lay judge

Definition of lay judge

Further reading

A lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009.

Lay judges are appointed, and often require some legal instruction. Lay judges are usually used when the country does not have juries.

Germany

Except for petty crimes which are tried before a single professional judge, and serious political crimes which are tried before a panel of professional judges, in the judiciary of Germany all charges are tried before mixed tribunals on which lay judges (Schöffen) sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases lay judges do not directly examine documents before the court or have access to the case file.

Lay judges are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councilors. Given this high threshold, in practice these lists of lay judges are in practice first compiled by municipal bureaucracies and the political parties in Germany, and it would appear that selection favors those known personally by the selection committee. The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice is similar to the practice in East Germany. Selection of lay judges has been described as a "highly political and discriminatory process." Applications can be made to become a lay judge by interested citizens but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertizing, and participation in fine penalty allocation.

Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service employees, compared to only about 12% being blue-collar workers. A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewives, the relatively low number of private sector employees, and relative old age of lay judges.