Much of this is true for the participation of laypersons in the German criminal courts. Their traditional name stemming from medieval times is Schöffen: People who “make order between the parties through judgment.” [3] However, since the 19^th century their main function is to represent the popular control in the process of the application of law [4]. It is modern, codified and positivistic state law which regulates in the jurisdiction. Professional judges learned in law and trained by the state run the German court system. Their professionalism assures the legal system and a degree of equality in the application of law. On the other hand, it is felt that there are costs of such an arrangement. No longer do German judges come almost exclusively from the higher social classes [5] and no longer are they mere servants of the executive. The current generation of judges cannot even be called “conservative” in a political sense. But they enjoy a wealthy middle-class lifestyle and they are subjugated to the bureaucratic routines and structures of the courts [6]. There is reason to let other people take part in the decision-making of the courts, at least when serious criminality is at stake. The Schöffengerichte (courts of lay assessors) in the lower criminal courts are decide cases in which a maximum penalty of four years in prison may be imposed (cases up to two years imprisonment can be decided by a single judge). Lay assessors are probably closer to the public’s perception of what is just and unjust than the officials of the justice bureaucracy. [7] Schöffen in adult court are seen as representatives of the citizenry, [8] while Jugendschöffen (juvenile lay assessors) are expected to bring educational experience into the work of the juvenile criminal court. [9]

Schöffen for the adult court are not really representative of the population as a whole [10]. Foreigners cannot become lay assessors even if they have lived in Germany for decades [11]. Germany has a strong migrant minority, especially in the Western part of the country and Berlin. The most important minority is Turkish. People between 40 and 50 years of age, men and the civil servants are overrepresented. [12] In addition, the lower social classes are underrepresented among lay assessors. This is particularly true for industrial workers. There is an overrepresentation of civil servants, who find greater support in being selected to be a lay judge. It has also been said, that in order to provide the courts with candidates really interested in being a lay judge, the authorities in charge actually select people with a judge-like social background and attitude [13]. Although citizens may volunteer to serve, the pre-selection process usually is in the hands of the major local political parties, the local public employers, the unions, the churches and local associations. They care little about the quality of their candidates, but there is a certain social screening process through which candidates from the community can standard for candidacy. One can generally say that Schöffen are typically people who take duties seriously and care for their reputation as lawabiding citizens. Having noted this, lay judges still differ much one from another with respect to their personal life experiences, political orientation, education and so on. Compared to professional judges they are a more diverse group.

While lay judges and professional judges supposedly have the same rights when working in a tribunal, the organization of the courts and the procedural rules give the professional presiding judge a dominant position. This is obvious in the disciplinary rules of the courts. Lay judges, in contrast to professional judgeassessors, can be fined on the spot if the presiding judge ascertains a violation of court rules. [14] More importantly, the presiding judge conducts the court hearing. He grants the right to ask questions and he leads the deliberation and voting of the panel. [15] Until a very recent decision of the German Federal High Court (Bundesgerichtshof), lay assessors were denied the right to read the case file [16]. It remains to be seen whether the presiding judges now change their behaviour. The professional judge always has knowledge of the case. He or she has set the trial after studying the file. Lay judges are thus not really equals.

This remains true even though most criminal cases are legally simple. [17] The major problem for the tribunal is not that of correctly applying the penal code. For this task the learned judges are educated. Instead, the tribunals’ attention is occupied by questions of fact-finding and seeking an appropriate sentence (length of prison term, educational measure, e.g.). It may well be that lay assessors are not typically weaker than professional judges when it comes to the evaluation of the evidence. Regarding the determination of sentences, tribunals have a rather wide scope of possible outcomes. There is much room for personal values to influence the decision. Christoph Rennig showed that lay assessors do not prefer “extreme sentences” more than professional judges. “Extreme sentences” he defined as beyond the range given by the pleas of the defending attorneys and the prosecutors. [18]

As most of the empirical studies on lay assessors date back to the 1980s and before [19], the following chapters refer mainly to a survey of the author. Most criminal cases in which lay assessors function are dealt with in the lower criminal courts (Amtsgerichte) by the Schöffengericht (court of lay assessors) or in juvenile cases by the Jugendschöffengericht. Here also, the highest number of lay assessors serve. (The jurisdictions of these courts covers a middle range of crimes. The Schöffengericht deals with criminal cases in which a penalty between two and four years of imprisonment are expected. The Jugendschöffengericht has to deal with cases in which a juvenile might get a prison sentence of up to five years.) The number of lay assessors involved in, and the percentage of crimes tried in these courts, explain our choice of focussing thereon.

Lay assessors were been asked about their experience at the lower criminal courts (Amtsgerichte) of Bochum and Frankfurt am Main. Both cities are in the Western part of Germany. Frankfurt is the bigger city and known as a banking center while Bochum is situated in an industrial area. This different social and political background influenced the composition of the lay assessors. Lay assessors at the adult and juvenile courts participated in the study. The number of lay assessors actually available was about 190 for Bochum and about 530 for Frankfurt. 151 persons in Bochum and 417 in Frankfurt returned their questionnaires on time. The lay assessors of Bochum filled out the questionnaire in the last two months of their term duty, in 1996. The lay assessors from Frankfurt had finished the first year of their four-year term, when questioned in 1997. In Bochum and Frankfurt some of the lay assessors were serving for a second term. A few had even more past terms in the courts. Since the Frankfurt court has compiled lay assessor lists, including a great number of names, Frankfurt lay assessors served four times per year on the average compared with eight times for Bochum [20]. The difference in experience is welcome for the facilitators testing whether the amount of service asa lay assessor affects their judgments in individual cases.

In the questionnaire, the respondents were asked to provide information about their personal background, their opinions about German courts in general, the role of lay persons in the criminal courts, and about how they perceived their last day in court and their general experience as lay assessors over the time they served. When asked about their last trial day, this was in relation to the “ordinary” constellation, in which the bench is made up of one presiding professional judge and two lay assessors.

In addition to the material obtained by written questionnaire from Schöffen in both courts, there also were in-depth-interviews with Schöffen in Bochum. In these 51 interviews conducted between January and April 1997, the respondents were invited to speak freely about their experiences.

The study deals with mixed tribunals as a working group under clear authority of the presiding judge. It was originally intended to test theories of procedural justice. In a later chapter, the most prominent theory will be described. In addition, lay assessors should be considered as just one example of the numerous types of lay participation in state affairs. It thus forms part of the broader topic of citizen’s participation.

An analysis of the interaction between professional judges and lay assessors might begin with a description of a typical day. The events start in the presiding judge’s chambers, or, perhaps, in the corridors, continue in the courtroom, and, of course, the court cafeteria, and are finally resolved in the deliberation room, and so on.

Just before the trial is about to start, the presiding judge asks the lay assessors to come into his chambers. The Schöffen normally do not know anything in advance about the cases. The welcoming ceremony in the presiding judge’s chambers is often very brief, its occupant is in a hurry. In the Bochum and Frankfurt study, a respondent remarked that a judge did not even ask him about his profession, which could be considered as the minimum of courtesy. Often the lay assessors do not hear enough about the cases [22] and they have to figure things out while listening to the testimony at trial. Unlike an American or English jury trial, the presentations are not really designed to facilitate understanding by a lay person without knowledge of the investigative file. The opening statement of the prosecutor is often read out in a hasty manner that does not allow anyone to understand. [23] Some judges try to “prepare” their Schöffen in a way that attunes them to the intended outcome. During her apprenticeship in court a young lawyer witnessed a presiding judge who always looked through the window, his back to the Schöffen, while talking in an unintelligible manner about the morning’s cases. Other judges take their duties more seriously and try to inform the Schöffen in a way that helps them grasp the case. Since researchers as observers have no access to the court briefing and to the files, so as to compare them, the extent of such behaviour is unclear.

“I really love judge (...)”, a woman said in an interview. Liking and disliking matters in social relations. Some actors often already know each other. This depends on the number of judges at the court, the system of assignment of Schöffen, the length of the Schöffen’s term and pure chance. It does make a difference whether the presiding judge remembers an assessor’s face or not. The judge remembers a previous confrontation or co-operation and may take that into account. The lay assessor has his or her own memories and consequent anticipation of the events which will follow. Often prejudices connected with gender matter in the court. In the interviews and questionnaires from Bochum and Frankfurt, housewives often felt discriminated (“only a stupid housewife”). Some men moaned about the female judges’ behaviour and timing : to them female judges rush through the trials in order to be back home at lunchtime. Some women stressed that men took too long to come to the point. Each panel at the juvenile court is staffed with a male and a female lay assessor. [24] Although the vast majority of defendants saw the presiding judge as not being biased against them, thirteen percent of the Schöffen in Bochum and 14% in Frankfurt suspected some bias.

The relationship between the individual lay assessors and the presiding judge is but one side of the coin. The other is the relation between the two lay assessors. Here also, prejudice sometimes appears between different sexes, occupations and age groups [25]. Lay assessors appeared, in the interview, to want others to be people like themselves : old, young, women, female, self-employed, workers and so on. Old-style authoritarian personalities favoring harsh sentences and left wing social workers or teachers pleading for education instead of punishment confronted each other. Engaged lay assessors emphasized a recurrent problem : They found most of their colleagues to be too reluctant and passive, too much compliant in relation to the presiding judge. One of them stated that he became happy when he saw a female lay assessor known for her special courage.

It would be interesting to know the presiding judges, already wear their black robes when meeting the Schöffen. When the panel enters the courtroom, the robe of the presiding professional judge reflects her authority among the group.

The German “inquisitorial” method of procedure is there from the outset. The presiding judge conducts the trial. He or she has the dominant role. Only after he or she has examined the witness or the defendant, do the others get a chance. In this respect, the prosecution and the defense, the professional judge assessors and the lay assessors are equal.

Of course, there are extremes. An authoritarian presiding judge might not accept another tribunal members’ desire to ask additional questions since that means that he or she failed to ask about all relevant aspects of the case. [28] In tribunals with several professional judges, the younger judges, whose career may depend on the protection of the presiding judge, may also feel pressure to remain passive [29]. But this is not all.

There often is a fear that laypersons may not find an appropriate way to ask questions. An impression of bias may be the effect. In order to avoid this, professional judges tell lay assessors from the outset that there are dangers to asking. Some questions Schöffen take that so seriously that they never ask questions. One presiding judge explains to the lay assessors; that if they have a question they should tell him and he will ask it for them [30].

After finishing their examination, the presiding judge must ask other members of the bench whether there are additional questions for the witness. Often lay assessors complain that they are asked : “Are there any questions ?”, in a tone which makes it more than clear that such questions are not welcome. However, the fact that nearly all judges comply with this rule, may contribute to the view of the majority of lay assessors that they were given a fair opportunity to ask. Only 7% [31] and 14% [32] stated that they had less than sufficient opportunity to ask questions during their last trials.

An important reason for lay assessors remaining silent during the trial is their lack of information about the case. On the one hand, this forces them to listen carefully to the testimony in order to understand the case [33]. It is difficult to develop useful questions when occupied with understanding what is going on. [34] On the other hand, requires some knowledge in order to ask questions. Since lay assessors are denied access to the case file and many presiding judges give insufficient orientation prior to the hearings, lay assessors often simply do not have a level of understanding such as would enable them to explore alternatives to the aspects which the presiding judge has checked. Given this informationbased influence of the presiding judge on lay assessors, his or her questions may seem to be exhaustive, at least for the moment.

Thus access to information is crucial for the lay assessors to make effective use of their right to ask questions. However, there is clearly a minority of lay assessors which does not bother to play an active role. It is also often reasonable, not to ask additional questions, such as in cases where the evidence is clear, the defendant has confessed, and the presiding judge, prosecutor and defense have seemingly exhausted all aspects of the case. Given that lay assessors do not ask questions during most of the hearings, what can they achieve during the deliberations ? Before addressing this, some other topics have to be discussed. One of these especially contributes to the social cohesion of the working group which comprises the mixed court.

Breaks during the hearing may be provide an opportunity to exchange ideas about the case. Sometimes lay assessors ask for additional information from the judge or request that additional questions be asked during the next court session.

Among the more critical experiences of lay assessors are moments in which the presiding judge, the prosecutor and the defense attorney bargain about the outcome of the case [36]. Often such deals are made without participation of the lay assessors. Then they must simply accept the outcome, which is not only embarrassing for the lay assessors but also contrary to law. The tribunal as a whole should decide the case. It is more appreciated when the presiding judge invites the lay assessors to attend the bargaining session.

One does not know the extent between presiding judges, lawyers and/or prosecutors are the tip of an iceberg. The extent of this practice is unknown. Comparing the survey results from the criminal courts in Bochum and Frankfurt it was clear that some judges in Frankfurt routinely deal with the parties. And in order to achieve the desired result, the professional judges have to “lead” the hearing and the tribunal in “the right way”. It certainly has aspects of a theatre. Several lay assessors in Frankfurt were upset about being effectively curtailed in their rights. And they raised doubts about the justice of the verdicts achieved through method of “procedural economy.” Again, it is hard to estimate the extent. These tactics may be personal to some judges. The appropriate approach would be to inform the lay assessors about the bargaining and to speak openly about the pros and cons of the deal. Lay assessors should not be brought into a situation in which all is nailed down before.

The professional judge sets the trial schedule and several trials are often heard on a morning. By presiding over the deliberation, the professional judge also influences whether there is time pressure for the deliberations or not. In the Bochum and Frankfurt sample, 85% and 80% of the respondents stated that there was no or hardly any time pressure for the deliberations, while 10% and 12% recognized “some”. Taken together, 6% in Bochum and 8% in Frankfurt reported “quite” and “very” much time pressure.

In beginning the deliberations, the presiding judge may sum up the evidence [37] or invite spontaneous comments. Sometimes there are no additional remarks by the lay assessors. Otherwise the lay assessors express their feelings about the case, ask for additional information or suggest a certain ruling of the court. Schöffen in Bochum and Frankfurt were asked about the degree of their participation in deliberations on their last day in court. While in Bochum 43% indicated they participated “very often”, in Frankfurt this group made up only 26%. In Bochum 47% said they participated “quite often”, as compared to 53% in Frankfurt. While only 9% in Bochum participated “sometimes” or “hardly”, twice as many gave such responses in Frankfurt. An initial informal exchange of opinions often precedes a more systematic discussion a to the amount of basic information the presiding judge gave them about the case, 40% of the Schöffen in Bochum stated “very” much, 45% “quite” much, 12% “some” and 3% “hardly” enough. In the Frankfurt sample 36% indicated “very” much, 45% “quite” much, 12% “some”, 4% “hardly” enough and 3% “nothing at all”. The presiding judge must inform the lay assessors about the minimum and maximum sentences provided by law. In most cases, they await a suggestion by the presiding judge regarding the verdict. A common response is nodding or at least compliance. But conflicts also occur in the panel. The more a lay assessor leans to a harsher or more lenient view, the greater the chance for debate. Among the respondents in the Bochum and Frankfurt study, there are many such examples. Persons demanding more severe sentences are not only disappointed about the law which does not allow more radical options. They also curse about “soft” judges and “soft” or “weak” fellow lay assessors. Sometimes a lay assessor wants the tribunal to react less severely to a crime. This may be motivated by social or pedagogical views or by feelings of “just desert”. Sometimes dissenting opinions are fueled by a conviction which is neither reflected in the law nor shared by the rest of the panel. Conflicts of values occur, e.g. regarding sexual behaviour or drug-related offenses.

Sometimes lay assessors bring new aspects into the discussion. Asked whether they stated an opinion different from that of the presiding judge during the deliberations, 3% in Bochum stated “very often”, 16% “quite often”, 70% “sometimes”, 9% “hardly” and 1% “never”. In Frankfurt, the figures were 4%, 15%, 60%, 13% and 6%. The lay assessors also rated the extent of the presiding judge’s efforts to understand their positions. 67% in Bochum and 83% in Frankfurt indicated “very” and “quite” much. But the rest thought different, which is an indicator for a problematic work relation. Two examples from the oral interviews show how lay assessors’ interventions sometimes lead to a change of opinion. A lay assessor recalled how he convinced the panel that some juveniles did not have enough strength to destroy a particular amount of material. In another case, the defendant claimed to have been maltreated by the police. A Schöffe told about a relative’s experiences at the same police station, which resulted in a different ruling favorable to the defendant.

Because of a lack of candidates with a degree or experience in education, many persons become Schöffen in the juvenile court with the sole “qualification” of parenthood. During deliberations, many professional juvenile judges value the opinions of teachers, social workers or others in education. In such cases, the relationship is one between experts, some in law, others in education. It is no wonder that lay assessors in German juvenile courts often have better standing than their colleagues in the “ordinary” Schöffengerichte.

Professional judges also prefer informal deliberations because discussion is easier and there are less conflicts. And they prefer to give in instead of fighting because this leaves their personal authority untouched.

Respondents were also asked about their general experience during their terms as lay assessors. About two of three respondents stated that court would have decided differently without lay assessors “in a few cases”, while about 20% said that the court would have “almost never” decided differently. Here, lay assessors who are proud of a strong influence on court decisions are in the minnority [42]. Obviously, lay assessors count even small effects when they are asked about their contribution to the deliberation. But having “influence” for them means to change the opinion of the professional judge (Gerken 1986,119). Whenever this happens, it helps to forget a lot of disappointing experiences.

While some lay assessors reported that they never outvoted the presiding judge, others have made such an experience. The following observations are based on personal interviews with lay assessors in Bochum (n = 44 for this topic). The frequency of such outvoting ranged from one time (n = 10) to more than ten times (n = 2). How does the professional judge react to a defeat ? The normal response is to keep calm and friendly. The professional judges go on in their duties as usual without showing disfunctional behaviour. Very few lay assessors remembered that a judge became angry, shouted or had problems to work on. Of course, this is truly professional behaviour. But there are also ways at the presiding judges‘ disposal to indicate his discontent to the prosecutor or defence attorney [43]. It may well be that the prospect of an appeal against the sentence helps to deal with the situation.

The law permits a second professional judge to sit in the Schöffengericht as a judge-assessor. [45] But the proportion of trials before such an “extended court of lay assessors” (Erweitertes Schöffengericht) is very small. In these courts there are two professional judges and two lay assessors. This quite likely results in less chances for the lay assessors to influence the outcome. Some interview partners in the Bochum study once found themselves in such a court and did not sense a different atmosphere [46].

The constellation at the Große Strafkammer of the district courts staffed with three professional judges and two lay assessors, is much more important. Now the lay assessors are likely to feel that they are in a minority. Although some interview partners in Bochum experienced no difference, in the Große Strafkammer, others did, which is in line with previous studies [47]. The Große Strafkammer may also be made up of only two professional judges and two lay assessors. However, at the Große Strafkammer, there is a greater exchange of legal arguments between the professional judges. Lay assessors are thus often isolated.

Group value theory was also reformulated as “relational model of authority in groups”. [52] “[B]eyond communicating a message about access to resources, procedures communicate messages about a person's status within society”. [53] People use a „fairness heuristic“ in order to determine their status in a social group. [54] Authorities symbolize the group. According to the “relational model of authority in groups”, the fair or unfair behaviour of the person in authority tells an individual whether or not he or she is accepted as a full member of the group. [55] It is important to have a good personal relationship with the authority. During their socialisation people acquire the values of their society, including what is procedural fairness. [56] Daily encounters with authorities sharpen the individual‘s sense for fair and unfair treatment. According to Lind [57] and Tyler, [58] there are three main criteria for procedural justice :

Another aspect was stressed by the early studies of John Thibaut and Laurens Walker, [59] but appeared less relevant in the subsequent studies of Lind and Tyler: [60]

(4) “voice”, whether persons have the opportunity to state their case.

“Status recognition” might be especially important for lay assessors in a mixed tribunal. In his study of German lay assessors, Ekkehard Klausa [61] pointed out that the “deliberation atmosphere” is decisive for the function of lay assessors in the mixed court. The presiding judge should treat his lay colleagues as equal partners, take them seriously, show interest in their opinion and seek a “fair compromise” with them. Similar results are reported from studies in Hungary and Poland [62].

As can be seen from table 1, majorities positively rated the presiding judge’s fairness to them as lay assessors as well as the justice of the verdicts. Respondents were given five-point-scales for their answers [63]. The respondents from Frankfurt were more critical than those in Bochum. Both groups felt less comfortable about the verdicts as they were satisfied with the fairness in the work relation.

Table 1:
The presiding judge’s fairness to lay assessors and the justice

According to Geert Hofstede, [64] there are cultures in which people typically have what he called “high power distance orientation,” i.e., a social distance between those in power and those who are to obey. A person of low social status does not expect that a person of higher social status will listen to his opinion before reaching a decision. “Low power distance orientation” means that those in authority are not seen as a special class of people who generally have more rights. People of lower status claim some influence for themselves. Even within cultures, the degree of power distance varies. There are always persons with different degrees of power distance orientation in each society. Tyler, Lind and Huo employed Hofstede‘s theory in a number of empirical studies. They came to the result that persons with a high power distance orientation evaluate encounters with authorities more on outcome terms and less on relational or procedural terms. [65] If a person is ready to accept that superiors will decide what is to be done, the way decisions are made by the authority appears less important. Lay assessors with high power distance orientation are expected to be less critical than others.

An attempt to measure power distance orientation was made for the respondents from Frankfurt by adapting five of six items from a study by Tyler, Lind and Huo [66] to the situation of lay assessors. After analysing their correlations, the final measure was formed by the following three items (Cronbach’s α = .68):

Of course, some people are so proud of being entrusted with a public office, that this alone makes them more satisfied, regardless of the results of their activity. The same people often like the idea of having the opportunity to exert power but they do not necessarily use this power, or they tolerate a broad range of outcomes as long as they have the chance to vote in the decision-making process. In a sense, such persons “consume” superficial aspects of their work instead of focussing on its political function. To determine whether respondents are so pleased about being entrusted with the position of a lay assessor and about having the opportunity to decide at court that this alone makes them satisfied, two questions were included in the Frankfurt questionnaire :

The two items were correlated. [67]

Table 2:
Co-operation with the presiding judge, answers in percent

Table 3:
Quality of co-operation with the presiding judge - multivariate

A multivariate analysis [68] was computed (table 3) to test the hypotheses. The main correlation was the fairness of the judge to the lay assessor (Beta = .63 and .71, respectively), as was expected. Some additional factors can be taken into account in this model. The presiding judge is preparing the timetable for the trials. Thus he can to a certain degree control the time pressure at a trial day. For the sample of Frankfurt there were significant correlations for deliberation under time pressure. In both samples, whether the lay assessor managed to get other members of the tribunal to agree with his opinion made no difference. The justice of the verdicts was a minor factor compared to the judge’s fairness to the lay assessor.

There was no gender effect and but a small age effect for the lay assessors in Frankfurt only. Feelings of pleasure and pride had no impact and the power distance orientation only minimal influence for the respondents serving in the Frankfort court. The time in service made no difference. Board membership or functions as a representative [69] were among the minor influences. Overall, the explained variance of the models (R²) was remarkably high.

The greatest correlation could be found for the variable “acceptance of the lay assessor by the presiding judge”. For this measure, the respondents rated whether they felt accepted by the presiding judge as an equal partner. Forty percent of the Schöffen in Bochum indicated “very”, 43% “quite”, 12% “somewhat”, 4% “hardly” and 1% “not at all”. For Frankfurt, the figures are 33%, 45%, 12%, 6% and 4%, respectively. The correlation is in line with the hypothesis, developed according to Tyler, Lind and Klausa, that the presiding judge supports or hinders participation through his personal fairness or unfairness.

Table 4:
Getting others to agree with their own opinion - multivariate

Also, lay assessors who reported more activity in deliberations felt they had more direct influence. Only in Bochum was the hypothesis confirmed that persons with experience on boards or as a representative in the local, political or church communities have more influence.

Overall the explained variance (R²) is low. This is due to factors beyond the scope of this study. For instance, from the face-to-face interviews it seems likely that the personal character or habits of the lay assessor are important. There were interview partners who clearly had difficulties in communicating and cooperating with others. It is also likely that many lay assessors had uncontroversial or “clear” cases on their last trial day. There might have been no reason to engage in a real confrontation, in which the behavior of the presiding judge and other factors might have been more decisive.