Democracy in the Courts

Lay Participation in European Criminal Justice Systems

Marijke Malsch

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317153061
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Democracy in the Courts examines lay participation in the administration of justice and how it reflects certain democratic principles. An international comparative perspective is taken for exploring how lay people are involved in the trial of criminal cases in European countries and how this impacts on their perspectives of the national legal systems. Comparisons between countries are made regarding how and to what extent lay participation takes place and the relation between lay participation and the legal system's legitimacy is analyzed. Presenting the results of interviews with both professional judges and lay participants in a number of European countries regarding their views on the involvement of lay people in the legal system, this book explores the ways in which judges and lay people interact while trying cases, examining the characteristics of both professional and lay judging of cases. Providing an important analysis of practice, this book will be of interest to academics, legal scholars and practitioners alike.

Chapter 1 Introduction

DOI: 10.4324/9781315576428-1

Lay participation in the administration of justice differs between countries. Some countries, like the United Kingdom and the United States, have always attached considerable value to the participation of ‘ordinary people’ in the legal system in the form of juries. Other systems, like that of France, have at a later point in time adopted the view that citizen participation in the legal system is a necessary requirement of democracy. Citizen participation in a legal system may vary over time within countries as well. Countries such as Russia and Spain have recently re-introduced the jury into their legal systems after previously having abolished it. Other countries, such as Belgium, are discussing modifying their jury system and in the Netherlands, where lay participation in the legal system is largely absent, a small number of politicians have advocated the introduction of lay judges in criminal cases.

This book examines lay participation in judicial systems. It presents the results of interviews conducted with professional and lay adjudicators in five European countries. These interviews focus on the lay persons’ and the professional judges’ experiences of lay involvement and their perspectives on how the legal system operates in this respect. Alternatives to lay participation, such as an increased transparency and greater accessibility to the trial of cases, are discussed as well. An attempt is made to establish how far the various legal systems comply with certain democratic values. In the opening chapters the concept of ‘democracy’ is elaborated on, and the question is asked in how far the concept is applicable in the legal domain. In the final chapter, a model for democracy in courts is presented as a result of the research done for this book.

Arguments in Favour of Lay Participation

Arguments in favour of and against citizen participation in a criminal justice system have been widely debated in many countries. Some arguments can cut both ways, in favour of and against lay participation. That is the case, for example, with the argument regarding ‘emotions’, which it is assumed can play a more substantial role with lay adjudicators (Malsch 2003). Emotions may stand in the way of an objective judgement about a case, but they might also be welcomed to prevent overly bureaucratic decision making by professionals. The same is true for the expense of lay participation. Some people stress the higher costs related to the principle of ‘immediacy’, which requires that all witnesses and experts should be heard in open court and legal issues should be explained to the lay participants; immediacy is enforced more strongly when lay adjudicators are involved than when cases are dealt with only by professionals (van Koppen and Penrod 2003; Malsch and Nijboer 2005). Others, however, are of the opintion that the remuneration of lay participants is substantially lower than the salaries of professional judges, leading to reduced expenses for the judicial system as a whole in the case of lay participation (Casper and Zeisel 1972; de Roos 2006). In this section the arguments most likely to be identified as being in favour of lay participation are discussed. The next section deals with arguments against lay participation.

What are the arguments for offering citizens the opportunity to take part in the adjudication of cases? The democratic argument is the strongest and the most often expressed reason for lay participation: citizens should be able to take part in the trial of cases as representatives of the population at large. Deciding cases should not be the task of only a small elite, and everyone should at least have a chance of being appointed a member of a jury or to be called to act as a lay judge (Machura 2001; Ivkovic 2003; De Hert 2004b). The type of democracy that is served by such involvement is called ‘representative democracy’. In the United States, a strong advocate of this type of democracy, the view is generally held that defendants have the right to be tried by their peers (Devine et al. 2001). There, juries are considered to be a safeguard against the power of the state or against other biases of appointed judges or corrupt officials. It is held that juries inject democratic values into the legal process and function as a source of ‘common sense’.¹ Such a view is more or less absent in the Netherlands (de Roos 2006). Countries thus appear to differ in their reaction to this argument. One of the aims of this book is to uncover and examine these different types of approach between countries.

¹ For a reflection on such values in jurisdictions that make use of juries, see Vidmar 2000.

There is another aspect in support of the democracy argument: that the discussion of justice and the trial of cases would be enhanced if citizens had the opportunity to participate in the trial of cases. The gap between the population and the judiciary would be diminished if ordinary citizens were able to participate and to reach informed opinions on how the legal system works. By telling their family and friends about their experiences in the administration of justice, knowledge about the system would be spread and a discussion within the wider society made possible. Individuals would become better equipped to form their own opinion on the legal system if they participated in it. Their opinions would, then, be more informed by the actualities of the trial of cases than if the administration of justice remained the prerogative of a small group (Warren 1992; Young 2000).

Another argument supporting participation of citizens in the legal system is that this would be an incentive for the professionals to keep the trial of cases comprehensible for lay people. Most lay adjudicators are not masters of legal language, so the professional judges, defence lawyers and prosecutors would be forced to use colloquial language to a greater degree than in a situation where the tribunal consists of professionals only. It may be hypothesized that the more lay people participate in the legal system, the more every-day language would be used (Enschedé 1982; Malsch and Nijboer 2005).

Directly related to the issue of comprehensibility are the aspects of orality and immediacy of the trial, referring to the degree in which process participants do or do not rely on written materials and the extent to which witnesses are heard in court. In legal systems where a jury or lay judges are involved, orality and immediacy of the trial are generally high. Lay participants are not expected to read the case file before the hearing of a case; they should be as unprejudiced and open-minded as possible (van Koppen and Penrod 2003). In an oral and immediate trial, the review of the evidence can be expected to be more direct and, therefore, to be more reliable than in a situation where all evidence is related in reports and handed over in written form to the decision makers (De Hert 2004b).

Participation by citizens would also enhance the system’s legitimacy. Public confidence in the system would increase. Research from the social sciences, which indeed suggests that actual participation in a procedure may enhance acceptance of the outcome and respect for the authority that tries the case (Tyler 1990; Benesh 2006), is relevant to this point, and it serves as a background for the research presented in this book.²

² See Chapter 2.

Participation has certain effects on the citizens involved. They learn about the system, it educates them on the juridical aspects and they become knowledgeable about what kind of people commit particular types of crime, and how these crimes impact on the victims. It has been contended that in participating they develop a better understanding of the complexities involved in trying legal cases (Finkel 1995). By communicating with the professionals in the system, the distance between judges and lay people may be reduced.

Chapter 2 will elaborate on these arguments. In the chapters that follow, the book explores how these various arguments and aspects of democracy have found their place in the legal systems under review in this book.

Arguments against Lay Adjudication

There are also important arguments for not having lay people decide cases in a legal system. Lay people do not have legal knowledge, which implies that a lot of explanation of the legal aspects will be required. Because all witnesses have to be heard again in court, and all items of evidence have to be presented and explained, procedures take substantially longer. This requires time, and time is scarce nowadays in many legal systems (van Koppen and Penrod 2003).

It is contended that lay people would make more mistakes. They lack experience and familiarity with the routine, especially the members of a jury. They are generally less educated than the professional judges and thus there is a risk that they would not understand everything that is going on in court. Therefore the trial of cases would have to be simplified, at least to a certain degree. An elaborate doctrine on, for example, various types of guilt would not be appropriate in systems that make use of lay people. Such a complex doctrine could lead to misunderstandings or even miscarriages of justice, which cannot always be easily redressed. Such fears are regularly expressed with respect to systems that make use of a jury (van Langenhove 1989; Malsch 2003; Tubex and De Hert 2004). The drawbacks of the need for more explanation and the risk of mistakes appear to be common among the various jurisdictions discussed in this book, as the following chapters will make clear.

It is further argued that as a consequence of lack of familiarity with the routine in deciding cases, lay people would be more easily influenced by their emotions. Seeing a defendant who is accused of having killed his wife and daughter sitting just in front of you, hearing the details of the killings and seeing the pictures of the lifeless bodies in colour, may upset people who are not used to this. This is true for professional judges as well but, by and large, they become used to such aspects of serious crime. This type of horrific evidence produces a strong reaction particularly in those presented with it for the first time. During the trial lay people may be overwhelmed by their emotions, but they are not allowed to express them. Such emotions may lead to an overreaction in the opinions that they form of the case. Crimes that are highly upsetting may have such an impact that the decision makers want only the most serious penalty possible (Tubex and De Hert 2004). For this reason human rights organizations fear increased repressiveness if juries are introduced in a legal system; they expect the jury’s opinion to be more extreme than that of panels including professionals (De Hert 2004a).

However, there are also indications that when lay people are involved in decision making their opinions change in such a way that they become more lenient. Learning about the defendant’s background and motives may induce empathy in the decision maker, leading to a more balanced opinion on the case (Diamond 1990). In some cases the balance may even swing to the other side: lay people acquire so much empathy that they only want the lowest penalty or even an acquittal of an apparently culpable defendant (Kalven and Zeisel 1966). In such a situation cooperation with a professional judge might help to maintain balance in opinions.

Other effects of inexperience may also occur: attractive defendants, witnesses and victims may affect the opinions of lay adjudicators to a larger extent that those of professional judges who, thanks to their experience, have acquired some degree of immunity to appearances. It is feared that jurors would judge attractive defendants more leniently than unattractive defendants (Kalven and Zeisel 1966; Hastie et al. 1983; Wasserman 1985). Defence lawyers often make use of such an effect by suggesting that the defendant puts on certain clothes or behaves in certain ways. Naturally, such effects can be found in professional systems as well, but according to some these would be less prominent (Klik and van Koppen 2002).

In jury cases media coverage often plays an important role in shaping public opinion of a trial, as can be seen in the American criminal case of O.J. Simpson and the Belgian case of Dutroux. In contrast, cases involving lay judges, as can be found in Germany and in the Scandinavian countries, are hardly ever covered by the media. In these countries the media play a far less dominant role in the dissemination of information regarding criminal trials. The influence of media coverage, thus, differs between legal systems (Tubex and De Hert 2004).

This book pays due attention to the disadvantages outlined here. In all countries under review, these and other drawbacks have been mentioned, but the respondents attach differing degrees of value to them. Many of these disadvantages imply that democracy is hindered in one way or another, or that the quality of decision-making is reduced. The book assesses how far limitations on one aspect of democracy can be complemented by other aspects of democracy t...

Table of contents

• Cover Page
• Half-title Page
• Series Page
• Title Page
• Copyright Page
• Table Of Contents
• List of Figures and Tables
• Preface
• 1 Introduction
• 2 Citizen Participation as a Form of Democracy
• 3 Lay Adjudication in European Countries
• 4 The Expertise of Professional Judges and Lay Adjudicators
• 5 The Netherlands: The Involvement of Honorary Judges
• 6 Expert Participation in Dutch Procedures
• 7 Denmark
• 8 Germany
• 9 England and Wales
• 10 Belgium
• 11 Conclusions
• Appendix: Overview of Interviews
• References
• Index