RESOURCE MATERIAL SERIES No. 56

THE FUNCTION OF HONORARY JUDGES IN CRIMINALPROCEEDINGS IN GERMANY
Eberhard Siegismund*
I. INTRODUCTION
In the following I shall attempt to give
you an overview of the law relating tohonorary judges in criminal jurisdiction inGermany and to explain the role played bylay judges in criminal proceedings. The
participation of laymen and laywomen incriminal jurisdiction is one of thosecontroversial topics in criminal law where
opinions part ways. Whereas one groupsees the participation of laymen andwomen as a guarantee of the democratic
process in court1, others are fundamentally
sceptical about lay participation2 or wantto further curtail lay influence3 . I will startby outlining the activities performed by lay
judges, thereafter I will set out therequirements for appointing lay judges,
describe their rights and duties and thecourse of deliberations in the court
deliberations room. Finally, I will go into
the question of whether lay judges should
be dispensed with.
II. FIELD OF ACTIVITY OF LAY
JUDGES IN GERMANY
Participation of lay judges in thecriminal justice system is based on reform
ideas and demands during the last century,
parallel to the desire for popularparticipation in legislation andadministration 4. The original rule, forwhich provision was made in the Code of
Criminal Procedure and the Law
Concerning the Constitution of the Courts,
which entered into force on 1 October 1879,
assigned the decision on serious crimes ofa severe and of a most severe nature to thejury court, which was characterised by thedivision of the bench into a judicial bench
and a jurors’ bench: the 12 jurors wereassigned the decision on culpability and the
3 professional judges the decision on
punishment, i.e. sentence. Other serious
crimes and most less serious crimes weredealt with by the criminal chamber,composed solely of professional judges; lessserious crimes of a minor nature fell within
the jurisdiction of the jury court, where the
2 lay judges decided on culpability andsentence together with the professional
judge5.
Partly following the wide-ranging
amendments to the law on lay judges particularly during the thirties - the use ofhonorary judges in criminal jurisdiction
today is as follows. Since the importanceof the office of lay judge is governed, on the
one hand, by their use in the various court
instances and, on the other, by theirdiffering numerical proportion to theprofessional judges, it would seem
expedient to subdivide according to thevarious instances.
A. Courts of First Instance
Courts composed of several judges withjurisdiction at first instance are the Jury
Court at the Local Court and the Grand
Criminal Chamber at the Regional Court.
12
34* Deputy Director General, Judicial System Division,Bonn, Germany.

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5cf. Wassermann, RuP 1982, p.117, p.120.
cf. Kühne, ZAP 1985, p.237.
cf. Michaelsen, Kriminalistik 1983, p.445.
cf. LR Schäfer, 24th ed., introduction chapter 15
margin reference 2.
cf. LR Schäfer, ibid.

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The Jury Court, which used to be the first
instance for very serious crimes, is now onlya criminal chamber with special
jurisdiction, but has retained its old name.
The Higher Regional Court, whichfunctions as a court of first instance inregard to crimes against the state, iscomposed of professional judges only.

or 3 professional judges and 2 lay judges
in all cases of serious crimes that do not
fall within the jurisdiction of the Local
Court or of the Higher Regional Court; italso has jurisdiction over all criminal
offences where the sentencing powers of the
Local Court are insufficient.

At the Local Court, the jury court decides
in criminal proceedings relating to serious
and less serious crimes in cases where thecriminal judge does not have jurisdiction;
the sentencing range of the Jury Court
extends to a maximum of 4 years
imprisonment.

The so-called Jury Court constitutes a
special Criminal Chamber for serious
crimes of the greatest gravity, particularly
homicide crimes listed in a conclusive
catalogue of jurisdiction in section 74
subsection 2 CCL. This Chamber has thesame composition as the general Grand
Criminal Chamber.

The Jury Court is composed on principleof one professional judge as presiding judge
and two lay judges (section 29 subsection
1, Courts Constitution Law - CCL). Where
the scope of the matter so requires, the Jury
Court may also - upon application by the
public prosecutor - function in thecomposition of 2 professional judges and 2
lay judges (section 29 subsection 2, CCL).

The Youth Chambers of the Regional
Court have the same composition as thenormal criminal chambers. They decide at
first instance on homicide crimes
committed by juveniles and young adults.
They also have jurisdiction in proceedings
where juveniles and young adults areprosecuted together, and where the Local
Court’s sentencing range is insufficient.

The Jury Court for youth matters is
composed of one professional judge, aspresiding judge, and 2 lay judges for youth
matters. Criminal offences are prosecutedin this court if youth imprisonment, whichis enforced in a youth prison, may be
imposed as the sentence. If the anticipatedsentence is less severe, as for instance inthe case of youth detention, the prosecution
is brought before a judge sitting alone withjurisdiction over youth matters. By theway, youth courts decide in criminal
proceedings against juveniles and young
adults, i.e, delinquents who were aged
between 14 and 18, and between 18 and20 years respectively, at the time the crime
was committed.

The Youth Chamber of the Regional
Court has jurisdiction, at first instance, inyouth protection matters as well. These
are cases where adults are prosecuted for
criminal offences that caused injury to achild or a juvenile (e.g, maltreatment orsexual criminal offences) or where children
or juveniles are required as witnesses.

As a court of first instance at theRegional Court, the Grand Criminal
Chamber decides in the composition of 2

B. Appellate Instance on Fact andLaw
Lay judges also participate at theappellate instance at the Regional Court.
Given that there is a review of facts andlaw on appeal, it would certainly seem
expedient for lay judges to be brought in.
The Appeal Chamber at the Regional
Court reviews Local Court judgements inthe composition of one professional judge
and 2 lay judges - i.e, with the same115

RESOURCE MATERIAL SERIES No. 56
composition as the Local Court.
In proceedings on appeals on facts andlaw against judgements of the Youth Court
sitting with lay judges, the Youth Chamberis composed of 3 professional judges and 2
lay judges, and in proceedings on appeals
on facts and law against judgements of ajudge sitting alone in youth matters it iscomposed of the presiding professional
judge and 2 lay judges in youth matters.
In Germany, we have about 61,000 lay
judges at the courts with jurisdiction overmatters relating to young people and over
adults. This is an impressive figure when
set in relation to the figure of 4,000 judges
in criminal jurisdiction.

B. Improving the Quality ofJurisprudence
In this connection, one often hears theslogans: popular orientation, present-day
relevance, sense of justice, and plausibility
control8. It is said that the lay judge brings
in a popular orientation by their sense of
the popular mood, hence preventing theprofessional judge from sinking into aroutine9. Through lay participation, theprofessional judge is forced to measure andclarify the accuracy of their observations
and conceptions and the persuasive powerof their ideas by being confronted with
objections issuing from an untested senseof justice10. S/he is forced to formulate whats/he wishes to say in a clear and intelligible
manner, in other words, in a mannerconducive to popular comprehension.

III. PUBLIC PARTICIPATION
There are basically three arguments
supporting the participation of laymen andwomen in criminal proceedings, i.e, thedemocracy principle, the quality ofjurisprudence and the popular educative
effect6.
A. Democracy Principle
By acting as a lay judge, the ordinary
citizen can take part in the dispensation ofjustice and obtain experience of what
happens in the deliberations room as well
as of the difficulties, doubts and even theconflicts of conscience that may arise incoming to a just decision. Co-responsibility
for the decision given counteracts thecriticism that might otherwise easily arise,
namely that judgements are delivered“from an ivory tower”7. Nevertheless, when
considering this aspect, it must not be
forgotten that laymen and women have thesame statutory duty as professional judges
to uphold the secrecy of judicial
deliberations, i.e, to remain silent about thecourse of deliberations.
6

On this see Kühne, ZRP 1985, p.237, p.238

116

By contrast, the following arguments areused to controvert this. Assuming thatlegal professionals articulate their ideas ina manner incomprehensible to laymen andwomen, lay judges would have to rectify
this by self-confidently posing further
questions. But, so the argument goes, thiswould be rather unlikely since lay judges
are mostly only passive participants andthey are overburdened by the task of
examining the professional judge’s proposal
for a decision11, especially as a lay judge
does not have a command of specialist legal
terminology.
Against this backdrop, there is a needfor more intensive discussion of thequestion of whether the sense of justice thatthe lay judge brings to bear and their senseof plausibility are suited to improving the
7

cf. LR Schäfer, ibid., margin reference 8.
cf. Kühne, ibid., p.238.
9 cf. LR Schäfer, ibid.
10 cf. LR Schäfer, ibid.
11 cf. Volk in: Festschrift für Dünnebier, 1982, p.373,
p.377; Casper-Zeisel, Der Laienrichter im
Strafprozeß, 1979, p.84.
8

112TH INTERNATIONAL TRAINING COURSE
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quality of jurisprudence.
C. Popular Educative EffectFinally, the use of lay judges is also
linked to the expectation that these judges
will increase people’s acceptance of court
decisions, that they will improve popular
legal knowledge, hence contributing toinner appreciation of criminal law norms
and, at the same time, that they will havea general preventive impact12.
But critics opposed to this notion saythat this effect could only be achieved if
lay judges were to be active in effective
instruction of the public outside their court
activity; however, this is said to be notnormally the case 13. Judging from myprofessional observations over a period of
more than 10 years, this is negated by thefact that lay judges consistently performtheir duties with great eagerness and pride
so that we can assume that there is
feedback in the lay judge’s family and intheir circle of friends and acquaintances.
Whether, however, lay judges enjoy morecredibility and have greater power of
persuasion than professional judges - whoare similarly in a position to report on theirexperience - must remain an open question.
IV. WHO CAN BECOME A LAY
JUDGE?
A. General Prerequisites
Section 31, second sentence, CCL
stipulates that a lay judge must possess
German nationality. If a non-German lay
judge takes part in criminal proceedings,
the bench will not have been properly
constituted with the result that this will
present an absolute ground for an appeal
on law14.

Seen against the background of the large
number of foreigners whose lives have been
centred in Germany for a considerable
length of time, and who are largely
integrated in German life, but who shy
away from acquiring German nationality
for a variety of reasons, the question is
being discussed as to whether nonGermans are to be admitted to the office oflay judge as well15. Hence it has currently
been suggested that where a foreigner has
lived in the country for a specified lengthof time, has the necessary linguisticcompetence and fulfils the personalprerequisites, s/he should be admitted as
an honorary judge16. Grounds for admitting
foreigners as honorary judges are said tobe: integration of the foreign populationand greater acceptance of court
jurisprudence.
Admittedly, the fact that a certain
integrative effect may follow from such ameasure must not be overlooked. But it
seems clear that an integrative effect would
probably only arise in relation to those on
whom the office of honorary judge had been
conferred.
However, there are misgivings about theassumption that court jurisprudence would
enjoy greater acceptance as a result ofparticipation on the part of foreigners. This
would only be possible if, in individual
cases, special lay judges from a specificregion could be chosen for a particulardefendant, i.e. Turkish lay judges for
Turkish defendants and so on. Apart fromthe fact that this would be linked to therisk of abuse and manipulation - which
would hardly be conducive to acceptanceof court jurisprudence - choosing lay judges
for specific individual cases is not feasible
14 cf. Section 338 no. 1 StPO; cf. LR Schäfer, 24thed., Section 31 margin reference 4.
12 cf. Kühne, ibid. with numerous references.

15 cf. Röper, DriZ 1998, p.195; Jutzi, DriZ 1997, p.377.

13 cf. Kühne, ibid., p.239.

16 cf. Röper, ibid.

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RESOURCE MATERIAL SERIES No. 56
seeing that only about 30% of the suspectedcriminal offenders found by the police in1997 did not have German nationality. In
the end, it is likely that in the future too
there will be no criminal courts composedof non-German lay judges17.
The question of whether a lay judge
should be male or female does not arise
because equality for women is alreadyanchored in the constitution (Article 3 of
the Basic Law). More than 70 years ago,
however, a speaker at the German
Congress of Lawyers in Leipzig (in 1921)
expressed his emphatic opposition to
women acting as lay judges as follows:“The reputation of the courts calls forjudges for whom the defendant has
respect. In the light of the actual
conditions still pertaining here ... men
often do not yet have the necessary
respect for a woman. So admitting
women would mean lowering respect forthe court and therefore respect for thelaw. But this must be avoided
particularly at the present time...”18.
Another question to look at is thequestion of whether women actually makeup 50% of lay judges. Here we findinteresting results when we compare
benches handling matters relating toadults with those handling youth matters.
Whereas women at courts handling adultmatters were under-represented(compared with their share of the
population), accounting for a figure of about
30% in 1975, of about 20% in 1981, of about
10% in 1989 and, in 1997, of just 3%. The
result is quite different in respect of lay
judges at youth courts: here women are alittle over-represented - in 1975 by about
6% and in 1997 by about 1%.

The almost equal composition of the Jury
Court for youth matters is based on theYouth Courts Law; there section 33
provides that a man and a woman should
be brought in as lay judges at every mainproceeding conducted by a bench.
Parliament assumed that women, in theirrole as mothers and rearers of the young,would generally be able to understandyoung criminal offenders better and would
be more likely to choose the appropriate
sanction for the wrong committed. In
actual fact, there are female lay judges
particularly at the youth courts who arestrongly committed in the educative sense
as teachers, social workers or persons
responsible for training others.
So as to ensure that lay judges have thenecessary experience of life, the Law
prescribes a minimum age limit of 25 years(section 33 no. 1 CCL). Since most citizens
are already pursuing an occupation at thisage, they will usually have a general
understanding of the life situations to be
adjudicated in criminal proceedings. On
the other hand, the maximum age limit of
70 years is designed to ensure that people
who are no longer capable of matching up
to the physical and mental rigours of theoffice of lay judge are not appointed to that
office19.
Familiarity with local conditions (section
33 no. 3), as required by the law, allows
regional views regarding the importanceand circumstances of a criminal offence tohave some influence on the judgement20.
It seems obvious that that a prospective
lay judge must be in full possession of theircivil rights and must be eligible to holdpublic office, if s/he is to be appointed tothe office of lay judge (cf. section 32 no. 1).

17 cf. Wassermann, NJW 1996, 1253, 1254, Jutzi, DriZ

19 cf. Schäfer, ibid., Section 33 margin reference 1.

1997, p.377.
18 cf. von Hasseln, DriZ 1984, p.12, p.14.

20 cf. Benz, Zur Rolle der Laienrichter im Strafprozeß,118

1982, p.67.

112TH INTERNATIONAL TRAINING COURSE
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B. Grounds for Exclusion
To prevent incompetent or unsuitablepeople from holding the office of lay judge,
the Law makes provision for a number ofgrounds for exclusion. People who havebeen sentenced to a term of imprisonmentof more than 6 months’ duration forcommission of an offence with intent are
excluded, and so are those in respect ofwhom investigation proceedings are
pending for an offence that might lead toloss of eligibility to hold public office(section 32 nos. 1 and 2).
Section 33 no. 3 (restriction of disposition
by virtue of a court order) refers to all casesof restricted disposition in connection withproperty as a whole, as with all persons
deprived of legal capacity on account ofm e n t a l i l l n e s s , m e n t a l d e f i c i e n c y,
prodigality, alcoholism or drug addiction,or with those placed under temporary
guardianship21.
Finally, the cases of unsuitability on the
ground of a person’s occupation (section 32
nos. 1 to 6) are also of interest. This isdesigned to avoid taking people performing
functions that are important in public life
away from their full-time work, as well as
to avoid tensions between defendants andlay judges which might lead to mutual
prejudices as far as people working in theadministration of justice are concerned22.
C. Grounds for Refusal
The office of lay judge is admittedly anhonorary one (section 31, first sentence,
CCL) but selection for this office isnevertheless a duty from which the person
concerned can obtain an exemption only on
the strict conditions laid down in section
35 CCL. The following persons can refuse
appointment to the office of lay judge:
21 cf. LR Schäfer, ibid., Section 32 margin reference11.
22 cf. Benz, ibid., p.70.

• Members of the German Federal
Parliament and Federal Council, ofa Land Parliament or of a second
chamber;• People who, in the preceding term ofoffice, performed the duties ofhonorary judge for 40 days or who are
already performing the duties ofhonorary judge;• Members of the medical professions;• People who have reached the age of
65 years or who will have done so at
the end of the term of office.
An additional case for exemption has
recently been introduced: it covers thosecases where acting as a lay judge would
seriously endanger the economic existenceof the person concerned or of a third person.
It is true to say that cases of exemption
are usually already taken into accountwhen the list of candidates and lay judges
is being drawn up; they are otherwise only
recognised if the lay judge concerned
asserts them within one week after s/he has
been informed of their assignment. Where
such grounds arose or become known later,
the time limit shall start to run from thattime (section 53 subsection 1 CCL).
D. Selection of Lay Judges
Lay judges are selected every four years.
The Regional or Local Court director
determines the required number ofprincipal and assistant lay judges(substitute lay judges) for the Jury Courts
and Criminal Chambers on thepresumption that principal lay judges will
not be brought in more than 12 times onsitting days every year, and s/he will informthe municipalities of the figures allocatedto them. Pursuant to section 36 subsection
1 CCL, the municipalities draw up uniform
lists of lay judge candidates for the Local

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RESOURCE MATERIAL SERIES No. 56
Court and the Regional Court. Candidates
can be nominated by parties and charitableassociations, although any interested
citizen can indicate this to their municipal
administration. In spite of the obligation
under section 36 subsection 2 CCL to takerepresentative account of all populationgroups, this means that predominantly
politically active members of themunicipality - i.e, mainly middle-classpeople - are proposed for selection in linewith the ratio of party representation in
the municipal bodies23. If there are notenough candidates, municipalities
occasionally take their candidates for thelist from the register of residents inaccordance with the principle of random
selection24.
The municipal council approves by 2/3
majority the list of lay judge candidates
from the preliminary lists of candidates.
The list should contain at least twice as
many names as the number of persons
determined by the President of theRegional Court or of the Local Court(section 36 subsection 4 CCL). Since it
seems wholly impossible in cities with listsof candidates containing about 2,5000
names to “select” individual persons in thesense of weighing up the personal
characteristics of individual candidates,
candidates for the office of lay judge areoccasionally selected by mere counting or
at random, and are then approved by 2/3
majority25.
After the list has been displayed inpublic for one week (section 36, 37, 38 CCL)
the lay judge selection committee, set up
at the Local Court, will select the lay judges
for the next term of office from this list.
The same applies to lay judges for the23 cf. Kühne, ZRP 1985, p.237, p.238
24 cf. Lieber, Der praktische Ratgeber für Schöffen,

1st ed., p.86.
25 cf. Jasper, MDR 1985, p.110, p.111.

120

Criminal Chambers (section 77 CCL).
There is special selection procedure forlay judges at the Youth Courts. In order toobtain citizens who have a special
educational aptitude or who have had longexperience in the education of young
people, the lists of candidates for the officeof lay judge are drawn up by the youth
welfare committees, bodies set up at themunicipality whose members are experts
on matters of child and juvenile education.
The Youth Court judge will take the placeof the Local Court judge at the lay judge
selection committee.
V. RIGHTS AND OBLIGATIONS OFLAY JUDGES
As mentioned above, every citizen who
has been appointed as a lay judge must
perform the duties of this office properly,
even where it is considered burdensome inthe circumstances of the individual case.
Pursuant to section 56 CCL, the judge isentitled to impose a regulatory fine on alay judge who, without sufficient excuse,fails to appear at sittings on time or who
seeks to evade their responsibilities in someother way, e.g, by refusing to participate
in a vote26.
This provision is not without its
problems, considering that section 30 CCL
provides that during the main proceedings
the lay judge exercises judicial office andenjoys the same voting rights as theprofessional judge. The equality of lay
judge and professional judge establishedunder the aforementioned provision isdefinitely restricted by granting theprofessional judge explicit rights over lay
judges.
A. Participation of Lay Judge in theMain Proceeding
In accordance with the aforementioned
26 cf. Schäfer, ibid., Section 56 margin reference 3.

112TH INTERNATIONAL TRAINING COURSE
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provision of section 30 subsection 1 CCL,
during the main proceedings the lay judges
fully exercise judicial office and enjoy thesame voting rights as the professional
judges and, as a matter of principle, theyalso participate in decisions to be taken
during the main proceeding.
Before dealing with the decision-making
powers of professional judges and lay
judges, it would seem to be indispensable
to describe the function of the Criminal
Court judge in Germany, which is notcomparable to the function of the Criminal
Court judge in English-speaking systems.
In the adversarial system, as a matterof principle, the court has to make its
decision solely on the basis of the evidence
presented to it by the parties. This system
is based on the idea that the court
proceedings should be structured in theform of a dispute between two equal
adversaries before an arbiter who also has
to decide the outcome of the duel. If theparties agree to resolve their dispute by thenotorious “plea bargaining”, or by reducing
the charges from a serious crime to a lessserious offence, the judge will usually bebound by such an arrangement. In thisdispute, the public prosecutor is not an
impartial authority, but party to theproceedings. This is the role imposed onthem. The judge is, so to speak, only theintermediary or arbiter who sees to it thatthe parties stick to the rules of the game.
Even if the court would want to learn thewhole truth, it has no procedural means totake action to this effect, given thedispositive powers of the parties. In fact,
the court might have to decide on the basisof insufficient evidence.
The system operated in Germany isdifferent. When the police or the publicprosecution office in Germany learn abouta criminal offence, they are obliged toascertain the facts thoroughly, i.e, they also

have to investigate any exonerating
circumstances. Where an indictment ispreferred, this duty to investigate is all themore incumbent upon the judge (section
244 subsection 2 Code of Criminal
Procedure). This provision reads as follows:“In order to determine the truth, thecourt shall, upon its own motion, extend
the taking of evidence to all facts andevidence which are important for thedecision.”
The duty to investigate extends to all
facts which need to be proven, no matter
whether these facts are directly or
indirectly relevant to the question of guilt,
to the question of legal consequences or toprocedural questions. So the duty toinvestigate applies, in particular, also withrespect to the facts which are relevant to
the determination of sentence, no matter
whether these facts concern the offence or
the offender.
The duty to investigate is first of allincumbent upon the court. It extends inevery direction, in favor of the defendant
and against them, and it is not subject toany motions, suggestions or requests by theparticipants. So it can happen that the
court will proceed to take exonerating
evidence even against the defendant’s willor to investigate incriminating
circumstances, even if the publicprosecution office shows no interest. Even
where the defendant and the publicprosecutor both agree to dispense with thetaking of further evidence, the court will
not be released from its duty to investigate.
As has been outlined before, during themain proceedings the lay judges perform
judicial functions to the full extent and withthe same right to vote as the professional
judges; this means that when I am
speaking of “the court” this includes the lay
judges as well. They participate in any

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RESOURCE MATERIAL SERIES No. 56
order, decision and voting unless the law
expressly assigns certain tasks to thepresiding judge or the professional judges.
The most important decision is a
judgement which consists of a conviction
and a sentence, as well as other decisions
ending the proceedings, such as
termination of proceedings. It is important
to note that the conviction and a sentence
are pronounced in one single decision, likethe following: “The defendant is guilty oftheft. He is sentenced to 6 months
imprisonment. He is ordered to pay thecosts of the proceedings.” Orders preceding
the judgement, such as a decision on a
motion for the admission of evidence, arealso made in co-operation with the lay
judges.
In order to be sufficiently informed - withregard to the court’s official duty toinvestigate as mentioned before - the lay
judge is entitled to question the defendantas well as witnesses and experts (section
240 subsection 2 Code of Criminal
Procedure). The lay judges put questions
directly; they only have to ask the presiding
judge formally to be granted the right tospeak. They are not obliged to disclose to
the presiding judge the content of thequestion in advance or to ask forpermission to pose questions. In practice,
however, lay judges seldom make use of
their right to ask questions. Such restraint
on the part of lay judges is something thatthe professional judges do not mind inpractice. Awkward, ill-considered or even
unfair questions from lay judges may
considerably impair the proper course of
criminal proceedings. For instance, a lay
judge asking the defendant why s/hedoesn’t finally confess since the evidence
available provided sufficient proof mightlead to a defence counsel motion ofchallenge on grounds of bias. If suchmotion is successful, the lay judge will be
excluded from the proceedings, whichmeans that the trial has to be started again

122

unless a substitute lay judge is available.
A similar risk for the course of the trial liesin thoughtless remarks from lay judges
concerning the outcome of the proceedingsin the presence of defence counsel or publicprosecutors. Against this background, it
is easily understandable that the
professional judges prefer lay judges who
do not ask questions in the main proceeding
and refrain from making any remarks
concerning the proceedings - whether in themain proceeding or outside. It is obviousthat this is not compatible with thefunction of the lay judge to contribute to
the decision-making in the same way as aprofessional judge.
VI. DELIBERATIONS AND VOTING
In the deliberations and in the voting,which usually follow the hearing, lay
judges and professional judges have thesame vote. The manner in which thedeliberations take place is defined bystatute in two rules only (section 194 CCL):• The presiding judge chairs thedeliberations, poses questions andcollects the votes.
• Differences of opinion concerning the
subject, the formulation and the orderof questions or concerning the resultof the voting are decided by the court,
i.e, the professional judges and thelay judges together.
Usually the secret deliberations startwith the question as to which facts areproven. At the Local Court, the presiding
judge will give their version of the facts anddiscuss it with the lay judges; at theRegional Court, where two or threeprofessional judges are involved, thisfunction will in most cases be performedby the rapporteur.
Subsequently, the deliberations will deal
with the question as to which of the facts
constitute the elements of an offence, i.e,

112TH INTERNATIONAL TRAINING COURSE
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which offence has been committed. Thenthe court will discuss any mitigating or
aggravating circumstances. Finally - andthis is more often than not highly
controversial - the sentence will be
determined.
If consensus cannot be achieved on
individual points, formal voting is required.
The order of voting is regulated by section
197 CCL: first the youngest lay judge will
cast their vote, then the older one. The
professional judges vote after them, first
the rapporteur, the others in the order of
their length of service, the youngest first.
The presiding judge is the last one to casttheir vote. This is meant to ensure thatthe lay judges do not feel inhibited before
the professional judges, or the younger
judges before the older ones.
A n y d e c i s i o n t o t h e d e f e n d a n t ’s
disadvantage concerning culpability andthe legal consequences of the offence
requires a two-thirds majority (section 263
Code of Criminal Procedure). This meansthat the two lay judges - at least in theory- can take advantage of their power not onlyat the Local Court but also at the Regional
Court against the three professional
judges. However, in my experience of morethan ten years at various penal chambers,
I have never seen lay judges actually takethis option. This is certainly due to thefact that the presiding judge, who chairs
the deliberations with the lay judges,
performs an advisory function concerning
legal issues and can skilfully steer the
result27. This applies in any case to the
Local Court; the situation is different withthe chambers of the Regional Court: here
it may indeed happen that a “stubborn”
professional judge and a lay judge enforce
a more lenient decision.
Since the lay judge as well as theprofessional judge have to preserve secrecy
regarding the deliberations - also after theterm of service has ended - (section 44
subsection 1 German Judiciary Act) suchprocesses are hardly ever discussed inpublic, and for good reason. The secrecy ofdeliberations ensures open discussion in
the administration of justice28, so that noprofessional or lay judge needs to fear that
their opinion might be revealed to the
public. Hence, under German law, publicannouncement of a dissenting vote is notallowed. An exception applies to theFederal Constitutional Court, the highest
German court. If a lay judge discloses thesecrecy of deliberations, a regulatory fine
may be imposed pursuant to section 56
CCL.
VII. SHOULD LAY JUDGES BEDISPENSED WITH?
Meaningful participation of lay judges
in the administration of criminal justice isconceivable only if they are capable ofassisting the professional judge in theapplication of the law. Since lay judges are
barred from inspecting the files, they can
only rely on the result of the oral hearing.
But they will not be able to gain an
adequate basis for decision-making unlessthe professional judge directs theproceeding in such a way that it is generally
understandable and, if necessary, also uses
recesses in order to explain technical terms
to the lay judges, comment on expert
opinions or recapitulate the taking ofevidence step by step29.
As my own experience has shown, it isextremely rare for a lay judge to contributeto the clarification of facts, unless forexample when s/he happens to have specificknowledge of the subject or where s/he isable to contribute professional experienceor experience of life in the field concerned.
27 cf. Benz, ibid., p.84.
28 cf. Schmidt-Räntsch, JZ 1958, p.329.
29 cf. Benz, ibid., p. 90.

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But it would nevertheless be short-sighted
to dispense with the participation of lay
judges. An empirical and psychologicaltheoretical study of existing law concerning
lay participation in criminal jurisdiction
has shown that lay judges can indeed copewith the tasks assigned to them30.
There is no qualitative difference
between the decision-making processes oflay judges and those of professional judges;
the process of judging by lay judges is arational one, too. It is governed roughly
by the same factors as the process of
judging by legally trained persons and it is
not affected, to any major degree, by
sympathy for, or dislike of, the defendant.
In addition, lay judges do not have any
stronger tendencies towards extremely
harsh or lenient decisions than therespective presiding judges. The attitudeof lay judges, therefore, is not appreciably
more repressive or more lenient than thatof presiding judges.
Nor is there anything wrong with theability of lay judges to understand what isgoing on. As a rule, lay judges are able tofollow an average main proceeding easily.
Most lay judges are able to understandwhat is happening in the main proceeding
and what it is all about. There are certain
problems of comprehension, though, which
lay judges may have and which may beunderstandable in the particular case, butwhich must not be ignored. Indeed, theyoccur too often simply to be tolerated. A
classical problem, for example, is theparticipation of lay judges in cases
involving economic offences. In such cases,
people with no special training will find it
difficult, in particular, to comprehend
economic processes31. Although there are
no practical approaches in sight so far to30 cf. Rennig, Die Entscheidungsfindung durch

Schöffen und Berufsrichter in rechtlicher undpsychologischer Sicht, 1993, p.570 et seq.

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solve this specific problem, the key
statement remains true, namely, that
acting as a lay judge, in general, is notasking too much of the person concerned.
Nevertheless, it seems advisable for lay
judges to be given some assistance in thefulfilment of their tasks-whether throughspecific information to be provided by theprofessional judge or through regulartraining32.
For lay judges it is very important that
judicial decisions should reflect what the
public feels is right or wrong. This is what
they regard as the main purpose of theiroffice. During the deliberations, therefore,
most lay judges strive to voice popularconvictions of what is right or wrong32. As
the results of the aforementioned study
show, this leads rather frequently todifferences of opinion between lay judges
and professional judges33. Surprisingly,
however - and this is also what I haveexperienced - it rather seldom happens thatlay judges exert influence with respect tothe outcome of proceeding. The question
as to the reasons for this must be left open;
it would seem possible that a quite
substantial number of lay judges
endeavour to avoid disagreement with thepresiding judges34.
Lay judges are often purported to behighly susceptible to media influence.
According to the aforementioned study,
which is based on interviews withprofessional judges, there is no indicationthat the attitudes of lay judges are
influenced by public or published opinion
to any extent worth mentioning. It is true,
31 cf. Katholnigg, Wistra 1982, p.91; Michaelsen,

Kriminalistik 1983, p.445; Wassermann, JVBI.
1970, p.145, p.148.
32 cf. Rennig, ibid., p.572.
32 cf. Rennig, ibid., p.572.
33 cf. Rennig, ibid., p.573.
34 cf. Rennig, ibid.

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
though, that it cannot be ruled out
completely that media reports may havesome effect on the opinions of lay judges,
but for the same good reason this could also
be said of professional judges35. In any caseit should be noted that the belief that lay
judges are highly susceptible to media
influence must finally be abandoned36.
In conclusion, it should be pointed outthat the participation of lay judges in theadministration of criminal justice has moreadvantages than many of its opponents
expect. In addition to increasing popularconfidence in the justice system, in ensures,
above all, that criminal proceedings - and,in particular, the verdict - remain easily
understandable and comprehensible toeverybody. This seems to be all the more
important as criminal law, after all, is amatter not only for the professionals
involved, but for society as a whole.37

35 cf. Rennig, ibid.
36 cf. Rennig, ibid.
37 cf. Rennig, ibid.
38 cf. Geerds, Schiedsmannzeitung 1980, p.86.

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