Introduction
Most countries around the world use professional judges, but many also rely on lay citizens, untrained in the law, to decide criminal cases. What percent of the countries in the world do you think use ordinary citizens as decision-makers in criminal courts? Take our one-question survey and estimate the percent of countries around the globe that have some form of lay participation in legal decision-making in criminal cases!
The result of a recent worldwide research project covering 195 countries and territories reveals that about two-thirds of the countries—64%—use lay persons as legal decision-makers in criminal cases! That number surprised the four editors, all of whom have long studied the use of citizen participation.
The extent of use and type of lay participation varies by geography and by the legal tradition of the country. Juries, Lay Judges, and Mixed Courts: A Global Perspective provides an in-depth analysis of the variety of approaches to citizen participation used in criminal cases around the globe.
Types of Lay Participation
Citizens may be included as decision-makers in criminal proceedings as jurors on juries, lay judges on mixed tribunals, lay magistrates or justices of the peace, and lay judges on lay courts. On a jury, a group of citizens determines the culpability of the defendant in a criminal case and sometimes it decides on the punishment. On a mixed tribunal, lay judges work together with professional judges to decide questions of guilt and punishment. On a lay court, such as a tribal or customary court, which typically exists outside of formal court systems, lay people conduct trials and reach decisions about criminal conduct. Finally, a lay magistrate or a justice of the peace is usually a citizen not formally trained in the law who decides criminal cases in criminal courts either individually or in small groups.
The United Kingdom as a Case in Point
The UK, of course, has long been a significant force in encouraging lay participation. Community members formed juries that resolved disputes in medieval England, and they continue to do so today. Lay magistrates who have no formal legal qualifications, but receive training “on the job,” decide a significant proportion of criminal cases in the UK today. During the British Empire’s period of colonial expansion, the institution of trial by jury was brought to many other countries around the world. Although the UK played an important role in encouraging the adoption of jury systems worldwide, it is notable that the jury’s scope in its mother country has been significantly constricted in modern times. Questions about expansion and limitation of lay participation in legal decision making, so evident in the UK’s own history, are central to the analyses in our book.
Developments in Lay Participation across the World
Juries, Lay Judges, and Mixed Courts: A Global Perspective considers why the use of lay participation in some countries is long-standing, whereas lay participation has been substantially altered, limited, or abolished in others. This edited volume analyzes how lay participation has been – and is being – advanced, reinforced, or replaced in countries around the world.
Over the last 30 years, it may surprise some readers to learn that lay participation systems have been introduced by a number of countries around the world, including countries in Asia, Europe, and South America. The book includes accounts of these remarkable introductions. The post-Franco Spanish Constitution of 1978 stipulated the right to a jury trial, resulting in its implementation in 1995. This new jury system, implanted in a country with a strong civil-law tradition, evolved over the course of almost 30 years, as Mar Jimeno-Bulnes outlines in her book chapter.
Argentina is an example of a country in which lay participation has just recently begun to flourish in multiple provinces, despite 150 years since the Argentine Constitution mandated its use. As Vanina Almeida and colleagues describe in their book chapter, 6 out of 23 Argentinean provinces have passed laws creating the right to trial by jury, implemented novel jury features, and introduced adversarial criminal procedure to accommodate juries in their courtrooms. The jury has served as a “Trojan Horse” to bring in widespread structural changes in the criminal procedure. In addition to the jury trials in these provinces, Córdoba, another province in Argentina, decided to take a different route and introduce another form of lay participation—mixed tribunals—in 2004. In her chapter, María Inés Bergoglio analyzes the intricacies of the operation of a tribunal composed of eight lay persons and three professional judges.
Developments in Asia have been striking. In 2009, Japan introduced the institution of a mixed tribunal, Saiban’in seido, composed of six lay persons and three professional judges, to decide serious criminal cases. Dimitri Vanoverbeke and Hiroshi Fukurai’s book chapter outlines the implementation of the novel system and its enhancement of citizens’ civic engagement. About the same time, in 2008, South Korea implemented an advisory jury system. As Jaihyun Park analyzes in his chapter, this advisory jury system in Korea, supported both by citizens and professional judges at the Supreme Court of Korea, is a compromise between the traditional jury system composed of lay people and the system of mixed tribunals composed of lay people and professional judges.
Unlike these countries in which new systems of lay participation have been introduced, in other countries, long-standing institutions that allowed lay people to decide legal disputes have declined or have been severely restricted, as in the UK. We know from case studies and other empirical research that support for lay participation, not only among the public at large, but also among professional judges and lawyers, is critical for the system of lay participation to endure. Criticisms of lay participation include doubts about lay participants’ competence in fact-finding, their ability to understand the legal issues, potential bias, concerns about general verdicts, high costs, and relative inefficiency. In the chapter discussing the 25th anniversary of the introduction of the jury in Spain, Mar Jimeno-Bulnes illustrates the effects of a controversial verdict in a high-profile case on the dramatic decrease in public support for jury trials.
Other analyses show the critical role of political elites, including legal professionals, in fostering or undermining lay participation in law. For example, in the chapter about lay participation in Norway, Anna Offit reveals the professional judges’ and lawyers’ concerns about the use of juries consisting only of lay persons and demonstrates how political elites were able to replace a traditional jury system, established in 1887, with a system of mixed tribunals in which lay persons participate together with professional judges. The chapter about the French jury by Claire Germain reinforces the significant role that political elites play in shaping the use of lay participants in a country.
Analyses of current developments in Russia (by Nikolai Kovalev and Sergei Nasonov) and the country of Georgia (by Nikolai Kovalev and Giorgi Meladze) illustrate another troubling phenomenon in action. Political elites can expand the role of lay participation to appease the public or other constituencies, even if legal professionals object. However, when a new class of political elites wins the next election, they can reverse the direction of reforms and undermine or entirely eliminate lay participation. Political elites play fundamental roles in shaping the contours of established systems of lay participation, and in threatening the success of new and more fragile systems.
Conclusion
Juries, Lay Judges, and Mixed Courts: A Global Perspective offers a comprehensive view of the continuing significance of lay participation in legal decision making. Despite the expansion of the legal profession and the widespread availability of professionally-trained judges, a majority of countries around the world still give citizens untrained in law the responsibility of reaching important legal decisions. Our book documents divergent trends – in some jurisdictions, citizens are enamored by their new and expanding roles, whereas in others, citizens are being displaced by professionals. The variety of approaches and the shifting terrain surveyed in this book reveal the ongoing struggle to determine the optimal way to involve citizens in legal decision-making.
Poste by Sanja Kutnjak Ivković (Michigan State University), Shari Seidman Diamond (Northwestern University & American Bar Foundation, Chicago), Valerie P. Hans (Cornell University, New York), Nancy S. Marder (Chicago-Kent College of Law).
British Association of Comparative Law 