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Revue internationale de droit pénal
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I.S.B.N.2-86586-990-3
638 pages

p. 347 à 353
doi: 10.3917/ridp.721.0347

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Vol. 72 2001/1-2

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C.J.A. Mittermaier and the 19th century debate about juries and mixed courts

Dr. Arnd KOCH []*

Plan de l'article

• I. Introduction

• II. Carl Joseph Anton Mittermaier

• III. History of Lay Participation in the German 19th Century Criminal Trial

• IV. Carl Joseph Anton Mittermaier and Lay Participation in the Criminal Trial

• V. Conclusion

I. Introduction

Why, at an international conference with the title “Lay Participation in the Criminal Trial in the 21st Century,” am I concerning myself with the thinking of a 19th Century German criminal law scholar ?

To begin with, it is interesting from a legal-historical perspective to clarify what opinion regarding lay participation were articulated by t his most significant and best internationally known German criminal law academic of his time. [1] But Mittermaier’s ideas are of contemporary significance for more than just historicalbiographical reasons. Mittermaier maintained, as I will show, that the principles of the public oral criminal trial could only be consistently satisfied by a jury court. With this thesis he argued against the mist court (Schöffengericht) and in doing so hit on some weaknesses of contemporary German criminal procedure, in which jury courts have not existed since 1924.

I will begin here by briefly reviewing Mittermaier’s life (II.), after which I will outline the rise and fall of the jury court in Germany (III.). In concluding I will explain Mittermaier’s position on Lay Participation (IV.) and thereby emphasize two aspects : Mittermaier’s above mentioned thesis concerning the relationship between juries and the procedural principles of orality and immediacy, and his rejection of the mixed court. [2]

II. Carl Joseph Anton Mittermaier

Carl Joseph Anton Mittermaier was born in 1787 in Munich, and began his academic career as a personal assistant for Feuerbach. [3] Following this he held professorships at the Universities of Landshut and Bonn, and then Heidelberg beginning in 1821, where he taught until his death in 1867. Mittermaier was unbelievably productive and authored no less than 31 monographs and about 600 articles. Although he published in a number of legal fields, he concentrated his work in the area of criminal procedure. [4] In particular he dealt with questions related to lay participation, a field in which he engaged himself in an incalculable number of publications over the entire course of his scholarly career. [5]

Mittermaier characteristically placed a great importance on statistics and comparative law, and he based his approach not on philosophical concepts, but rather on empirical and comparative analyses. [6] Because of his methods, Mittermaier is recognized today as the founder of modern German comparative criminal law studies. [7] There were practically no European trial jury statutes or criminal statistics that Mittermaier did not in some detail discuss in one of his articles, although it is important to note that his way of dealing with statistics appears a bit naive from a contemporary viewpoint.

Importantly, Mittermaier was not only a theoretician but rather he sought a political implementation of his ideas, serving for many years as a member of the State of Baden’s legislative commission (Gesetzgebungskommission), and for several years in the Baden state legislature. [8] Certainly, the climax of his political career was Mittermaier’s prominent membership in the National Constitutional Assembly that emerged in the Revolution of 1848. [9]

III. History of Lay Participation in the German 19th Century Criminal Trial

The jury court was introduced in Germany initially by French conquerors, who established the public oral criminal trial and the jury court in 1798 in the Rhine States that they had occupied. [10] However, after defeating Napoleon, Germans planned in the regained Rhine provinces to replace the French legal system with the inquisitorial secret written procedure that was still common to the traditional criminal trial system in other German regions. This plan was not realized due to resistance organized by leading citizens’ groups, [11] but the perseverance of the jury court in parts of Prussia, Hesse, and Bavaria led to the parallel existence of two completely different criminal trial systems within these German states.

While the liberal opposition pushed for a universal establishment of the jury court, the majority of law scholars rejected this move. [12] The critical academic view of the jury court was substantially shaped by Feuerbach’s book, Observations on the Jury Court, that provided jury opponents with a barrage of arguments. [13] That the jury court for example was not suitable to the Monarchist form of state was an argument that found widespread support. [14] While Feuerbach claimed that a lay jury was inferior to a professional judge in ascertaining the truth, others argued that for determining the facts of a particular case good common sense was superior to the theory that a professional judge developed through law studies. Feuerbach argued rhetorically, asking if the facts were better evaluated by the “unknowing and unpracticed or rather by the trained and practiced.” [15] Feuerbach and others were of the belief that “practice makes perfect.” [16]

It was only through the consequences of the 1848 Revolution that the majority of German states introduced the jury court along with the public oral trial. [17] Still, with the beginning of the Restoration the jury court found itself once again on the defensive. Austria and Saxony did away with the jury court only a few years after introducing it, and in other states its jurisdiction was reduced.

The greatest danger to the jury court however was presented by the rise of the so-called Schoffengericht, [18] in which professional judges and lay assessors were in a collegial way to decide all questions of fact, law and sentence. Although this court procedure was scarcely mentioned in the literature before 1848, after that it enjoyed a rapid popularization, and following 1850 a number of German states introduced the mixed court for lesser criminal offenses. [19]

In the following years the voices steadily increased that demanded the general replacement of the jury court with the mixed court. [20] One advantage claimed for the mixed court was the possible cooperation between judge and lay people. The questions of law and fact of a particular case did not have to be artificially divided anymore but could be decided on together. [21] It was argued that mutual trust was generated by the mixed court, as opposed to the jury court where there was mistrust between judge and lay people. [22] The jury court was also criticized for its historical origins. It was argued that this child of the French Revolution had to be replaced by the apparently “authentic German” institution of the mixed court. [23]

The move to replace the jury court with the mixed court was made official in the first version of a standardized Judicial Organization Code (Gerichtsverfassungsgesetz) in 1873. This new Code was intended to unify the court system within the recently created German Reich. [24] Still, the jury court was adopted into the new Code, although with limited authority, due to a political compromise with the southern German states and the National Liberal Party, which campaigned to maintain the jury court. [25] And so the jury court was granted a last reprieve.

In the following years, however, the jury court was to face a criticism of increasing vehemence from legal scholars. The institution was termed a “deformity,” [26] the sworn jurors referred to as “Sunday judges”, [27] and their decisions as “oracle-sayings.” [28] The fear of the powerful state judges, that prior to 1848 substantially motivated the Liberals to support jury courts, gave way to a complete trust in judges. The power of the judge no longer had anything frightening about it, but was instead, as Binding described, “comforting and impressive.” [29] It was thus not surprising when the jury court was finally abolished in 1924, [30] as virtually no resistance to this move was offered from the academic ranks. [31] The favored mixed court proved itself to be the victor, and existing jury courts were thus converted into large collaborative courts with six lay assessors and three professional judges.

IV. Carl Joseph Anton Mittermaier and Lay Participation in the Criminal Trial

Until shortly before the 1848 Revolution Mittermaier was not a supporter of the jury court, as was the case with the majority of criminal law scholars. However, I shall not go into more detail regarding his opinions in this period as they do not differ significantly from those of other jury opponents. [32] Instead, of greater interest from a contemporary perspective is the question why Mittermaier after 1848 remained a believer in the jury court even though the number of critics of this form of Lay Participation steadily increased. As earlier mentioned, a primary motivation for Mittermaier’s advocacy of the jury court was his conviction that only the jury court, and not the mixed court, could adequately respect the principles of the public oral trial. Mittermaier was sure that such principles could not be satisfied when the interrogating and sentencing were carried out by the same person. Mittermaier understood the examination of the defendant and witnesses by the judge as an element of the old inquisitory process that was incompatible with the new trial principles. [33] Mittermaier saw conflicts with the basic principles of orality and immediacy, for example as pre-investigation results found their way into the trial when the judge necessarily familiarized himself with the investigative file in preparing for a mixed court examination. [34] In addition Mittermaier interpreted the judge’s examination as a violation of the presumption of innocence, as the judge inevitably entered into the court with opinions that were formed in the previous study of the case files. With such perspectives it is clear that Mittermaier had to reject the concept of the mixed court.

Mittermaier criticizes the mixed court using a number of arguments that are still relevant today, for example asserting that a collective body of professional judges and lay assessors risks being “superficially collegial,” in so far as the professional judges attempt to influence the lay assessors. [35] True collegiality, according to Mittermaier, depends on the equality of the court members. [36] He argues this equality does not exist so long as the assessors are expected to arrive at their decisions solely based on the trial hearing while the judge is in addition informed by the case files and pre-investigation results, and can draw on this extra information to influence the assessors. Mittermaier thus claims that the decisions of mixed courts are only “the product of vacillation, confusion, and intimidation.” [37]

V. Conclusion

When one considers the current discussions of trial reform taking place in Germany, then it must be said that Mittermaier’s questions are just as relevant today as they were in his time. That judges appear to be inevitably biased through their previous study of case files is still criticized today. [38] Contemporary critics also find fault in the presiding judge’s duty to interrogate the defendant, as through this the judge is pressured into assuming a position opposing the defendant. [39] Further the lay assessors are seen by some critics as puppets with strings in the hands of the professional judges, at least as far as the assessors have no knowledge of the case files. [40]

One way of resolving these questions and achieving a “pure” realization of the public oral trial would be the establishment of the jury court. Is a reasonable resolution of the aforementioned conflicts to be expected through the jury court, or would the establishment of the jury trial system necessarily lead to other serious disadvantages and conflicts ? This is one of the questions that will engage us in the next few days, and perhaps some of us further into the future.

NOTES

[*]

Research Assistant, Friedrich-Schiller University, Faculty of Law, Jena/Berlin, Germany

[1]

Regarding Mittermaier’s significance : P. Landau, Schwurgerichte und Schöffengerichte in Deutschland im 19. Jahrhundert bis 1870, p. 345, in A.P. SCHIOPPA (Hrsg.), THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY (1987); M. D. Dubber, The German Jury and Metaphysical Volk : From Romantic Idealism to Nazi Ideology, AMERICAN JOURNAL OF COMPARATIVE LAW, 1995, p. 241; regarding critical views on Mittermaier’s scholarly range, see : M. Hettinger, Carl Joseph Anton Mittermaier (1787-1867). Jurist zwischen zwei deutschen Reichen oder : auf der Suche nach einem neuen gemeinen Recht, ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE, Germanistische Abteilung, p. 445 f.

[2]

A. Koch, Carl Joseph Anton Mittermaier und das Schwurgericht, ZEITSCHRIFT FÜR NEUERE RECHTSGESCHICHTE (forthcoming).

[3]

Contemporary biographies : F. ENGEHAUSEN, Karl Mittermaier, p. 93 ff., in : F. Engehausen/A. Kohnle (Hrsg.), GELEHRTE IN DER REVOLUTION. HEIDELBERGER ABGEORDNETE IN DER DEUTSCHEN NATIONALVERSAMMLUNG, 1998; M Hettinger, (Fn. 1), p. 433 ff.; G. Landwehr, Karl Joseph Anton Mittermaier (1787-1867). Ein Professorenleben in Heidelberg, p. 69 ff., in : W. Küper (Hrsg.), CARL JOSEPH ANTON MITTERMAIER. Symposium, 1988; also see J. Schröder, p. 273 ff., in : G. Kleinheyer/J. Schröder (Hrsg.), DEUTSCHE AND EUROPÄISCHE JURISTEN AUS NEUN JAHRHUNDERTEN, 4. Aufl. 1996.

[4]

For an overview of Mittermaier’s main works and relevant secondary literature see : J. Schröder, (Fn. 3) p. 276 f. Deserving special attention are Mittermaier’s texts concerning capital punishment. Following 1848 and a number of cautious statements on this subject, Mittermaier became one of the leaders of the German abolition movement; see C. J. A. MITTERMAIER, DIE TODESSTRAFE NACH DEN ERGEBNISSEN DER WISSENSCHAFTLICHEN FORSCHUNGEN, DER FORTSCHRITTE DER GESETZGEBUNG UND DER ERFAHRUNGEN, 1862. Zu Mittermaiers Haltung zur Todesstrafe : M. FLECKENSTEIN, DIE TODESSTRAFE IM WERK C. J. A. MITTERMAIERS (1787-1867), 1992; F. Ebel/P.Kunig, Die Abschaffung der Todesstrafe – Historie und Gegenwart, JURISTISCHE AUSBILDUNG 1998; p. 619 f.; in the broader context also : R. J. EVANS, RITUALS OF RETRIBUTION. CAPITAL PUNISHMENT IN GERMANY 1600-1987,1996, p. 254 ff.

[5]

A summary of the most important of Mittermaier’s works is found in : A. Koch, (Fn. 2).

[6]

A good example here is Mittermaier’s only non-judicial book. In “Italienische Zustände” from 1844 (recently published by E. Jayme, 1988), he sought to determine “the moral state of the population” (p. 998) with endless tables and statistics.

[7]

Regarding Mittermaier’s methods : F. Ebel/P. Kunig, (Fn. 4), p. 619; M. Fleckenstein, (Fn. 4), p. 103 ff.; K. Luderssen, Karl Joseph Anton Mittermaier und der Empirismus in der Strafrechtswissenschaft, in : ders., KRIMINALPOLITIK AUF VERSCHLUNGENEN WEGEN, 1981, p. 24 ff.

[8]

Regarding Mittermaier’s political activities, see especially : F. Engehausen, (Fn. 3), p. 93 ff.; R. MU GNUG, CARL MITTERMAIER ALS POLITIKER, p. 51 ff., in : W. Kuper (Hrsg.), (Fn. 3).

[9]

During his time with the National Constitutional Assembly Mittermaier joined the “Wurttemberger Hof,” a group of centrist-left oriented Representatives.

[10]

The juries were expected to decide on questions of fact, while the professional judges were to rule on questions of law and punishment. The privilege of serving on a jury was limited to a small circle of 300 of the highest ranking of a region and a carefully defined group of the “educated class”; see : D. CRAMER, DAS FRANZOSISCHE SCHWURGERICHT, 1969, p. 141 ff.

[11]

Also see : P. LANDAU, (Fn. 1), p. 242 ff.; E. SCHWINGE, DER KAMPT UM DIE SCHWURGERICHTE BIS ZUR FRANKFURTER NATIONALVERSAMMLUNG, 1924, p. 19 ff.

[12]

For further evidence : A Koch, (Fn. 2). Prominent opponents of the jury court were for example : Abegg, Zachariae und v. Savigny.

[13]

P. J. A. FEUERBACH, BETRACHTUNGEN UBER DAS GESCHWORENENGERICHT, 1813.

[14]

The thesis regarding an antagonism between juries and monarchies appears to substantiate Alexis de Toqueville’s observation, that when one rejects the sovereignty of a people, one must also dismiss the sworn jury, ALEXIS DE TOCQUEVILLE, ÜBER DIE DEMOKRATIE IN AMERIKA, p. 176 hrsg. v. J. P. Mayer, 1997.

[15]

P. J. A. FEUERBACH, (Fn. 13), S. 178.

[16]

A formulation of F.C. V. SAVIGNY, UEBER SCHWURGERICHTE UND BEWEISTHEORIE IM STRAFPROZESSE, Goltdammer’s Archiv fur Strafrecht (GA) Vol. 6 (1858), p. 477.

[17]

Overview in : G. HADDING, SCHWURGERICHTE IN DEUTSCHLAND, 1974, p. 29; P. Landau, (Fn. 1), p. 268.

[18]

Regarding the rise of the mixed court : I. Ebert, Schwur- oder Schoffengerichte ?, JURISTISCHE AUSBILDUNG (1996), p. 242 ff : P. Landau, (Fn. 1), p. 292 ff.

[19]

Overview in : G. Hadding, (Fn. 17), p. 37; P. Landau, (Fn. 1), p. 294.

[20]

The writing of Friedrich Oskar Schwarze was of great influence. Compare : F. O. SCHWARZE, GESCHWORENENGERICHT UND SCHOFFENGERICHT, 1864; ders., DAS DEUTSCHE SCHWURGERICHT UND DESSEN REFORM, 1865; ders., DAS SCHOFFENGERICHT, 1873. Schwarze was recognized as the “father of the Schoffengericht” and spoke about the Schoffengericht as “my child,” according to : 10. DEUTSCHER JURISTENTAG, Vol. 1, p. 175.

[21]

F. O. SCHWARZE, (Fn. 20), 1865, p. 32 ff.

[22]

F. O. SCHWARZE, (Fn. 20), 1865, p. III, 7; ders., (Fn. 20), 1873, p. 16,25.

[23]

F. O. SCHWARZE, (Fn. 20), 1856, p. 111 ff.

[24]

Amtliche Denkschrift uber die Schoffengerichte, Goltdammer’s Archiv Vol. 21 (1873), p. 40 ff.

[25]

See : W. BOTTGES, DIE LAIENBETEILIGUNG AN DER STRAFRECHTSPFLEGE, 1979, p. 41; G. Hadding, (Fn. 17), p. 43 ff.

[26]

K. BINDING, GRUNDRIß DES DEUTSCHEN STRAFPROZESSES, 5. Aufl. 1904, p. 104.

[27]

H. BENNECKE, LEHRBUCH DES CEUTSCHEN REICHS-STRAFPROZEßRECHTS, 1895, p. 51 Fußn. 4.

[28]

J. Olshausen, Gutachten zum 18. DEUTSCHEN JURISTENTAG, Vol. 1, p. 268.

[29]

K. BINDING, DIE DREI GRUNDFRAGEN DER ORGANISATION DES STRAFGERICHTS, 1876, p. 77.

[30]

For further evidence see : W. Bottges, (Fn. 25), p. 68 Anm. 4. Finally, the re-introduction of the jury court was supported by : F. Herzog, Das Geschworenengericht als “Palladium der burgerlichen Freiheit,” in : Festschrift fur Pawlowski, 1997, p. 343 ff.

[31]

Regarding the abolition of the jury court : TH. VORMBAUM, DIE LEX EMMINGER VOM 4. JANUAR 1924,1985, p. 109 ff.

[32]

For a detailed discussion of Mittermaier’s changing opinions on the jury court prior to 1848, see : A Koch, (Fn. 2). In this time, Mittermaier saw as ideal a public oral trial with a professional judge whose actions were bound by specific rules of evidence. As Mittermaier became convinced that the establishing of comprehensive rules of evidence was not possible, he shifted his support to the jury court. An alternative that appears to be logical from our contemporary perspective is that of providing the professional judge with a free evaluation of evidence, but this was unthinkable until into the 1840s, due to fear of unrestrained judicial decisions.

[33]

C. J.A. Mittermaier, Ueber die Stellung des Assisenprasidenten, DER GERICHTSSAAL 1849 Vol. 1, p. 22,25; ders., ERFAHRUNGEN UBER DIE WIRKSAMKEIT DER SCHWURGERICHTE IN EUROPA UND AMERIKA, 1865, p. 133.

[34]

C. J. A. MITTERMAIER, (Fn. 33), Erfahrungen, p. 683; ders., DAS VOLKSGERICHT IN GESTALT DER SCHWUR - UND SCHOFFENGERICHTE, 1866, p. 22.

[35]

C. J. A. MITTERMAIER, (Fn. 33), Erfahrungen, p. 766; ders., (Fn. 34), Volksgericht, p. 37.

[36]

C. J. A. MITTERMAIER, (Fn. 34), Volksgericht, p. 37 f.

[37]

C. J. A. MITTERMAIER, (Fn. 33) Erfahrungen, p. 776.

[38]

Compare : C. ROXIN, STRAFPROZEßRECHT, 25. Aufl. 1998, § 42 Rdnr. 56.

[39]

Compare especially : J. HERRMANN, DIE REFORM DER DEUTSCHEN HAUPTVERHANDLUNG NACH DEM VORBILD DES ANGLO - AMERIKANISCHEN STRAFVERFAHRENS, 1971, p. 361 ff., 439 ff.

[40]

As to whether or not the lay jury should have access to the investigative files, see : Th. Hillenkamp, Zur Teilhabe des Laienrichters, p. 1437 ff., 1443 ff., in : Festschrift fur G. Kaiser, 1998.