미국 배심재판에서 배심원 후보자의 위장 침입의 문제점과 배심원 선정방법의 개선방안에 대한 연구

One of the possible jury misconducts is that a prospective juror hides his prejudice/bias during jury selection process in order to be selected as a juror and to attempt to lead the jury to reach a verdict in a way that he desires. The reasons for such jury misconducts may vary. He may want to extort money from a party in exchange of a promise for a verdict favorable to the party. Or it may have something to do with a vendetta against a party or financial gain for him that is expected from a verdict. The jury foreperson in Samsung v. Apple jury trial that took place in the U.S. District Court for the northern district of California had sued a company named Seagate Technology, Inc, that is in business relationship with Samsung. Although this litigation experience could be considered as a strong ground to suggest that he had a prejudice against Samsung, he did not disclose this fact. He claimed that during the voir dire he was not specifically requested to disclose all litigation that he has been involved. However, it appears from the trial records that he was specifically asked during the voir dire as to whether he or his family members were involved in any litigation. Had Samsung known of his prior litigation with Seagate, it seems very likely that Samsung would have excluded him from the jury by exercising challenge for cause or peremptory challenge, at least. After the jury reached the verdict against it, Samsung filed a motion for a new trial claiming that the foreperson committed a misconduct during the voir dire by failing to disclose his prior litigation experience. The first step to discover a prospective juror with prejudice or ulterior motive is to retain jury consultant and to use scientific jury selection methods. One of the scientific jury selection methods is to conduct telephone surveys on people who are randomly selected among the residents in the jurisdiction which is followed up with face-to-face interviews with some of them. The surveys are aimed at investigating and finding out demographic characteristics such as age, sex, ethnicity, education, occupation, religion and political affiliations that can be favorable or unfavorable to the party. Some courts or jurisdiction make the list of potential jury pool public or available to the parties. With this list, jury consultants are able to investigate the personal backgrounds and private characteristics of specific prospective jurors. The internet means such as googling or facebook provide jury consultants with efficient tools to find out a lot of useful information on prospective jurors. Also, jury consultants can organize mock jury trial in which mock jury listens to arguments, reviews evidence and deliberates. Through mock jury trial, attorneys can evaluate and formulate more effective trial strategies and tactics. Furthermore, attorneys may be able to learn the characteristics and types of jurors who would be favorable or unfavorable to their clients. Also,jury consultants can organize shadow jury who observes the actual trial in courtroom and gives feedback on trial from which attorneys can improve their trial strategies and tactics. Scientific jury selection methods tend to be expensive. In absence of public records or tangible evidence, it may be almost impossible to discover prejudice or bias of individual juror. Consequently, attorneys rely on voir dire process 미국 배심재판에서 배심원 후보자의 위장 침입의 문제점과배심원 선정방법의 개선방안에 대한 연구 / 공영호 391to find out prejudice or bias of prospective jurors. Jury selection process consists of the summoning of prospective jurors,the written questionnaire and oral examination of prospective jurors in courtroom (Voir Dire). Prospective jurors who have been summoned fill out written questionnaire privately prior to the official voir dire. Usually,they can be more candid and straightforward in responding to written questionnaire that can be even private in nature. Written questionnaire gives the attorneys an opportunity to come up with proper follow-up questions during the voir dire examination. Voir dire process is the most effective means to discover prejudice or any hidden intent of prospective jurors. There are two issues to be determined with respect to voir dire. First, should the voir dire be conducted by judge or attorney? Second, should the voir dire be conducted individually or in group? It appears that prejudices are detected more effectively when attorneys conduct voir dire since they tend to have a better grasp of facts and legal issues than judges concerning the case. Also, prospective jurors tend to be in awe of judges and try to impress judges with their 'fair-mindedness' which is not desirable because prejudices of some prospective jurors may go unnoticed and undisclosed. Likewise, individual voir dire rather than group voir dire is better in terms of discovering prejudices because prospective jurors can be more candid and honest in responding to questions in individual settings. Without the presence of other prospective jurors, they are relatively free from peer pressure and are less likely to be influenced or tainted by other jurors' responses. Also, they are more likely to disclose their biases when they are examined individually instead of in group. Based on the results of voir dire examination, attorneys can exercise challenges for cause or peremptory challenges. Attorneys can exercise challenges for cause to exclude a prospective juror whose prejudice is confirmed or presumed to exist. Judges have the prerogatives regarding the determination on challenge for cause. Unlike challenges for cause, however,392 민사소송(제17권 1호)attorneys have the prerogatives in terms of exercising peremptory challenges because they can request exclusion of a prospective juror even without providing any reasons. By exercising peremptory challenges, attorneys tend to exclude prospective jurors who are suspected to have some kinds of prejudices. Whereas challenges for cause can be exercised without limitation in number, peremptory challenges have limitation in number. As the jury trials in criminal cases in Korea are on the rise and jury trial system is contemplated to be implemented in civil trials in the future, the possibilities of jury misconduct are likely to get higher. Accordingly, there is a more need for using more scientific jury selection methods. Also, there will be more occasions for exercising challenges for cause as well as peremptory challenges in jury trial. Along with the higher likelihood of increased jury trials in Korea, the courts, the prosecutor's office and the bar should be more educated and prepared for jury selection system and voir dire process.