Lay Participation in Germany

• NCJ Number: 200824
• Journal: International Review of Penal Law Volume: 72 Issue: 1-2 Dated: 2001 Pages: 181-196
• Author(s): Walter Perron
• Date Published: 2001
• Length: 16 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Description
• Language: English
• Country: France

Annotation

This article discusses lay participation in the German criminal jurisdiction.

Abstract

Lay assessor courts were started in 1924. The lay assessor court is a collaborative court of one to three professional judges and two or three lay assessors, having essentially equal rights and tasks. Lay participation affects only the public and oral trial, which is supposed to be the basis of any conviction. Lay judges participate in almost all trials in the courts of first instance. The taking of evidence is of an inquisitorial nature. The court is obliged to ascertain the truth and must collect all the evidence necessary to this end on its own motion. The presiding judge, who is always a professional, conducts the trial. Lay judges are not publicly informed of the relevant law by their professional colleagues. The professional judges instruct the lay assessors in chambers. The deliberation is chaired by the presiding professional judge. Both guilty and not-guilty judgments may be appealed to a higher court. There is no systematic circumvention of German courts with lay assessors. Lay judges participate in the German criminal trial to a large extent. Lay judges are chosen by a process of proposal and selection. Lay judges also participate in juvenile courts. There is no adequate public discussion of criticism of lay participation in the German criminal trial. The concrete form of lay participation under the applicable law is one main issue of scientific debate. The primary question is whether lay assessors should study the investigative dossiers. One view agrees with the current law denying lay judges access to investigative files, arguing that knowledge of these files would hinder an unbiased evaluation of all evidence adduced in open court. Those arguing in favor of access object that the risk of biased judgments is just as high with professional judges. The cost and length of trials with lay participation have been criticized. Since lay assessors have a weak position, no one seriously demands their abolition. No one supports an amplification of the lay judges’ position. 81 footnotes