Trial by Jury and Lay Participation Do Not Need a Showdown and Can Coexist Peacefully

Since late April, the debate over whether to only trial lay participation or to simultaneously trial both jury and lay participation has always been framed as either lay participation reigning supreme or both systems peacefully coexisting. To this day, no system has sought a fight to the death with lay participation; those supporting the jury system are merely asking for peaceful coexistence to give Taiwanese society another choice. Therefore, anyone who believes that the battle between lay participation and jury systems must ultimately be settled has misread the issue. Misreading the issue inevitably leads to missing the point.

One of the unjustified reasons given by the Judicial Yuan for wanting lay participation to reign supreme is that if defendants are allowed to choose between a jury trial and a lay participation trial, different standards of voting by judges might apply due to the differing decision-making mechanisms of the two systems. Consequently, for the exact same criminal act, some defendants could be convicted by a two-thirds majority, while others would require a unanimous verdict from all judges to be convicted—which allegedly violates the principle of equality. If this argument holds, how much inequality is created among different defendants under Article 427 of the Code of Civil Procedure, which allows both parties by mutual consent to choose summary proceedings? Furthermore, in the United States, where the jury system has been implemented for over two hundred years, defendants are similarly permitted to choose whether their cases are tried by a jury; why has that never raised an issue of the principle of equality?

The Judicial Yuan's invocation of the principle of equality is likely just an excuse. The real reason is that the Judicial Yuan believes that piloting the jury system would pose a fatal competitive threat to lay participation. In other words, while the jury system has not treated lay participation as a competitor, lay participation has consistently viewed the jury system as an enemy, worrying about its own lack of competitiveness and fearing that a direct comparison would cause it to collapse.

Since lay participation is so fearful, there is always a way to get it off the hook: simply have the two systems handle different types of cases so that lay participation does not have to step into the ring.

Leaving Judges Immersed in a Quagmire of Injustice for the Long Term

Public distrust of judicial judgments frequently occurs in major homicide cases, corruption cases involving public officials, public official election lawsuits, obstruction of official duties cases where citizens clash with state forces maintaining order, violations of the Assembly and Parades Act which are frequently linked with obstruction of official duties, and in earlier times, cases involving crimes of rebellion and treason.

In major homicide cases where wrongfully convicted defendants sentenced to death were eventually exonerated after the expenditure of massive social resources, cases such as those of Su Chien-ho, Liu Bing-lang, Chuang Lin-xun, Hsu Tzu-chiang, Cheng Hsing-tse, and Hsieh Chih-hung have already been recognized. Cases where wrongful convictions have been discovered and are currently on the path to rescue include those of Chiou Ho-shun and Wang Hsin-fu, while those of Shen Hung-lin and Lien Kuo-wen also present high suspicion. These miscarriages of justice reveal an absurd and irrational approach by courts in ascertaining facts and applying the law, pointing directly to the untrustworthiness of judges' professional quality.

Regarding public corruption offenses, apart from the pervasive professional doubts surrounding the legal community's theories of statutory authority and substantial influence, the shadow of political intervention has consistently hovered over judges' heads. Beyond that, judgments on bribe-taking and profiteering offenses are either suspected of official protectionism or perceived as cases of political interference. As for public official election and recall lawsuits—from whether prosecutors decide to indict to how judges determine guilt and sentencing—in grassroots litigation practice, there is frequently an unpredictable experience of whether the case swings left or right.

Moreover, more than thirty years after the lifting of martial law, judges remain trapped in the whirlpool of varying political ideologies when it comes to the crime of obstructing official duties, which is closely intertwined with assemblies, parades, and public protests against public authority.

Crimes of rebellion and treason, which have virtually disappeared since the lifting of martial law, were incorporated by the Democratic Progressive Party into its action platform as a rationale for advocating the jury system. For what purpose? Was it not precisely to prevent the judiciary from becoming a tool of struggle for those in power? Why did the opposition party vehemently oppose the Anti-Infiltration Act passed at the end of last year? Was it not also based on the same concerns?

The situations described above, cited at random, all feature concrete cases that genuinely trap the judiciary in dilemmas.

A People's Court Keeps "A Judiciary for the People" from Becoming an Empty Slogan

In early May, within a mere week, over 150 civic organizations nationwide jointly signed to establish the Alliance for Promoting the Simultaneous Trial of Jury and Lay Participation Systems. To date, a total of over 170 groups, including overseas diaspora organizations, have participated. During an alliance meeting, a representative of one of the signatory groups stated that initially, having listened to official propaganda, they believed the lay participation system was better, but a chance viewing of a video of an American courtroom changed their mind. In the video, the judge tells the jurors, "You were all chosen by the opposing parties, and this courtroom is your courtroom." This led to a sudden realization: a jury-system courtroom is truly a people's courtroom. Since the verdict is rendered by judges chosen by both parties to the dispute, there is no issue of judicial bias toward either side.

The Judges Association website still posts opinion poll data regarding judges: 46% of judges support a model where defendants' guilt is decided entirely by the people (i.e., a jury-like system); support increases slightly to 50% for a model where professional judges and ordinary citizens jointly decide the verdict (i.e., a lay participation model); while for the model where professional judges decide the verdict but ordinary citizens participating in the trial are allowed to express opinions during deliberations—namely, the observer-participation system—support among judges stands at 26%. This demonstrates that the surveyed judges did not show a clear preference for adopting either the jury system or the lay participation system. For judicial administration, this represents public opinion among judges. This poll was completed on June 17, 2016, and its results were entirely uncontaminated by power.

Ever Since the first National Judicial Reform Conference, "a judiciary for the people" has become a policy slogan of the Judicial Yuan. Over the past twenty--odd years, the slogan remains, but public grievances have never subsided, public opinion polls are too numerous to count, and the public's distrust has steadfastly refused to soften. Democratizing the courtroom and making it a people's courtroom is the only fundamental solution.

Over the past three years, the Judicial Yuan has believed that its past failure lay merely in marketing, and that more propaganda and refurbished promotional gimmicks would suffice. Within internal legal communities, however, this has been met with the warning that a judge's primary vocation is adjudication. Indeed, a judge's primary vocation is adjudication; the most fundamental way to provide judges with a good adjudication environment is to build an adjudicative system that lightens their workload.

Whether through public opinion polls outside the courtroom or polls within the judiciary, the jury system is where public opinion lies. Arbitrarily refusing to pilot the jury system is precisely what reduces "a judiciary for the people" to an empty slogan.

※ This article was published in Up Media on June 10, 2020