By Sean Hayes
Prosecutor General Kim Joon-gyu, in reaction to a recent bribery/sex scandal involving over 100 current and former prosecutors, announced that Korea should adopt a U.S. grand jury system. He vowed that for major cases he will initiate citizen-review panels immediately.
I and many others interested in the advancement of the Korean criminal justice system welcome this proposal by the prosecutor general, but fear that without a system crafted through an understanding of the benefits of the grand jury system to the accused, the system will simply be used as a tool for prosecutors to motivate a judge to rule in their favor, while allowing them to escape criticism from the media and other areas for indictment decisions.
Deceased U.S. Circuit Court Judge William Campbell noted that: ``Today the grand jury is the total captive of the prosecutor who, if he is candid, will concedes that he can indict anybody, at any time, for almost anything, before any grand jury."
The U.S. federal court system is one of the only legal systems to still utilize the grand jury system. The protections afforded by the grand jury are guaranteed by the 5th Amendment to the U.S. Constitution.
The Amendment guarantees that ``no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the military when in actual service in time of war or public danger ..."
A grand jury, in U.S. federal courts, comprise of between 16 and 23 citizens. The prosecution, in most felony cases, must present evidence to the grand jury before the prosecution can indict. In the federal system, 12 jurors must vote that the evidence is sufficient for the prosecution to indict and thus for a case to go to trial.
The major advantage of the grand jury system, in Korea, will be that the system may assist in returning confidence in the Korean legal system to some foreign investors, while providing an added safeguard against abuse of the legal system by prosecutors and politicians. The introduction of the system could also provide an escape value for prosecutors that often feel overwhelming pressure to indict even on the weakest of evidence.
During the last few administrations a few questionable criminal investigations have given the Korean legal system, in the eyes of many foreign investors, a distinction as not a foreign capital-friendly destination. Prosecutors, overall, realized this sentiment and the harm that this will cause, but pressure from outside sources often led prosecutors to choice-less decisions.
In these cases, the prosecution often felt overwhelming pressure to investigate and indict. The pressure will normally come from the administration and the press.
The prosecution, if the grand jury were available, could present available evidence and the grand jury could have the opportunity to dismiss the charges based on the lack of evidence, thus, giving the prosecution an added tool to avoid a case that it may believe has a low possibility of receiving a conviction.
Without the grand jury, the prosecution in the most public of cases will continue to have overwhelming pressure to indict even on the weakest of evidence.
This is leading many foreign investors to consider more ``safe`` avenues for regional headquarters and investments. My client was a victim of this pressure; luckily the matter turned out fine in the end, but not without damage to the image of Korea in the eyes of the multinational parent.
The multinational parent is doubtful to be willing to invest more in a Korean market with a perceived unpredictable legal system.
Hopefully, the grand jury system will be incorporated into the Korean legal system and this will allow key witnesses requested by the defense and the victim to testify. As the U.S. Attorney Manual notes, not allowing a witness to testify can lead citizens to believe that the system is unfair.
Thus, without allowing requested witnesses to testify, this system may simply be used as another tool in the already full arsenal, since prosecutors will have total control of the evidence presented.
New York attorney Sean Hayes co-leads J&S Law Firm's International Practice Group (IPG). He formerly worked for the Constitutional Court of Korea and taught constitutional and contract law at a Korean university. He is the first foreigner to work for the Korean court system. He may be contacted at: SeanHayes@IPGLegal.com or http://www.thekoreanlawblog.com/.