I regret to report that this article documents the thoroughgoing dominance of lay judges in mixed courts by professional judges. This is in itself not surprising. What is interesting about the article is its very careful and detailed account of the mechanisms by which this judicial dominance is maintained. For example, professional judges, though legally required to give the lay judges an opportunity to ask questions, do so in a way that does not encourage the lay judges to ask questions; and, in any event, the lay judges are usually not familiar with the case file and can't ask useful questions even if they might want to do so. But read the article, a fascinating statistical-sociological study! I may make it required reading in one or more of my courses.
Tuesday, January 02, 2007
Relations between Lay and Professional Judges in Germany
See the following fascinating article on the relationships between lay and professional judges in Germany: Stefan Machura, Interaction between lay assessors and professional judges in German mixed courts, Vol. 72 –2001/1-2, Revue internationale de droit pénal
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4 comments:
...law professionals and laypersons working together...
I think I caught a lawyer on Edward Tufte's site saying something that lawyers generally do not want laypersons (like me) to know:
"As a lawyer, I have seen many lawyers get into arguments with non-lawyers. Usually, the lawyer out-argues the other person (often a spouse or significant other). The non-lawyer simply does not think quickly or logically enough to spot and articulate flaws in the lawyer's argument. Many such lawyers are foolish enough to believe they have won the argument, and that they must therefore be right." -- Patrick Martin
Ask E.T., Current topics, thread 'Advice for effective analytical reasoning'
I don't know what tricks do lawyers use, but I remember a person who tried to gain advantage in a potentially conflict-ladden situation by pretending to have formal education in law (the claim later was found to the untrue).
Yes, the sociologist offers a brutal view.
It's possible that the forthcoming Japanese mixed court will prevent undue domination of the lay judges by the professional judges because in the new Japanese mixed court there will be six lay judges (and three professional judges). Perhaps the number of lay persons will prove to be large enough to embolden the lay judges to think and act independently and according to conscience. (But the German experience suggests there are clearly other possible impediments to the independence of the lay judges.)
Machura writes in truly scholarly manner:
"As a rule-of-thumb it can be said that the proportion between professional and lay judges is important. [44] When lay persons are in a minority, their influence diminishes." -- The (3,6) proposition is bound to significant costs (salaries + overhead), I guess. The assumption is that larger groups make better decisions. One study showed that the marginal gain from increasing group size is quickly diminishing (from group sizes of about 7-9 or above). The groups in that study had to identify user needs (focus groups in marketing research).
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