Lay judge: Difference between revisions

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{{short description|Person assisting a judge in a trial}}

A '''lay judge''', sometimes called a lay [[assessor (law)|assessor]], is a person assisting a [[judge]] in a trial. Lay judges are used in some [[civil law (legal system)|civil law]] jurisdictions. Lay judges are appointed volunteers and often require some legal instruction. However, they are not permanent officers. They attend 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 [[jury|juries]]. Lay judges may be randomly selected for a single trial (as jurors are), 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 as often.

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{{Unreferenced section|date=November 2018}}

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 [[misdemeanor]]s (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 "''{{lang|pt|pareceres}}''", are submitted to the judge for homologation before it has any effects on [[inter partes|between the parties]]. According to the law, lay judges must be selected among [[lawyers]] with more than 2 years of experience.

=== Finland ===

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Lay judges are appointed by local municipal councils, in practice by negotiations between political parties, from among volunteers. Each municipality elects a number of lay judges depending on its size, with two as the minimum. The minimum qualifications are Finnish citizenship, full citizenship rights (a lay judge 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, while 29% of cases were handled in writing and 65% with a single professional judge. Almost all (>94%) cases concerning homicide, child molestation and vandalismsabotage are handled withby lay judges.<ref>{{cite web|url=http://www.verkkouutiset.fi/kotimaa/lautamiehet-21889|title=Lautamiehet mukana enää 6 prosentissa rikosjutuista|language=fi|last=Ahtokivi|first=Ilkka|date=10 June 2014}}</ref> 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.

=== Germany ===

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Except for most crimes for which the [[trier of fact]] is a single professional judge, and serious [[political crime]]s 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 (''{{lang|de|Schöffen}}''; a kind of lay judge) sit side by side with professional judges.{{sfn|Casper|Zeisel|1972|p=141}} 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.{{sfn|Casper|Zeisel|1972|p=141}} In most cases lay judges do not directly examine documents before the court or have access to the case file.{{sfn|Malsch|2009|p=137}}

The only statutory criterion is that lay judges must be citizens who have not been convicted of, or been under investigation for, a serious crime.{{sfn|Casper|Zeisel|1972|p=182}} 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, or priests, or don'tdo not live in the community at the time of selection, or have been a lay judge in the past two terms.<ref>[https://www.gesetze-im-internet.de/gvg/__33.html § 33 GVG]</ref>{{sfn|Casper|Zeisel|1972|p=182}} In addition, people may refuse to serve if they are over 65 years old, members of the federal or state legislatures, doctors, nurses, [[:wikt:druggist|druggists]] if working alone, or housewives if overburdened, or have served as a lay judge in the preceding term.{{sfn|Casper|Zeisel|1972|p=182}} 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 [[:wiktionary:public authority|public authorities]] are primarily called upon to nominate candidates. It appears that motivation includes social responsibility, image cultivation, advertising, and participation in [[fine (penalty)|fine]] allocation.{{sfn|Malsch|2009|p=137}}

Lay judges are selected by a selection committee from lists that are approved by municipal councils (''{{lang|de|[[:de:Gemeinderat (Deutschland)|Gemeinderat]]}}'') with a two-thirds majority of attending local councilors.{{sfn|Casper|Zeisel|1972|p=182}}{{sfn|Bell|2006|p=153}} The selection committee consists of a judge from the [[Amtsgericht]], a representative of the state government, and ten "trusted citizens" (''{{lang|de|Vertrauenspersonen}}'') who are also elected by two-thirds of the municipal council, and selects from the list of candidates the number needed to staff the various tribunals.{{sfn|Casper|Zeisel|1972|p=182}}{{sfn|Bell|2006|p=153}} The practice was similar in [[East Germany]].{{sfn|Wolfe|1994|pp=503-504}}

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[[Municipal assembly (Sweden)|Municipal assemblies]] appoint lay judges for the district courts and the [[County Councils of Sweden|county councils]] appoint lay judges for the appellate and county administrative courts.{{sfn|Terrill|2009|pp=248–249}} They are appointed for a period of 4 years, and may not refuse appointment without valid excuse such as an age of 60 years.{{sfn|Terrill|2009|pp=248–249}} 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.{{sfn|Malsch|2009|p=48}} Lay judges must be Swedish citizens and underover 7018 years old.{{sfn|Terrill|2009|pp=248–249}} People that cannot be lay judges are judges, [[officer of the court|court officers]], prosecutors, police, attorneys, and professionals engaged in judicial proceedings.{{sfn|Terrill|2009|pp=248–249}} In practice, lay judges in Sweden are elderly, wealthy, and better-educated.{{sfn|Malsch|2009|p=48}} Lay judges are usually [[politician]]s with the local authority from which they are appointed, appointed in proportion to political party representation at the last local elections.{{sfn|Bell|2004|pp=299–300}}{{sfn|Bell|2004|p=306}}

The use of lay judges in Sweden goes back to the Middle Ages.

=== Denmark ===

{{Further|Courts of Denmark}}

Approximately 15,000 lay judges currently serve in all Danish courts except the [[Supreme Court (Denmark)|Supreme Court]]. Lay judges are selected from the population for a period of four years, and have essentially equal influence to the professional judges in determining guilt and sentencing. In regional courts, two lay judges sit alongside one professional judge, and decisions are made by [[majority|simple majority]].<ref>{{Cite web|url=https://www.domstol.dk/til-dig-der-er/laegdommer/|title=Lay judges (Denmark)|publisher=Danmarks Domstole|language=da|date=15 November 2024}}</ref>

Civil participation in the judicial system, including criminal justice, is mandated by section 65 of the [[Constitution of Denmark]].<ref>{{Cite web|url=https://www.ft.dk/da/folkestyret/domstolene/byret-landsret-og-hoejesteret/|title = Courts (Denmark)|publisher=Folketinget|language=da}}</ref>

=== Taiwan ===

{{main|Lay judges in Taiwan}}

President [[Tsai Ing-wen]] discussed the implementation of lay judges within the Taiwanese legal system in 2016, and later convened the National Conference on Judicial Reform, which met through 2017. In July 2020, the [[Legislative Yuan]] passed the National Judges Act to regulate lay judges. The actsystem willis takescheduled effectto be implemented in January 2023.

==Historical examples==

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There have been lay judges in Germany since early times.{{sfn|Casper|Zeisel|1972|p=137}} A [[Swabia]]n ordinance of 1562 called for the summons of jurymen ({{lang|de|urtheiler}}), and various methods were in use in [[Emmendingen]], [[Oppenau]], and [[Oberkirch (Baden)|Oberkirch]].{{sfn|Forsyth|1852|p=369}} [[Hauenstein]]'s charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in [[Freiburg im Breisgau|Friburg]] the jury was composed of 30 citizens and councilors.{{sfn|Forsyth|1852|p=370}} The modern jury trial was first introduced in the [[Rhineland|Rhenish provinces]] in 1798, with a court consisting most commonly of 12 citizens ({{lang|de|[[:wiktionary:Bürger|Bürger]]}}).{{sfn|Forsyth|1852|p=369}}

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.{{sfn|Forsyth|1852|p=371}} In [[Konstanz|Constance]] the jury trial was suppressed by decree of the [[Habsburg Monarchymonarchy]] in 1786.{{sfn|Forsyth|1852|p=370}} The [[Frankfurt Constitution]] of the failed [[Revolutions of 1848 in the German states|Revolutions of 1848]] called for jury trials for "the more serious crimes and all political offenses",{{sfn|Casper|Zeisel|1972|p=137}} but was never implemented. An 1873 draft on criminal procedure produced by the [[Prussia]]n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.{{sfn|Casper|Zeisel|1972|p=139}}

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 {{lang|de|Schöffengericht}} (lay judge or mixed court).{{sfn|Casper|Zeisel|1972|p=138}} The German code on court constitution called {{lang|de|[[Gerichtsverfassungsgesetz]]}} (GVG) of 27 January 1877 provided that the {{lang|de|Schwurgericht}} (jury court) would consist of three judges and twelve jurymen,{{sfn|Casper|Zeisel|1972|p=138}}{{sfn|Wolff|1944|loc=footnote 7, pp. 1069-1070}}{{sfn|Wolff|1944|p=1074}} alongside the mixed court, with the jury court reserved for serious crimes except political crimes.{{sfn|Casper|Zeisel|1972|p=139}} Lay judges were in use in the [[Bavaria]]n [[People's Court (Bavaria)|People's Court]] of November 1918 to May 1924,{{sfn|Bauer|2009}}{{sfn|Volksgericht|1924}}{{sfn|Fulda|2009|p=69}} and the infamous [[Nazi Germany|Nazi]] [[People's Court (Germany)|People's Court]].{{sfn|Casper|Zeisel|1972|p=141}}

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* {{cite web | title= Volksgerichte, 1918-1924 | first= Franz J. | last= Bauer | work= [[:de:Historisches Lexikon Bayerns|Historisches Lexikon Bayerns]] | date= 23 December 2009 | url= http://www.historisches-lexikon-bayerns.de/artikel/artikel_44638}}

* {{cite book | title= Judiciaries Within Europe: A Comparative Review | first= John | last= Bell | publisher= [[Cambridge University Press]] | year= 2006 | isbn= 978-0-521-86072-7 | url= https://books.google.com/books?id=Hw47iqneTnIC&pg=PA153}}

* {{cite book | title= Cambridge Yearbook of European Legal Studies | last= Bell | first= John | chapter= Lay Judges | volume= 3 | year= 2004 | publisher= Hart | editor1-first= Alan | editor1-last= Dashwood | editor2-first= John | editor2-last= Bell | editor3-first= Angela | editor3-last= Ward | isbn= 978-1-84113-361-4 | chapter-url= https://books.google.com/books?id=mEIayVZORAQC&pg=PA299 | quote= The choice by the local community is now reflected in the appointment of the nämnd by the local authority. … Nämndemän are usually chosen from members of the authority in proportion to the political representation at the last local elections.}}

* {{cite book | title= European Constitutional History | last= Case | first= Nelson | year= 1902 | publisher= Jennings & Pye | oclc= 608806061 | url= https://archive.org/details/bub_gb_G2t9AAAAMAAJ | page= [https://archive.org/details/bub_gb_G2t9AAAAMAAJ/page/n151 139]}}

* {{cite book | title= The Accused: A Comparative Study | first = John Archibald | last= Coutts | series= British Institute Studies in International and Comparative Law | volume= 3 | year= 1966 | publisher= [[British Institute of International and Comparative Law]] | oclc= 470998549 | quote= After the Second World War, that is, from 1948 to 1950, the State of Bavaria once again introduced trial by jury. Such courts were however abolished when in 1950 uniformity was once again applied to court procedure in the Federal Republic.}}

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* {{cite book | title= A World View of Criminal Justice | series= International and Comparative Criminal Justice | first= Richard | last= Vogler | year= 2005 | publisher= Ashgate Publishing | isbn= 978-0-7546-2467-7 | url= https://books.google.com/books?id=rN90FSGhr-cC&pg=PA245}}

* {{cite book | title= International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away | last= Wilde | first= Ralph | year= 2010 | publisher= Oxford University Press | isbn= 978-0-19-957789-7 | url= https://books.google.com/books?id=Jny2BlhT0egC&pg=PA85}}

* {{cite journal | title= Criminal Justice in Germany | first = Hans Julius | last= Wolff | author-link= :de:Hans Julius Wolff (Rechtshistoriker) | journal= [[Michigan Law Review]] | volume= 42 | issue= 6 | date= June 1944 | doi = 10.2307/1283584 | at= footnote 7, pp. 1069-1070 | jstor= 1283584| url = https://repository.law.umich.edu/mlr/vol42/iss6/7 | url-access= subscription }}

* {{cite journal | title= Lay Judges in German Criminal Courts: The Modification of an Institution | first= Nancy Travis | last= Wolfe | journal= [[Proceedings of the American Philosophical Society]] | volume= 138 | issue= 4 | date= December 1994 | pages= 495–515 | jstor= 986849}}

* {{cite book | title= Der Hitler-Prozeß vor dem Volksgericht in München |trans-title=The Hitler Trial Before the People's Court in Munich | year= 1924 | ref= {{harvid|Volksgericht|1924}}}}

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== External links ==

*[http://www.kohus.ee/7545 Estonian lay judges] {{Webarchive|url=https://web.archive.org/web/20091201183256/http://www.kohus.ee/7545 |date=2009-12-01 }}

*[https://web.archive.org/web/20090331092838/http://www.moj.go.jp/ENGLISH/issues/issues03.html Saiban-in (Lay Judge) System], [[Ministry of Justice (Japan)|Ministry of Justice]]

*[https://web.archive.org/web/20090522054432/http://www.saibanin.courts.go.jp/news/video5.html Government video explaining new jury system] (Japanese)