Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | http://doi.org/10.1111/jols.12189 |
| Author | Louise Victoria Johansen |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 4, DECEMBER 2019
ISSN: 0263-323X, pp. 586±611
Lay Participation in Danish Crime Trials: On the
Interaction between Lay and Professional Judges during
Deliberation
Louise Victoria Johansen*
While there is abundant research on common law jury systems, we
know less about lay participation in civil law crime trials, often called
`mixed courts' or alternately `mixed tribunals'. Here, a professional
judge and a number of lay judges deliberate together on the issues of
guilt and sentencing. This joint deliberation has naturally led both
public opinion and research to focus on power relations such as lay
judges' dependence on the professional judges. Based on an ethno-
graphic study of deliberation processes, the present article offers a
different perspective on lay judges' contribution and argues that their
decision making rests on a hybrid construction of knowledge in the
continuous interaction between the professional judge and lay
participants during deliberation. The analysis of this decision-making
process contributes to our understanding of how ordinary people
selected for this civic duty create knowledge about justice.
INTRODUCTION
In mixed courts, professional judges and lay citizens work together to reach
decisions concerning both verdict and sentence. This is a very different
process from the strictly separate roles of juries and judges so thoroughly
described in common law contexts.
1
586
*Faculty of Law, University of Copenhagen, Karen Blixens Plads 16, 2300
Copenhagen, Denmark
Louise.Victoria.Johansen@jur.ku.dk
I would like to thank the following for their invaluable comments on earlier drafts: Cyrus
Tata, Stewart Field, the three anonymous journal referees, and members of the Editorial
Board. The work was supported by the Danish Council for Independent Research [0602-
02291B].
1 K.A. Crosby, Jury Independence and the General Verdict: A Genealogy (2013); G.
Fouts, `Reading the Jurors Their Rights: The Continuing Questions of Grand Jury
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
This article presents findings from an ethnographic study of Danish mixed
courts that explored how lay judges (who are not legally trained) participate
in deliberations with professional, legally trained judges. The study was
motivated by the limited, albeit interesting, existing literature on mixed
courts,
2
but also by recent developments where mixed courts seem to gain
momentum. For instance, South Africa and Japan have adopted mixed-court
systems, whereas many post-Soviet countries have revived their mixed
courts from Soviet times. It has even been proposed that mixed courts could
`narrow the gap' between jury trials and non-jury systems.
3
However, mixed courts are often implicitly compared with common law
juries, in the sense that the relative potency of lay judges is recurrently
evaluated and discussed.
4
Even though the independence of lay judges or
lack hereof forms part of an important discussion about mixed courts' level
of democracy, the present article proposes that we cannot assess lay judges'
participation and independence on the same scale as professional judges or
even juries.
5
Analytically focusing on processes of decision making within a
legal framework, I argue that mixed courts rely on unique knowledge
exchanges that are not directly comparable to jury trials.
6
Decision making
in mixed courts is highly dependent on the continuous interaction between
the professional judge and the lay judges. They exchange fields of knowl-
edge, they negotiate relative authority, and they rely on a temporal dimen-
sion in order to qualify their decisions. The aim of this article is two-fold:
first, I wish to contribute empirically to the growing literature on mixed
courts, not just by providing a Danish case study, but also by making it
possible to compare ethnographically some aspects of the data with other
studies. Secondly, this comparative approach is not limited to the empirical
level of the study, since it seeks to conceptualize the findings by asking how
we may analytically understand and explore knowledge processes and the
intricate fabric of law making in the context of mixed tribunals.
587
Independence' (2004) 79 Indiana Law J. 323; J. Jackson and S. Doran, Judge Without
Jury: Diplock Trials in the Adversary System (1995); N. Kuckes, `The Useful,
Dangerous Fiction of Grand Jury Independence' (2004) 41 Am. Criminal Law Rev. 1.
2 S. Kutnjak IvkovicÂ, `An Inside View: Professional Judges' and Lay Judges' Support
for Mixed Tribunals' (2003) 25 Law & Policy 93, at 101.
3 J. Langbein, `Mixed Court and Jury Court: Could the Continental Alternative Fill the
American Need?' (1981) 6 Am. Bar Foundation Research J. 195.
4 S. Landsman, `Commentary: Dispatches from the Front: Lay Participation in Legal
Processes and the Development of Democracy' (2003) 25 Law & Policy 173; S.
Machura, `Fairness, Justice, and Legitimacy: Experiences of People's Judges in South
Russia' (2003) 25 Law & Policy 123; N.S. Marder and V.P. Hans, `Introduction to
Juries and Mixed Tribunals across the Globe: New Developments, Common
Challenges and Future Directions' (2016) 6 OnÄati Socio-Legal Series 163.
5 S. Kutnjak IvkovicÂ, `Ears of the Deaf: the Theory and Reality of Lay Judges in Mixed
Tribunals' (2015) 90 Chicago-Kent Law Rev. 1031.
6 B. Latour, The Making of Law. An Ethnography of the Conseil d'Etat (2010); M.
Valverde, Law's Dream of a Common Knowledge (2003).
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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