Why do people who are not lawyers decide criminal cases?

AnalysisA professional judiciary is expert, permanent and small. Those are the qualities that make it reliable, and they are also the qualities that make a system uneasy about letting it decide alone what a community regards as criminal. Lay participation is the structural answer: it puts people who will return to ordinary life into the decision, and it does so as a matter of institutional design rather than as a concession.

Germany builds lay participation into the ordinary criminal courts by statute: "Für die Verhandlung und Entscheidung der zur Zuständigkeit der Amtsgerichte gehörenden Strafsachen werden, soweit nicht der Strafrichter entscheidet, bei den Amtsgerichten Schöffengerichte gebildet." Lay courts are formed for the criminal business of the local courts, except where a single professional judge decides.

Japan places lay members on the bench with professional judges: the panel "consists of three judges and six saiban-in", and the system, which began on 21 May 2009, applies to certain serious criminal cases in the district court rather than to criminal work generally.

The separate-body family is entrenched constitutionally in one system researched: the Sixth Amendment gives the accused in all criminal prosecutions "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed".

A jury is a separate body

It sits apart from the judge and reaches its own conclusion. That separation is the defining feature, and it is what the word means.

A mixed panel is a single bench

Lay members and professional judges sit together and decide together. There is no second body, and no moment at which one hands its conclusion to the other.

The names are not interchangeable

Schöffen, saiban-in and lay assessors are members of a mixed bench. Calling any of them a jury describes an arrangement their systems do not have.

Lay participation can be the ordinary case or the exceptional one

One system forms lay courts for the ordinary criminal business of its local courts; another confines its lay panels to certain serious cases. The same idea can be the default or the exception.

And it can be constitutional or statutory

Where the arrangement sits in the hierarchy of law decides how easily it can be changed. One system researched here entrenches trial by jury in its constitution; another builds its lay courts in an ordinary statute.

• Common belief: Lay participation in judging means a jury.

  In practice: A jury is one of two arrangements. In the other, lay members sit on the bench with professional judges and decide with them, which is what Germany and Japan do in the courts described here.

• Common belief: Japan has a jury system.

  In practice: Its own Supreme Court describes the saiban-in arrangement as having points in common with a jury system. The panel is a mixed bench of professional judges and lay judges sitting together, not a separate lay body.

• Common belief: Lay participation is reserved for the most serious cases.

  In practice: In one system researched here lay courts are formed for the criminal business of the local courts generally, with the single-judge case as the exception. In another they are confined to certain serious offences. Both patterns exist.

• Common belief: Countries either have lay participation or they do not.

  In practice: The useful questions are which family a system uses, for which cases, and what the lay members decide. Those answers differ between systems that would both be described as having lay participation.

• Common belief: Lay participation exists because it produces better verdicts.

  In practice: Whether it does is an empirical question this platform has not researched. The arrangements are described here as institutional design, and no claim about outcomes is made.

Three systems, as their own texts state them.

• Lay courts formed for the criminal business of the local courts, except where a single judge decides — Germany.
• A mixed panel of professional judges and lay judges for certain serious cases, since 2009 — Japan.
• Trial by an impartial jury entrenched in the constitution — United States.
• Not researched: Austria, whose constitution requires lay participation but whose official texts could not be reached this wave, and every other country.

AnalysisLay participation is a claim about legitimacy as much as accuracy: it says that the authority to condemn should not sit entirely with people who do it for a living. That claim is worth stating plainly, because it explains why systems keep arrangements that are slower and more expensive than professional judging alone, and why the question of who is eligible to take part turns out to matter so much.

• Three systems are cited on this page — Germany, Japan and the United States. England and Wales is researched only for eligibility, on a separate page. How lay participation is arranged anywhere else was NOT RESEARCHED, and arrangements differ substantially even within each family described here.
• Austria could NOT be researched this wave. Its constitution requires lay participation, but the official legal-information system returned HTTP 503 to every automated request, so no Austrian provision is quoted or relied on. That is an access limitation and not evidence about Austrian arrangements.
• Whether lay participation produces better, worse or different outcomes than professional judging alone is an empirical question this platform has NOT researched and does not answer.
• How lay members are selected, summoned, excused or replaced was NOT RESEARCHED for any system.
• Nothing here describes deliberation, verdict rules or what any person called to serve should do.

Related: how a lay court is composed, what a lay judge decides, who may serve on a lay court, and the definitions of jury and lay judge.