This article focuses upon one type of German mixed court, the Schöffengerichte, which is composed of one professional judge and two lay assessors. There, the lay assessors hold a 2/3-majority and therefore have the power to carry through any kind of decision, even the conviction of a defendant, against the vote of the presiding professional judge. [1]

In the study done by RENNIG, the subjects were also asked if dissent among the judges occurred at any time during the deliberation. The cases of the sample were classified as “dissent reported” or “no dissent reported”. Reported dissent was not measured conservatively. If only one of the three subjects who participated in the same deliberation stated that there was a difference of opinions, then the respective case fell into the category “dissent reported”. “Objective” dissent and reported dissent were cross-tabulated. The result was quite surprising : In eight cases the initial preferences of the professional judge and of at least one lay assessor differed clearly (objective dissent). Dissent was reported by at least one of the three judges only from four of those eight deliberations (reported dissent, see table 3). [13]

The individual decision preferences of professional judges on the one hand, and of lay assessors on the other hand differ more often than the judges themselves realize. How does this influence the court’s decision ?

Before a judgement is pronounced, the judges deliberate on the decision to be rendered. During that deliberation, it should become obvious to all the judges on what reasons the court’s (or the majority’s) final judgement is based. These considerations which are made confidentially in the deliberation room are the discussed reasons.

As in every criminal justice system where the courts have to give reasons for their judgements, the considerations given in the written judgements of German mixed courts have to meet certain legal requirements, like e.g. absence of contradictions, completeness and rationality of the weighing of evidence, sufficiently considering all the points of view that can be of importance for the severity of the punishment, etc.. If the reasons given for a judgement do not meet these requirements, an appeal in matters of law only can be successful. The judges at the court of appeal know only the written reasons of the contested judgement, because the orally pronounced reasons are not put into writing - they are not made part of the record of the trial – and the same is true, of course, for the reasons discussed during deliberation. Therefore, weaknesses of the written reasons enhance the chances of an appeal in matters of law only, while skillfully drafted written reasons may prevent a materially doubtful judgement from being overturned by the court of appeal. If an appeal in matters of law only is lodged against the judgement of a Schöffengericht, the written judgement prepared by the professional judge alone becomes salient.

The written reasons for the judgement have to be identical with the discussed ones. Everybody who frequently has taken part in deliberations of German criminal courts and later read the written judgements will confirm that the written reasons for the judgement in some cases do not correctly reflect the arguments used during the deliberation. In an empirical study, HASSEMER [23] could not confirm the hypothesis that unusual judgements are defended by written reasons which are particular in terms of content or length. HASSEMER analyzed judgements of single professional judges in cases of drunken driving with respect to the written reasons for the punishment. As the judges were sitting alone, there was of course no oral discussion of the reasons of the judgement. But surely the single judges had to “deliberate with themselves” before they pronounced their judgement. If the judges had given written reasons correctly, they should have reported the content of their “deliberation with themselves” completely and truly. In cases of drunken driving, almost every German court applies some kind of standardized punishment tariff. This leads to a very small variation in the amount of the fine and in the length of the suspension of the driver’s license. But from time to time, the courts make a judgement where the punishment clearly differs from the usual tariff. Probably, these decisions are based upon particular considerations made by the single judge. If all the written judgements would truly and completely reflect the judges´ deliberations with themselves, then the written reasons in these exceptional cases should contain more arguments than the reasons of standard cases, and they should contain other arguments with respect to the punishment. HAS-SEMER analyzed 63 written judgements. The sample comprised 13 cases where the length of the suspension of the driver’s license clearly differed from the tariff. The arguments given for these 13 judgements in the written reasons did not differ significantly in amount or in content from the arguments used in the remaining 50 standard cases. [24] It might be that the judges who made the 13 exceptional decisions did not explain their considerations completely and truly, and did not give their real reasons in the written judgements. This assumption can, of course, not be proven by the insignificant result.

Empirical studies about the reactions of professional judges in mixed courts who are in the minority have not been carried out yet. Personal experience and anecdotical reports by professional judges and by lay assessors are the only sources of information so far. Although sound empirical data are missing, it may be presumed that any professional judge who is in the minority is not convinced of the majority’s judgement. On the other hand there is no doubt that not every professional judge who is in the minority wants the lay assessors´ decision to be contested successfully by an appeal. Of course some professional judges sometimes feel that way. But the frequency and the determining factors of this type of reaction are not yet clear.

It is not difficult to describe the task which the professional judge, who is in the minority, has to perform when giving written reasons for the judgement : The professional judge just has to write down the arguments and reasons upon which the majority’s final decision is based. But it may be difficult to fulfill that task, if the arguments that the lay assessors used during the deliberation were incomplete or contradictory.

Some professional judges just do their best to give acceptable reasons also for a Schöffengericht´s judgement which has been forced by the lay assessors. According to the author’s personal experience, this is the reaction which is most popular among professional judges at a Schöffengericht.

The anecdotal reports given above should not be generalized. They just illustrate that a professional judge at a German Schöffengericht who has been outvoted by the lay assessors has means to work towards a successful appeal against the judgement if he or she wants to do so. How many of the professional judges at the Schöffengericht act this way when they are in the minority, and why they do this, if they do so at all, are questions still to be answered.