Lay judge: Difference between revisions

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==Historical examples==

=== Germany ===

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]]s}}'').{{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The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the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 [[Constance]] the jury trial was suppressed by decree of the [[Habsburg Monarchy]] 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|[[:de:Gerichtsverfassungsgesetz|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}}

The [[jury]] was abolished by the [[Emminger Reform]] of 4 January 1924,{{sfn|Kahn-Freund|1974|loc=footnote 73, p. 18}} ostensibly as an emergency, money-saving measure in a period of acute financial stringency,{{sfn|Vogler|2005|p=244}} during an [[Article 48 (Weimar Constitution)|Article 48]] state of emergency and its [[enabling act#In Germany|enabling act]] caused by events surrounding the [[occupation of the Ruhr]].{{sfn|Mulligan|2005|p=173}}{{sfn|Shirer|1990|p=64}} The emergency decree abolished the jury in the ''{{lang|de|Schwurgericht}}'' and replaced it with a mixed system of three professional judges and six lay judges, but kept the original name.{{sfn|Kahn-Freund|1974|loc=footnote 73, p. 18}}{{sfn|Vogler|2005|p=244}} In 1934, nomination of [[Jew]]s and [[Communist]]s as lay judges was forbidden, and selection was restricted to [[Nazi]] supporters.{{sfn|Vogler|2005|p=244}} Between 1948 and 1950 in [[Allied-occupied Germany|American-occupied Germany]] and the [[West Germany|Federal Republic of Germany]], [[Bavaria]] returned to the jury trial as it had existed before the emergency decrees,{{sfn|Casper|Zeisel|1972|p=141}}{{sfn|Vogler|2005|p=245}} but they were again abolished by the 1950 Unification Act (''{{lang|de|Vereinheitlichungsgesetz}}'') for the Federal Republic.{{sfn|Casper|Zeisel|1972|p=141}}{{sfn|Vogler|2005|p=245}}{{sfn|Coutts|1966|p=251}} In 1974 the number of lay judges in the ''{{lang|de|Schwurgericht}}'' was further reduced from six to two and in 1993 the number of professional judges was reduced from three to two. {{sfn|Vogler|2005|p=245}}

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

Its three competences are <br />

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,

{{ordered list|type=lower-alpha

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

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 ''{{lang|de|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.

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

{{sfn|GVG§74|2013}}{{sfn|GVG§76|2013}} <br />

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.

{{sfn|GVG§74|2013}}{{sfn|GVG§76|2013}} <br />

In 1979, the United States tried the [[East Germany|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.