Jinyoung Hong, Prohibition of Peremptory Challenges Based on Prejudice or Discrimination: Insights from Batson v. Kentucky and Subsequent Developments,No.54 (2020), pp. 431-490.
<Abstract>
Article 21(1) of the Rule on Citizen Participation in Criminal Trials stipulates that the public prosecutor and defense counsel shall not make peremptory challenges based on either prejudice or deliberate discrimination against jury candidates. Article 21(1) was introduced to the Korean jury trial system, which was affected by the decision regarding the case of Batson v. Kentucky rendered by the Supreme Court of the United States. However, Article 21(1) has been almost neglected from the court as well as the parties to Korean jury trials. This paper discussed details of Batson v. Kentucky and its progeny, including its theoretical basis and practical problems arising from administering Batson hearing. Based on the analysis, this paper proposed specific procedure of administering Article 21(1) in the jury selection process. ① First, the other party of a peremptory challenge should prove that the challenged prospective juror is a member of a group which shall not be discriminated. ② The party should explain that there is sufficient reason other than the affiliated group to exclude the prospective juror. ③ The court shall make a final decision on whether to accept the peremptory challenge or not, after careful consideration of both party’s explanations and all the relevant circumstances. If the court decide to accept the peremptory challenge notwithstanding its violation of Article 21(1), the final judgement of the court based on the verdict rendered by jury unlawfully organized can be successfully appealed according to Article 361-5 Subparagraph 1 of the Act on Citizen Participation in Criminal Trials.
<Keyword>
jury selection procedure, peremptory challenge, challenge for cause, Batson v. Kentucky, impartial jury
Jinyoung Hong, Prohibition of Peremptory Challenges Based on Prejudice or Discrimination: Insights from Batson v. Kentucky and Subsequent Developments,No.54 (2020), pp. 431-490.
<Abstract>
Article 21(1) of the Rule on Citizen Participation in Criminal Trials stipulates that the public prosecutor and defense counsel shall not make peremptory challenges based on either prejudice or deliberate discrimination against jury candidates. Article 21(1) was introduced to the Korean jury trial system, which was affected by the decision regarding the case of Batson v. Kentucky rendered by the Supreme Court of the United States. However, Article 21(1) has been almost neglected from the court as well as the parties to Korean jury trials. This paper discussed details of Batson v. Kentucky and its progeny, including its theoretical basis and practical problems arising from administering Batson hearing. Based on the analysis, this paper proposed specific procedure of administering Article 21(1) in the jury selection process. ① First, the other party of a peremptory challenge should prove that the challenged prospective juror is a member of a group which shall not be discriminated. ② The party should explain that there is sufficient reason other than the affiliated group to exclude the prospective juror. ③ The court shall make a final decision on whether to accept the peremptory challenge or not, after careful consideration of both party’s explanations and all the relevant circumstances. If the court decide to accept the peremptory challenge notwithstanding its violation of Article 21(1), the final judgement of the court based on the verdict rendered by jury unlawfully organized can be successfully appealed according to Article 361-5 Subparagraph 1 of the Act on Citizen Participation in Criminal Trials.
<Keyword>
jury selection procedure, peremptory challenge, challenge for cause, Batson v. Kentucky, impartial jury