[author]Gao Tong

[content]

The Way How People's Assessors Participate in the Legal Decision Making in Criminal Mixed Courts——Empirical Research Based on Survey Data from Five District

Gao Tong, Ph.D. in Law, Associate Professor of Nankai University School of Law

Abstract: After analysing more than 1,700 juror questionnaires, it was found that criminal collegial panel in China shows an obvious high power distance orientation, and that power distance in the collegial panel profoundly influences jurors' participation in the decision-making of criminal collegial court . In our high power distance orientated collegial court, the degree of juror substantive participation will be affected by the judge and juror relationship, juror confidence in the court to achieve fairness, and juror's legal knowledge reserves and other factors. The formation of jurors' participation in the decision mechanism of criminal collegial panel in China is related to factors such as cultural traditions and the lack of jurors' legal knowledge, in addition to the fact-finding mechanism centred on the examination of files, the lack of rigid institutional safeguards for the exercise of jurors' rights, and the over-emphasis on the responsibility of judges to ensure the quality of the case in practice. Understanding and recognising the layman's status and auxiliary position of jurors in trials helps us to form more reasonable expectations of the jury system. In order to further improve the jury system, the trial-centred reform of the  litigation system should be continuously promoted, the procedures for jurors' participation in criminal collegial panel should be improved, and a system of jurors' responsibility for unlawful trials should be gradually established.

As a method of achieving whole-process people’s democracy, the development and improvement of the jury system has received much attention from our country. However, from a practical point of view, the role of jurors in the determination of facts or in the application of the law is still very limited; the phenomenon of "jury without trial" and "joint without deliberation" still exists, and the problem of "deliberation without decision" is still relatively distinct. Since the 1950s, American academics began to use social science research methods to analyse the jury's decision mechanism, scholars have also put forward a variety of theories like the status of the characteristics of the group, the relationship between the authority of the group, the power distance and so on. China's research on the jury system is not uncommon, but it is rarely analysed using social science research methods to explore the reasons for the poor functioning of the jury system from the perspective of the jurors. Reducing jurors to a specific individual and exploring the psychological process of their participation in collegial decision-making may provide us with another way of thinking for a deeper understanding of the process of juror participation in collegial decision-making. In this paper, from the empirical research, we extract the relevant elements affecting jurors' participation in collegial decision-making, and then review the current reform of China's jury system. Taking into account the significant differences between civil and criminal judgement in the standards and methods of proof, there will be a big difference in the way jurors participate in the decision-making process, this paper will only study the decision mechanism of jurors participating in the the criminal collegiate court.

1. Analytical framework, sample and variable design

1.1 Analytical framework: decision mechanisms in high power distance oriented organizations

Power distance is a concept proposed by Mulder, a Dutch social psychologist, in the 1980s, meaning the degree of unequal distribution of power between individuals with less power and others with more power. Combining the theory of power distance and the practice of China's jury system, the behavioural characteristics of China's jurors' participation in criminal collegial decision-making can be distilled into the following three points, which are also the three theoretical assumptions of this study.

Hypothesis 1: The criminal collegial court under the jury system in China shows a high power distance orientation, and the jurors are easily influenced by the judge in their decision-making and become subordinate to the judge's opinion.

Based on the different power distances within the organisation, organisations can be divided into high power distance oriented organisations and low power distance oriented organisations. In high power distance oriented organisations, the behaviours of subordinates are strongly constrained by higher leaders, and the views and thoughts of higher leaders have a great influence on subordinates; in low power distance oriented organisations, organisational members advocate fairness and democracy, and attach importance to expert or legitimate power. Through the previous analysis of the relationship between judges and jurors in China's collegial panel, it can be found that China's collegial panel is generally a high power distance oriented organisation, and jurors' participation in collegial court decision-making is easily influenced by judges.

Hypothesis 2: In our collegial panel, which are located at a high power distance, the degree of jurors’ substantive participation is affected by the relationship between the judge and the jurors.

China has established a series of systems designed to guarantee jurors' substantive participation in the trial, such as granting jurors the right to read documents, participate in court hearings, and freely express their opinions during deliberations. From a contingent perspective, as long as jurors are willing to participate substantively in court hearings, there are no obstacles in the system. However, from the perspective of power distance theory, effective communication among organisational members is subject to the influence of power distance within the organisation. For example, leaders with a high power distance orientation are less likely to share power with organisational members, and organisational members are reluctant to express their opinions to leaders. When the judge believes that jurors are only human resources of the court who “come when called, leave when waved away”, or the judge is unwilling to share power with the jurors based on self-protection, it’s naturally very difficult for the jurors to play a substantive role in collegial decision-making. China's jury system reform in recent years, such as the establishment of the list of issues, the presiding judge's guidance and prompting, juror first when speaking in deliberations and other rules, is also hoped to establish a democratic atmosphere of deliberation between the judge and the jurors, so as to enhance the jurors on the collegial decision-making substantive participation. Therefore, in a collegial court with a high power distance orientation, the degree of juror participation in collegial decision-making is affected by the relationship between the judge and the jurors.

Hypothesis 3: Jurors' confidence in the court's ability to achieve justice and jurors’ competence will have an impact on their participation in collegial decision-making.

Firstly, jurors' confidence in the court's ability to achieve justice will affect their behaviour when participating in collegial decision-making. When a juror participates in collegial decision-making, he or she is first and foremost a referee, and whether or not the referee can achieve justice is his or her primary consideration when participating in collegial decision-making. As found in overseas empirical studies, in mixed courts, jurors will only actively participate in the case when the professional judge is not performing his or her duties properly or when he or she helps to explain the case. Therefore, jurors will participate more actively in collegial decision-making if they believe that collegial opinions are contrary to their everyday rationality or that justice cannot be achieved. Moreover, jurors' confidence in the court to achieve justice should include not only their confidence in the court to achieve substantive justice, but also their confidence in the court to achieve procedural justice. For example, empirical studies have shown that if the judge fails to ensure that the defendant receives procedural justice, jurors may have a crisis of confidence against the judge, which in turn triggers juror objections. Therefore, jurors' confidence in the court's ability to achieve justice can affect jurors' participation in collegial decision-making behaviour. Secondly, jurors' competence, especially jurors' mastery of legal expertise, will affect jurors' behaviour in participating in collegial decision-making. Mixed tribunals are small, formal and heterogeneous organisations with specific mandates, and the centrality of the professional judge in the organisation is determined by his or her extensive legal knowledge and professional experience. Therefore, as a juror's legal knowledge increases, so does his or her substantive participation in the trial.

In addition, jurors' participation in collegial decision-making is also affected by factors such as gender, age, party affiliation, and personality. Because this paper focuses on the impact of power distance on jurors' participation in collegial decision-making, I will write a separate paper on the paths through which jurors' personal characteristics affect their participation in collegial decision-making, so I will not repeat them here.

1.2 Sample

This study used a questionnaire to collect the sample and used a quantitative approach to conduct the study. Since this research is not to discover the general operation of the jury system, but to discover the mechanism of jurors' participation in collegial decision-making, the more effectively the jurors in the region can participate in collegial hearings, the more valuable the theoretical model refined in this research will be. Therefore, the research of this study is mainly carried out in the more economically developed regions with better rule of law conditions. At the same time, this study also takes into account the possible east-west and north-south differences in the development of the rule of law, so five places, namely, Tianjin, Changsha, Kunming, Xi'an, and Suining County of Xuzhou City, were selected as research subjects.

The questionnaire for this study was distributed by the department responsible for jury service in the relevant courts, using a combination of electronic and paper questionnaires. The questionnaires were distributed through the municipal court to all the basic courts within its jurisdiction, and by the political department, research office, or criminal division of that basic court to all the active jurors of that court who had participated in criminal trial work. The questionnaire research was completed between December 2021 and March 2022. The research recovered 2008 questionnaires, including 674 from Tianjin, 517 from Changsha, 540 from Kunming, 219 from Xi'an, and 58 from Suining County. After removing the questionnaires of jurors who have never participated in criminal jury work, 1743 questionnaires remained, including 555 in Tianjin, 456 in Changsha, 490 in Kunming, 188 in Xi'an, and 54 in Suining. This study was carried out on the basis of the above questionnaires. In addition, the author conducted in-depth interviews with 10 judges and 20 jurors by telephone. the 10 judges included 4 judges or court staff members who have long been engaged in juror management and 6 senior judges from the criminal divisions of different basic courts, while the jurors for the in-depth interviews were selected from those who had expressed a strong interest in jury work in the questionnaire. In order to enhance the representativeness of the personnel, regional differences were also taken into account in the in-depth interviews with judges and jurors. For example, the regional sources of the judges interviewed were 4 from Tianjin, 2 from Changsha, 2 from Kunming, 1 from Xi'an, and 1 from Suining County, and the regional sources of the jurors interviewed were 10 from Tianjin, 3 from Changsha, 3 from Kunming, 2 from Xi'an, and 2 from Suining County.

1.3 Variable design and statistical methods

1.3.1 Variable Design

The link that best reflects the jurors' participation in collegial decision-making is voting, and many studies on judicial decision-making overseas have focused on voting. However, this research method does not fully fit our judicial practice. Because in China's criminal justice practice, the collegiality of the court will rarely meet vote inconsistent situation. And even if there is a collegial disagreement, the collegial court usually does not use direct voting. Therefore, the collegial voting situation does not well reflect the role of jurors in the collegial decision-making. In fact, deliberations, as the main link between the judge and the jurors to express their opinions, focus on the relationship between the judge and the jurors, and the study of the jurors' performance in the deliberations is more capable of unearthing the jurors' substantive participation in the trial. Therefore, this paper analyses the situation of jurors' deliberation in the collegial court to refine the mechanism of jurors' participation in collegial decision-making.

Ideally, the participation of jurors in collegial deliberations should be such that jurors are able to actively express their opinions, and in particular, actively offer dissenting or additional opinions. Therefore, many studies usually take jurors' dissenting or supplementary opinions as the key indicators for assessing jurors' substantive participation in the trial. The author agrees with this point of view, but at the same time believes that in most cases there is no substantive conflict between the opinions of the jurors and the judge, and jurors rarely offer dissenting or additional opinions. To assess whether jurors are substantially involved in the trial in these cases, more attention should be paid to whether they can actively participate in the deliberations and express their opinions. Based on the above considerations, this paper sets both the frequency of jurors expressing their opinions during deliberations and the frequency of expressing dissenting or additional opinions as dependent variables.

Based on the aforementioned analytical framework, this study distinguishes between three categories of independent variables reflecting the judge-juror relationship, juror confidence in the courtroom to achieve justice, and juror competence. First, the independent variables reflecting the judge-juror relationship include two categories reflecting juror power distance orientation and judge power distance orientation. Among them, the indicators measuring jurors' power distance orientation include jurors' attitudes towards specific issues, jurors' occupations, and the situation of serving as a deputy to the National People's Congress or a member of the Chinese People's Political Consultative Conference, etc.; the indicators measuring the judge's power distance orientation mainly include the frequency of jurors participating in deliberations, the form of deliberations, the duration of the deliberations, the judge's initiative to ask jurors for their opinions during the deliberations, as well as the judge's explanations of reasons for the judgement to the jurors prior to the verdict, etc. Second, the independent variables reflecting jurors' confidence in the court's ability to achieve justice, including jurors' pre-trial reading of documents, the judge's introduction of the case to the jurors before the trial, jurors' questions during the trial, jurors' knowledge of the facts at the end of the trial, jurors' inner conviction of the facts at the end of the deliberation, jurors' confidence in the achievement of substantive justice, and jurors' confidence in the achievement of procedural justice, and so on. Third, independent variables reflecting juror competence, including jurors' familiarity with the law prior to serving as a juror, whether the juror believes that his or her knowledge of society is known to the judge, whether the juror believes that his or her knowledge can ensure that the case will be heard fairly, and the number of cases in which the juror has participated.

1.3.2 Statistical methods

Because the dependent variable is a multicategorical variable and does not meet the requirements of ordered regression, this paper adopts the method of multiple logistic regression. Based on the requirements of multiple logistic regression, this paper needs to define the contrast term in the dependent variable.

First, the contrast term of the frequency of jurors expressing their opinions in deliberations. The Law of the People's Republic of China on People's Jurors (hereinafter referred to as the Law on People's Jurors) stipulates that jurors should participate in deliberations to independently express their opinions and exercise their right to vote, so ideally jurors should express their opinions in the vast majority of deliberations. Therefore, “never expressing an opinion” or “occasionally expressing an opinion” is not consistent with the value of the jury system. Based on this consideration, this study uses the terms “never expresses an opinion during deliberations” and “occasionally expresses an opinion during deliberations” as comparisons to the term “always expresses an opinion during deliberations”.

Secondly, it is a comparison of the frequency of jurors giving different or additional opinions during deliberations. In practice, in the vast majority of cases, there is no substantive difference between the opinions of jurors and professional judges, and jurors' dissenting or additional opinions exist only in a small number of cases. Therefore, the juror's “never giving a different or additional opinion” during deliberation is a situation that needs to be focused on. Accordingly, this study will look at the ratio of “Frequent Dissenting or Supplemental Opinions” to “Never Dissenting or Supplemental Opinions” and “Occasional Dissenting or Supplemental Opinions” to “Never Dissenting or Supplemental Opinions” in terms of the number of cases in which jurors “never dissent or supplemental opinions” in deliberations. The ratio of “occasional” to “never” will be used to analyse jurors who make dissenting or supplemental comments during deliberations.

2.Findings of the study

2.1 The impact of the judge-juror relationship on jurors' participation in collegial decision-making behaviour

First, jurors' power distance orientation had a significant but more limited overall effect on their performance in deliberations. First, jurors with a low power distance orientation were more likely to offer dissenting or additional opinions during deliberations. The data showed that compared to jurors who fully agreed with the idea that “jurors should follow the judge's opinion”, jurors who comparatively agreed and not agreed were 1.838 times more likely and 2.480 times more likely to “occasionally disagree or add to the opinion” during deliberations. That is, the more jurors who disagreed with the statement that “jurors should follow the judge's opinion”,the more likely they were to make dissenting or additional comments during deliberations. Second, jurors with more government contact were more likely to express their opinions regularly during deliberations. For example, the data show that when civil servants serve as jurors, they were only as 20.3% and 31.1% likely to “never express an opinion” or “occasionally express an opinion” during deliberations as general labourers were to when serving as jurors. Finally, the impact of jurors' power distance orientation on their performance in deliberations was generally limited. For example, the data show that jurors' attitudes toward “jurying is an honourable thing” and jurors' attitudes toward “jurors should follow the judge's opinion” do not have a significant effect on how often jurors express their opinions during deliberations; jurors' status as civil servants and as deputies to the National People's Congress do not have a significant effect on how often they express their opinions during deliberations, but a general effect. In addition, the independent variable test found that the juror's attitude towards “jurors should trust the judge” and the juror's attitude towards “the juror's greatest responsibility is to be loyal to the court” are not correlated with the juror's performance in deliberation. Therefore, the influence of jurors' power distance orientation on jurors' participation in criminal collegial decision-making behaviour is relatively limited.

Second, the judge's power-distance orientation had a significant effect on juror performance during deliberations, with jurors in panels where the judge had a low power-distance orientation typically performing more positively during deliberations. The data showed that the more the number of jurors dominated the panel, the more frequently the jurors participated in deliberations, the more the deliberations took the form of on-site deliberations, the more the judge took the initiative to ask the jurors for their opinions during the deliberations, the more time was available for the deliberations, and the more the judge explained the reasons for the verdict to the jurors during the deliberations, the more the jurors were able to express their opinions actively or to offer dissenting or complementary opinions during the deliberation. Live deliberations, the judge's initiative to ask jurors for their opinions, more adequate deliberation time, and the judge's explanation of reasons to jurors are all characteristics of judges with a low power distance orientation. Therefore, the judge's power distance orientation profoundly affected jurors' participation in collegial decision-making behaviour, and judges with a low power distance orientation were more likely to motivate jurors to participate in collegial decision-making.

2.2 The impact of jurors' confidence in the court's ability to achieve justice on their participation in collegial decision-making behaviour

First, jurors' confidence in justice has a significant impact on their ability to express different or additional opinions during deliberations, but the concept of “substance over procedure” still has a profound impact on jurors' participation in collegial decision-making behaviour. First, although the data show that jurors' overall attitude toward justice does not have a significant effect on the frequency of their opinions during deliberations, it does have a significant effect on the number of jurors who offer different or additional opinions during deliberations. For example, the likelihood that jurors who perceive justice to be very fair will “frequently disagree or add to their opinions” or “occasionally disagree or add to their opinions” during deliberations is 5.454 and 1.581 times more likely than jurors who perceived justice to be relatively fair. Second, the degree of procedural fairness had no significant effect on jurors' participation in collegial decision-making behaviour. For example, none of the four independent variables reflecting jurors' perceptions of the degree of procedural fairness achieved had a significant effect on jurors' performance during deliberations. However, in absolute terms, the interviewed jurors believed that there were occasional instances of judges violating the defendant's legal rights and interests in nearly 30% of the cases. Therefore, whether or not procedural justice is achieved basically does not affect the jurors’ participation in the collegial decision-making behaviour, which is in fact the embodiment of the "emphasis on the entity rather than the procedure".

Table 1 Multivariate logistic regressions of the judge-juror relationship affecting juror participation in collegial decision-making behaviour