take our own empirical research as the primary basis for decision-making; this point requires even less elaboration. Empirical research must adhere to methods rather than relying merely on arbitrary judgments or intuition. In this regard, judicial decision-making must seek the help of social sciences, and the empirical research completed by advanced nations regarding lay justice has gradually developed operational methodological theories, holding even higher reference value.

To put such an ideal into practice, Professor Su Yong-chin further utilized the opportunity in 1995 to survey the legal and political perceptions of the Taiwanese people via questionnaire research, investigating public opinions on "whether one favors lay adjudication" and "whether one is willing to serve as a lay assessor," and obtained quite meaningful results. The author not only strongly agrees that systematic and methodical empirical research should serve as the basis for judicial decision-making, but further believes it should be conducted continuously. Following 15 years of democratic and legal development, the enhancement of the public's legal awareness, and the impact of many major judicial cases, the concepts and opinions of our people may already differ vastly from the survey results of 1995. Analyzing the changes produced over these past dozen years will yield even more highly instructive results.

In summary, the author's most direct suggestions regarding the Judicial Yuan's current plan to promote lay participation in trials are: beyond theoretical discussions, what is more important is taking empirical research as a foundation to delineate reform goals, select the form of lay participation, and determine the scope of applicable cases. At the meantime, apart from consulting the achievements of foreign empirical research, we must also conduct our own empirical research in Taiwan. Specifically, while it is fine to survey the opinions of legal professionals, what is even more important is to survey the intentions of the people of our country, including general opinions on the "lay participation in trial" system, anticipated goals, willingness to participate, selected forms of participation, and the scope of cases.

When the author accompanied foreign scholars to visit the Judicial Yuan in the summer of 2008 to pay respects to former President of the Judicial Yuan, Grand Justice Lai Ying-chao (賴英照), President Lai brought up the topic of the lay participation in trials system and suddenly asked the author for views on the matter. The author's reply at the time was: We are not ready yet. Entering 2011, the author still holds the same view. Facing such a solemn issue, we must not only treat it with the most solemn attitude, but we should also seriously undertake earnest preparation and evaluation, rather than arbitrarily deciding on a policy direction and then vigorously carrying out policy propaganda.

As a final concluding remark, let me borrow once again Grand Justice Su Yong-chin's critical observation regarding the Judicial Yuan's 1994 plan to experimentally implement the "Criminal Lay Adjudication Tentative Regulations": Without clear goals and lacking systematic evaluation, the tentative regulations for criminal lay adjudication once again degenerated into a nominal false experiment; in the end, it was either entirely driven by intuition or decided by political interests, amounting to nothing more than busywork. If other judicial reforms cannot first strive for reform in methodology, the results will likely be no different.

Although the temporal-spatial background and personnel environment have changed drastically, chewing over this warning today after 17 years still cannot help but make one admire and sigh at its enduringly high applicability.