Lay Participation in Decision Making: A Croatian Perspective on Mixed Tribunals

Abstract

This paper studies mixed tribunals, a form of lay participation in which professional and lay judges decide cases jointly. The focus of the analysis is the interaction of professional judges and lay judges in tribunals that decide criminal cases in two regions of Croatia. The respondents in this study were professional judges and lay judges, as well as 'the observers' of the trials by mixed tribunals, that is, state attorneys and attorneys. A theoretical framework for the study of interaction of the members of mixed tribunals is developed by applying status characteristics theory. Lay judges ask questions during trials only infrequently; lawyers (professional judges, state attorneys, and attorneys) perceive that those questions are not very important. Lay judges are only sometimes given an opportunity to ask questions during trials. Deliberation typically starts with the summation of evidence by the professional judge. Consistent with the findings about the trials, the comments offered by lay judges during deliberations are perceived by professional judges to be minor, both in regard to frequency and importance.

Jury Systems Around the World

“…Nonetheless, researchers have gathered opinions from lay and professional judges about their general experiences. A consistent finding from this research is, as expected, minimal participation by lay judges and domination by professional judges (Kutnjak Ivković 2007;Machura 2001Machura , 2003Rennig 2001). Lay judges in mixed tribunals do not tend to follow the trial closely.…”

“…Kutnjak Ivković (1999Ivković ( , 2007 argues that status differences along the relevant dimension of law, combined with these procedural advantages, help to explain the strong If the law-trained judge controls the proceedings and the deliberations and does not encourage lay participation, it lessens the potential fact finding advantages of a diverse decisionmaking body. Citizen participation could be mere window dressing, unjustly enhancing the legitimacy of the legal system while allowing no meaningful input.…”

“…Other studies of mixed tribunals show very low rates of disagreement. For example, lay and professional judges disagree in only 1% to 3% of all criminal cases in Sweden (Kutnjak Ivković 2007). Machura (2001) surveyed lay assessors in two German jurisdictions.…”

“…Here, members of the community with special expertise thought to be relevant to a case sit with one or more law-trained judges to decide the outcome. For example, in Croatia, lay judges in mixed courts that decide the cases of juvenile defendants must be teachers, professors, or other persons with relevant experience in juvenile education (Kutnjak Ivković 2007).…”

Juries, Lay Judges, and Trials

“…Lay judges serve jointly with professional judges in many European countries, including Germany, Austria, Denmark, France, Finland, Hungary, Italy, Norway, Poland, and Sweden, and in post-Soviet countries including the former Czechoslovakia and in countries of the former Yugoslavia (Hans 2008;Kutnjak Ivkovic´ 2007). Several new systems of lay participation use the mixed court model: for example, Japan's mixed court of lay citizens and professional judges, Saiban-in Seido, and Argentina's mixed court in Co´rdoba (Corey and Hans 2010).…”