"Well-Intentioned, but Misguided": The Expert Lay Judge System and the Citizen Judge System

As the name suggests, the “expert lay judge system” allows experts from fields outside the legal profession to participate in judicial proceedings. For example, doctors may participate in the adjudication of medical malpractice cases, architects may take part in proceedings involving defects in building structures, and engineers may participate in trials involving high-tech patent disputes. In today’s highly specialized and increasingly divided society, different professions can be worlds apart. Including experts as members of the judicial panel can reduce the risk of erroneous judgments by professional judges who lack expertise in other specialized fields. The idea is well-intentioned.

The “citizen judge system,” by contrast, broadens eligibility for participation in judicial proceedings. In principle, any ordinary citizen may participate in certain judicial functions. Citizen participation in trials can give effect to the principle that judicial power ultimately derives from the people, help prevent judges from exercising unchecked discretion, and make judicial decisions more reflective of public opinion. This idea, too, is well-intentioned. Although a draft of the Expert Lay Judge System has been submitted to the Legislative Yuan, we believe that the system is unworkable. The practical obstacles to implementing an expert lay judge system are significant. First and foremost, “you cannot find genuine experts without paying a great deal of money.” Consider, for example, top doctors earning hundreds of thousands or even millions of New Taiwan dollars a month. Why would they be willing to participate in trials that could take an enormous amount of time? Moreover, there is the problem of conflicts of interest: by serving as an expert lay judge in one case, they may be unable to take on other cases. To expect so much of expert lay judges is simply unrealistic. Even so, the more fundamental reason why the expert lay judge system should not be adopted may be that there would be no meaningful way to “challenge” the opinions of expert lay judges. If the purpose of bringing experts into judicial proceedings is merely to compensate for professional judges’ lack of expertise in specialized fields, then it would be far more sensible to properly implement the existing systems of “expert witnesses” and “expert lay judges,” allowing both plaintiffs and defendants to debate and challenge each other’s “specialized knowledge” in open court. That, in itself, could achieve the desired result.

Turning “experts” into “judges,” while at the same time denying the public any opportunity to question these “expert judges,” seems to be little more than putting old wine in a new bottle. In reality, public confidence in the justice system does not automatically transfer to trust in “experts.” Rather, it comes from subjecting those “experts” to continuous challenge and scrutiny until their conclusions become, in effect, “beyond reasonable doubt.”

In addition, although the citizen judge system has many advantages, it is by no means a panacea for the problems facing the justice system. After all, cases involving citizen participation in trials would still constitute only a small proportion of all judicial proceedings. Unless other aspects of the justice system are also reformed, public confidence in the judiciary is unlikely to improve. Moreover, the Judicial Yuan should at least first conduct empirical research on relevant issues, such as the extent to which citizens are able to take time off from work to participate in trials, how many days of participation they can reasonably tolerate, how confident they would feel that they could participate in a fair trial without being threatened or intimidated, and the level of public understanding of the rule of law and related legal concepts. Accordingly, it may be more appropriate to introduce the citizen judge system on a small-scale trial basis only after the necessary supporting measures have been put in place, public understanding of the rule of law has improved, and other more pressing problems facing the justice system have been addressed. The Judicial Yuan need not allow its priorities to become unbalanced by rushing to implement the system prematurely.

Finally, there is one issue that is obvious yet perhaps the most difficult of all: we must ask how much control over the trial process professional judges are actually willing to relinquish. The principle that “one person, one vote, and every vote carries equal weight” is certainly sound. But if there are fewer judges than citizen or expert lay judges, would professional judges really be willing to accept that arrangement? Conversely, if professional judges still outnumber the lay judges, would the ultimate result simply be that professional judges continue to control everything, while the experts or ordinary citizens are brought in merely to lend their endorsement? This seemingly minor issue actually reveals whether the Judicial Yuan is “serious about it” or merely “putting on a show.”

In short, our assessment can be summed up in eight Chinese characters: “Well-intentioned, but led astray.” Properly refining and implementing the judicial system may not produce “immediate results,” nor may it count as a “major political achievement.” Yet that, perhaps, is what the people truly want.

Publication: China Times / Page A15 / Opinion