Do lay members of a court decide guilt only, or the sentence as well?

AnalysisA lay member who may decide guilt but not sentence has been given the part of the job that requires no legal training and kept away from the part that does. That is a defensible division, and it is also a way of confining lay judgement to where it is least consequential — a sentence is what actually happens to a person. Where a system draws that line says what it thinks lay participation is for.

Germany does not divide the office. During the main hearing the lay judges exercise "das Richteramt in vollem Umfang und mit gleichem Stimmrecht wie die Richter" — the judicial office in full, with the same voting right as the professional judges — and they take part in decisions made during the hearing including those not concerned with the verdict itself.

The same statute states the limit precisely: decisions required outside the main hearing are taken by the professional judge alone.

Japan states the scope as a list rather than as an office. Lay judges participate in decisions on "fact finding; application of laws and regulations; and sentencing".

Neither system limits lay members to the verdict

One confers the judicial office in full during the hearing; the other names fact-finding, application of law and sentencing together. The verdict-only model is not what either statute describes.

An equal vote is stated, not implied

Where a system means the votes to count alike it says so. A statute that seats lay members without addressing the vote has left the most important question open.

The entitlement can be bounded in time rather than in subject

One system limits lay judges not by what kind of question they may decide but by when: inside the hearing, everything; outside it, nothing.

Sentencing is the sharpest test of the design

It is the decision that determines what happens to a person. A system willing to let lay members take part in it has committed to lay participation more thoroughly than one that is not.

And none of this describes how a decision is actually reached

Statutes allocate entitlements. What happens in a discussion between three people who do this daily and six who do not is a different question, and it was not researched.

• Common belief: Lay members of a court decide guilt, and the judge decides the sentence.

  In practice: That describes neither system researched here. One confers the judicial office in full with an equal vote during the hearing; the other names sentencing among the decisions lay judges take part in.

• Common belief: A lay judge’s view is advisory.

  In practice: One statute states that lay judges exercise the judicial office during the main hearing with the same voting right as the professional judges. Where a system means this, it says so in terms.

• Common belief: Lay judges are full members of the court at all times.

  In practice: In one system the equality is bounded by the hearing. Decisions required outside the main hearing are taken by the professional judge alone.

• Common belief: Deciding the sentence is always a professional matter.

  In practice: One statute researched here names sentencing among the decisions lay judges participate in, alongside fact-finding and the application of law.

• Common belief: An equal vote means equal influence.

  In practice: It means the votes count alike. Whether the discussion behind them is equally weighted is a different question, and it is not one a statute can answer.

What the lay members may decide, as two statutes state it.

• The judicial office in full, with the same voting right as the professional judges, during the main hearing — Germany.
• Decisions required outside the main hearing taken by the professional judge alone — Germany.
• Fact finding, application of laws and regulations, and sentencing — Japan.
• Not researched: what a jury decides, and every other system.

AnalysisWhat lay members are entitled to decide is the honest measure of how seriously a system takes lay participation, because it is the part that cannot be satisfied by appearances. Seating people is easy. Giving them the same vote as a professional judge, and letting that vote reach the sentence, transfers real authority to people who are not accountable in any of the ways a judge is — and systems that do it have accepted that trade deliberately.

• Two mixed-panel systems were researched. What lay members decide anywhere else was NOT RESEARCHED.
• What a jury decides in the separate-body family, and how that work divides with the judge, was NOT RESEARCHED and is not described. The sources read here are statutes about mixed panels.
• How a panel actually reaches a decision — deliberation, voting thresholds, the sequence of a discussion — was NOT RESEARCHED for either system.
• Whether the equal vote one statute confers translates into equal influence was NOT ESTABLISHED, and could not be established from a statute.
• Nothing here describes any individual case or outcome.

Related: lay participation in judging, how a lay court is composed, why judicial independence matters, and what a lay judge is.