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Nations embracing jury system as part of ‘wave of judicial reform,’ says UC Santa Cruz expert

May 31, 2019

Countries around the world are embracing the jury system in a wave of judicial reform that is democratizing jurisprudence in nations as diverse as South Korea, Mexico, and Japan, according to jury expert Hiroshi Fukurai.

Not since the mid-1800s, when European nations such as France and Germany adopted the trial-by-jury system, have so many countries rushed to incorporate jury trials into their legal systems, said Fukurai, a sociology professor at the University of California, Santa Cruz.

Fukurai, who specializes in lay participation in the law, sees the trend as part of the sweeping social changes that have followed the end of the Cold War and the emergence of the United States as the lone global superpower. “The jury is the vanguard of the people’s will,” he said. “Increasingly, the United States is becoming so powerful it can impose its will around the world. People in these nations are arming themselves with the legal apparatus to resist oppression from their own governments, which are vulnerable to outside influence.”

The former Soviet republics of Russia and Kazakhstan have introduced the jury system to resolve legal disputes, and the trend is sweeping across many nations in Asia, East Asia, Central America, and South America. For example, Mexico, South Korea, Japan, and China are transforming their legal systems to incorporate lay-jury trials.

Jury trials provide an open forum for the evaluation of criminal cases, and outcomes more likely reflect the public will, said Fukurai, adding that the jury system also makes the criminal justice process more transparent, reduces government corruption, and decreases the likelihood of wrongful convictions.

“The greatness of the jury system is that the government has to present evidence to the people,” he said. Under the inquisitorial legal system, currently in place in Mexico, Japan, and many other nations, confessions have been considered the “queen of evidence.” But documented confessions, which are inadmissible in the U.S.-style adversarial system of law because they are hearsay and can be coerced, can short-circuit the judicial process, he said. “Once police get a confession, they tend to get lazy,” said Fukurai. “They don’t look for corroborating evidence because they know the judge will accept the confession as evidence of guilt.”

Mexico is in the process of adopting an oral and adversarial system in which jurors will be reinstated as the final arbiters of justice. Although the Mexican constitution has a provision for jury trials, nearly all criminal cases since the end of the Mexican revolution in 1929 have been decided by judges, not juries. “The adversarial system is better, because it allows jurors to hear testimony and see evidence themselves,” said Fukurai. “Otherwise, when prosecutors can rely on getting a confession, that’s considered the end of the job.”

In Japan, confessions were central to four wrongful convictions in capital cases during the 1980s. Those cases were subsequently overturned, but public outrage and pressure from the economic sector generated demand for reforms, including reinstatement of jury trials and other forms of public legal participation, said Fukurai. By May 2009, Japan will introduce a system in which criminal cases will be heard by three professional and six lay judges.

The jury system also affords nations a degree of self-determination that’s particularly valuable during times of social unrest. After China regained control of Hong Kong from Britain in 1997, Hong Kongers struggled for the right for those charged with treason, sedition, subversion, or other crimes against the government to be tried by an all-citizen jury. “Juries can be a forum for dissenting voices, because the community decides the fate of activists arrested for protesting government policies,” said Fukurai. “The jury represents a check on the power of the government to restrict those voices, and it is also a check on external influence on their own government.”

In South Korea, a grassroots movement against governmental policies allowing the U.S. military presence is growing, and lay-jury trials assure protesters a forum that will more closely reflect public opinion, said Fukurai. In January 2007, the South Korean Defense Ministry announced plans to use military juries, and in January 2008, South Korea will begin a five-year experiment with American-style jury trials. Change is also underway in China, where the government has bolstered the country’s lay assessor system, in which legal disputes are evaluated by both lay and professional judges, rather than judges or panels of legal professionals alone.

Hurdles remain, however, including overcoming public reluctance to actually serve on juries. In the United States, a large majority of prospective jurors simply fail to report for service, and Fukurai conducted a survey in Japan two years ago that uncovered a similar aversion: 60 percent said they would be reluctant to serve on a jury.

Moreover, juror selection procedures can sway the makeup of judicial panels: In the United States, juror selection disfavors minorities, the poor, the young, the less educated, daily wage earners, and women, said Fukurai. “In Japan, jury trials were suspended by the military government in 1943 because only men 30 years old and over with property were allowed to serve, and no eligible jurors could afford to serve at the end of the war,” he said.

In collaboration with a Chinese judge, Fukurai found that lay assessors are far more likely than the general population to be college graduates, and farmers rarely serve. Mexico’s current proposal would actually restrict jury service to those who have college degrees.

Nevertheless, Fukurai is encouraged by the results of a 2006 survey he conducted in Dallas, Texas, of 2,500 prospective jurors. Although only 40 percent of them had actually served on a jury, the overwhelming majority of those who did serve said it was a very positive experience.