María Inés Bergolio, Jury and Judge Decisions: The Severity of Punishments in Córdoba Mixed Tribunals, paper presented at the Law & Society Annual Meeting, Denver, Colorado, May 2009.
After collecting data from criminal cases from 2005 to 2007, the author analyzed the role of the jury in Córdoba, Argentina. She noted that, in contrast to other countries, the demand for lay citizens to participate in juries resulted from citizen demands that convicted criminals serve harsher sentences. She also explained that a Córdoba jury consists of six lay jurors, two magistrate or professional jurors, and a presiding judge, who can only vote if there is a tie. After analyzing a total of 138 rulings, the author found that there was a unanimous verdict in 116 cases, leading her to conclude that the professional judges and lay jurors agreed most of the time. However, after examining the cases that were not unanimous, she found that in most of those cases the jurors in the minority position had advocated for a more lenient decision than the professional jurors or presiding judge.
Valerie P. Hans, What Difference Do Juries Make?, in Empirical Studies of Judicial Systems 105-48 (K.C. Huang ed., 2008).
This essay reviews different empirical studies to address the question posed in the title: What difference do juries make? With the introduction of lay citizens in the judicial systems of many countries, including Argentina, China, Japan, Korea, Russia, Spain, and Venezuela, the author argues that this is an ideal time to consider the difference lay participation has on the judiciary. After describing some of the advantages and disadvantages of juries, she discusses recent empirical evidence that suggests that judge and juries often reach the same result in criminal cases, and when they disagree, judges are more likely to convict. She also points to recent studies that demonstrate that both juries and judges decide verdicts based on the strength of the evidence. Ultimately, she concludes that there may not be much of a difference between judge and jury trials, but again stresses that the new systems of lay participation offer a unique opportunity to test some of the claims about jury systems.
Mark Levin & Virginia Tice, Japan's New Citizen Judges: How Secrecy Imperils Judicial Reform, Asia-Pacific Journal: Japan Focus (electronic copy available at http://www.japanfocus.org/-Virginia-Tice/3141).
This article provides an overview of Japan's new lay participation in the judicial system and then focuses specifically on the secrecy provision that fines or imprisons citizens who speak too freely about their service as lay judges. The article begins by comparing Japan's new system to other countries, and observes that Japan's judicial process is a hybrid of domestic and foreign influences. The authors then turn their attention to the secrecy provision and identify several problems with this rule. The first is that lay participants may be exposed to graphic and violent cases, but they will be unable to discuss the case after the trial with friends, families, or therapists. A second problem is that the secrecy provision prevents lay participants from reporting misconduct, either by fellow participants or by the professional judges who also present during the deliberations. Finally, the authors contend that the secrecy provision prevents public understanding of the judicial system, which is ironic because that was one of the stated goals of the new judicial process.
Kennedy M. Maranga, The Jury System as a Symbol of Justice: Comparative Analysis (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1551622).
This paper analyzes the role of the jury in dispensing justice in democratic societies. The author considers the historical role of the jury and how it emerged from the early English legal system. In addition, the author argues that the grand jury serves an important function in the American legal process because of the U.S. Constitution's due process requirements. Finally, the author contends that there may be several problems with the current jury system including the fact that the petit jury does not require a unanimous verdict in order to act and the fact that, despite accusations of juror misconduct, jurors are not allowed to testify as witnesses about cases on which they have served.
Ryan Park, The Globalizing Jury Trial: Lessons and Insights from Korea (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1440405).
This article explores the new jury system that was instituted in South Korea. First, the author provides various explanations for why a jury was introduced into the Korean legal system. He then describes the Korean jury which is unique in that, while it is a mixed panel of lay people and professional judges, the professional judges are only allowed to participate on the jury if the lay people cannot arrive at verdict. The author focuses on the fact that judges have the opportunity to control the jury verdict at several points during the trial process. He also proposes several measuring tools that could be used by subsequent researchers to assess the legitimacy of the Korean jury system.
David Rolph, Are Juries Necessary? The Role of Juries in Defamation Trials (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433123).
In this article, the author examines the role of the jury in Australian defamation law. Historically, juries used to determine all relevant aspects of a defamation case, including the threshold issue of liability, any possible defenses, and the amount of damages. However, over time, juries were restricted to determining the threshold issue of liability. In some jurisdictions, juries no longer hear defamation cases due, in large part, to juries returning large verdicts in favor of the plaintiff. Australia's new national defamation laws now provide that juries determine issues of liability and evaluate the defendant's defenses, but at the same time, juries in such cases are optional rather than mandatory. The author suggests that juries are still necessary in defamation cases because jurors better understand what an ordinary, reasonable person would consider to be defamatory in nature.
Brent T. White, Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1359338).
In this article, the author explores the concept of rule of law in Mongolia and argues that allowing lay people to serve on juries will create a more positive outlook on the rule of law in Mongolian society. Currently, Mongolians do not believe that Mongolian judges are fair and impartial; instead, they overwhelmingly tend to believe that the system is corrupt and that bribery is necessary in order to create a desirable outcome in a case. The author suggests that this attitude is the result of the "shock therapy" that took place in Mongolia after the fall of the Soviet Union, where increased privatization of Mongolia's resources led to bribery being used to influence powerful individuals. Although programs are currently in place in Mongolian schools to try and increase Mongolians' respect for the rule of law, the author suggests that instead there should be more of an effort of increase the influence of juries in the legal system. He argues that juries would enable Mongolians to participate more effectively in society through the use of jury deliberation and jury nullification.
Matthew J. Wilson, Japan's New Criminal Jury Trial System: In Need of More Transparency, More Access, and More Time (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1468552).
In 2009, Japan introduced a new trial system in which lay members of society were allowed to participate in criminal trials as jurors. Specifically, lay members of society would sit alongside professional judges, and together the panel is supposed to reach a verdict. While the author sees this as an advance for the Japanese legal system, he raises three concerns. The first concern is over the fact that, under the new system, jurors are under a lifetime secrecy requirement that prevents them from discussing the deliberations with other individuals not on the jury. Second, the author argues that there should be more transparency with regard to the interrogation tactics used by the Japanese police so that the lay jurors can understand the possibility of false confessions. Third, the article concludes by suggesting that under the new Japanese system, a defendant's right to a fair and accurate trial has been sacrificed in the interest of making the trial process as speedy as possible.