Ask the occasional German lay assessor judge (Schöffe)

Miscellaneous and Personal Stuff I Must Share
1

As from time to time other Dopers tell about their jury duty experience, perhaps people might be interested in what the very rough equivalent in another system does.

I serve from time to time as a juvenile criminal court Schöffe - the difference to a jury system being that you aren’t part of a panel separate from the professional judge(s) but rather you are part of the judges’ bench, two lay judges (Schöffen) to one, two or three professional judges depending on the type of trial.

I have served on three cases to date - two half-day appeals for simple assault and one eight-day trial of seven defendants for three armed robberies. My lot was drawn as a Hilfsschöffe which means I am not regularly scheduled but fill in for trials when one of the regularly scheduled Schöffen is ill or otherwise impeded from serving.

What I can talk about: the trial sessions (as they were in public session, not all of the defendants being juveniles). What I cannot talk about: the deliberations of the judges’ panel (as these are confidential, by law).

2

What training was provided to assist you?

3

Are there any juvenile criminal matters that you can not hear?

4

How do you become a Schöffe? How do they determine when you serve?

5

[QUOTE=Muffin]
What training was provided to assist you?
[/QUOTE]

We (the first-time Schöffen) got a three-hour orientation session with talks by a judge and by court officials on our rights and duties, when and how we have to disqualify ourselves from the case (i.e. what sort of connections to the defendant disqualify us from serving), what not to do (not to do any investigations ourselves, not to talk with the prosecution/defence outside court sessions, not to act in a way that would put our impartiality into question etc.) what our rights to compensation are …

We are not supposed to be legal experts - for matters of the law we usually pester the professional judges on the panel with our questions during the breaks.

There is an association for Schöffen which offers further training/literature but that’s useful mainly for eager-beaver type regular Schöffen who regularly spend ten or more days in court every year, not for substitute types like me.

6

Can you describe the types of punishment juvenile offenders may get?

What would happen to someone convicted of assault and the ones for armed robbery.

What is the cut off age for ‘juvenile’ in Germany? Is it flexiable, like here in the states, the prosecutors can push for someone who is underage to be tried as an adult. Do they do that in Germany?

7

[QUOTE=Muffin]
Are there any juvenile criminal matters that you can not hear?
[/QUOTE]

For minor offences (carrying a maximum penalty of up to two years - prison terms of up to two years can be and usually are suspended with probation) the case is tried by a single professional judge; panels including Schöffen only see those on appeal.

Also a lot of juvenile criminal matters (of minor offences by first-ish offenders) don’t see court at all, if the offender accepts a fine or other minor penalty offered by the prosecutors’ office as a condition of ending the prosecution.

The youth court that I sit on (it’s on a Landgericht which is the second tier of courts) tries crimes by juveniles (or juveniles together with adults) where a jail term of 4 or more years can be imposed, and crimes against children (thankfully, I have not had to deal with one of the latter).

8

[QUOTE=gardentraveler]
How do you become a Schöffe? How do they determine when you serve?
[/QUOTE]

Every four years the municipialities in a court’s district have to nominate a stated number of candidates to the court (the town council votes on the list - usually unanimously). Theoretically the municipiality could simply draft people, but in practice associations, political parties etc. are asked to submit an informal quota; you can also directly volunteer (addressed to the town admin).

So, typically the candidates are the type of person who volunteers (or is volunteered) for civic duties.

From the list of names submitted from the municipialities, court officials draw lots, for a certain number of regular Schöffen (whose draw position determines on which set of scheduled court dates in a year they serve), plus a list of substitute Schöffen who are called, also in the order of the draw, when a replacement is needed.

The whole procedure must be done scrupulously by the book, as a faultily impaneled court is a sure way for the defense to have a verdict nullified, as happened a decade ago or so with hundreds of verdicts of one hapless court in our region. The experience of the Nazi period (e.g. the Volksgerichtshof) made special or ad hoc tribunals anathema to German jurispudence.

9

A bit further to my above answer to:

[QUOTE=Muffin]
What training was provided to assist you?
[/QUOTE]

We Schöffen also get the opportunity to visit corrections institutions from time to time. I took part in a day tour to a youth penitentiary two years ago, and passed on the invite to a drug offenders treatment center lately.

10

[QUOTE=Zebra]
Can you describe the types of punishment juvenile offenders may get?

What would happen to someone convicted of assault and the ones for armed robbery.

What is the cut off age for ‘juvenile’ in Germany? Is it flexiable, like here in the states, the prosecutors can push for someone who is underage to be tried as an adult. Do they do that in Germany?
[/QUOTE]

Depending on the crime, prior convictions etc., juvenile offenders can get

  • an admonition
  • have to compensate the victim and have a hard talk with the victim and a prosecutor (only if the victim agrees)
  • a fine and/or have to serve a set number of work hours for a charity
  • serve a set short duration in jail (often one or two weekends)
  • told to obey certain conditions (e.g. to seek and maintain employment, to not meet certain persons, not to visit bars …)
  • a prison term suspended on condition of drug therapy (i.e. if they drop out of therapy they go to prison - if they finish the course of therapy the penalty is served)
  • a suspended prison term
  • a prison term of 6 months to 5 years (10 years if an adult would get more than 10 years, e.g. mainly for murder)

For juveniles the upper limited assigned by the law to a certain crime applies, but not the lower one.

In the case of the simple assaults that were the subjects of appeals, the penalties were in the order of fines corresponding to one or two months of jail (e.g. a 17-year old girl breaking another girl’s finger when the other’s boyfriend didn’t kiss a traffic sign - everyone involved was drunk). Assault without a dangerous weapon can get you up to 5 years but the case would have to be extremely grave to get near that.

For robbery the minimum is 1 yr (without a weapon), 3 yr (with a weapon), 5 years (with a deadly weapon, or significantly injuring the victim).
In the case we had, the sentences ranged from 2 years suspended (20 year old at the time; reluctantly participated in 1 robbery; held a club for a time) to 5.5 years (non-juvenile; significantly participated in 3 armed robberies including the prior planning).

The minimum of 5 years was on the table for using an electric shock device (not a Taser) on a victim, but after a lot of expertises (including a state police expert zapping himself and reporting only a disagreeable tingling and small first-degree burns) the prosecution changed the accusation to the less grave form of robbery.

For the cut-off ages there is almost no discretion for the court:

up to age 14: not criminally responsible.
age 14-17: juvenile; no discretion
age 18-20: is tried in juvenile court; court may decide to sentence as adult or juvenile. Sentenced as juvenile (done in the majority of cases) if the court deems the defendant to be immature for his age or the crime to be of a typically juvenile type.

In our case two defendants were 20 at the time and we decided to sentence them as juveniles because their prior history showed them to not be as mature as you’d expect a 18-year-old to be.

11

[QUOTE=tschild]
…Theoretically the municipiality could simply draft people, but in practice associations, political parties etc. are asked to submit an informal quota; you can also directly volunteer (addressed to the town admin).

So, typically the candidates are the type of person who volunteers (or is volunteered) for civic duties…
[/QUOTE]

So what happens if someone who’s “volunteered” declines to serve? Do they need to petition the court for an exemption or can they excuse themselves from service? How old does one need to be a Schöffe?

12

Are you reimbursed for this service? Do you get paid time off from your employer during the time you serve?

13

Can both/all Schöffes acting together overule the judge(s)?

14

Are you permitted to question the witnesses? If there’s a legal issue that arises (an objection to certain evidence, for example), do the lay judges rule on that? Are there any parts of the trial that are strictly the province of the professional judges?

15

[QUOTE=alphaboi867]
So what happens if someone who’s “volunteered” declines to serve? Do they need to petition the court for an exemption or can they excuse themselves from service? How old does one need to be a Schöffe?
[/QUOTE]

Well, in my case “being volunteered” wasn’t involuntary - I was asked by my political party if I were willing to volunteer. I imagine hardly anyone is volunteered without prior consent. (If the municipality does not get enough nominations to make up the candidate list, they could theoretically just draft eligible people, but AFAIK this isn’t necessary).

There are a number of exemptions, e.g. members of the health professions (on the assumptions that they must be available, I suppose), state and federal legislators, lawyers, judges, court, police and corrections employees, and persons who have already served 8 years as Schöffe. Also cases of personal or financial hardship.

Otherwise you must be age 25-69 when the municipiality elects the candidate slate, have lived at least 1 year in the municipiality and not have been convicted to a prison term of six months or more.

16

[QUOTE=gardentraveler]
Are you reimbursed for this service? Do you get paid time off from your employer during the time you serve?
[/QUOTE]

Employees and self-employed people get compensated for lost income (I got my employer to write a statement on how much my gross and net wage was per hour); homemakers and people caring for relatives get a set amount per hour. Plus travel expenses if any.

Employers are obligated to give court days off - either unpaid, or paid and invoicing the court for the wage cost.

17

[QUOTE=alphaboi867]
Can both/all Schöffes acting together overule the judge(s)?
[/QUOTE]

Yes. As the judges’ panel needs a two-thirds majority both to convict and to impose a particular penalty, and there are one to three professional judges to the two lay ones, neither a conviction nor a particular sentence can be carried against the two Schöffen voting together.

18

[QUOTE=Campion]
Are you permitted to question the witnesses? If there’s a legal issue that arises (an objection to certain evidence, for example), do the lay judges rule on that? Are there any parts of the trial that are strictly the province of the professional judges?
[/QUOTE]

Yes, we are permitted to question the witnesses (also the defendants). The format seems to be invariably: witness/defendant is asked for a statement (if locquacious, it’s a long narrative, if reticient, coaxed by questions by the presiding judge), then the presiding judge further questions on open questions/evasions/contradictions, then the other members of the judges’ bench get to ask any supplementary questions, then defence and prosecution get to ask questions.

In practice there is usually little left to ask after the presiding judge has questioned - a judge of long experience knows to get a witness to talk (often it seems more of a problem to shut them up when they get off on a tangent), and the obvious questions unanswered when the presiding judge finishes are usually matters where a witness/defendant explicitly invokes their right to be silent. In one case I got to bore a bit further in than the presiding judge (what a police witness said about the electric shock device seemed unsatisfactory to me (I am an electrical engineer)), which later led to further forensic investigations. It turned out the manufacturer’s publicity made the shock device out to be a much more potent weapon than it was…

The one exceptions are witnesses who are 15 years old or younger. In order to make these witnesses not feel overwhelmed or bullied, they are questioned by the presiding judge only, and the other judges, defence and prosecution have to submit any supplementary questions to the presiding judge for him to ask.

On any motions during the trial proper the whole judges’ panel gets to vote (e.g. on admission of further evidence, witnesses, on confiscating tools of the crime (we confiscated the defendants’ mobile phones, much to their chagrin), on jailing defendants or releasing jailed defendants pending appeal…)

The major exceptions: motions prior to the actual trial (notably whether to accept the indictment at all) are decided by the professional judges as the Schöffen aren’t officiating yet; also the thick police/prosecution file on the investigation has been read by professional judges, defence and prosecution before the trial but we Schöffen don’t get a peek, as we have to base our decisions only on what we heard in open court - anything out of that case file that professional judges, defence or prosecution want the Schöffen to know needs to be read out in open court.

19

Moved from IMHO to MPSIMS.

20

[QUOTE=tschild]
On any motions during the trial proper the whole judges’ panel gets to vote (e.g. on admission of further evidence, witnesses, on confiscating tools of the crime (we confiscated the defendants’ mobile phones, much to their chagrin), on jailing defendants or releasing jailed defendants pending appeal…)
[/QUOTE]
Are you told what the law is, prior to deciding the motion? Do the attorneys argue the law to you?

Thank you very much for posting this thread – it’s fascinating.