Random Thoughts on Establishing a Jury System in China

Many commenters in the US and China are evaluating the pros and cons of introducing jury trials to the Chinese judiciary system.  This blog made some preliminary comments on why the author feel why jury system is still premature for the Chinese Judiciary system, as compared to its US counterpart.

In the US, the jury trial is warranted by the Fifth, the Sixth, and the Seventh Amendments of the US Constitution.  Jury system was designed to protect the most fundamental rights of the citizens and to serve on jury is in turn, a fundamental responsibility of a citizen. To have the same level of protection in China is unrealistic, since amending the Chinese Constitution is too complicated to the extent that it is literally impossible. But without been guaranteed by Constitution, the effect of the jury system will be compromised even if a specific law regarding jury system is enacted.  Jury is composed of individual jurors, it is imperative for the jurors to be able to stay objective.  However, because the legal education is not as pervasive as is in the US, many jurors can be easily swayed by the attorneys.  Moreover, the generally existed regional discrimination and hatred towards the rich are also factors that may negatively affect the objectiveness of the jurors. Therefore, selecting the jurors could be a difficult task to perform in China. 

Perhaps the biggest challenges for a jury system in China come from the policy reasons.  For example, the Chinese judicial system is not an adversarial system. Instead of acting like a gatekeeper or moderator who decides which evidence to adopt and which not, the judges in China are symbols of justice which performs the function of punishing the crime. The pre-trial investigation is much more emphasized than presenting evidence or examining witnesses at trial. The window for the jury to learn enough about the case is too slim for them to make an informed decision. Another policy reason is that the Chinese judiciary heavily emphasizes the efficiency of the system. The US jury trial can be a very long and complicated process. There are also chances for mistrial.  Moreover, the US judicial system employs long pretrial procedure, which encourages settlement rather than trial.  This results in only 5% of the cases that actually went to trial.  But in China, about 80% of the cases went to trial.  Therefore, there is a great burden to find enough jury and pay them for their services.   

The fundamental reason for employing the jury system in the US is to ensure the checks and balances. But in China, the division of power is far less thorough than the US. Although the independence of the judicial system is also advocated in Chinese Constitution, but the reality is that all laws and regulations are implemented under the guidance of the Communism Party. There is not enough balance of powers to warrant an impartial jury system. Therefore, it may still be too early to institute a jury system in China right now.