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Lay judge

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A lay judge is a person assisting a judge in a trial and as such are sometimes called lay assessors. Lay judges are used in some civil law jurisdictions. Japan began implementing a new lay judge system in 2009.[1] Lay judges are appointed volunteers and often require some legal instruction. However, they are not permanent officers, as they tend proceedings about once a month, and often receive only nominal or "costs covered" pay. Lay judges are usually used when the country does not have juries. Lay judges may be randomly selected for a single trial (like jurymen), or politically appointed. In the latter case, they may usually not be rejected by the prosecution, the defense, or the permanent judges. Lay judges are similar to magistrates of England and Wales, but magistrates sit about twice more often.

Lay judges in different countries

Austria

Further information: Judiciary of Austria

In criminal proceedings, lay judges sit alongside professional judges on cases carrying a maximum punishment of more than five years, as well as for political crimes. Lay judges are also used in labor, social, and commercial law disputes.

Brazil

In Brazil, the Law Nº 9.099/1995 created the "Juizados Especiais" (Special Petty Courts), with restricted jurisdiction to settle small claims (understood as those with a "lawsuit worth" lower than 40 times the country's minimum wage) and/or criminal misdemeanors (listed in the Executive Order Nº 3.688/1941). In this procedure, lay judges act under supervision of judges to preside over the court as well as to act as conciliators. Their decisions, called "pareceres", are submitted to the judge for homologation before it has any effects between the parties. According to the law, lay judges must be selected among lawyers with more than 5 years of experience.

Germany

Further information: Judiciary of Germany

Except for most crimes for which the trier of fact is a single professional judge, and serious political crimes which are tried before a panel of professional judges, in the judiciary of Germany all charges are tried before mixed tribunals on which lay judges (Schöffen; a kind of lay judge or alderman) sit side by side with professional judges.[2] Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception.[2] In most cases lay judges do not directly examine documents before the court or have access to the case file.[3]

The only statutory criteria is that lay judges must be citizens that have not been convicted of, or be under investigation for, a serious crime.[4] However, people "ought not" to be chosen if they are under 25 years old or over 70 years old, very high government officials, judges, prosecutors, lawyers, policemen, ministers, priests, don't live the community at the time of election, or have been a lay judge in the past two terms.[5][4] In addition, people may refuse to serve if they are over 65 years old, members of the federal or state legislatures, doctors, nurses, druggists if working alone, housewives if overburdened, or have served as a lay judge in the preceding term.[4] Applications can be made to become a lay judge by interested citizens, but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertising, and participation in fine allocation.[3]

Lay judges are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councilors.[4][6] The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals.[4][6] The practice was similar in East Germany.[7]

Lay judges have historically been predominantly middle-aged men from middle class socioeconomic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role.[6][8] A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service employees, compared to only about 12% being blue-collar workers.[9] A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewives, the relatively low number of private sector employees, and relative old age of lay judges.[3]

History

Lay judges have been utilized in Germany throughout her early history and the Middle Ages.[10] A Swabian ordinance of 1562 called for the summons of jurymen (urtheiler), and various methods were in use in Emmendingen, Oppenau, and Oberkirch.[11] Hauenstein's charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in Friburg the jury was composed of 30 citizens and councilors.[12] The modern jury trial was first introduced in the Rhenish provinces in 1798, with a court consisting most commonly of 12 citizens (Bürgers).[11]

The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the state.[13] In Constance the jury trial was suppressed by decree of the Habsburg Monarchy in 1786.[12] The Frankfurt Constitution of the failed Revolutions of 1848 called for jury trials for "the more serious crimes and all political offenses",[10] but was never implemented. An 1873 draft on criminal procedure produced by the Prussian Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.[14]

The Kingdom of Hanover during the Confederation was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary Schöffengericht (lay judge or mixed court).[15] The German code on court constitution called Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the Schwurgericht (jury court) would consist of three judges and twelve jurymen,[15][16][17] alongside the mixed court, with the jury court reserved for serious crimes except political crimes.[14] Lay judges were in use in the Bavarian People's Court of November 1918 to May 1924,[18][19][20] and the infamous Nazi People's Court.[2]

The jury was abolished by the Emminger Reform of 4 January 1924,[21] ostensibly as an emergency, money-saving measure in a period of acute financial stringency,[22] during an Article 48 state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr.[23][24] The emergency decree abolished the jury in the Schwurgericht and replaced it with a mixed system of three professional judges and six lay judges, but kept the original name.[21][22] In 1934, nomination of Jews and Communists as lay judges was forbidden, and selection was restricted to Nazi supporters.[22] Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany, Bavaria returned to the jury trial as it had existed before the emergency decrees,[2][8] but they were again abolished by the 1950 Unification Act (Vereinheitlichungsgesetz) for the Federal Republic.[2][8][25] In 1974 the number of lay judges in the Schwurgericht was further reduced from six to two and in 1993 the number of professional judges was reduced from three to two. [8]

Nowadays, Schwurgericht appears as embodiment for three special task areas of the Große Strafkammer (Grand Penal Chamber) at a Landgericht (medium court level of a German Federal Land's jurisdiction), and again consists of three professional and two lay judges.

Its three competences are

a) mainly heavy crimes resulting in death of a person (except negligence), or similar heavy crimes like inducing nuclear explosion, and crimes that may result in a punishment over four years, acting as first instance for those crimes,

b) for preventive detention decisions or official consignment to a mental hospital, and

c) if complexity or difficulty of the case requires a third professional judge.

While a Große Strafkammer can usually decide before or at start of a trial to limit itself to two professional judges and two lay jurymen, it cannot do so if it has to function in the above-mentioned three cases. [26][27]

In 1979, the United States tried the East German LOT Flight 165 hijacking suspects in the United States Court for Berlin in West Berlin, which declared the defendants had the right to a jury trial under the United States Constitution, and hence were tried by a West German jury.

Finland

In Finland, two (previously and sometimes also today three) lay judges (lautamies, nominative pl. lautamiehet) are called in into serious or complicated cases in district courts, to accompany a professional, legally trained judge. The professional judge is the chairman of the panel, but otherwise the judges have equal rights. The aim is to introduce their "common sense of justice" into the process. Simpler cases are handled by one or three professional judges, and all Appeals Court, Supreme Court and administrative court judges are necessarily professional.

Lay judges are appointed by local municipal councils, in practice by negotiations between political parties, from volunteers. Each municipality elects a number of lay judges depending on its size, or two at minimum. The minimum qualifications are Finnish citizenship, full citizenship rights (i.e. may not be a dependent or in bankruptcy), 25–64 years of age when elected, and general suitability for the position. Lay judges must resign at the age of 68 at the latest. Officials of the judicial, law enforcement or corrections authorities, such as prosecutors, attorneys, policemen, distrainers or customs officers may not be elected as lay judges.

New legislation (2009) has limited the role of lay judges. They are employed only in serious criminal cases, which comprised 6% of cases in 2013. Instead, 29% of cases were handled in writing and 65% with a single professional judge. Almost all (>94%) cases concerning homicides, child molestations and vandalism are handled with lay judges.[28] Formerly they always sat in for instance family law proceedings. On average, lay judges sit in session for 12 days a year, or 20 days at maximum.

Japan

A system for trial by jury was first introduced in 1923 under Prime Minister Katō Tomosaburō's administration. Although the system generated relatively high acquittal rates,[29] it was rarely used, in part because it required defendants to give up their rights to appeal the factual determinations made.[30] The system lapsed by the end of World War II.[31] In 2009, as a part of a larger judicial reform project, laws came into force to introduce citizen participation in certain criminal trials by introducing lay judges. Lay judges comprise the majority of the judicial panel. They do not form a jury separate from the judges, like in a common law system, but participate in the trial as inquisitorial judges in accordance with the civil law legal tradition, who actively analyze and investigate evidence presented by the defense and prosecution.

Current system

On May 28, 2004, the National Diet passed a law requiring selected citizens to participate as judges (and not juries) in trials for certain severe crimes. Citizens chosen for such service, called “saiban-in” (裁判員, "lay judge"), are randomly selected out of the electoral register and, together with professional judges, conduct a public investigation of the evidence in order to determine guilt and sentences. In most cases, the judicial panel is composed of six saiban-in and three professional judges. In cases where there is no substantial dispute over guilt, the panel is composed of four saiban-in and one professional judge. Unlike under the older jury system, the defendants are not allowed to waive trial by saiban-in. The saiban-in system was implemented in May 2009.[32]

In many respects, the new system is very different from a common law jury system. It is not a (lay) jury of an adversarial system of common law but one that involves a (lay) "judge" found in inquisitorial systems of civil law countries, such as those in continental Europe and Latin America. In a common law adversarial system, the judge acts as a referee over the contest between the defence attorney and the prosecutor, in which the two sides present the facts of their case to the panel of jurors; the judge in this system is mainly the referee of court procedure and decides only the applicable law.

In the civil law inquisitorial system, the entire panel of judges conduct a public investigation of the crime at the trial, and pass the verdict and sentence those found guilty. For this reason, each member of the panel can initiate the examination of evidence and witnesses, and by a majority (including at least one professional judge, as explained below) can pass a guilty verdict and impose a penalty.[33] Lay judges roles are nevertheless constrained; notably, legal interpretations and determinations remain with the professional judges.[34] Unlike the Anglo-American rule for criminal jury trials, both convictions and acquittals as well as sentence remain subject to appeal by the prosecution and the defence.[35]

The Japanese system is apparently unique[36] in that the panel consists of six lay judges, chosen randomly from the public, together with three professional judges, who come together for a single trial (like an Anglo-American jury) but serve as lay judges. As with any jury or lay judge system, it places a large amount of judicial power on randomly chosen members of the public with the aim of democratizing the judicial process. In this, Japan's law states its purpose explicitly as seeking “the promotion of the public’s understanding of the judicial system and . . . their confidence in it.”[37]

A guilty verdict requires a numerical majority of nine judges that includes at least one professional judge. Accordingly, the three professional judges as a collective have a de facto veto on any conviction that would be delivered by the lay judges.[33] The Ministry of Justice specifically avoided using the term "jury" (Baishin-in) and use the term "lay judge" (Saiban-in) instead. Therefore, the current system is categorically not a jury system though this misunderstanding persists in common law countries due to lack of understanding of civil law criminal procedure.

First lay judge trial under new law

Katsuyoshi Fuji, 72, was found guilty in the stabbing death of a 66-year-old neighbor and sentenced to 15 years in jail at the first lay-judge trial held in the Tokyo District Court. On August 3, 2009, six citizens were chosen, to serve as “saiban-in,” to join three judges at the trial attended by 2,500 people queuing to get into the sixty-seat public gallery. Because Fujii had entered a guilty plea, the lay judges' role was primarily pertaining to the severity of the sentence to be handed down. According to the selection process, the judges selected were to be a minimum age of 20 and listed on the election lists. Judges must also have completed a secondary level education.

The vote of a majority of the lay judges for acquittal results in acquittal, but for conviction a majority of the lay judges must be accompanied by the vote of at least one professional judge. Lay judges are allowed to directly question the defendant during the course of the trial and decide on the sentence corresponding to the verdict. The trial was open to the media. The previous system relied only on a panel of professional judges, and the majority of cases brought forward by prosecutors were those where conviction was high. Citizens chosen who do not serve in their role would be fined 100,000 yen.[38][39][40][41]

Controversy

As in most common law countries where people are reluctant to serve as jury members, many Japanese have expressed reluctance to serve as lay judges. Polls suggest that, similar to developed jury systems, 70% of the population of Japan would be reluctant to serve as judges.[42] Some Japanese have been introduced to mock trials over recent years to overcome their reluctance to express opinions publicly, debate, and defy authority figures.[38] Others have written with concern regarding the harsh secrecy provision in the statute which includes the risk of criminal penalties for those lay judges who would publicly share confidential deliberation room discussion even after trial proceedings are complete.[43]

Another issue is that some criminal trials used to take years if the charge was serious and the defence contested the charge. After the system moved to include lay judges, the trial period was fixed to a maximum of a few weeks. Some commentators[citation needed] feel justice is compromised for the convenience of lay judges and that cases are not examined in enough detail.

Norway

Further information: Judiciary of Norway

In the district courts of Norway, lay judges sit alongside professional judges in mixed courts in most cases.[44] In most cases, 2 lay judges sit alongside 1 professional judge. The court leader (Sorenskriver) may decree that a case have 3 lay judges sitting alongside 2 professional judges if its workload is particularly large or if there are other significant reasons.[45] Decisions are made by simple majority.[44]

Lay judges also serve during criminal cases in the appellate courts. For smaller cases, the court is convened with three professional and four lay judges. If the crime carries a maximum sentence of six years imprisonment or more, the lay judges are replaced with a jury. The jury is chosen from the same list as the lay judges, meaning that lay judges in the appellate courts also serve as jurors. If the jury finds the defendant guilty, the jury spokesperson, and three other jurors selected at random, serve as lay judges during the sentencing. In the few cases where the professional judges overturn the jury's verdict, regardless of whether the original verdict was one of guilt or innocence, the case is re-tried with three professional judges and four lay judges.

In the Supreme Court, there are no lay judges.

Lay judges are not considered to be representative of the population.[44] About 75% of lay judges are nominated by the political parties in Norway.[44]

Soviet Union

Trial by jury was first introduced in the Russian Empire as a result of the Judicial reform of Alexander II in 1864, and abolished after the October Revolution in 1917.[46]

Lay judges were in use in the Soviet Union.[47] After a 1958 reform they were elected for 2 years at general meetings of colleagues at their place of work or residence, or at higher levels appointed by the soviet.[47] The incidents of lay judges overruling professional judges was rare, and was officially reported in only 1 case by the late 1960s.[48] Unlike the juries of the United States, lay judges were not selected from panels that are cross-sections of the entire population, but selected by institutions in each district.[49]

The jury trial was reintroduced in Russia in 1993, and extended to another 69 regions in 2003.[46]

Sweden

Further information: Judiciary of Sweden

In first- and second-tier Swedish courts, both in the general and the administrative hierarchy, politically appointed lay judges (nämndemän) sit alongside professional judges in district and appellate general and administrative courts, but decide virtually no civil cases.[50][51] Lay judges are always in the majority in district courts, whereas the professional judges are in the majority in the appellate courts.

Municipal assemblies appoint lay judges for the district courts and the county councils appoint lay judges for the appellate and county administrative courts.[50] They are appointed for a period of 4 years, and may not refuse appointment without valid excuse such as an age of 60 years.[50] Typically, a lay judge will serve one day per month in court during his or her tenure.

In principle, any adult can become a lay judge.[52] Lay judges must be Swedish citizens and under 70 years old.[50] People that cannot be lay judges are judges, court officers, prosecutors, police, attorneys, and professionals engaged in judicial proceedings.[50] In practice, lay judges in Sweden are elderly, wealthy, and better-educated.[52] Lay judges are usually politicians with the local authority from which they are appointed, appointed in proportion to political party representation at the last local elections.[53][54]

The use of lay judges in Sweden goes back to Medieval times.[50]

Yugoslavia

Lay judges were in use in the Federal Republic of Yugoslavia, including the Autonomous Province of Kosovo and Metohija.[55] Yugoslav trial courts consisted of 1 judge and 2 lay judges or 2 judges and 3 lay judges.[55][56] Yugoslav law did not specify the qualifications (or disqualifications), and it was noted in the report by United Nations Special Rapporteur Elisabeth Rehn that in a particular case they were both retired police officers and one was reportedly a former head of the Criminal Investigation Department.[55]

Lay judges in the district and regional courts were traditionally appointed by the assembly of the relevant socio-political community. In 1991, Serbia completely centralized the Kosovar judges' appointment and dismissal, including lay judges.[57]

See also

Notes

  1. ^ Juries in Japan, retrieved on June 10, 2010.
  2. ^ a b c d e Casper & Zeisel 1972, p. 141.
  3. ^ a b c Malsch 2009, p. 137. sfn error: multiple targets (2×): CITEREFMalsch2009 (help)
  4. ^ a b c d e Casper & Zeisel 1972, p. 182.
  5. ^ § 33 GVG
  6. ^ a b c Bell 2006, p. 153.
  7. ^ Wolfe 1994, pp. 503–504.
  8. ^ a b c d Vogler 2005, p. 245.
  9. ^ Casper & Zeisel 1972, p. 183.
  10. ^ a b Casper & Zeisel 1972, p. 137.
  11. ^ a b Forsyth 1852, p. 369.
  12. ^ a b Forsyth 1852, p. 370.
  13. ^ Forsyth 1852, p. 371.
  14. ^ a b Casper & Zeisel 1972, p. 139.
  15. ^ a b Casper & Zeisel 1972, p. 138.
  16. ^ Wolff 1944, footnote 7, pp. 1069-1070.
  17. ^ Wolff 1944, p. 1074.
  18. ^ Bauer 2009.
  19. ^ Volksgericht 1924.
  20. ^ Fulda 2009, p. 69.
  21. ^ a b Kahn-Freund 1974, footnote 73, p. 18.
  22. ^ a b c Vogler 2005, p. 244.
  23. ^ Mulligan 2005, p. 173.
  24. ^ Shirer 1990, p. 64.
  25. ^ Coutts 1966, p. 251.
  26. ^ GVG§74 2013.
  27. ^ GVG§76 2013.
  28. ^ http://www.verkkouutiset.fi/kotimaa/lautamiehet-21889
  29. ^ Johnson, David T., Early Returns from Japan's New Criminal Trials, The Asia-Pacific Journal: Japan Focus, online 9-07-2009
  30. ^ Anna Dobrovolskaia (trans.), The Jury System in Pre-War Japan: An Annotated Translation of “The Jury Guidebook” (Baishin Tebiki), Asia-Pacific Law & Policy Journal, vol. 9, no. 2, http://www.hawaii.edu/aplpj/articles/APLPJ_09.2_dobrovolskaia.pdf, p. 238 n.7.
  31. ^ Haley, JO, The Spirit of Japanese Law, Univ. of Georgia Press, 1998, p. 52.
  32. ^ Green, Stephen, "Ichihashi trial key test of legal reforms: Extensive media coverage could sway lay judges", Military Times, December 8, 2009, p. 12.
  33. ^ a b Act Concerning Participation of Lay Assessors in Criminal Trials (Assessor Act), May 28, 2004, Art. 67.
  34. ^ Act Concerning Participation of Lay Assessors in Criminal Trials (Assessor Act), May 28, 2004, Art. 6.
  35. ^ Levin, Mark A. and Tice, Virginia Japan’s New Citizen Judges: How Secrecy Imperils Judicial Reform, The Asia-Pacific Journal: Japan Focus p. 3, accessed 2010-06-10
  36. ^ Levin, Mark A. and Tice, Virginia Japan’s New Citizen Judges: How Secrecy Imperils Judicial Reform, The Asia-Pacific Journal: Japan Focus (see Part B. Japan’s Saiban-in System in International Comparison), accessed 2010-06-10
  37. ^ Act Concerning Participation of Lay Assessors in Criminal Trials (Assessor Act), May 28, 2004, Art. 1.
  38. ^ a b Tabuchi, Hiroko; McDonald, Mark (August 6, 2009), "In First Return to Japan Court, Jurors Convict and Sentence", New York Times, retrieved 2009-08-06
  39. ^ "Japan's landmark jury trial ends", BBC News, August 6, 2009, retrieved 2009-08-06
  40. ^ Wallacy, Mark (August 6, 2009), "Japan revives jury trials", ABC News, retrieved 2009-08-06
  41. ^ McCurry, Justin (August 3, 2009), "Trial by jury returns to Japan Thousands queue to witness historic change to country's criminal justice system", Guardian.co.uk, retrieved 2009-08-06
  42. ^ Onishi, Norimitsu (2007-07-16). "Japan Learns Dreaded Task of Jury Duty". New York Times. Retrieved 2007-07-16.
  43. ^ Levin, Mark A. and Tice, Virginia, Japan’s New Citizen Judges: How Secrecy Imperils Judicial Reform, The Asia-Pacific Journal: Japan Focus. accessed 2010-06-10
  44. ^ a b c d Malsch 2009, p. 47. sfn error: multiple targets (2×): CITEREFMalsch2009 (help)
  45. ^ "Lov om rettergangsmåten i straffesaker (Straffeprosessloven). Femte del. Saksbehandlingens enkelte ledd" (in Norwegian). Retrieved 1 August 2014.
  46. ^ a b Terrill 2009, pp. 438–439.
  47. ^ a b Riha 1969, p. 641.
  48. ^ Riha 1969, pp. 641–642.
  49. ^ Riha 1969, p. 642.
  50. ^ a b c d e f Terrill 2009, pp. 248–249.
  51. ^ Courts of Sweden: District court judgment, retrieved on February 1, 2010
  52. ^ a b Malsch 2009, p. 48. sfn error: multiple targets (2×): CITEREFMalsch2009 (help)
  53. ^ Bell 2004, pp. 299–300.
  54. ^ Bell 2004, p. 306.
  55. ^ a b c Krieger 2001, p. 32.
  56. ^ Wilde 2010, p. 85.
  57. ^ Kymlicka & Opalski 2001, p. 142.

References

Further reading

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