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Jul 3, 2010

Korea may Introduce U.S. Grand Jury System

Prosecutor General Joon-gyu KIM, in reaction to a recent bribery/sex scandal involving over 100 current and former Korean prosecutors, announced that Korea should adopt a U.S. grand jury system. The Korean prosecutor general vowed that for major cases he will initiate citizen-review panels immediately.

Grand juries, in United States federal courts, comprise groups of between 16 and 23 citizens. The prosecution must present evidence to the grand jury before the prosecution can indict. In the U.S. 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 United States is one of the only legal systems to still utilize the system. The protections afforded by the grand jury, in U.S. federal court, are guaranteed by the 5th Amendment to the United States Constitution.

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 foreigner investors, while providing an added safeguard against abuse of the 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 most weak of evidence.

During the last few administrations a few questionable criminal investigation have given the Korean legal system, in the eyes of many foreign and local investors, an impression that Korea is not a foreign capital-friendly destination. Prosecutors, overall, realized this sentiment, but pressure from outside sources often led the prosecution to choice less choices.

In these cases, the prosecution, often, feels overwhelming pressure to investigate and indict. The pressure, normally, comes from the administration and press. The prosecution, if the grand jury was available, could present available evidence to the grand jury and the grand jury would have the opportunity to dismiss the charges based on the lack of evidence, thus, giving the prosecution an added tool to avoid a case they may believe has a low possibility of receiving a conviction on.

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.

A J & S Law Firm (International Practice Group) client was the victim of this pressure on the prosecution.

My firm is presently engaged by a well-known multi-national company. The prosecutor had overwhelming pressure to investigate and indict foreign and domestic employees. Some of the foreign employees were subjected to multiple lengthy interrogations on evidence that amounted to nothing more than the speculation of a disgruntled former employee. The prosecution, since the case was referred by a government agency, had overwhelming pressure to do a "complete" investigation and indict.

The case ended well, but not after the loss of trust in the Korean legal system by senior management at the parent company. The parent will not consider additional investment in Korea in the near future, because of perceived transparency fairness issues evident in the Korean criminal justice system. The situation is a regular occurrence that is often mentioned by clients and foreign investors. Clients have noted that these issues are not apparent in most of Korea's Asia-Pacific competitors including Hong Kong, Singapore, Japan, Malaysia, Indonesia and Australia.

Hopefully, the grand jury system will be introduced to the Korean legal system and the system will allow defendants and key witnesses requested by the defense to testify at the grand jury.

The U.S. Attorney Manual notes that not allowing a witness to testify can lead citizens to believe that the system is unfair. Without allowing defendants and witnesses to testify this system will simply be used as a rubberstamp for prosecutors, since prosecutors will have nearly total control of the evidence presented.

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SeanHayes@ipglegal.com