The "Lay Assessor System" That at Its Core Still Denies Public Participation

Photo／Retrieved from the Judicial Yuan Lay Participation in Trials Website

On February 21, the opening day of the Legislative Yuan, President Ma made a grand show of gathering various judicial-related groups to demonstrate his determination to "reform the judiciary" in the hope of "bringing the judiciary closer to the people and making the people trust the judiciary more," further stating that promoting the "lay assessor system" is laying the foundation.

Shifting his tone, he appealed to the opposition party, criticizing the lack of legislative progress on the "lay assessor system" and calling for "transcending party lines and supporting reform." As long as "people personally participate in trials," public "trust in the judiciary can be strengthened," he argued, urging the "outside world to understand" the government's urgency in promoting the lay assessor system and hoping that the ruling and opposition parties will work together to take an important step forward in judicial reform.

The "lay assessor system" is a system uniquely created by our country. Of course, a system being uniquely created does not necessarily make it inferior. Every system has its characteristics, and each characteristic responds to its original legislative purpose. A responsible government is one that clearly explains the legislative purpose. Once the people are persuaded that the "lay assessor system" is superior to the "jury system" or the "lay judge system," the people will have no reason to oppose it to the end.

The Jury System: A Clear Distinction Between the People and Judges

Under the Anglo-American jury system, the people determine guilt while the judge determines sentencing. The judicial power is "separately enjoyed" by the people and the judge, split evenly down the middle, characterized by a "clear distinction." Therefore, judges cannot participate in jury deliberations, nor can they attempt to influence the jury's decision; they can only preside over the proceedings. The people use their simple, straightforward judgment as "laypersons" to decide whether their fellow citizen is guilty, while the judge relies on accumulated experience as a "legal professional" to determine the defendant's sentence.

If the judiciary wishes to convict someone, it must first clear the hurdle of the people, and the judge's power is thus restrained. Conversely, if the people's judgment is too outrageous, the judge can overturn the jury's verdict, restraining the people's power as well. Judges and juries cooperate and check one another; this is a institutional design that embodies the "separation of powers and checks and balances" of judicial power.

The legislative purpose is very clear. From a proactive perspective, sovereignty resides with the people, and it is only natural for the people to exercise judicial power by trying, hearing, deciding, and concluding cases—this is "judicial democratization." Judges presiding over proceedings conforms to the inherently "passive and passive" nature of judicial power, eliminating the suspicion of judges presiding while simultaneously making rulings, which amounts to "players acting as referees."

From a passive perspective, because "absolute power corrupts absolutely," the jury system does not trust "career judges," considering it dangerous for legal professionals to monopolize all judicial power. This system is designed to allow the people to enter, share, and check that power.

As for the professional threshold of the law, it is not a problem for "laypersons" to overcome, but rather something for supporting judicial mechanisms to resolve. Public participation in trials inherently presupposes that "participants do not understand the law." Institutionally, the entire set of procedural rules and rules of evidence must be designed around the core question of "how to enable people who do not understand the law to still make judgments."

The Lay Judge System: A Close Integration of People and Judges

Represented by Germany and Japan, the lay judge system involves the people and judges together determining both guilt and sentencing. The judicial power is "jointly shared" by the people and judges with no clear boundary between you and me, characterized by being "closely intertwined." Therefore, judges and lay judges can discuss together and persuade one another, jointly presiding over proceedings, blending the straightforward judgment of "laypersons" with the accumulated experience of "legal professionals" to reach a verdict on guilt and sentencing.

Whether wanting to convict someone requires clearing the hurdle of the people depends on whether the people "have voting rights." Only if the people have voting rights can the power of the judges be potentially restrained; otherwise, the opinions of lay judges are "for reference only." Judges and lay panels cooperate and somewhat check each other, yet there is no distinct power design of "separation of powers and checks and balances."

Compared to the jury system, the legislative purpose of the lay judge system is less clear; it can be considered a compromised form of "public participation in trials." From a proactive perspective, if lay judges have voting rights, it can also be considered letting the people exercise judicial power. However, whether this counts as "judicial democratization" is open to debate, because if the selection method for lay judges is not random sampling (e.g., from electoral rolls) but rather recommendation by political parties or even involving fixed terms (as in Germany), it is a very indirect form of democratization. Furthermore, judges and lay judges jointly presiding over proceedings and rendering verdicts still fails to easily eliminate the unfair feeling of "players acting as referees."

From a passive perspective, the lay judge system cares less about checking the power of judges and exhibits greater trust in "career judges," thus opening up opportunities for the people to exchange views with judges and allowing judges the chance to "influence" lay judges. If the people ultimately do not even have voting rights, the only way to limit judicial power is simply to "make some noise" for the judges to hear, while the judges still make the final decision.

The legal threshold for lay judges to participate in trials is implicitly higher than in the jury system. This is because defense attorneys and prosecutors well know that when the target they must persuade is not merely a "layperson" but is mixed with career judges, they will usually abandon the people and focus primarily on the career judges.

The reason is simple: translating legal jargon into plain language is troublesome, whereas manipulating legal terminology has its conveniences. Judges understand the terminology, which inspires awe in laypeople who do not understand it. Causing lay judges not to understand entails no major loss. Moreover, when lay judges do not understand, they will consult the judge, making them easily influenced by the judge. Comparing the two, the conclusion is: "Influencing the judge is more important." In particular, if lay judges have no voting rights at all, their opinions are even less worthy of attention; being "left out in the cold" during court sessions is nothing to make a fuss about. Consequently, the supporting litigation procedures and rules of evidence do not necessarily require much adjustment.

What on Earth is the "Lay Assessor System"?

As can be seen from the above analysis, the "lay assessor system" uniquely created by our country is actually a "diluted" lay judge system. On the surface, it appears to be the people and judges jointly determining guilt and sentencing, also characterized by "no distinction between you and me, closely intertwined." They can also discuss together and persuade one another; however, because lay assessors have absolutely no "voting rights," the power of judges is not restrained, and power lacks "separation and checks and balances."

The way the lay assessor system allows the people to exercise judicial power is simply by "observing from the gallery throughout the process." Although they can discuss with the judges, whether this counts as "participating" in the trial is still open to debate. Moreover, because of jointly presiding over proceedings and rendering verdicts, the unfairness of our country's most heavily criticized "players acting as referees" remains completely unchanged and may even worsen. This is because if lay assessors can directly ask questions during court sessions, any slight impropriety in their questioning methods can easily inflict secondary harm upon the defendant or victim.

The lay assessor system still carries a very strong flavor of being "dominated by career judges," meaning judges make the final decision. Put bluntly, the public's role is merely an "advisory right"; whether to listen or not is decided by the judges themselves. Therefore, under this "diluted lay judge system," lay assessors are extremely easily "left out in the cold" during court sessions. The less litigation procedures and rules of evidence are adjusted, the deeper the sense of alienation felt by the lay assessors.

Through these analysis, we can see that the Judicial Yuan's legislative purpose does not seek to limit the power of judges. It remains extremely untrusting of the people exercising judicial power, and judicial power is not willing to be delegated. As for matching current litigation procedures and rules of evidence to accommodate "laypersons," there is no such intention, all of which demonstrates that whether lay assessors can understand and further participate in the entire process is not a matter of great concern to the Judicial Yuan. Compared to allowing deep public participation, the Judicial Yuan would much rather have the people merely "go through the motions," and then be utterly awed by the divine rulings of career judges, worship courtroom proceedings of unfathomable unpredictability, submit to profound legal expertise, and—while blissfully enjoying the thrill of "judges being possessed by gods"—become the whitewashers, spokespersons, endorsers, or accomplices of our country's notorious judiciary.

"Securing Something First" Makes It "Hard to Ever Be Good"

Of course, compared to judges currently accustomed to completely ignoring the public's voice, if lay assessors can truly generate some "noise" during trials, it might slightly mitigate judicial arbitrariness. However, if the Judicial Yuan's sole purpose is simply to hope judges will "open their minds and accept diverse opinions" by establishing a system similar to foreign "amicus curiae," that might suffice, without wasting public resources and pretending to share judicial power with the people.

Furthermore, under the premise that the Judicial Yuan has no desire to adjust litigation procedures and rules of evidence to accommodate "laypersons," the public is destined to be unable to "deeply" participate in trials. In the mildest cases, people will not want to waste time and energy "playing along" with the government; in the most severe cases, people will feel they hold no important position whatsoever in trials, and expressing opinions casually will infringe upon the defendant's right to a fair trial while harming the very justice of the judiciary that should least be diminished.

Unwillingness to adjust litigation procedures and rules of evidence, a lack of supporting measures, and arbitrarily selecting two courts rather than implementing it nationwide—thereby creating "one country, two systems"—all reveal that the Judicial Yuan merely wishes to win the fine reputation of "judicial reform," while the judiciary has not truly "come closer to the people." President Ma's echoing remarks are merely the beautiful rhetoric of political prose.