Roughly speaking, every year about 200,000 cases are settled by means of the compound find, about 60,000 cases in court before a single judge – of which number about 10,000 are an abbreviated trial following a confession [1] - about 11,000 in a mixed court with lay assessors and less than one hundred with a jury.

The jurisdiction of the mixed court with lay assessors [2] is determined by the hypothetical penalty. If the alleged offence carries by law only imprisonment, or the alleged offence carries both imprisonment and fine and the prosecution demands a prison sentence, whether actual or suspended, then the case is tried in a mixed court. If the case concerns only a fine, a fine agreed to in court, [3] or the acceptance of a warning, [4] it is tried before a single judge.

There are exceptions both ways : cases of extreme importance to the accused or of exceptional interest to the public may possibly be tried in a mixed court. The AJA does not define those criteria further, but in the travaux préparatoires to the bill introducing the present system, which took effect in 1992, the Ministry of Justice generally mentioned cases in which the Regional Prosecutor, statsadvokaten, had by law been prosecutor before 1992, thus causing a mixed court to be used, and, specifically, cases of negligent manslaughter [5] and excitement to racial hatred [6] as the most important exceptions.

More important are the exceptions to the rule that cases carrying a prison sentence are tried in a mixed court which leaving out unimportant details are as follows :

The Road Traffic Act, Foerdselsloven, has its own system. [9] As a rule of departure lay assessors are competent when the prosecution demands the accused’s unconditional disqualification as a driver or a higher penalty than a fine, but not if :

In practice, the vast majority of cases under the Road Traffic Act are tried before a single judge, even when imprisonment is the expected outcome.

The jurisdiction of the jury, [12] is also partly determined by the hypothetical penalty. The jury is competent :

Thus, indictment against trade union leaders for causing the temporary deprivation of liberty of managers unable to leave a factory during a demonstration is not a political case. [17] The same applies to indictment against an attorney for massive tax fraud, the accused being the leader of a political party hostile to the taxation system, the “Danish Poujade” [18] and an indictment for derogatory statements about immigrants during an election campaign. [19]

Here there are also exceptions :

As an abbreviated trial following a confession, [22] presupposes not only a full confession, but also the acquiescence of both sides and the consent of the court, there exists a consensual element. Section 925 presupposes mental sanity. If either party demands treatment or placement in an institution for the mentally ill, § 925 is inapplicable, and a case otherwise within the jurisdiction of a court with lay assessors will remain there. A prospective jury case, however, may be tried before a court with lay assessors, but not a single judge [23] on condition of both a confession and acquiescence of the parties upon request of the accused, [24] either party may request that a case, in which only a fine may be imposed be tried in a mixed court. However, the wish of the parties is not binding on the judge, who can either refuse an application for lay assessors or call them on his own initiative – if he omits to do so in a case, which according to the High Court, acting as a court of appeal, ought to have been tried with lay assessors, at least the Western High Court is apt to quash the conviction and return the case for a new trial with lay assessors. [25]

A learned commission has recently published a report suggesting widereaching changes of the jury system, bringing it closer to the lay assessor system, which is not to be modified. One of the proposed changes would introduce a right of a defendant in a jury trial case to waive jury and opt for a mixed court with lay assessors, which choice would be binding also in case of an appeal. [26] Unlike other changes which are strongly opposed, especially by representatives of defence attorneys, this rule is welcomed by all.

Whereas plea-bargaining on Anglo-Saxon lines is practically precluded in Denmark because of the legal impossibility to bind the hands of the judge, an abbreviated trial according to AJA § 925 by conferring solid advantages to the accused, may enhance his willingness to confess and consent, thereto,. Even without a formal “tariff” or reduced sentence in return for a confession and consent to an abbreviated trial, the accused, who out of 20 burglaries confesses to 15, may well gain a dismissal of the remaining 5. If the penalty would have been heavier for all 20 counts, and there might have been a conviction on all counts in a full trial with lay assessors, the gain is obvious. Also, the accused in a case of rape may be wiser to adduce the complainant’s over-flirtatious attitude as a mitigating circumstance during a § 925-trial rather than claim consent and risk a full trial, including a possibly devastating statement from the woman as a witness. The experienced prosecutor and defence counsel must, from their respective points of view, weight those considerations before accepting an abbreviated trial, whereby the parties and the court must not forget the – mostly only theoretical – risk that the possibly innocent defendant could confess to gain the mentioned reduction. [27]

In the High Court sitting as a court of appeal there are three professional judges, including the president, sitting with three lay assessors.

In the High Court acting as a court of first instance there are three professional judges and a jury of twelve.

In the Supreme Court, acting only as a court of appeal, either as a court of their or of second instance, there are no lay judges.

In very big cases alternates for both professional and lay judges may be selected, but will not take part in deliberations and vote unless they replace a regularly chosen member of the court. In the High Court the number of judges, both lay and professional, may drop to one below the normal number (e.g. eleven jurors) and voting rules will change accordingly. [28]

Although the judge’s duty to uphold the principle of material truth is thus firmly entrenched in the AJA and in the court’s practice, a not inconsiderable body of opinion, including that of some judges, in an exhaustive Report on Professional-Ethical Problems in Criminal Justice advocates – not only a firm formal and technical direction of proceedings with which all agree – not also active participation in the elucidation of truth only in the interest of the accused, but not against him : “the court should not only be impartial, but also appear so”. The traditional view – which I share – may be summarized : [32] Criminal justice is not a game, where the better player should win, and if, e.g., a decisive question has not been asked by an inexperienced assistant chief constable as prosecutor, the judge must do so, also at the risk of incurring defence counsel’s wrath; wrongful acquittal may be a lesser evil than wrongful conviction, but an easily avoidable wrongful acquittal is not a defeat for the prosecutor, but an evil to society at large, especially the victim. Active participation in favour of the accused is an obvious duty, recognised by all, especially when the accused is unrepresented. [33]

Orality and immediacy are principles enshrined in Danish criminal justice, the Art. 65 of the Constitution stressing that proceedings ought to be oral and held in public as far as possible. According to AJA § 174 witnesses should directly before the trial court. On the other hand, the rules of evidence are not strict, and there is no ban on hearsay evidence. The law on documentary evidence, [34] provides that transcripts of statements made in court by the accused can be admitted directly without having to call the judge or other as witnesses, - when the accused refuses to testify, or changes his statement. Similarly, statements previously made in court by witnesses, are admissible if the witness is unavailable, changes his statement, or refuses to answer, and coercive measures are ineffective or not implemented. The high trust put in those records is due to the fact that the judge immediately dictates a comprehensive summary of the party’s or witness’s statement, thus enabling misunderstandings to be put to right then and there. [35] Also, documents made in furtherance of a public duty may be admitted directly, e.g. a description of the scene made by the policeman on the spot. The accused’s criminal record is admitted pursuant to that clause, but in jury cases the record is normally only disclosed after the verdict of the jury. Statements in police reports are more problematic. When the accused or witnesses change their story, the questioner may, with the court’s leave – almost always granted – put the former statement to them and, if vital, call the policeman as a witness. Direct quotation as surrogate for examination of the witness in court will only be permitted by the court under exceptional circumstances.

The dossier of the criminal investigation is forwarded by the prosecutor in duplicate – the original for the court and a complete copy for defence councel – together with the indictment or as soon as possible afterwards, along with the list of evidence, earlier convictions, probation reports etc.

Some authors have suggested that the file or at least the statements of the accused and witnesses, ought not to be forwarded to the court for two reasons : (1) the perusal of former statements is likely to prejudice the judge to the detriment of the accused, as the judge, in case of divergence between the reports and statements made in court – divergences typically tending towards the weakening of the earlier version – will be inclined to prefer the earlier version; (2) that the learned judge(s) are placed in a position superior to that of the lay judges, who usually have not been able to read the file, which is an especially potent argument in cases with lay assessors, who have by law equal powers with the presiding judge. On the other hand a quick look-over will impart to the judge(s) advanced knowledge of where the problems are likely to occur, on what to concentrate, and whether the court should take an active part or only lean back. An experienced judge will be able to differentiate between earlier and fresh statements, and possible divergences will at any rate be pointed out by at least one party.

The jury has no access to the dossier, but when it retires to ponder its verdict, pictures, drawings, maps, other pieces of evidence, but not statement of witnesses may be given to the jury upon request of the foreman following a decision by the presiding judge [36] The lay judges may put questions [37] but in practice this is almost unheard of.

The victim has the option of either instituting tort proceedings in the civil court or presenting his claim during the criminal trial, [38] the so-called adhesion process. The latter course is often adopted, as no court fees have to be paid, and the assistance of counsel is often unnecessary, as the prosecution is duty-bound to assist the victim in presenting his claim. The court – lay judges have no say – may refuse to adjudge a very complicated civil claim, [39] especially when no personal injury has occurred so as not to delay the criminal trial. Once the criminal trial is concluded, only claims pursuant to the Road Traffic Act and the Dogs Act can be tried in the criminal court.

The victim is always entitled to retain counsel, and victims of violent crimes, including sexual offences, have a right to court-appointed counsel paid from funds, [40] in serious cases. In lesser cases appointment of counsel is subject to the court’s discretion, and the police must inform victims of the right. In addition, an indigent victim may request court-appointed counsel to help him compute a complicated civil claim. [41] The victim’s counsel is entitled to ask questions of the victim, but not of the accused or of other witnesses. The victim or his counsel may offer evidence and make a closing argument covering the question of compensation, but not otherwise, the decisive point being that the victim’s counsel ought not act as an extra prosecuting attorney. The victim does not participate in the selection of the jury.

As for conviction and sentence the lay assessors have powers equal to those of the presiding judge, as regards both questions of law, fact, and sentence, the main exception being civil claims, which are decided by the court.

As for all questions relating to the role of the court, dossier, position of victim and his representative, the reader is referred to section A supra, with the following exceptions : (1) it is slightly less rare for a lay assessor than for a juror to ask questions; (2) in really big cases involving economic crime it is customary for the lay assessors to have a copy of the dossier themselves. [45]

Each question may only encompass one offence and one accused and must be formulated so that it can be answered “yes” or “no.” [48] The fundamental question “Is the accused guilty ...” is called the main question. [49] If a main question has been answered in the affirmative, a supplementary question may possibly be asked, [50] e.g., “Shall the penalty be remitted because circumstances as described in CC § 85 apply ?” Questions whether the accused is insane etc., are also treated as supplementary questions. Subsidiary or alternative questions can also be put, complicating the matter still further. If the prosecutor doubts the certainty of proving intent in the stabbing example mentioned above, he may put an alternative main question describing the crime of “dangerous violence causing death under aggravating circumstances,” [51] and even an extra alternative question of dangerous violence causing death without aggravating circumstances. [52] In a case of selling 500 kilogrammes of hashish the prosecution, sensing that some parts of the case are less strong than others, may opt for an alternative question alleging “not less than 200 kilogrammes.” Also the defence may wish to put alternative supplementary questions, covering the remitting or reduction of the penalty. While defence counsel’s request for supplementary questions must, as a matter of law, be complied with, [53] the prosecution, will in a strong case, usually oppose such a request so as not to give the defence the possibility of luring the jury to render a compromise verdict. [54] Between verdict and sentence it is possible to put new questions, [55] but only with leave of the court. This could happen if it is obvious that the accused, though acquitted of the main charge, is guilty of lesser offences.

The questions are given to the jury in writing after having been drafted by the prosecution and approved by the court after defence counsel and the defendant have had the opportunity to comment on them. [56] The judge’s instruction to the jury as to the application of the law [57] is given orally. [58] The range of sentencing is not touched upon at this stage. Either party may demand that specific instructions on the law be made part of the records, because faulty instructions concerning legal questions or the formulation of the question to the jury are grounds for appeal. [59]

In recent years the implications of the Unterpertinger-judgment of the European Court of Human Rights have come much to the fore. According to this case the trial will be regarded as unfair, if a conviction is based completely or mainly upon evidence as to which the accused or defence counsel has not been able to cross-examine (European Convention of Human Rights § 6,3 (d)) but not if other corroborating incriminating evidence. It is settled practice that the presiding judge will instruct the jury that a statement which the accused or defence counsel has not had the opportunity to challenge, is by its nature weak and cannot support a conviction without corroborating evidence. In such a case the Supreme Court will not reverse the judgment of the High Court. [60]

The presiding judge also summarizes the evidence, [61] and generally comments on the sufficiency of the evidence and the credibility of witnesses, whether the court wishes to intimate an inclination to reject a hypothetical verdict of guilty [62] or to indicate a leaning toward the accused’s guilt. Whereas there is probably a concensus not to criticize an intimation that a guilty verdict should be rejected – although jurors have been known to express resentment in the face of what almost amounts to a direction to acquit – defence counsel and some academics have questioned the propriety of remarks indicating the presiding judge’s opinion that the accused is guilty. The Supreme Court has, however, consistently rejected defence counsel’s argument that such remarks are to be qualified as a legal error and the sentence reversed. [63] No rule compels making the summing-up part of the record or preserve on tape not even upon request. This has been criticized by a consensus of authors. [64]

It is part of the jury’s competence to decide statutory aggravating or mitigating circumstances [65] included in questions supplementary to the guilt question.

Some cases have dealt with the question of the inclusion of the “main” part of the judge’s remarks into the record. In a rape case [67] the chairman had been called twice to the jury room to answer “questions of doubt as to the interpretation of CC § 216 [on rape].” Nothing more was included in the record, the chairman had died, and the clerk had forgotten all about it. In a later case of stabbing to death [68] the chairman was called three times to the jury room, twice to answer purely technical questions, but once to answer a question on the meaning of intent, and again the record was more than scanty. In both cases the Supreme Court criticized the High Court, but the judgments were not reversed, as the Supreme Court applied AJA § 946, a presumption in law that a judgment should not be set aside because of an error of form unless it may be supposed that the observance of the rule would have caused another outcome of the trial. Whereas the earlier decision was unanimous, one judge – of five – dissented in the later case. The dissenting judge is now President of the Supreme Court and has later led the Court in some decisions reversing judgments because of errors of form.

In yet a later drug case [69] the explanation of the chairman of what he had said on the question of intent, was so strong and clear that the Supreme Court had no doubt but to uphold the judgment.

The chairman may decide to answer the questions in open court in the presence of the parties, which is – except for minor, technical questions – probably the better way. The jury may also ask to be recalled to the court room and have the presiding judge answer the questions or to ask for new questions to be put to them in open court. [70] If the jury only asks one question, the presiding judge will probably answer at once, but he may decide to invite parties’ comments and ought to do so, if new questions are to be put to the jury.

As mentioned in III A supra, the jury may ask for pictures, drawings, maps, and other pieces of evidence, but not statements of witnesses [71] the dossier, and although the law is silent of this point, they are not entitled to hear rereadings of the evidence.

The proper form of answer is ‘yes’ or ‘no.’ The jury is not allowed to add to or subtract from or otherwise change the formulation of the questions.

A qualified majority of eight out of twelve votes is necessary for a verdict adverse to the accused on a question of guilt. Such verdict will normally be ‘yes’ to the main question, but ‘no’ to a supplementary question, e.g., whether the penalty shall be suspended. The jury is instructed in which situations a qualified majority of eight is required. [72] The jury is not permitted to disclose whether the verdict was unanimous or not. [73] There is thus no such thing as a hung jury. If less than eight jurors vote adversely to the accused on a question of guilt, the corresponding favourable verdict results. A bare majority suffices for the question of insanity with the court deciding in case of deadlock. [74]

There is no minimum or maximum deliberation time and no mandatory procedure, except that the foreperson of the jury will, “upon termination of the deliberation,” – which is not defined in the AJA – ask each juror for his vote in the order of appointment to the jury, the foreperson voting last. As unanimity is not a requirement, detailed rules of procedure are probably superfluous.

No reasons are given for the verdict, and because of that so-called jury nullification is not a theoretical impossibility. On the other hand, as only the most serious crimes are today adjudged by a jury, there is in practice no room for the jury to acquit for such reasons. In earlier days, when criminal abortion(until 1939) and infanticide(until 1984) were included in the jury’s domain, acquittals or suspensions of punishment were possible outcomes in some cases, were professional judges would have voted otherwise. In current practice, there are a few cases, where the justification of self-defence has been applied by the jury where professional judges or courts with lay assessors would probably have convicted, especially when a battered wife (or, possibly, a battered son) has killed the violent husband or father in his sleep. As the dreaded attack from the tyrant was not “imminent,” which is a condition for self-defense, [75] acquittal is probably legally wrong. On the other hand, as a jury acquittal can only be reversed due to procedural errors committed by the court, there is nothing to be done in the face of such verdict. Let me add, once more, that the overwhelming majority of Danish jury verdicts are “safe.”

Originally, since the introduction of the modern jury in 1919, the court, upon the jury’s verdict of guilty, decided upon the punishment without participation of the jury, but following an amendment of 1936, [76] the jury now decides punishment with the judges. There is parity between the professional and lay parts of the court, each juror having one vote and each judge four, making 24 votes in all. [77] The penalty is decided by a simple majority vote, the milder result prevailing in case of deadlock. If there are more than two possible results, the most severe opinion is averaged with the next less severe etc., until a majority is reached. [78] Whereas the vote of the jury as to guilt must remain secret, the nu8mber of votes given for the different penalties is published, but the identity of the votes of the judges/jurors is not divulged.

The unspoken rationale behind the amendment may well have been to avoid wrongful acquittals of manifestly guilty persons, where the jury feared that mitigating circumstances would not be taken into account.

The investigative dossier is always in the deliberation chamber and may be consulted, if necessary.

The duration of the deliberations depends on the complexity of the case. Many cases are so clear that the deliberations are concluded in five minutes including the signing of the so-called voting protocol. In other cases I may ask the parties to return in a half-an-hour. In very complicated cases of economic crimes, an entire day may be set aside.

In a case with lay assessors, there is strict confidentiality, but if there is a divided court – for instance, 2-1 in the lower court – experienced parties will probably sense whether the professional judge is dissenting or forms a majority with one lay assessor against the other. In only one case must the dissenting party be disclosed, i.e., when in a court of first instance the two lay assessors convict, whereas the professional judge votes to acquit, [80] as the accused must be made aware that his chances of winning on appeal are perhaps better than average.

As the lay assessors have an equal vote, they may outvote the professional judge, acquitting or convicting against his vote, opting for a severer or lighter penalty etc., even flouting the law, although the latter probably never happens. The judge has two means of persuasion, if the general respect of the lay assessors for the judge is lacking. He may warn the lay assessors that an unreasonable verdict or sentence will probably call forth an appeal from the losing party, and as also the prosecution has the right to appeal, this should not be ignored. Also, the judge may lodge a dissent, and even though such dissent is not signed, the parties will know the identity of the author from the reasoning and the wording of the dissent.

In my own experience, an intimation of a dissent or a prophecy of an appeal has several times prompted the lay assessors – or one of them, which suffices – to go back on their original vote and join me. On the other hand, the judge should not bully the lay assessors and should only apply the threat of a dissent and an appeal very sparingly, when the case warrants it. If the question is minor – a slight disagreement as to the level of sentencing, or where the lay assessors, having voted with the judge to convict on the main charge, wish to acquit on an unimportant point of no consequence to the final sentence – I only express my disagreement in the deliberation chamber, refraining from an open dissent. As I have written in an essay on jury reform in 1994, a Damascene blade should not be used for wood cutting.

Except for the case just mentioned, the court cannot, even if morally certain of the accused’s innocence, enter a verdict of acquittal after a jury’s verdict of “guilty” just as the court has no power to impede the case from reaching the jury. [84] The court is, however, entitled to set aside by majority vote a verdict of guilty, i.e., any unfavourable answer, if it does not consider the evidence sufficient, or phrased otherwise, if the court would not have reached the same result, had the decision been left to the judges as sole triers of fact. [85] This is known as the double guarantee, entailing that conviction for the most serious offences presupposes that a two-thirds majority of both lay judges (8 out of 12) and learned judges (2 of 3) are in agreement as to the guilt of the accused, a requirement not reiterated in the mixed court with lay assessors. Undoubtedly this is one of the most convincing arguments for (some kind of) trial by jury. The situation happens rarely, but is not unheard of.

In the first period after the adoption of the AJA in 1919 there was, in practice, a tendency to accept a guilty verdict in borderline cases, “out of respect for the jury,” which still seems to be the case in the closely related Norwegian law. The wording “the court can [my italics] set aside” could be said to legitimise the practice. The doctrine has, however, resolutely advocated the stricter practice, to which the courts now adhere.

There is not remedy against the decision of the court not to set aside a guilty verdict [86] just as a retrial is the only remedy following conviction in a jury case.

Rejecting a verdict – or part of a verdict, if there are several counts – does not entail acquittal, but a new trial before a different jury and a different court, unless the Attorney General decides to waive prosecution, in which case sentence of acquittal ensues. [87] If at the second trial court and jury disagree in the same way, the accused is acquitted. In practice the Attorney General waives prosecution in most, though not all such cases. Often the accused is sentenced for lesser offences, possibly as a result of new and different questions.

The jury gives no reasons for a verdict of not guilty, and the ensuing judgment of acquittal only refers to the jury verdict. Neither does the jury give reasons for a verdict of guilty. If the court rejects the latter verdict, grounds must be given, as the form indicated in AJA § 904 kendelse, “Court Order,” as distinct from the informal beslutning, “ruling.” If the court accepts a verdict of guilty, reasons need not be given. However, the court is not prohibited from giving reasons for its own decision to accept the verdict. This might possibly help to blunt the very common criticism against the jury institution that an accused should not be sentenced to along prison term without knowing the reasoning of the court, especially since the court must announce its reasons in all cases decided by professional judges alone or in a mixed court with lay assessors, where penalties are normally lighter. Unfortunately, it is almost never done. [88]

As mentioned above, [89] all questions of guilt, including insanity, suspension of penalty, and such aggravating and mitigating circumstances as are mentioned directly i the wording of the CC, are the province of the jury. [90] Aggravating and mitigating circumstances, which only modify the penalty within the normal range, remain part of the sentencing to be decided upon by jurors and judges acting together.

At the conclusion of final arguments the court must if cannot be rendered on the same day, announce when the will be drafted. There is a delay of one day in jury trials, one week in all other cases. [91] In exceptional circumstances the court may decide to render even later, which above all happens in big economic cases or in case of illness of a member of the court.

s and court orders must be accompanied by reasons setting out : (1) the offence proved; (2) the relevant law; (3) the reasons why the accused has been convicted/acquitted. [92] In jury trials it is permitted to state the reasons by solely referring to the jury verdict. [93]

The findings on guilt whether a verdict of “guilty” or “not guilty,” cannot, however, be challenged on appeal. The Supreme Court thus cannot – unlike the High Court judges exercising the “double guarantee” [95] – set aside the jury’s verdict of guilty. The lack of opportunity to appeal on questions of fact, while not in violation of the European Convention of Human Rights (ECHR), [96] has necessitated a Danish reservation to the International Covenant [97] and has been generally criticized. There is no doubt that the comparatively great number of hopeless appeals on questions of law and equally futile applications for a retrial to the so-called Court of Complaints, Den soerlige Klageret, are to be regarded as a substitute for the lack of appeal on the facts.

Regarding appeals of sentence, while the wording of AJA § 945 – “.... that the penalty exceeds the limits of the law or is patently disproportionate to the offence” – is clearly more restricted than the corresponding wording of the grounds for the appeal against a sentence from the lower court to the High Court sitting as a court of appeal – “... not a proper proportion between the offence and the penalty [98] - few corrections are carried out by the Supreme Court, the rationale being that levels of penalty ought to be uniform. I do not know the statistics, but both sides have an opportunity of success. Probably the prosecution’s success rate is greater, as the Attorney General’s office, who represent the prosecution service before the Supreme Court, know the normal levels of penalty too well to attempt unmeritorious appeals.

In case of an error of form there is as stated in V A supra a presumption in law that the should not be set aside unless it may be supposed that the observance of the rule would have caused a different outcome of the trial. [99] Unlike appeals adducing errors of form in s passed in lower courts, defendants’ success rate is almost nil following the normally lengthy jury trials where the High Court is usually too cautious to commit real blunders. [100]

New evidence may be introduced, but as the findings of guilt cannot be challenged, the Supreme Court will probably not admit it.

Each party is, however, entitled to join its appeal to the other party’s appeal, and the prosecution’s cross-appeal can be deadly efficient. Many a frivolous appeal from the accused has triggered a stiffer sentence in the second instance !

The statutory period for filing an appeal is 14 days from judgment, [104] but following an appeal the opposing party has a period of 14 days to respond. [105]

The High Court sits with three learned judges and three assessors, when (1) the lower court sat with lay assessors; (2) in AJA § 925 cases [106]; or (3) when the case is of exceptional important. [107] Otherwise the court sits with three learned judges only. In case of a tie vote – not a rare concurrence considering the even number of judges – the more lenient result prevails as to questions of guilt or sentence. Otherwise the presiding judge has the deciding vote. [108]

New evidence may be adduced in the appeal and is often adduced. All the evidence from the first instance can be adduced again, but if neither party demands the reappearance of a witness, a transcript of the records from the court below may suffice. [109]

As in section A, supra, there is a presumption in law that the judgement should not be set aside in case of an error of form. [110] The reversal rate is clearly higher than in jury cases, but still very low. The rationale is that if the error is discovered early after the first, it will often be possible to repair the error during the appeal because of the right to adduce new evidence and rehear the old evidence. In a typical case the lower court erroneously admitted video interrogations of child witnesses although the defence was not present when the children gave their evidence, but as the children were called as proper witnesses in the High Court during the appeal, where defence counsel was of course present, the Supreme Court did not reverse. [111]

Normally there is only one level of appeal, but under exceptional circumstances, particularly when questions of importance transcending the case at hand are to be decided, a Special Board [112] may allow an appeal to the Supreme Court as the third instance. [113] The Supreme Court is bound to accept the findings of fact established by the High Court for it does not hear the witnesses directly, and, in cases originating in a mixed court, the findings of fact by the lay assessors ought to be respected. Thus only questions of law and sentence can be decided in the Supreme Court.

As a very rough estimate, I would say that an experienced prosecutor will in a case of many counts accept a plea of not guilty to one count out of four, possibly one out of three, if the remainder can be settled according to AJA § 925, or by taking into account dubious mitigating circumstances which may lower the hypothetical penalty after full trial by up to a third. That, at least, was my practice, when I was a senior prosecutor until 1983, when I was appointed as a judge. Of course the estimate is very rough, as the strength of the evidence is also of importance. E.g. if a conviction will probably be secured by means of a few witnesses, all local or even police officers, a lesser plea will not be accepted, but if it is touch-and-go, the prosecution will be more lenient. Also, if the victim demands compensation, a less than complete guilty plea is less acceptable than if the victim is unidentified, etc.

The temptation to avoid the jury is greater, not necessarily to secure a confession in a AJA § 925-case, but rather to shift the case to a court with lay assessors. I am morally certain that if the prosecution would expect 4 years 6 months or 5 years upon conviction in a jury trial, and an AJA § 925-trial is not feasible, a penalty of less than 4 years will be requested in order to try the case in a court with lay assessors. Also there is no doubt but that the prosecution’s requirements as regards the strength of the evidence are stricter than if the case goes “only” to a court with lay assessors.

Historically speaking, circumventing the jury was common, while all cases of i.e. arson, rape, and robbery, if not decided pursuant to AJA § 925, were tried by jury because they were punishable with a maximum penalty of more than eight years. In sentencing practice, however, the penalty for e.g., rape upon attacking an unknown woman in the street would be two to three years imprisonment, but for date rape, none to twelve months and three to four years for bank robbery, and six to twelve months for mugging. In less serious cases the prosecution routinely charged lesser offences not entailing trial by jury, e.g. in a case of mugging, instead of one count of robbery there would be one count of simple assault plus one count of theft from the same victim committed one minute afterwards. In 1981, the CC was amended, reducing the maximum penalty for arson, rape, and robbery to 6 years, except when aggravating circumstances existed, where the maximum penalty remained ten to twelve years. About half of all jury cases disappeared at once. The number dropped from 130 jury trials in 1980 to 74 in 1982, and manipulations in charging disappeared almost over night.

In the two great categories of cases tried by jury today, murder (and attempted murder) and serious narcotics crimes, there is probably no circumventing the jury.

Because the selection is entrusted to committees appointed by local councils, members of local political parties tend to be preferred, and as the committees consist of only five members, members of the local majority parties and the larger opposition parties, have a better chance. There is nothing sinister or corrupt about the practice : members of the committee simply nominate persons they know, directly or by reputation and trust.

Lay judges must be of good character, uberygtet [118] and a voter for Parliament i.e., a Danish subject of at least 18 years of age, below the age of 70, the same retirement age as for professional judges, meaning lay judges must be under 66 years of age at the beginning of the four year term for which they are appointed. They must be physically and mentally healthy, and in command of the Danish language. The AJA does not demand a certain educational level, or any legal or other expertise. These are no specialized lay judges for special kinds of cases, neither for juvenile cases nor for large economic cases. The possibility of singling out lay assessors with special economic knowledge was discussed in the mid-Eighties, when such cases became common, but was abandoned.

As resident aliens have a vote in municipal elections and are eligible to serve as members of municipal councils, and thus, theoretically, the grundlisteudvalg, after three years of residence, it has been suggested to change the requirement from the parliamentary vote to the municipal vote, retaining the requirement of command of the Danish language. The judges and the legal profession have opposed the proposal, partly from fear that the lay judges might not meet the linguistic requirement, partly for a more general reason – which I share – that Danish courts must not only apply formal Danish law, but also the corresponding cultural ideals and traditions. The controversy has as yet no practical importance : naturalization, which is granted by Act of Parliament to a couple of thousand persons per year, normally requires seven years of residence and command of the language plus the relinquishment of a former citizenship. A possible compromise would be to abandon the requirement of citizenship, but to lengthen the necessary length of residence to e.g., 7 years. The outcome is still unsettled. As the number of aliens, especially those with culturally and racially diverse background, though growing, is still small, the problem is not (yet ?) ungovernable.

Members of the Government, lawyers and lawyers’ legally qualified clerks, employees of the central departments, the courts, the prosecution service, the police, the prisons, and ministers of the National Church (Lutheran) and the recognized religious communities are automatically excluded. [119] Members of the military are not excluded. [120]

Denmark has liberty, but not equality of religion. The Evangelical-Lutheran Church, which in the age of Absolutism was the State Church, all other forms of worship having been banned “in the King’s realms and dominions,” still has a constitutionally guaranteed status as the National Church. The older Christian communities e.g., the Roman Catholics, and the Jews or “The Mosaic Community,” have by old Royal orders the status of recognized communities. Other communities have liberty of worship and most of the same rights, though no new Royal recognitions are granted. The upshot is that the local clergyman and e.g., the Jewish rabbi, are excluded as lay judges, but not the minister of a breakaway sect or an imam.

The following are excused upon request : [121] members and employees of the Folketinget (Parliament), members of the armed forces, customs office employees, postmen, firemen, medical doctors, midwives, (maritime) pilots, expert assessors of certain civil courts, those of 60 years or more, hardship cases, and those not now residing in the jurisdiction.

The local committees forward the lists of prospective lay judges to the two High Court Presidents. [122] The High Court draw by lot making : (1) a list of lay assessors for each jurisdiction of the first instance, each list consisting of persons residing in one of the municipalities making up the jurisdiction in question; (2) a list of lay assessors and jurors for the High Court itself, at the same time deciding questions of exclusion and excuse. [123] The number of lay judges for each jurisdiction and either High Court is fixed by the High Court so that every lay judge is expected to serve four times per year. [124] The High Court lay judges serve both as jurors and as lay assessors. Local council elections are held every four years, and two years into the term new lists of lay judges are prepared; lay judges thus serve for four years. Re-appointment is possible.

The important point about the appointment of lay judges is that the basic lists are made out by selection according to suitability and merit, as in the other Nordic countries and Germany, not drawn by lot or chosen by random, as in the Anglo-Saxon systems. Even though the Minister of Justice has – in my opinion on rather dubious authority – exhorted the committees to attempt to select a crosssection of society, Danish lay judges are without doubt far better qualified than if they had been chosen at random. Also, though serves as a lay judge is in theory a civic duty, no one is in practice appointed, if unwilling. Having worked as a judge with lay assessors for 16 years, I can safely say that I have complete confidence in the ability and integrity of “my” lay assessors.

Sociological analyses have been made, the latest in 1998. Men and women are represented equally on the lists, though not necessarily in every single case. Some professions are heavily over-represented, such as school teachers and farmers, also employees of the public or of larger companies, whereas employees of smaller firms and self-employed are under-represented, as are persons on welfare. Middle-aged persons, especially those in their fifties, are overrepresented, the very young under-represented. It has been suggested to issue binding guidelines to ensure a more equal practice of appointment and to limit the possibility of reappointment to one or at most two periods after the first. In my opinion this would be an unhappy choice. Senior and experienced lay judges are a very valuable element of the criminal justice system. As long as members of the Folketinget and of municipal councils may be reelected forever, there is no case for limiting the function of lay judges.

One very interesting point is whether very experienced lay assessors become semi-judges, not to be differentiated from the professional judges. I cannot tell for sure, buy my own experience is that while a young and new lay assessor may burst out a couple of times while he is new, real and lasting influence on the court is acquired with time. The point of inviting lay judges is not to stimulate dissension, but consensus on a higher level.

Before every case with lay judges the clerical personnel of the court pick the names at the top of the list going downwards, beginning once more from the top when the list is complete. [125] In practice, an excuse covering the day in question is normally accepted, and when lay judges must be found at very short notice, the principle of rotation cannot always be strictly adhered to. This is accepted, but of course hand-picking of lay judges is unacceptable.

Parties have no influence in the selection of the jury or lay assessors, neither during the preliminary creation of lists nor during selection of the actual panel to try a particular case. They are not allowed to ask questions of the jury or the lay assessors. “Voir dire” is unknown in Denmark, and jury selection is definitely not a specialized science. Before each trial the judge or chairman will – in chambers, not in open court – ask the lay judges, whether they know the accused or other parties, and whether bias may be assumed. [126]

Typical answers may be : “Some vie years ago the accused was a pupil in the school, where I am a master”; or “the complainant has played football in the club where I am a part-time trainer,” which do not constitute bias. As lay judges are local, some distant knowledge must be taken in stride. In a borderline case I ask for parties’ views before deciding whether to disqualify a lay assessor. Normally a new lay assessor can arrive within half-an-hour. General views on ethnicity, race, politics, religion etc. are never canvassed.

Parties do not receive a list of lay assessors before the trial. In a court with more than one judge also the identity of the judge is not officially disclosed until the parties see him on the bench. The parties thus have only a very weak foundation on which to base a claim of bias. In jury cases, however, the list of jurors is sent to the parties at least two weeks before trial. [127] It contains the names, ages, addresses, and occupation of the jurors. Each party has by law two peremptory challenges (four in political cases), [128] in jury cases, but no right of challenge in a mixed court. As can be seen, the parties, especially the defence, can only exercise the right of challenge based on a very vague guess. In 1990 the Ministry of Justice removed the information as to the profession of the jurors from the jury lists, but upon protests from some defence counsel that information was restored in 1993.

The important point is that only personal relation to parties, etc., constitutes bias, but not views on ethnicity etc.

Anonymous juries are unknown, but it is a criminal offence to publicly disclose the identity of lay judges in an actual case. [129]

Lay judges are paid 600 kroner (ab. 80 Euro or 55£) per day or part of a day of actual service, a very niggardly payment, especially compared to the normal fee for court-appointed defence counsel, 1,500 kroner per hour of trial.

In the eighteen-thirties and forties liberal opinion demanded not only a Constitution, but also legal reforms, including lay judges, not as lay assessors, but as jurors as had been introduced in France and were being debated in Germany. In the 19th century the prevailing cultural influences in Denmark were German and French, in that order. English influence only increased after the turn of this century. In the first Liberal Constitution of 1849 the introduction of the jury was promised.

As the whole body of criminal and civil procedure, the organization of the courts, the creation of a prosecution service, etc., were on the agenda, the drafting of the AJA was extremely cumbersome. A bone of contention was at one stage the appointment of jurors, which the Conservative Right minority government wished to entrust to government authorities, whereas the Liberal Left opposition advocated municipal nomination. In 1916 the AJA was passed, and went into effect in 1919.

The jury was now competent in the most serious cases. With the passage of the new CC in 1930, in effect from 1933, political crimes and common crimes carrying a maximum of eight years imprisonment or more with the exception of serious economic crimes, [130] were triable by jury. Infanticide was excluded in 1984 and criminal abortion or feticide in 1939. Only very few cases were decided by jury.

The most important reform since 1919 was passed in 1936, introducing lay assessors on inspiration from Norway and Germany. [131] Lay assessors were competent in all cases, brought by the regional prosecutor in practice, almost all cases where imprisonment, even if suspended, was the expected outcome. AJA § 925-cases and police cases were excepted. At the same time the jury was made competent to decide sentence collegially with the professional judges.

By special legislation in 1945 all cases arising out of the German occupation were taken away from the jury and entrusted to courts with lay assessors because of the sheer quantity of trials.

In 1948 some cases against the mentally ill were removed from the jury to lay assessor courts. [132]

Whereas the Constitution of 1849 with amendments as late as 1915, had promised the introduction of the jury, the new Constitution of 1953, still in force, introduced in Article 65 the wording “[I]n criminal procedure lay judges must take part. It is left to the Legislative power to determine, in which cases and under which forms this shall be, including in which cases jurors are to take part [my italics].” The reason for this was that, with the introduction of lay assessors, some legal experts advocated the total abolition of the jury. Because in political circles the old love for the jury was still vital, even though the actual number of jury cases was always small, the framers of the Constitution wished to safeguard the continued existence of the jury.

In 1962, forgery, carrying a maximum of 8 years, was removed from trial by jury.

In 1976, a new Road Traffic Act was passed, removing lay assessors from cases of conditional disqualification from holding a driver’s license because of dangerous driving. Until 1975, disqualification, normally for six months, was unconditional, and lay assessors had in many cases caused an acquittal, but now penalties have been reduced and lay judges removed.

In 1981, the majority of cases of arson, rape, and robbery were removed from trial by jury causing a massive reduction in the number of cases as described in VIII supra.

In 1984, the new Conservative Minister of Justice – a veteran defence counsel, and, unlike his Social Democrat predecessor, a partisan of the jury – carried through an amendment to the AJA, changing the criterion for trial by jury from a maximum of eight years to a penalty demanded by the prosecution in the particular case of at least four years. An increase in the number of trials by jury did not occur, however, as statistics from the mid-eighties show no increase in the years 1983-86. Since then the rules for jury trial have gone unchanged.

In 1992, the rules on prosecution were changed. The old division, whereby cases of the regional prosecutor were tried either with lay assessors or according to AJA § 925, and police cases before a single judge, having been long obsolete, was now abolished. The criterion for lay assessors was changed as described in I A supra. At the same time lay assessors were eliminated in most cases of drunken driving according to the Road Traffic Act.

As for sociology the 50 years jubilee of the AJA in 1969 called forth an analysis of lay judges’ attitudes. [134]

The main work is Preben Wilhjelm : Folkevalgte dommere. Loegdommerundersøgelse 1987 (Popularly Elected Judges. Analysis of Lay Judges 1987), an analysis on the basis of 1,408 lay judges from all over the country, describing both recruitment and views on judges, prosecutors, defence counsel, the rules of procedure, including the special features of jury trial, the severity of punishment, pattern of voting with or against the professional judge etc. Many comments are cited verbally. The main impression is one of very articulate lay judges. A spirit of co-operation with other actors of the criminal process, especially the judges, is prevalent, but not blind subservience.

Adherents of a middle position neither wishing to abolish the system nor, as more radical populists advocate, to extend the powers of lay judges, generally acknowledge that there is no definitive scientific argument in favour of lay judges, but contend that the burden of proof should be shifted to those advocating change of a generally popular system which has worked well since 1936. I endorse that conservative-traditionalist view and add my own opinion that in many cases a decision on proof and guilt ought to be made by more than one person, but that the calling of three professional judges to decide e.g. a tavern brawl, the sale of a small amount of drugs, an ordinary theft is a waste of legal talent. A judge plus assessors is very often the right forum, neither too much nor too little.

Juries are generally criticized by judges – myself included – prosecutors and many, but not all lawyers. The lack of reasoned judgments and the limited appeal are the main points of criticism, to which I will add the slight risk that the cumbersome question-and-answer system described under IV may hide misunderstandings. In my opinion those considerations are sufficient grounds for some kind of reform.

The other points of criticism have less impact. There is a general opinion that big cases, where severe penalties are to be expected in the case of condemnation, should be treated with serious respect for the numerous problems raised, and generally, if not universally, juries’ verdicts are regarded as reasonable and just. Vagaries like verdicts seen in sensational or even scandalous American trials are unknown here. It is true that trial by jury entails long periods of waiting, and defendants must spend many months in gaol awaiting the trial, but that is the result of general congestion of the High Courts and cannot be blamed on the jury per se.

That reforms have not been carried through until now, is due to the fact that, though the jury system has but few friends in the legal profession, those friends include the majority of well-known defence lawyers, who know and master the system and tirelessly advocate its retention. Politicians also, if at all interested in the legal system, often see it with 19th century eyes, regarding the jury as a democratic panacea, a symbol of popular liberty. Whether the jury is used often or rarely, is less important that its retention in the statute-book. Therefore it has been possible to clip away parts of the jury’s territory, but never to attack the jury head-on – until now. [136]

The same tendency can be seen in Norway, where the territory of the jury has been gradually diminished since its introduction in 1890, but frontal attacks have failed miserably. Twice during the last generation learned commissions have advocated the abolition of the jury, with only one dissenting voice, that of the representative of the defence lawyers, but Parliament, Stortinget, both times retained the jury.

The reasoning of the majority reflects above all a wish not only to abolish the two most criticized parts of the existing law, the lack of reasoned judgments and the limited right to appeal, but also the cumbersome character of the questionsandanswers system. As for the questions system, the majority makes the valuable point that when yes and no are the only possible answers, the jury is barred from expressing its view on questions of proof of no relevance to the question of guilt, but vital to the fixing of the penalty, e.g., whether the accused acted with malice aforethought or in spontaneous anger.

The minority fear that the trials will be less perfectly conducted than today. Also, it is criticized that the Supreme Court will be largely eliminated from the review of jury trials, especially as concerns the control of formalities, including alleged violations of the right to fair trial as guaranteed by the European Convention of Human Rights. Conviction in a lower court will invariably cause a lengthy appeal and thus slower proceedings than today. The dissenting members add that if an appeal is to be introduced in spite of arguments to the contrary, judges and jurors ought not deliberate together as the weight of the lay element will thereby be reduced, the lay judges being reluctant to speak out against the professional judges.

The Commission also pondered the question whether the proposed changes will violate Art. 65 of the Constitution. All agreed that the mentioning of “jurors” in the Constitution does not force the Legislative to retain the form of jury trials as existing in 1953, and that the proposed changes lie well within the confines of the Constitution. It speaks much for the academic integrity of the two dissenters to the main part of the proposals that they have not attempted to take shelter behind a dubious construction of the Constitution.

I have criticized the proposed very cumbersome system of two-tier juries, suggesting instead on the lines of the reform carried through in the intimately related Norwegian system, a normal trial with lay assessors in the lower court in all criminal trials, possibly in the most complicated cases a strengthened court with 2 judges and 3 lay assessors, retaining the jury only at the appeal stage. The most important element of trial by jury must be that the definitive decision on guilt is made by a jury, while a jury in two stages seems superfluous. On this point the Judges’ Association has borne me up in its comment on the report to the Ministry of Justice.

I have endorsed that only appeals against fact shall be tried by jury on appeal, but have suggested that the Commission ought to have considered the not infrequent outcome of the partial acquittal, e.g., acquittal for murder in the lower court, but conviction for dangerous violence causing death and sentenced to less than 4 years imprisonment. If only the accused appeals against the conviction, the appeal ought to be conducted in a court with lay assessors.

Also, I have criticized that acquittal will be the obligatory consequence of the “double guarantee” in the second instance. If all eight members of the lower court (two judges plus six jurors) and nine jurors plus one judge in the court of appeal vote guilty and only two judges in the court of appeal vote to acquit, the result is almost absurd. I therefore suggest a right for the prosecution to re-try the appeal in exceptional circumstances, if the lower court has convicted, and a two-thirds majority of the jury in the court of appeal have voted guilty.

Finally, I have suggested that judges and jurors be not separated during the course of the trial.

The Ministry of Justice is still pondering whether to introduce a bill to reform the jury.

Although the North Atlantic dependencies enjoy a wide extent of Home Rule, their judicial system remains part of that of the whole monarchy, and decisions from the Faroese or Greenland courts can be appealed to the Easter High Court or the Supreme Court. As lay judge participation reveals interesting divergences with the system of Denmark proper, a few remarks are added covering the point.

The Faroe Islands population of ab. 45,000 – as opposed to ab. 5 million inhabitants of Denmark proper – is Nordic, but there is a distinct Faroese language. Both languages may be used in court. The islands form one jurisdictional district with two judges. Jury cases are not, like in Denmark proper, conducted in the High Court, but in the Faroe Island Court, one of the local judges forming the legal element of the court instead of the three High Court judges in Denmark proper. This entails that in sentencing the single judge has as many votes as all jurors combined, normally 12. Otherwise jury cases – which are extremely rare – are treated as in Denmark proper. The appeal from Faroese jury cases goes directly to the Supreme Court. There are no lay assessors in the Faroe Islands, all criminal cases apart from jury cases being tried before one single judge and on appeal, three High Court judges. [140]

In Greenland the huge area and the small (about 50,000) and scattered population make special rules necessary, also the fact that the indigenous esquimaux population speak a language totally different from the Danish language, which is, moreover, not mastered by all.

Each municipality forms one jurisdictional district, those districts having necessarily a much smaller population than the typical Danish court district, whose population often exceeds the population of all of Greenland. In each district the Greenland High Court (on this infra) appoints one lay magistrate per district (for 4 years, reappointment possible), who must be of good character and a voter. The local councils appoint lay assessors on recommendation from the High Court. All cases, civil and criminal, are tried in a three-person court with one magistrate and two lay assessors. The system corresponds partly to the Danish mixed courts, except that all three members are lay, and partly to the English lay magistrates.

The Greenland High Court has two judges, who are learned in the law and appointed by the Monarch like other Danish (and Faroese) judges. The High Court is a court of appeal and also gives guidance to the magistrates. Very difficult cases may be referred directly to the High Court sitting as a court of first instance. The High Court is a mixed court in all cases, civil and criminal, the court consisting of a High Court judge as chairman and two lay assessors taken from a panel appointed by the central political Assembly of Greenland (Landstinget). Cases tried in a local court may be appealed to the Greenland High Court as the ordinary court of the second instance. As for appeal to the (Danish) Supreme Court, see VII B supra. A case tried in the Greenland High Court as a court of first instance may be appealed to the Eastern High Court as the ordinary court of the second instance. The rules of appeal to the Supreme Court are the same.