In the courts of first instance there is a mixed court consisting of either one professional judge and two lay judges, or two professional judges and three lay judges. In the Court of Appeal there is a mixed court when the case concerns a petty offense, and a jury trial if the appeal concerns a more serious offense.

Lay participation in criminal proceedings is regulated by the Criminal Procedure Act of 22 May 1981 (CPA). Selection of lay judges and members of the jury is regulated by the Courts of Justice Act of 13 August 1915 (CJA). Both acts are included in the collection of Norwegian Law called « Norges Lover ». [1] The CPA is also available on the Internet. [2]

In this paper, I shall first present an overview of some general rules and principles of Norwegian criminal procedure (Chapter 2). Thereafter I will deal with lay participation in the courts at first instance (Chapter 3) and in the Court of Appeal (Chapter 4). In (Chapter 5) a short description of the right to appeal to the Supreme Court is included. The selection of judges is the subject of (Chapter 6). Towards the end I shall outline some of the historical developments with regard to lay participation (Chapter 7), and then, finally, offer a critique of recent reform proposals (Chapter 8).

The parties – the prosecuting authority and the person indicted (the defendant) – present their witnesses and evidence before the court; the prosecuting authority first and then the defendant. [5] The prosecuting authority summons witnesses to appear in court, including the witnesses for the defense. [6] If the prosecuting authority refuses to summon specific witnesses on the request of the defendant, the defense counsel may demand that the Issue be decided by the court. [7]

According to CPA chapter 29, any person who has suffered direct damage from the charged crime may request that the prosecuting authority pursue a relevant civil legal claim on his or her behalf in connection with the criminal proceedings. [10] The aggrieved person does not become a party by making such a request. [11]

The aggrieved person may also pursue a civil legal claim himself in connection with the criminal trial. [12] If so, the aggrieved person will become a party pursuant to his claim. For this purpose, he may, inter alia, examine witnesses and make closing arguments. [13] Normally, however, the aggrieved person prefers to make a request to the prosecuting authority according to CPA section 427 supra.

In some cases concerning sexual offenses the aggrieved person has the right to be represented by an advocate during the investigation and the trial. [14] But since the aggrieved person is normally not a party in the criminal trial – except when he brings a civil claim according to CPA § 428 – the advocate does not play an important role during the trial itself. The task of the advocate is to protect the interests of the aggrieved person in connection with the investigation and the main hearing of the case, and to provide such additional assistance as is natural and reasonable. [15] The advocate has the right to be present when the aggrieved person is examined by the police and the court during the investigation, as well as at the main hearing. [16]

The advocate may also examine the aggrieved person in order to highlight the consequences which the criminal act has had for the aggrieved person. The advocate may also object to irrelevant or improper questions from the parties. [17]

Furthermore, the advocate may comment on procedural issues that concern the aggrieved person [18] for instance with regard to whether the person indicted shall be ordered to leave the courtroom while the aggrieved person is being examined. [19] He may also comment on the civil legal claim if the aggrieved person has made a request according to CPA § 427.

In specific cases, the president of the court may order the prosecuting authority to submit a written account of the case before the trial. [23] The defense counsel shall then have a copy of the account and the opportunity to comment on it. This option is sometimes used in complicated cases dealing with economic crimes. The reason, of course, is that the written account might help the judge conduct the hearing more effectively. [24]

One exception exists, however. When the person charged has made an unreserved confession in court, which is corroborated by the other evidence, and the act is not punishable by imprisonment for a term exceeding ten years, the case may, on the application of the prosecuting authority and with the consent of the person charged, be adjudicated by a court of summary jurisdiction without an indictment and trial. [37] If so, the court is constituted without lay judges, but with a special invigilator summoned to be present. The court invigilator has no jurisdiction; he merely represents the general public interest In fair and just trials.

If the parties have objections to how the professional judge is conducting the evidentiary portion of the trial, the court must decide if the objection Is wellfounded. [41] Since the lay judges are in the majority in a mixed court, they have the opportunity to outvote the professional judge(s). And if the professional judge makes a procedural error, the lay judges have the opportunity to intervene in the proceedings. [42] But since the lay judges have no general legal training, this will very seldom happen – if ever.

The lay judges also have the right to question the defendant and witnesses. Such examination usually takes part after the examination by the parties and the professional judge.

The professional judge shall conduct the deliberations. [45] The lay judges are advised about the law by the professional judge. This instruction is given orally and informally during the deliberations.

In the written judgment reasons are given for the verdict, so that the parties get a better opportunity to consider whether they should make an appeal. [46] A simple majority among the judges is sufficient for a guilty verdict. [47]

Both the professional judge and the lay judges have to vote in accordance with the law. The court cannot acquit the defendant based on sympathy or disagreement with the existing legislation. But of course there might be disagreement among the judges, both with respect to the established facts of the case and the interpretation of the law. The members of the court have to vote in accordance with their own perception of the facts and opinion of the law in light of relevant legal sources. Even on the last issue the lay judges may outvote the professional judge.

How long the deliberations will take depends on the individual case. In cases of minor offenses the deliberations may last perhaps half an hour, but in more serious and difficult cases the deliberations can last for several hours. There is no regulation in the CPA with respect to maximum time for this purpose. According to the principle of a fair hearing, the court must provide for necessary breaks in order to ensure that the judges participate with sufficient attention. According to CPA § 42, the judgment shall be pronounced within three days after the deliberations have been concluded. If this is not possible, the court will have to give an account of the reasons for the delay in the court record.

If the professional judge is outvoted by the lay judges, the professional judge will, of course, state his own opinion, but he may also include the opinion of the lay judges in the court record. In practice, the lay judges seldom write their own opinion – they explain their opinion and the professional judge formulates the judgment.

The judgment must Include the reasons for the decision. [49] If the defendant is found guilty, the reasons must contain a precise description of the facts as well as the penal provision(s) upon which the judgment is based. [50] The judgment shall also state the reasons to which the court has attached importance in determining the penalty and other sanctions, including aggravating or mitigating circumstances. [51]

If the court acquits the defendant, the judgment shall state which conditions for a finding of guilt are deemed to be unfulfilled (e.g. that the offense has not been proven, that the defendant acted in self defense or that the law is not applicable to the act committed. [52]

Under this system there were clear limitations on the right to appeal. An appeal of a judgment from the City Court or the District Court was reviewed by the Supreme Court, but the appeal could only deal with sentencing, procedural errors or the application of the law as such. An appeal against the judgment of the Court of Appeal was reviewed by the Supreme Court with the same limitations. As a general rule, there was no right to appeal against the assessment of the facts of the case. However, with respect to judgments of the City Court and the District Court, a panel of three judges of the Supreme Court – kjæremålsutvalget – could allow for another hearing of the case before the Court of Appeal. Such requests were seldom granted. The only opportunity left, then, was to make a request for reopening the case and have a completely new trial at a later stage, on the basis of discovery of significant new evidence.

After the reform in 1993, all criminal cases are first tried in the City Court or in the District Court In the first instance. [54] The Court of Appeal is now acting like an ordinary court of appeal. [55] The appeal can deal with the question of guilt, procedural errors, sentencing and the application of the law. The composition of the Court of Appeal is dependent both upon the seriousness of the crime and the grounds for the appeal. The judgment of the Court of Appeal can be appealed to the Supreme Court. The latter is bound by the facts established in the judgment of the Court of Appeal. For these reasons an appeal to the Supreme Court can only deal with sentencing, procedural errors or the application of the law. [56]

As mentioned above, the composition of the court depends on what the appeal deals with and how serious the asserted offense is. An overview of lay participation in the Court of Appeal in different situations shall be presented below.

In principle the rules described above in Chapter 3 about the hearing at first instance also apply when the Court of Appeal acts as a mixed court. [64] It is noteworthy, though, that at least five votes in disfavour of the person charged are required for a guilty verdict. [65]

Because of the split jurisdiction between the professional judges and the jury, the professional judges are named « the Court » in hearings with a jury. The same terms are applied in this paper.

According to CPA § 352 (para. 2), there are some exceptions to said rule. First, crimes concerning the independence and security of the nation and crimes against the constitution or the head of state, are never tried with a jury. [67] Such cases will often involve secret information about the state, and the legislator has decided that it is important to limit the group of individuals who should receive such information. A trial with jury would increase the risk that some of the secret information is brought to the attention of the public. [68]

Secondly, there is another exception when the person charged was under eighteen years of age when the felony was committed, and the prosecuting authority proposes less than two years imprisonment for the offense and the judgment at first instance has not imposed a sentence of imprisonment for a term exceeding two years. [69]

Finally, there will be no jury trial if the case is retried, that is, when the professional judges have set aside the verdict of the jury in accordance with CPA §§ 376 a and 376 c. [70]

With respect to the fourteen potential members of the jury, the parties are entitled to exclude the jurors who are not needed. In complex cases the president may decide that 11 or 12 jury members shall follow the proceedings. [75] The person indicted and then the prosecuting authority may in turn, exclude one juror after another until the desired number remains. [76]

When the jury has been Impaneled, the president of the court informs the members of the jury of the course of the trial. [77] He shall especially stress that the members of the jury are not allowed to speak or discuss the case with anyone, except members of the court, until the jury has pronounced its verdict. The members are also told that they are not allowed to leave the deliberation room after they have retired to answer the questions put to them. On their part, the members of the jury must affirm that they will pay close attention to the proceedings in court and answer the questions submitted to the jury as justly as they can according to the law and the evidence in the case. [78]

The members of jury must also choose a foreperson. [79]

During the hearing itself the jurors may question witnesses and request further evidence about relevant circumstances of the case. Such requests should normally be put forward by the foreperson of the jury. [80] In practice, these rights are seldom exercised.

The jury has no jurisdiction with respect to sentencing. [81] The jury is therefore not informed about the range of sentences awaiting the defendant if convicted. In some cases, however, it is necessary to ask the jury whether there are special mitigating or aggravating circumstances which would bring the matter under a more severe or milder penal provision. [82] But the jury is never asked whether there are general circumstances in the case which have to be taken into account when the court determines the sentencing. Hence one must distinguish between the issue of guilt and the issue of sentence. [83]

Even though the jury has jurisdiction with respect to guilt, the court may acquit the person charged without the participation of the jury if the matter described in the indictment is not criminal, or because the statute of limitations has run. [84] An acquittal based on expiry of the statute of limitation, requires that it not be disputed when the criminal act was committed. Otherwise the issue of guilt must be decided by the jury. [85]

The questions put to the jury must relate to the facts described in the indictment. [89] When the court finds it appropriate or a party so moves, a question Is put as to whether circumstances exist that may bring the matter under a penal provision other than the one to which the indictment relates. [90]

There is a distinction between primary questions and additional questions. [91] According to CPA § 366, a primary question begins with the words : "Is the person indicted guilty ?" Each question shall only deal with one defendant, one criminal matter and one penal provision. [92] If the person indicted has committed several criminal offenses, there will still be one question regarding each offense. The question shall also include the legal indicia of the criminal act and a short description of the matter to which the indictment relates, with details of time and place. [93]

An additional question will, as mentioned above, concern the issue of whether the matter should be considered under a more severe or milder penal provision. For instance, if the jury has found the indicted person guilty of larceny [94] on the basis of a primary question, the court may ask the additional question of whether he or she is in fact guilty of aggravated larceny. [95]

The jury must follow the Instructions as to the law given by the president. The jury has no right to acquit the person indicted because of sympathy with him or disapproval of the law itself. But the jury is not bound by the opinion of president concerning the evidence in the case. The jury members have to vote according to their own conviction with regard to the facts. [98]

The parties have the right to demand that specially indicated parts of the Instructions be entered in the court record. [99] Such requests must be put forward before the jury retire to the conference room for deliberations. When it has been recorded, the parties may later make use of it in an appeal based on errors in the application of the law. [100] The reason is that the determination of guilt requires no more than a simple yes or no. Hence the only opportunity for the Supreme Court to review the application of the law, is the recorded explanation of the law by the president of the court.

The foreperson of the jury presides over the deliberations. [104] If the jury finds that it needs further clarification of the questions they must answer, the legal principles applicable or the procedure to be followed, or if the jury finds that the questions should be amended or new questions put, it shall return to the courtroom so that the president of the court can do what is required. [105] This procedure guarantees that any new instructions are given in the presence of the parties. The jury however, may also summon the president for guidance. [106] The latter, more informal, procedure should only be used in relation to less significant questions. Other questions must be asked and answered in the courtroom, with both parties present. [107]

There is no legal time-limit for the deliberations of the jury. They continue until the jury has reached its verdict. The Supreme Court has stated that there might be a violation of the principles of a fair hearing if the deliberations continue after midnight and there is reason to believe that the jury members are tired and therefore not capable of making a fully informed evaluation of the evidence in the case. [108]

The foreperson and two other members of the jury must sign the verdict. [114] After the voting the jury returns to the courtroom and the foreperson reads aloud the answers to the questions that have been put. [115]

If the verdict is "not guilty," the court must acquit the defendant unless It finds that he is undoubtedly guilty In which case a retrial before other judges Is ordered. [117] Such a decision of the court must be unanimous.

Oddly enough, the court constituted for the retrial Is a mixed court, without a jury. The likely reason that a new jury might then acquit the person indicted on the basis of a wrongful application of the law. According to Norwegian legislation, a mixed court has to state the reasons for the judgment, and thus the Supreme Court would in turn have the opportunity to control that the law has been interpreted and applied correctly.

If the verdict of the jury is "guilty," but the court finds that the facts found true In the questions do not constitute a crime or that the statute of limitations has run, it shall pronounce a judgment of acquittal. [118] If the court finds that the act committed is less serious than that indicated by the verdict of the jury, the court shall pronounce judgment accordingly. [119] The court may furthermore order a new trial before other judges if it finds that guilt has not been proved beyond a reasonable doubt. [120] Unlike the provisions of CPA § 376b (para. 1) the court need not find that the defendant is undoubtedly not guilty. And a decision pursuant to CPA § 376c does not have to be unanimous. However, at the new trial the Court of Appeal will be constituted as a mixed court.

If the jury finds the defendant guilty, the only reason for the judgment of guilt consists In a reference to said verdict. [123] In such a case, however, reasons for the punishment or other sanctions imposed must be given. When the court considers these questions, the foreman and three other members of the jury who are drawn by lot, join the professional judges. [124] In other words, the lay judges are in majority when the court decides the sentence.

The decision concerning the punishment or other sanctions must Include reasons according to the same rules which govern judgments In the first instance. [125]

If a civil legal claim is included in the proceedings, the professional judges alone decide this part of the case. [126]

The Court may dismiss the appeal and thus sustain the judgment, pronounce a new judgment if the necessary preconditions are fulfilled or quash the judgment and order the case to be retried in the Court of Appeal. [129]

Some groups are generally excluded from the selection process, e.g. members of the Government, priests and lawyers. [132] Persons sentenced to prison and released within ten years before the nomination or those given a deferred sentence within the last five years before nomination, are also excluded. [133]

The nomination takes place every fourth year, shortly after the election of the local council. [134] Thus, prospective lay judges are nominated for a term of four years.

There are separate selections of lay judges for participation in courts of first instance and in the Court of Appeal. [135] One list of female judges and one of male lay judges are prepared. A list of expert judges may also be prepared. [136]

The nomination is prepared by a committee appointed by the local council. The list of registered voters in local elections should be the basis for the nomination of the lay judges. [137] In practice, however, the committee usually picks most of the candidates from those who are also registered as members of political parties. The proposal of the committee would in any case be forwarded to the local council, where the final decision with regard to nomination of lay judges is taken. [138]

According to an article published by the Norwegian broadcast company "TV2" on the Internet March 3,1999,75% of the nominated lay judges in Norway were registered as members of a political party. The report led to a public debate in Norway as to whether the courts have become a political institution and whether there is a risk that the lay judges are influenced by political opinions in their work. The Norwegian Law Courts Commission which was appointed 8^th of March 1996 made no evaluation in principle of the system of selection of lay judges in the report which was published 20^th of April 1999. The Commission proposed however, that some aspects of the system should be subjected to further scrutiny in connection with the review of current practice in the selection of lay judges, see further NOU 1999 : 19 pp. 355-357.

In cases before the District Court or the City Court, lay judges may be appointed from a special panel in cases concerning crimes relating to e.g. buildings, public health, fire prevention and shipwrecks. [141] In other cases for instance, in complex cases relating to economic crimes, the president of the court may also decide to appoint expert judges if he deems it to be necessary. [142]

Lay judges and jurors usually serve for one case at a time. They are paid according to CJA § 105 a. The amount per day, as of January 1,1999, is NOK 250 = 35 USD.

A brief history of lay participation in Norway

Before the Criminal Procedure Act of 1887 entered into force in 1890, lay participation only existed in cases punishable by death.

The English jury system was the model for the legislation of 1887. The main reason for introducing the jury system in Norway was to ensure a more democratic criminal procedure. The guilt of the defendant should be determined by his peers not by professional judges alone. [143]

The jury system was not adopted without resistance. Conservative politicians were often against the jury and preferred the mixed court, whereas radical politicians tended to support the jury and allow for mixed courts only in minor criminal cases. [144]

Today the situation is different. While most people seem to be satisfied with the mixed court, the functioning of the jury system has been an issue for serious discussion. Several reform proposals have been made, but so far a proposal to replace the jury with a mixed court has not succeeded. [145] However, some changes In the jury system have taken place over the years.

The right of the professional judges to set aside a verdict of acquittal was Introduced into the Criminal Procedure Act in 1933. [146] And after World War II in the new legislation on trials of war criminals and traitors, the jury was replaced by a mixed court. [147]

The majority of the members of the Expert Committee which drafted the Criminal Procedure Act of 1981 suggested that the jury should be replaced with a mixed court. [148] But the Government did not agree with the Committee, and the Ministry of Justice proposed that the Parliament maintain the jury system. [149] The Parliament supported the proposal of the Ministry of Justice. [150]

Some years later the jurisdiction of the jury was changed, following a reform relating to negligent homicide. [151] In order to understand the change, it is important to keep in mind that, before 1993, the question of guilt could only be tried in the first instance. [152] Until that time, crimes which were punishable with imprisonment for five years or less were tried in the lower courts whereas more serious crimes were tried in the Court of Appeal. Negligent homicide is punishable with imprisonment for six years, and was thus tried in the Court of Appeal. Experience had shown, however, that it was almost impossible to get conviction In such cases before a jury. [153] For this reason, the Parliament decided that such cases should be tried In the first Instance before mixed courts instead. This was done through a change in the Criminal Procedure Act providing that cases of homicide be tried in the City or District Court. [154]

Another change In the Criminal Procedure Act was made in 1989. [155] The legislator was now of the opinion that all cases relating to assault and bodily harm, including crimes punishable with imprisonment for as much as six years, should be tried in the lower courts. Only cases punishable with more than six years of imprisonment should still be tried by the Court of Appeal with a jury. [156]

Yet another change In the Criminal Procedure Act was made by the Act of June 16,1989 No. 68 when the Court sets aside the verdict of the jury – see chapter 4.5.10 above – the case should be retried before a mixed court. The reason was that cases dealing with economic crimes were not particularly well suited for trial by jury. Again, mixed courts were preferred. [157]

Finally, 1993 was also the year for a more general reform of the Criminal Procedure Act. [158] The idea was to make it possible to have the issue of guilt tried in two instances. This time, too, the majority in the Expert Committee proposed that a mixed court should replace the jury in the Court of Appeal. [159] Strangely enough, in light of the changes of 1988 and 1989, the latter proposal was not supported by the Ministry of Justice. [160]

After a number of disputed verdicts and the reopening of some old cases which had all been tried by jury, [161] the discussion of whether the jury ought to be replaced by a mixed court has continued. [162] It can not be ruled out that such a reform might take place during the term of the new Parliament to be elected in 2001.

On the other hand, it takes more time to draft the judgment when the court has to give reasons for the decision concerning the issue of guilt. In trials with a jury, the judgment is often declared the same day as the verdict of the jury. The court then need only give reasons for the sentence; normally this does not take much time. Although it might take more time to draft the judgment as a whole in a mixed court, [173] this can hardly make up for a more time-consuming jury trial.

As mentioned above, [176] the jury has to follow the law as It Is explained by the president of the court. But as long as the verdict does not include reasons, there is in reality no assurance that the jury has reached its verdict on the basis of a proper understanding of the law. This might lead to a wrongful conviction because the jury has misunderstood the law. The opportunity to acquit the defendant contrary to law, is of course also a democratic problem; a majority of the elected representatives have made or accepted the law, whereas a minority of the jury – four members – may prevent the Implementation of the law. [177]

My own point of view is that mixed courts in all criminal cases. The single most decisive argument, I believe, is that such important questions as the issue of guilt in criminal cases should not be answered without reasons, especially not in the most serious cases. [178]