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The Theory and Reality of Lay Judges in Mixed Tribunals

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The Theory and Reality of Lay Judges in Mixed Tribunals Chicago-Kent Law Review Volume 90 Issue 3 Juries and Lay Participation: American Article 11 Perspectives and Global Trends 6-23-2015 Ears of the Deaf: The Theory and Reality of Lay Judges in Mixed Tribunals Sanja Kutnjak Ivković Michigan State University Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Civil Procedure Commons, Comparative and Foreign Law Commons, and the Criminal Procedure Commons Recommended Citation Sanja K. Ivković, Ears of the Deaf: The Theory and Reality of Lay Judges in Mixed Tribunals, 90 Chi.-Kent L. Rev. 1031 (2015). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss3/11 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 36656-ckt_90-3 Sheet No. 132 Side A 06/12/2015 13:03:37 ͳͲǦʹ Ǧ ǤȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ǣ *ȗ Ǧ ǤȄ Ȅ Ǥ ǡ Ǥ Ǧ Ǥǡ Ǥ ȋǤǤǡ ǡ Ȍǡ ȋǤǤǡǡ ǡ Ȍǡ ȋǤǤǡǡȌǤ ǡ ǡ ǡ Ǣ Ǣ Ǥ Ǣ Ǥ Ǧ ȋǤǤǡ ǡ ǡ ǡ Ȍ Ǧ 36656-ckt_90-3 Sheet No. 132 Side A 06/12/2015 13:03:37 ȋǤǤǡ ǡ ǡ ȌǤ ȗ © ǡ Ǥ ȋǤǤǡȌ ȋǤ ǤǤǡ ȌǤ ǡ Ǧ ǡǤ ©ReclaimingJustice:TheInternationǦ al Tribunal for the Former Yugoslavia and Local Courts ȋ ʹͲͳͳǢ Ǧ ȌǡTheFallenBlueKnights:ControllingPoliceCorruptionȋǦ ʹͲͲͷȌǡLayParticipationinCriminalTrialsȋͳͻͻͻȌǤ ǦEnhancing PoliceIntegrityȋʹͲͲ͸Ǣ Ǧ Ǥ Ȍ Ǧ ContoursofPoliceIntegrityȋʹͲͲͶǢ Ǧ Ǥ Ǧ Ȍ Measuring Police Integrity Across the World ȋ ʹͲͳͷǢ Ǧ Ǥ ȌǤ ©ǯ ǡ Law and Society ReviewǢ Journal of Criminal Law and CriminologyǢ Criminology and Public PolicyǢ Law and PolicyǢ Stanford Journal of International LawǢ Cornell International Law JournalǢPolicing andSocietyǢPolicing:AnInternationalJournalofPoliceStrategiesandManageǦ mentǢPoliceQuarterlyǤ ͳͲ͵ͳ 36656-ckt_90-3 Sheet No. 132 Side B 06/12/2015 13:03:37 ͳͲǦʹ Ǧ ǤȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ͳͲ͵ʹ CHICAGOǦKENTLAWREVIEW ȏͻͲǣ͵ ȋǤǤǡ ǡ ǡȌǤ Ǥ DzǦ dz ǡͳDzȏȐdz ǡʹDzdzǡ͵Dz dz ǤͶ ǡ ǡ ǡ Ǥͷ Ǥ Ǥ Ǧ Ǥ Ǧ Ǥ ǡ Ǧ Ǥ Ǥ ǤǦ ǡ ǯ ǡ ǤǦ ǡ Ǧ Ǥ Ȅ 36656-ckt_90-3 Sheet No. 132 Side B 06/12/2015 13:03:37 ǦȄǦ Dz dz ǡ ͳǤ ǡC.J.A.Mittermaierandthe19thCenturyDebateAboutJuriesandMixedCourtsǡ ͹ʹ ǯǤǤ͵Ͷ͹ǡ͵ͷ͵ȋʹͲͲͳȌǤ ʹǤ ǡ Interaction between Lay Assessors and Professional Judges in German MixedCourtsǡ͹ʹ ǯǤǤͶͷͳǡͶͷͺȋʹͲͲͳȌǤ ͵Ǥ ǡTheLayAssessorSysteminChinaǡ͹ʹ ǯǤǤͷͳǡͷʹȋʹͲͲͳȌǤ ͶǤ ©ǡMixedTribunalsinCroatiaǡ͹ʹ ǯ Ǥ Ǥͷ͹ǡ͹ͶȋʹͲͲʹȌ ȏ ©ǡMixedTribunalsȐǤ ͷǤ Ǥ Ǥǡ Global juries: A Plan for Research, in ǣ ȋ ʹͲͳͷȌǤ 36656-ckt_90-3 Sheet No. 133 Side A 06/12/2015 13:03:37 ͳͲǦʹ Ǧ Ǥ ȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ʹͲͳͷȐ LAYJUDGESINMIXEDTRIBUNALS ͳͲ͵͵ Dz dzǯ Ǥ͸ ǡ ǡ Ǥ Ǥ Ǧ Ǣ ǡ ǡ ǡ ǡ ǡȋǤǤǡ ǡ͹ ǡͺͻȌǤ ǡ ǡ Ǧ Ǥ ȋǤǤǡͳͲ Ǣͳͳ ǡͳʹǡͳ͵ ͳͶȌǡ ǡ Ǥ Ǧ Ǣ Ǥ ǡDz Ǧ Ǥdzͳͷ Ǧ 36656-ckt_90-3 Sheet No. 133 Side A 06/12/2015 13:03:37 Ǥǯ ͸ǤSee generally *ǡ ǣ ȋͳͻͻͻȌǤ ͹.Seegenerally ǡThePresumption of Innocenceandtheǯ:Is FranceReadyforAdversarialProcedure?ǡ͹ʹ ǯǤǤͷͷͻǡͷͷͻȂ͹͹ȋʹͲͲͳȌǤ ͺǤ ǡLayParticipationinGermanyǡ͹ʹ ǯǤǤͳͺͳǡͳͻͳȋʹͲͲͳȌǤ ͻǤ Þ ǡ Lay Participation in Norwayǡ ͹ʹ ǯ Ǥ Ǥ ʹʹͷǡ ʹͶ͵ ȋʹͲͲͳȌǤ ͳͲǤ ©ǡMixedTribunalsǡsupraͶǡ͸͸Ǥ ͳͳǤ ǡsupraʹǡͶͷ͵ǢǡsupraͺǡͳͻͳǤ ͳʹǤ ǡsupra͵ǡͷͷǤ ͳ͵Ǥ ǡTheDanishJuryǡ͹ʹ ǯǤǤͺ͹ǡͳͲͻȋʹͲͲͳȌǤ ͳͶǤ ǡ Lay Participation in South Africa from Apartheid to Majority Ruleǡ ͹ʹ ǯǤǤʹ͹͵ǡʹ͹ͺȋʹͲͲͳȌǤ ͳͷǤ ǡsupraͺǡͳͻͳǤ 36656-ckt_90-3 Sheet No. 133 Side B 06/12/2015 13:03:37 ͳͲǦʹ Ǧ ǤȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ͳͲ͵Ͷ CHICAGOǦKENTLAWREVIEW ȏͻͲǣ͵ Ǥͳ͸ Ǥ ǡ Ǧ Ǥͳ͹ Ǣ Ǥͳͺ ǡ ȋ Ȍǡ Ȅ Ǥͳͻ ǯ Ǧ Ǥ ǡ Ǧ ǡǦ ǢʹͲ ǡǤ Ǧ ǡ Ǥ Ǧ ȋAmtsgerichtȌǡ ǡ Ǥʹͳ Ǧ Ǧ ȋLandgerichtȌǡǡ ǡ Ǥʹʹ Ǥ Ǧ ȋ Ȍǡ ǯ Ǧ 36656-ckt_90-3 Sheet No. 133 Side B 06/12/2015 13:03:37 Ǥʹ͵Ȅ Ǧ Ȅ Ǧ ȋ Ȍ ͳ͸Ǥ See,e.g.ǡǡsupraͻǡʹͶͶǤ ͳ͹Ǥ ǡsupraͳ͵ǡͻͳǤ ͳͺǤ ǡLayJudgesinSweden:AShortIntroductionǡ͹ʹ ǯǤǤ͵ͳ͵ǡ ͵ͳͶȋʹͲͲͳȌǢ ¡ǡFromCompurgatorstoMixedCourts:ReflectionsontheHistorical DevelopmentofFinnishEvidenceLawandCourtStructureǡ͹ʹ ǯǤǤͳͷͻǡͳͷͻȋʹͲͲͳȌǤ ͳͻǤ ǡsupra͹ǡͷͷͻǤ ʹͲ.See generally ©ǡ Exploring Lay Participation in Legal DecisionǦ Making: Lessons from Mixed Tribunalsǡ ͶͲ ǯ Ǥ . Ͷʹͻǡ Ͷ͵ʹȂ͵͵ ȋʹͲͲ͹Ȍ ȏ ©ǡExploringLayParticipationȐǤ ʹͳǤ ǡsupraͺǡͳͺʹǤ ʹʹǤ Id. ʹ͵Ǥ ©ǡLawyersAboutMixedTribunals:DoCroatianProfessionalJudges, StateAttorneys,andPrivateAttorneysSharetheSameView?ͳ͵Ǥ ǤǤͷͷǡ͸ͲȋʹͲͲͲȌǤ 36656-ckt_90-3 Sheet No. 134 Side A 06/12/2015 13:03:37 ͳͲǦʹ Ǧ Ǥ ȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ʹͲͳͷȐ LAYJUDGESINMIXEDTRIBUNALS ͳͲ͵ͷ ǯǤʹͶǦ ǡǦ Ǥʹͷ ǡ ǡ ǡ Ǥʹ͸ ȋǤǤǡ Ȍ Ǥ ǡǦ ǡʹ͹ ǡ ǡ Ǥʹͺ ǡ ǡ Ǥʹͻǡ Landgericht Ǧ Ǥ͵ͲǦ ǡ ǡ ǡ Ǣ Dz Ǧ Ǥdz͵ͳ Ǧ Ǥǡ Ǥ Ǧ Ǣ Ǧ ͵ʹ Ǥ 36656-ckt_90-3 Sheet No. 134 Side A 06/12/2015 13:03:37 ȋBerufungȌȋRevisionȌǤ͵͵ Amtsgerichtǯ ǡ Landgerichtǡ Ǥ ǡ Ǥ͵Ͷǡ ʹͶǤ Id. ʹͷǤ Id. ʹ͸Ǥ Id. ʹ͹Ǥ Id.Ǣǡsupra͹ǡͷͷͻǢǡsupraͻǡʹʹͷǤ ʹͺǤ Seeǡsupra͵ǡͷͳǢǡsupraͺǡͳͺͺǤ ʹͻǤ ©ǡMixedTribunalsǡsupraͶǡ͸ͷǤ ͵ͲǤ ǡsupraͺǡͳͺͺǤ ͵ͳǤ ǡsupra͵ǡͷͳǤ ͵ʹǤ ǡsupraͳ͵ǡͻͳǤ ͵͵Ǥ ǡsupraͺǡͳͺʹǤ ͵ͶǤ Id. 36656-ckt_90-3 Sheet No. 134 Side B 06/12/2015 13:03:37 ͳͲǦʹ Ǧ ǤȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ͳͲ͵͸ CHICAGOǦKENTLAWREVIEW ȏͻͲǣ͵ Ǥ͵ͷ ǡ ǡ Ǥ͵͸ǡ ǡ Ǥ͵͹ǡ Ǧ ȋǦ Ȍȋ ȌǤ͵ͺ ǡ ǡ Ǥ͵ͻ ǡ ǡ ͶͲǡͶͳ ǡ Ǥ Ǥ Ǧ ȋ Dz dzȌǤ ǡ ǡͶʹǡͶ͵ǡͶͶ ǡͶͷ ǡͶ͸ ǡͶ͹ǡͶͺǤͶͻ ȋ Ȍǡ ͵ͷǤ Id. ͵͸Ǥ ǡsupraͳͺǤ ͵͹.IdǤ ͵ͺ.IdǤ ͵ͻ.IdǤ ͶͲǤ ©ǡMixedTribunalsǡsupraͶǡ͸ͷǤ ͶͳǤ ǡsupra͵ǡͷͳǤ ͶʹǤ See, e.g.ǡ Y ǡ ȋͳͻ͹ͲȌ ȋ ǤȌǢ 36656-ckt_90-3 Sheet No. 134 Side B 06/12/2015 13:03:37 ǡ ǣ ǡ ȋͳͻ͹ʹȌȋ ǤȌǢ Ƭ ǡLayJudgesintheGermanCriminalCourtsͳ Ǥ Ǥͳ͵ͷǡͳ͵ͷȋͳͻ͹ʹȌǢ ǡBürgeralsRicher.sberJugendschöffenunddenErziehungǦ sanspruchdesJugensdstrafrechtsǡin ȋ Ǥ ǤǡͳͻͺͺȌȋ ǤȌǢ ǡsupraʹǡͶͷͳǢǡsupraͺǡͳͺͳǢǦ ǡ Influence of Lay Assessors and Giving Reasons for The Judgement in German Mixed Courtsǡ͹ʹ ǯǤǤͶͺͳǡͶͺͳȋʹͲͲͳȌǤ Ͷ͵Ǥ ǤǡKapitel:Osterreichǡin ͺ͹ȋ Ǧ Ƭ Ǥǡͳͻ͹ͻȌȋ ǤȌǤ ͶͶǤ See, e.gǤǡ ǡ Lay Judges and Jurors in Denmarkǡ ͵ͺ Ǥ Ǥ Ǥ Ǥ ͺ͵ͻ ȋͳͻͻͲȌǢ ǡsupraͳ͵ǡͺ͹Ǥ ͶͷǤ See,e.g.ǡǡsupra͹ǡͷͷͻǤ Ͷ͸Ǥ See, e.g.ǡ ¡ǡ From Compurgators to Mixed Courts: Reflections on the Historical Development of Finnish Evidence Law and Court Structureǡ ͹ʹ ǯ Ǥ Ǥ ͳͷͻǡ ͳͷͻȋʹͲͲͳȌǤ Ͷ͹Ǥ ǡPeople’sPanelsvs.ImperialHegemony:Japan’sTwinLayJusticeSystems andtheFutureofAmericanMilitaryBasesinJapanǤͳʹ ǦǤǤƬǯ Ǥͻͷǡͻ͸ȋʹͲͳͲȌǤ ͶͺǤ See,e.g.ǡǡsupraͻǡʹʹͷǤ ͶͻǤ See,e.g.ǡ Ƭ """ ǡ ǣ ͳ͵ȋͳͻͻʹȌǢǡsupraͳͺǡ͵ͳ͵Ǥ 36656-ckt_90-3 Sheet No. 135 Side A 06/12/2015 13:03:37 ͳͲǦʹ Ǧ Ǥ ȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ʹͲͳͷȐ LAYJUDGESINMIXEDTRIBUNALS ͳͲ͵͹ ǡͷͲ ǡͷͳ ǡͷʹǡͷ͵ǡͷͶǡͷͷ ǡ Ǥͷ͸ ǡ ǡ ǡͷ͹Ǧ Ǥ Ǧ ǯ Ǥ Ǧ Ǧ ȀǤͷͺ ǣ ȏȐ ǡǤǤǡ ǡ Ǧ ȋ ǡ Dz dz Ȍ Ǥͷͻ ǡ Ǧ Ǥ ǡ Ǧ ͷͲǤ See,e.g.ǡǡTheFunctionoftheLayJudgeinCzechoslovakiaǡin o ǣ ͵Ͳͳ ȋ Ǥǡͳͻ͹͸Ȍȋ ǤȌǤ ͷͳǤ See, e.g.ǡ ǡ The Role of the Lay Assessors in The German Democratic Republic(GDR)ǡͳͲ ǯ ǤǤƬ Ǥ ʹͳͷǡʹͳͷȋͳͻͺ͸ȌǤ ͷʹǤ See,e.g.ǡǡǯ ǣ 36656-ckt_90-3 Sheet No. 135 Side A 06/12/2015 13:03:37 ͹ȋͳͻͺʹȌǢƴƴ ưǡLayParticipationinOrganizationalDecisionMakingǡin ͳͷͳȋǤ ƬǤǡͳͻ͹ʹȌǤ ͷ͵Ǥ See,e.g.ǡ ƬǡLayAssessorJudgesinPenalProceedings intheLightofEmpiricalResearchǡin O V9 ͻ͹Ȃͳͳͳȋ ƬǤǡͳͻ͹ͲȌȋǤȌǤ ͷͶǤ See,e.g.ǡǤǡ ǡ ȋǤʹʹǡ ʹͲͲ͸ȌǤ ͷͷǤ See,e.g.ǡ Ƭ, ǡ e ,e* e ȋͳͻ͹ͶȌ ȋǤ Ƭ ǤȌǢ *ǡ , .ȋͳͻͺͻȌȋǤȌȏ *ȋͳͻͺͻȌȐǢ ©ǡ « ȋͳͻͺ͵Ȍ ȋǤǤǡǡȌȏ©ȋͳͻͺ͵ȌȐǤ ͷ͸Ǥ ǡsupra͵ǡͷͳǤ ͷ͹Ǥ ǡsupraͳͶǡʹ͹͵Ǥ ͷͺǤ See, e.gǤǡ ǡ supra Ͷ͹ǡ ͳͲͲ ȋ ǣDz ǯǦ ǡ ǤdzȌǤ ͷͻǤ ǡsupraͷʹǡ͵ͶǤ 36656-ckt_90-3 Sheet No. 135 Side B 06/12/2015 13:03:37 ͳͲǦʹ Ǧ ǤȋȌ ͷȀʹͻȀʹͲͳͷͳʹǣʹ͵ ͳͲ͵ͺ CHICAGOǦKENTLAWREVIEW ȏͻͲǣ͵ ǯ Ǥ͸Ͳ ǡ ǡ ǡ ǤǡǦ Ǥ͸ͳ Ǧ Ǥ ͳͻͻͳǡ Ǧ ǡ Ǧ Ǥ͸ʹ ǡ Ǥ ȋǤǤǡ Ȍ Ǥ͸͵Ǧ Ǣ Dz Ǧ Ǧ Ǥdz͸Ͷ Ǥ ǡǦ ǡ͸ͷ Ǧ Ǧ ǦǤDz Ǧ dzǢ͸͸ Ǣ͸͹ ͸ͺ Ǣ 36656-ckt_90-3 Sheet No. 135 Side B 06/12/2015 13:03:37 ͸ͻ Ǣ͹Ͳ ͸ͲǤ Id.
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