It has been more than five years since the Korean courts adopted a working prototype of the American style jury trial system. During the period, there have been a series of legislative efforts to develop a sustainable system in Korea. Recently, there were a couple of non-guilty verdict cases which caused a media frenzy on the particulars of the current legal framework.

Both were mainly related to defamation under the Election Law: one for spreading groundless rumors against then-candidate Park Geun-hye and the other against President Park’s younger brother. There has been a hot debate over the impartiality and qualifications of juries in political cases.

The scope of the jury trial in Korea is quite limited. First, there is no constitutional right to a jury trial. It applies only to a statutory category of serious crimes with a minimum sentence of one year’s imprisonment, which are under exclusive jurisdiction of the collegiate division of the District Court.

Although the Korean courts have started inviting laypersons as jurors to return non-binding recommendations in some civil cases, but progress toward full implementation is slow. Second, jury size ranges between five and nine: Nine jurors for serious crimes such as murder and seven or five jurors for lesser crimes. Third, there is no consensus requirement for jury verdict. At the outset, the judge is required to instruct the jury to agree on a verdict. If, however, the jury fails to do so, then it will be decided by simple majority vote. Fourth, the prosecution can appeal to a higher court if the judge agrees to a not-guilty verdict.

Last spring, the Supreme Court of Korea came up with some proposals to improve the current legislative framework and the Korean Ministry of Justice embodied them in a government bill, which is currently pending at the National Assembly. There are some legal loopholes in the new amendment. First, the jury verdict is not binding, yet.

The judge can overrule it, provided that he considers it. In doing so, the judge must attach his dissenting opinion. Second, the judge can make the ultimate decision on the punishment in cases of a deadlocked jury. If the jury fails to agree on a verdict by the minimum voting requirement, which is three-quarters, the amendment grants the sole power to the judge to make the final call. Third, the prosecution is granted with the statutory right to a jury trial. Jury trial becomes mandatory if the judge grants a prosecutor’s motion for such a trial. In this respect, the defendant has no right to object to the court’s decision, which can be technically interpreted as “against the will of the defendant.”

A jury trial in U.S. criminal cases is different from that of Korea. It applies to all criminal cases with a minimum sentence of imprisonment of more than six months, under the presumption of innocence. Neither the nature nor type of the case is considered. The crux of the U.S. system is that it is a constitutional protection for the criminal defendant on multiple levels.

First, only the defendant can exercise or waive the constitutional right to a jury trial. Second, in the case of a “hung jury,” where the jury fails to agree on a unanimous verdict after a period of deliberation, a mistrial is declared and the defendant is acquitted. Such acquittal does not mean the dropping of the criminal charges against the defendant.

The case may be retried with a newly impaneled jury if the prosecution insists. Third, the prosecution cannot appeal not-guilty verdict cases since the Double Jeopardy Clause of the U.S. Constitution prevents it. In this respect, the judge can make a different decision only for guilty-verdict cases based on limited grounds such as evidentiary problems. Fourth, the defendant is allowed to file a motion for a change of venue. For instance, under the Federal Rules of Criminal Procedures, the federal court allows the defendant to change the forum on several grounds. In the case of jury prejudice, the court must grant such a motion.

There are some ways to improve the jury trial system in Korea. First, it is advisable to increase the number of jurors up to 12 in criminal cases. Second, the Korean courts should allow the defendant to change the venue based on some legitimate grounds such as jury prejudice. In this respect, the courts should increase the total number of available venues by allowing the collegiate division of the Municipal Court to hear jury trial cases as well. It is time to improve the jury trial system in a way to guarantee defendant’s rights in criminal cases.

By An Junseong

An Junseong is an adjunct professor of the Graduate School of Pan-Pacific International Studies at Kyung Hee University and an attorney at law. ― Ed.