TY - JOUR

T1 - Understanding the German Mixed Tribunal

AU - Machura, Stefan

N1 - I have contacted the editor with the aim of persuading them to make the paper open access by exercising "editor's choice" under the terms of contract with the publisher. But that only allows to make one article per issue open access.

PY - 2016/12

Y1 - 2016/12

N2 - Germany employs mixed tribunals in a number of its courts, including the criminal, administrative and labour courts. They are markedly different from courts with juries, which separate the professional judge from the lay jury. In a mixed tribunal a professional judge presides over the hearing and deliberation. Side judges, usually the lay assessors, sometimes supplemented by further professional judges, have equal rights when it comes to selecting the legal rules to be applied, making procedural decisions during the hearing, and deciding on the case outcome. Lay members of a mixed court serve for several years, and hear a multitude of cases: they build up experience. Compared to jury courts, mixed courts are much cheaper, and able to deal with a larger number of cases.Mixed courts vary as regards the qualifications required by lay judges. Some courts (e.g. labour and – sometimes – youth criminal courts) employ expert lay judges. Depending on their personality, presiding judges – in whatever kind of tribunal – may dominate their professional colleagues and also lay judges. This is one of the factors endangering the effective participation of lay assessors. Another factor is the drive to settle cases quickly, which tends to curtail or prevent deliberation. While there are deeply engaged honorary judges, others with different personality traits prefer to keep a low profile. This said, empirical research indicates that lay judges are more engaged, if their concern for procedural fairness and justice is aroused in the course of a trial.

AB - Germany employs mixed tribunals in a number of its courts, including the criminal, administrative and labour courts. They are markedly different from courts with juries, which separate the professional judge from the lay jury. In a mixed tribunal a professional judge presides over the hearing and deliberation. Side judges, usually the lay assessors, sometimes supplemented by further professional judges, have equal rights when it comes to selecting the legal rules to be applied, making procedural decisions during the hearing, and deciding on the case outcome. Lay members of a mixed court serve for several years, and hear a multitude of cases: they build up experience. Compared to jury courts, mixed courts are much cheaper, and able to deal with a larger number of cases.Mixed courts vary as regards the qualifications required by lay judges. Some courts (e.g. labour and – sometimes – youth criminal courts) employ expert lay judges. Depending on their personality, presiding judges – in whatever kind of tribunal – may dominate their professional colleagues and also lay judges. This is one of the factors endangering the effective participation of lay assessors. Another factor is the drive to settle cases quickly, which tends to curtail or prevent deliberation. While there are deeply engaged honorary judges, others with different personality traits prefer to keep a low profile. This said, empirical research indicates that lay judges are more engaged, if their concern for procedural fairness and justice is aroused in the course of a trial.

KW - Court procedure

KW - German legal system

KW - judges

KW - Lay participation

KW - mixed court

U2 - 10.1515/zfrs-2016-0022

DO - 10.1515/zfrs-2016-0022

M3 - Article

VL - 36

SP - 273

EP - 302

JO - Zeitschrift für Rechtssoziologie - The German Journal of Law and Society

JF - Zeitschrift für Rechtssoziologie - The German Journal of Law and Society

SN - 0174-0202

IS - 2

ER -