Lay judge
A lay judge, sometimes called a lay assessor, is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions. Lay judges are appointed volunteers and often require some legal instruction. However, they are not permanent officers. They attend proceedings about once a month, and often receive only nominal or "costs covered" pay. Lay judges are usually used when the country does not have juries. Lay judges may be randomly selected for a single trial (as jurors are), or politically appointed. In the latter case they may usually not be rejected by the prosecution, the defense, or the permanent judges. Lay judges are similar to magistrates of England and Wales, but magistrates sit about twice as often.
Historical examples[edit]
Germany[edit]
There have been lay judges in Germany since early times.[22] A Swabian ordinance of 1562 called for the summons of jurymen (urtheiler), and various methods were in use in Emmendingen, Oppenau, and Oberkirch.[23] Hauenstein's charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in Friburg the jury was composed of 30 citizens and councilors.[24] The modern jury trial was first introduced in the Rhenish provinces in 1798, with a court consisting most commonly of 12 citizens (Bürger).[23]
The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the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.[25] In Constance the jury trial was suppressed by decree of the Habsburg monarchy in 1786.[24] The Frankfurt Constitution of the failed Revolutions of 1848 called for jury trials for "the more serious crimes and all political offenses",[22] but was never implemented. An 1873 draft on criminal procedure produced by the Prussian Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.[26]
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 Schöffengericht (lay judge or mixed court).[27] The German code on court constitution called Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the Schwurgericht (jury court) would consist of three judges and twelve jurymen,[27][28][29] alongside the mixed court, with the jury court reserved for serious crimes except political crimes.[26] Lay judges were in use in the Bavarian People's Court of November 1918 to May 1924,[30][31][32] and the infamous Nazi People's Court.[2]
The jury was abolished by the Emminger Reform of 4 January 1924,[33] ostensibly as an emergency, money-saving measure in a period of acute financial stringency,[34] during an Article 48 state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr.[35][36] The emergency decree abolished the jury in the Schwurgericht and replaced it with a mixed system of three professional judges and six lay judges, but kept the original name.[33][34] In 1934, nomination of Jews and Communists as lay judges was forbidden, and selection was restricted to Nazi supporters.[34] Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany, Bavaria returned to the jury trial as it had existed before the emergency decrees,[2][8] but they were again abolished by the 1950 Unification Act (Vereinheitlichungsgesetz) for the Federal Republic.[2][8][37] In 1974 the number of lay judges in the Schwurgericht was further reduced from six to two and in 1993 the number of professional judges was reduced from three to two. [8]
Nowadays, Schwurgericht appears as embodiment for three special task areas of the Große Strafkammer (Grand Penal Chamber) at a Landgericht (medium court level of a German federal state's jurisdiction), and again consists of three professional and two lay judges.
Its three competences are