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CJA Mittermaier and the 19th Century Debate About Juries and Mixed Courts

NCJ Number
International Review of Penal Law Volume: 72 Issue: 1-2 Dated: 2001 Pages: 347-353
Arnd Koch
Date Published
7 pages
This article discusses C.J.A. Mittermaier’s position on lay participation in Germany.
Mittermaier, a German scholar, maintained that the principles of the public oral criminal trial could only be consistently satisfied by a jury court. He was sure that such principles could not be satisfied when the interrogating and sentencing were carried out by the same person. He understood the examination of the defendant and witnesses by the judge as an element of the old inquisitory process that was incompatible with the new trial principles. Mittermaier saw conflicts with the basic principles of orality and immediacy. He interpreted the judge’s examination as a violation of the presumption of innocence, as the judge inevitably entered into the court with opinions that were formed in the previous study of case files. It is clear that Mittermaier rejected the concept of the mixed court. This criticism was based on a number of arguments that are relevant today. He asserted that a collective body of professional judges and lay assessors risks being “superficially collegial” in so far as the professional judges attempt to influence the lay assessors. True collegiality, according to him, depends on the equality of the court members. This equality does not exist so long as the assessors are expected to arrive at their decisions solely based on the trial hearing while the judge is in addition informed by the case files and pre-investigation results. The judge can draw on this extra information to influence the assessors. That judges appear to be inevitably biased through their previous study of case files is still criticized today. Contemporary critics also find fault in the presiding judge’s duty to interrogate the defendant, as through this the judge is pressured into assuming a position opposing the defendant. Some critics see lay assessors as “puppets with strings” in the hands of the professional judges, at least as far as the assessors have no knowledge of the case files. 40 footnotes