At the highest level court of first instance, the Oberlandesgericht, responsible for offenses like espionage, [2] no lay judges participate, but only panels of three or five professional judges. [3] At the lowest level court of first instance, the Amtsgericht, lay judges are excluded from trials of minor offenses with a maximum exptected punishment of two years imprisonment. [4] These cases are decided by a single professional judge, a so-called Strafrichter. In the Amtsgericht there is also a collaborative court (Schöffengericht), consisting of one professional presiding judge and two lay assessors [5] for rather serious crimes with a sentence up to four years of imprisonment. [6] At the middle level court of first instance, the Landgericht, mixed panels of two or three professional judges and two lay assessors jursidiction over all more serious felony crimes. [7] b) With respect to postconviction review, there are two different kinds of appeals from judgments by courts of first instance, the Berufung and Revision. [8] The Berufung appeal on fact and law, is admissible against judgments of the Amtsgericht [9] and results in a new public trial before the appellate division of the Landgericht as court of second instance, with one presiding professional and two lay judges. [10]

The Revision exclusively addresses violations of the law which do not require any new fact-finding and is permitted : (1) against first-instance judgments of the Landgericht or Oberlandesgericht [11], which are then heard in the Bundesgerichtshof, [12] and (2) appellate decisions of the Landgericht, which are heard in the Oberlandesgericht; [13] no lay judges are involved in any of these proceedings after Berutung. [14]

All these jurisdictions are statutory and binding on every party. Especially the defendant cannot influence these official channels. It is to some minor degree within the prosecutor´s discretion, however, to choose the court and panel that decides the indictment which he or she has filed. The jurisdiction of a professional Strafrichter for instance, who decides without any lay participation, depends on whether the sentence expected is no more than two years. [15] In certain cases the prosecutor can therefore avoid a Schöffengericht with its one professional and two lay judges, by predicting a sentence according to the provision. [16] This is not a safe way of circumvention though, since the court is not bound by the punishment requested by the prosecutor´s indictment, so the judge can bring the indictment before a higher court that then decides the appropriate jurisdiction. [17] § 24 para. 1 no. 3 GVG provides an additional option for the prosecutor to decide whether to indict with the Schöffengericht at the Amtsgericht or the Strafkammer at the Landgericht, if the special significance of the case“ requires an indictment before the latter. This kind of decision - unlike the one mentioned above – does not affect the participation of lay assessors, since they participate in both courts, the Schöffengericht as well as the Strafkammer, but influences the number of professional judges and moreover the kind of appeal permitted against the judgment of the court of first instance. As a matter of principle the courts aren´t bound by the legal definition of the indicted offenses [18] and can therefore control their jurisdiction themselves. [19]

The principles of orality and immediacy apply at the trial. Witnesses’ statements have to be made in person and therefore cannot be read out or replaced by records of former interrogations in the investigative file. [25] Even though there are exceptions to this rule, [26] each piece of evidence must normallyh be newly and directly presented and heard in open court.

b) The court´s duty to ascertain the truth on its own intitiative requires the professional judges to thoroughly study the investigative file before the trial. This system thereby causes a danger of biased courts, that can only partly be reduced by the other participants who have full knowledge of the investigative files and can point out investigative errors and additional evidence needed even before the trial starts. Because of this danger of prejudice, the Bundesgerichtshof (BGH) does not allow the lay judges to take a look at the file, [27] though it recently allowed them access to certain documents in the investigative dossier in order to have them understand the proceedings better. [28] c) The entire court and not the presiding judge her- or himself, decides on all important procedural issues during the trial. [29] Before a decision is made the judges discuss the issue among themselves. Throughout the whole decisionmaking process the lay judges have the same rights as their professional colleagues. Although only a simple majority is necessary on procedural issues, lay judges cannot be outvoted by their professional colleagues. [30] This is even more true for rulings on the verdict and sentence, where a two-thirds majority is required; [31] lay judges therefore can prevent any ruling to the defendant´s disadvantage. This makes the lay judges´position in the criminal justice system appear to be extremely strong. As a matter of fact their actual influence is far weaker, since no decision is made without a preceding discussion with their professional counterparts. [32] d) The victim can also crucially influence the taking of the evidence during many trials. In particular victims of violent crimes have the right to take part in the trial as secondary accuser (collateral complainant) with the assistance of an attorney. [33] In that situation the victim and his/her attorney have similar rights as the prosecutor and defense counsel or the defendant, such as questioning the witnesses and experts, filing motions for the taking of additional evidence, giving statements and challenging judges and experts on grounds of bias. [34] This extensive participation of the victim does not cause too many problems, because the essential taking of the evidence is still up to the court.

All the other participants are merely permitted supplementary questions, motions etc., so the trial proceedings do not get restructured by including other participants apart from the prosecution and defense as part of the system.

If the victim plans to sue someone for damages, his/her civil lawsuit can theoretically be attached to the criminal trial. [35] However this is exceptionally rare in practice, since it is within the court´s discretion to refuse an attachment if the civil complaint does not suit the criminal trial or if it tends to slow it down. [36]

Though the participants (prosecutor, defense counsel, secondary accuser) can discuss the relevant statutes in their closing arguments, they are not allowed to call upon the lay judges to oppose the professional judges. As a general rule German courts are quite reluctant to make a statement on the relevant law, trying not to give any impression of bias and thereby avoiding any challenge by the defense on grounds of bias. If the judge and defense counsel have a relationship of trust where challenges are out of question, it is not at all unusual for them to discuss legal issues more openly. Indeed, defense counsel often offers cooperation and shows his/her willingness to make concessions in order to get an idea about the court´s attitude. Lay judges rarely play an active role when a case is discussed exclusively amongst professionals (judges, prosecutors, defense counsel, attorney of the secondary accuser).

Usually the investigative files and personal notes of all judges, whether professional or lay, are available during the deliberation. The length of a deliberation varies from case to case and cannot always be assessed by other participants, for the court may retreat to chambers during the trial to discuss not only procedural issues but also the evidence that has been submitted to the court up to that time. After a full-day trial deliberations usually last one hour and sometimes more. The deliberation and vote are both strictly confidential. [40] Despite this secrecy the presiding judge elucidates certain issues that were part of the deliberation, by publicly giving reasons for the court´s ruling, without having to get concrete about the course of the deliberation and vote.

The lay judges have an equal role in the vote. [41] If they ignore the law and by doing so prevent the majority necessary for a lawful judgment. The professional judges have no remedy. In such a case, the professional judges will clearly set out this error in the written opinion, so the prosecutor, defense counsel or secondary accuser can successfully appeal from the judgment.

Only the professional judges draw up and sign the written reasons for the judgment, [44] even when they are outvoted by the lay judges.

The content of the written judgment laid out in § 267 StPO. In particular evidence impacting upon the verdict and sentence should be described and legally evaluated. The courts of appeals constantly increased the requirements for the written reasons for judgment, so the trial courts now have to set out in detail the essential evidence taken, the crucial aspects of its evaluation and the reasons for the sentence. This is why the length of a judgment – especially when appealed [45] - can easily reach ten pages in minor cases or short trials and up to a hundred pages and more in lengthier trials or even in marathon trials.

b) The judgment of a Berufung can then be appealed by Revision to the Oberlandesgericht as the third instance. Judgments of the Landgericht and Oberlandesgericht when serving as courts of original jurisdiction, can only be appealed by Revision to the Bundesgerichtshof, so that serious felony cases are tried before two authorities at the most.

The Revision addresses exclusively legal issues [47] contained in the written judgment the formal trial record, (excluding evidence) and the reasons given for the appeal. Thus the scope of review seems to be very limited. In fact the Court of the Revision require the lower courts to include in the written judgment the essential aspects of the taking of evidence, its evaluation and the sentence. If this version turns out to be incomplete, contradictory or incompatible with verifiable findings, the court may classify them as legal errors and reverse the appealed judgment. [48] That´s how the courts of the Revision nowadays thoroughly scrutinize the fact-finding as well as the evaluation of the evidence and the sentence. If the judgment is based on a legal error the Court of Revision will reverse the judgment. [49] As a general rule the case is then remanded for retrial before the fact-finding judicial instance. [50] Under an exception to this rule the Court of Revision may itself rule on the issue, provided that no additional evaluation of facts is needed and merely one specific statutory sentence is in question. [51]

Federal Bureau of Statistics at Wiesbaden

b) The majority of cases are tried before a single professional judge (Strafrichter) without any lay participation. This is not due to any manipulative charging policies of the prosecutor but corresponds with the legislative intent of having single judges cope with the mass of minor cases without the effort of lay involvement. Lay participation generally does not have a vital impact on the criminal process for the professional judges dominate the trials. By contrast it is a decisive factor for the prosecution whether to indict a serious crime before the Schöffengericht (Amtsgericht) or the Strafkammer (Landgericht, s. table above), although lay judges participate in the same way in both courts. Judgments by the Schöffengericht can be appealed by Berufung on questions of facts, those by the Landgericht can merely be appealed by Revision on questions of law. The form of appellate review has a crucial impact on the trial proceedings, because, in particular, violations of procedural rules can be neutralized by Berufung on the appellate level, whereas in cases of Revision procedural errors usually force the court to reverse the appealed judgment and remand the case to the trial court for a new trial. Besides, an indictment before the Schöffengericht opens up two levels of appellate review instead of only one if the case is brought before the Landgericht. Therefore it is easy to understand why the prosecutor´s decision on where to indict is significantly based on the different forms of appellate review and their consequences, while lay participation is of almost no relevance here.

c) A confession shortens a trial without making it redundant. On the one hand the court is not bound by confessions since they are just one among several pieces of evidence being subjected to evaluation; on the other hand the final sentence has to be determined in open court as a part of the trial. Nevertheless the prosecutor, judge and defense counsel very often negotiate the final outcome of a case. This is partly to keep the defense from filing extensive motions for evidence that usually burden the court with additional work and make resolution of the case more difficult. Provided that the court indicates a sufficiently low sentence, defense counsel often offers a confession and a conflict-free defense strategy. Usually the negotiations take place outside the courtroom without any lay judges participating. Having reached an agreement the professional judges usually succeed in convincing their lay assessors that this outcome is acceptable and obtain the negotiated verdict and sentence in the final deliberation. Thus it is my understanding that lay participation does not substantially impair negotiations in criminal proceedings. Furthermore cases are rarely negotiated just to exclude the lay judges.

d) As mentioned in the introduction, minor criminal cases can be legally settled without a public trial (hearing) according to the German Code of Criminal Procedure. It is within the prosecutor´s discretion to dispose of a case - with or without imposing certain conditions on the defendant – even if the defendant is found guilty. [52] In most cases the prosecutor is not allowed to drop the case without judicial consent, though in practice the judges almost never refuse their consent. Moreover the prosecutor can file a motion for a "penal order" (Strafbefehl), issued by a professional judge at the "Amtsgericht", that fixes a specific sentence and is imposed without an oral trial. [53] Once accepted by the defendant, a penal order is comparable to a final judgment.

About 75% of all chargeable cases are disposed of by penal orders or by dispositions according to §§ 153 et seq. StPO. [54] It should be noted, however, that the underlying purpose of this practice is to avoid a public trial and not to circumvent lay participation. [55]

As already mentioned the lay judges proposed by the community should adequately represent the various sections of the population of the specific district. Anyone who has a criminal record, is presently the subject of a criminal investigation or has a limited competency to enter into legal transactions [60] is precluded from becoming a lay assessor. Besides these restrictions, only persons between 25 and 70 years without mental disabilities and physical ailments should be selected. [61] Furthermore, certain occupational groups such as judges, prosecutors, attorneys or law enforcement officers are excluded. Apart from that there are no statutory restrictions of any kind, such as educational requirement. Reliance is placed in the communities to select the persons most suitable.

Lay judges also participate in juvenile courts. Here they are proposed by a special board for the assistance of young people instead of the communities, [62] since educative skills and practical experiences in upbringing [63] are considered as the necessary in juvenile affairs.

b) The lay assessors are chosen before trial, so the defendant, his/her counsel, the prosecutor and the other participants cannot influence the selection of lay judges. The participants can file a motion alleging bias, however, whether the judge is professional or lay. This applies to any judge who turns out to be related to the defendant or victim by birth or marriage, if he/she had already handled the case at a different stage or if other circumstances cause a concern about prejudice. [64] c) As already mentioned, lay judges are elected for a term of four years; within that period they are in session twelve days every year. After that tenure they can be re-elected for a second term. [65] Lay judges hold an honorary position [66] though they receive a compensation of DM 8.- (EUR 4.-) per hour as compensation for the loss of earnings and fare if necessary. [67]

In German history the administration of criminal justice has been in the hands of lay judges for the longest time. At first they were all the members of a community, later on just a few of them, the so-called Schöffen. A single chief judge (earl or Schultheiß) was eventually separated from the other judges who reached their judgment in his absence. Along with the reception of Roman law (from the 15^th Century on) came the gradual emergence of professional judges, until the lay judge all but disappeared from the courtrooms. In the 19^th century the reintegration of lay judges was fiercely disputed in Germany following the French Revolution, with England and France serving as models. After the German Reich was established a combination of Jury Courts, Schöffengerichte (Courts of Lay Assessors) and other exclusively professional panels (Spruchkörper) was introduced with the StPO and GVG. In 1924 the Jury Courts were finally abolished and a mixed system of Schöffengerichte and exclusively professional panels was established.

Both professional and lay judges as well as the public evaluate the current state of lay participation as mainly positive. [73] However, several studies indicate that officials and employees with the public service are clearly over-represented among the lay assessors. [74]

There is no adequate public discussion, particularly in the media. This restraint can be attributed to the rather subdued activity of lay judges in the public hearing, limited usually to a few questions to the witnesses and experts. The public is therefore simply not able to discern any lay influence even in the rare cases where the lay assessors exert special influence on the judgment.

b) The concrete form of lay participation under the applicable law is one main issue of scientific debate. The primary question is whether lay assessors should study the investigative dossiers. [76] There are two opposing views on this. Approximately one half agree with the current law denying lay judges access to the investigative files, arguing that knowledge of these files would hinder an unbiased evaluation of all evidence adduced in open court. This opinion also considers the risk of prejudice higher with non-professional than with exclusively professional judges. Preventing examination of the files would furthermore be a safeguard for the principles of orality and immediacy.

Those arguing in favor of access, object that the risk of biased judgments is just as high with professional judges. There being no objective reasons for this distinction. The refusal of access does in fact result in a judicial disequilibrium, allowing the professional judges to even more easily assert themselves just because of their superior knowledge. [77]

Meanwhile it is furthermore criticized that lay judges are excluded from writing the reasons for judgment, considering that these are the basis of any appeal. Thus the professional judges – even when outvoted by lay assessors - can frame the written arguments in such a manner that the Court of the Revision has to reverse the judgment and order a new trial. It is argued, that this also considerably diminishes lay influence on the criminal trial. [78] c) In addition the fundamental legitimacy of lay participation is in dispute. While very few people call for its abolition, [79] most critics merely point out that the original reasons for lay participation have become irrelevant and that the disadvantages have increased instead. [80] After the inquisitorial system had been abolished, the legislator originally intended to strengthen judicial independence and to counterbalance the power of professional judges who then were not only employees of the state but also under the influence of executive authorities. Today the professional judges can hardly be influenced by the executive anymore, in fact they hold a strong position as a result of their constitutionally granted independence. [81]

Not only the cost and length of trials with lay participation have been criticized. After all it is the mass media´s lively interest in criminal trials that makes it difficult to protect the lay assessors from subjective influences. Finally little importance is attached to other arguments in favor of lay participation, such as improving the public’s legal consciousness understanding of the judgment and introducing non-juridical and social aspects into the criminal process.

All in all one is very cautious in drawing conclusions on this subject. Since lay assessors in fact have a weak position, no one seriously or emphatically demands their abolition. On the other hand - besides the discussion on the access of investigative files - no one really supports an amplification of the lay judges´ position. Above all there is no voice calling for a return to the Jury Courts.