Posted : 2009-02-05 15:15
Updated : 2009-02-05 15:15

To Prove Your Innocence

Participants take an oath at a mock trial in the Seoul Central District Court, southern Seoul, in May 2007. The justice reform committee organized the event to experiment with the jury system. The country introduced the system last year on a trial basis. / Korea Times

By Sean Hayes

It is time for Korea to consider adopting a grand jury system. The conviction rate in Korea is nearly 100 percent. An innocent defendant who cannot afford a good attorney stands little chance of a not-guilty verdict.

In the most politically sensitive of cases, even an innocent defendant with a good advocate stands little chance of obtaining a not-guilty verdict.

The situation is improving, however, because younger judges, these days, tend to focus more attention on the prosecutor's obligation to meet the burden of production and proof.

Still, the cards are heavily stacked against an innocent defendant without access to a good advocate.

A grand jury system would reduce the number of wrongful convictions by adding an additional check on the power of the prosecutor to indict.

The grand jury system is only intended for those few defendants who fall through the cracks because of the heavy burden placed on the system and the few bad apples within the system.

On a grand jury, common citizens ― a defendant's peers ― consider a prosecutor's basic evidence, and the grand jury decides whether there is probable cause to indict. The grand jury's decision to indict can be reached by a simple majority vote of its members.

Under the U.S. federal system, the Fifth Amendment to the U.S. Constitution guarantees that all charges for capital and ``infamous'' crimes must be presented to a grand jury.

The courts have interpreted the Fifth Amendment to mean that all felonies must be presented to a grand jury and that the right to a grand jury may be waived by a defendant.

The Fifth Amendment has also been interpreted as only binding the federal government, and that states can choose whether to adopt a grand jury system in their own constitutions.

A federal grand jury must consist of between 16 and 23 individuals sworn in by a judge. The grand jury has the power to subpoena witnesses, documents, and physical evidence and then decide, based on this evidence, if probable cause exists to indict.

If the grand jury decides, through a simple majority, that probable cause exists, then the prosecutor can proceed with the case. If the jury decides that probable cause does not exist, the prosecutor can only recharge the defendant for the same crime if additional information emerges.

Grand juries play a very vital role in the U.S. criminal justice system by adding to its transparency, while allowing an additional check on government.

If implemented in Korea, the system would significantly contribute to increasing the peoples' trust in a legal system that has recently been maligned, while providing a necessary check for the few that are wrongfully accused of a crime.

Sean Hayes is a New York attorney working with the Seoul office of one of Korea's leading law firms. He formerly worked as a law faculty member and for the Constitutional Court of Korea. He can be reached at the
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