When lay people sit with judges, how many of each are there?

AnalysisIf lay participation is meant to put non-professional judgement into a decision, the number of lay members has to be large enough that the judgement survives contact with the professionals. A single lay member beside two judges would be present without being able to affect an outcome. The ratio is therefore where the design either means something or does not.

Germany states the composition in a single sentence: "Das Schöffengericht besteht aus dem Richter beim Amtsgericht als Vorsitzenden und zwei Schöffen." One professional judge presides, and two lay judges sit with them. A second professional judge may be added on the prosecution’s application when the main proceedings are opened.

Japan states a larger version of the same shape: the panel "consists of three judges and six saiban-in", with a reduced panel of "one judge and four saiban-in" available in specified circumstances.

The ratio is statutory

Both compositions are stated in legislation rather than left to a court to arrange. That places the balance beyond the reach of the institution applying it.

Two to one, at both scales

One professional with two lay judges, and three with six. The proportion is identical even though the panels are not.

Reduced panels exist and are not proportionate

One system provides a smaller panel of one judge and four lay judges in specified circumstances, which is a larger lay majority rather than a smaller version of the same one.

Composition can be varied by application

One system permits a second professional judge to be added when the main proceedings are opened, on the prosecution’s application. The default is not always the final arrangement.

And a separate lay body raises none of these questions

A jury has no professionals sitting in it, so there is no ratio to set. That is a structural consequence of separation rather than a different answer to the same question.

• Common belief: Lay members are a minority alongside the professional judges.

  In practice: In both mixed systems researched here they outnumber the professionals two to one — one judge with two lay judges, and three judges with six.

• Common belief: A bigger panel means a bigger professional presence.

  In practice: The two panels differ in size by a factor of three and hold the same proportion. Scale and balance are set separately.

• Common belief: The composition of a court is a matter for the court.

  In practice: Both compositions researched here are fixed by statute. One system allows a second professional judge to be added on application when proceedings are opened, which is itself a statutory provision.

• Common belief: Outnumbering the professional judges means controlling the outcome.

  In practice: It settles arithmetic. The presiding judge knows the law and manages the hearing, and nothing in a composition provision determines how a discussion actually goes.

• Common belief: This page will tell you how many people sit on a jury.

  In practice: It will not. No source establishing jury size was obtained this wave, and a number nobody verified is worse than an absence that says so.

Composition, as two statutes state it.

• One professional judge presiding with two lay judges — Germany, at the local courts.
• A second professional judge may be added on the prosecution’s application — Germany.
• Three judges and six lay judges — Japan.
• One judge and four lay judges, in specified circumstances — Japan.
• Not researched: jury size in the separate-body family, and every other system.

AnalysisA composition rule is a quiet allocation of power, and it is one of the few that can be checked without knowing anything about a case. A system that says it values lay judgement and then seats one lay member against three professionals has said two different things. Publishing the ratio in statute is what makes the first claim testable against the second.

• Two mixed-panel systems were researched. How any other system composes a lay court was NOT RESEARCHED.
• Jury size in the separate-body family was NOT ESTABLISHED. No source stating a number was obtained, and none is published here.
• The composition of German courts above the Amtsgericht was NOT RESEARCHED; the provisions read here govern the local courts.
• Why either system chose its particular numbers was NOT ESTABLISHED. The statutes state the composition; they do not explain it.
• Nothing here describes how a panel deliberates or how its members are chosen for a particular case.

Related: lay participation in judging, what a lay judge decides, who may serve on a lay court, and what a jury is.