What is the idea behind German courts having both professional judges and lay judges? In this wiki, it is mentioned that in trial courts there are both professional judges and lay judges involved. What is the basis behind this set up?
Lay Judges? The lay judges in Germany are called Schöffen. I will refer to them as such in the following because just calling them lay judges as a German feels kind of wrong, as they carry the full power of the court. Tracing the origin... The origin of the Schöffe goes back to the high medieval time, when a Schöffe, Schöppe or Schöpfe was a person tasked with judging and executing law on the lowest level. Before the Schöffen, all men of a region had to convene to make judgments. As a member of those, the word appears in 8th century. Under Charlemagne, the law was changed from all men to a group of 7, and Schöffen was the name applied to that group. The same edict also made them crown officers. They were to assist the judge (who could be a noble) by answering direct questions, for example by determining guilt. This institution then branched. Over time, in England this institution (traveling in the baggage of a certain William the Bastard) they would become the jurors. In Germany, the path was somewhat different. In the free cities, Schöffengerichte would appear in the high medieval time, going totally without a judge and staffed just with (wealthy) laymen that handled the whole law. However, when the 15th century came around, the common law was started to be replaced by Roman Law and recorded other laws, so pretty much a shift to written laws. In the wake, many Schöffenkammern were fully replaced by studied judges. For example, the Reichskammergericht was established in 1495 and only allowed people that had studied law to judge or even speak on behalf of a party. By the time of the neighboring French Revolution and Napoleon and the total disruption of the Roman Law tradition he brought in his wake, Schöffen as laymen giving judgments on their own were phased out but for the absolute lowest layers, such as the resolution of cases in villages. Then... Germany... took quite a few decades to re-invent itself between Napoleon's defeat in 1814 and the founding of the German Empire in 1871. First as a loose alliance with self-proclaimed enlightened rulers, then as a tighter alliance under Prussian hegemony, and finally as the German Empire under Prussian hegemony. With those re-inventions of themselves came sweeping re-constructions of the legal body over and over again, and with each step nobility was robbed of some influence. In effect, by the late 19th century, Germany finally had formed its own interpretation that was based in part on the French Code Civil - or rather Code Napoléon, bits and pieces of Roman Law and canonized laws from the Holy Roman Empire, the various legal codes from the lower layers that made up the German Empire and over that a very Prussian onlook, but in general, it was meant to be enlightened. In this environment, the Schöffen (and jurors) were meant as a means to limit the nobility's influence on court judgments and in part to bring a pragmatic non-jurist's view on problematic cases into the courts. Origin of the modern Schöffen: The Weimar Republic! Between 1879 and 1924 technically Jurors also existed in the Schwurgerichtskammer which had 12 Jurors and 3 professional Judges and was operating very similar to a common law court in that jurors decided on guilt and judges on punishment. This setup was created during the German Empire and just kept when the First World War ended with the loss of all nobility. In the so-called Weimar Republic times or the Interwar period, this part of the German judiciary was not touched for 6 years, as there were far more pressing matters. However, in 1924 a wide-sweeping justice reform took place. Erich Emminger, the German justice minister, is often blamed for this &quot;Emminger-Novelle&quot;, or rather the Verordnung über Gerichtsverfassung und Strafrechtspflege. As a result, the Jurors were entirely removed and replaced with 6 layman judges - now called Schöffen - that had to assist the professional judges. Modern Schöffen - and where to find them After a few smaller reforms since the Emminger-Novelle, today a German Schwurgerichtskammer (or Große Strafkammer) is comprised of 3 professional judges and 2 Schöffen. In a similar fashion, the Landgerichte - or rather the chamber of appeals of the Landgericht - is comprised of one professional judge and 2 Schöffen, forming the Kleine Strafkammer, which is doing criminal appeals cases of the Amtsgericht. Both types are prescribed in § 76 (1) GVG. Amtsgerichte, the layer below the Landgericht, has specific matters that are to be given to the Schöffengericht under § 28 GVG and is set up with one professional judge as well as 2 Schöffen under § 29 GVG. The court may decide to double up the professional judges, if the prosecution (Staatsanwaltschaft) requests this and the court finds the case to be complicated enough. In that case, an appeal to the Kleine Strafkammer also doubles up the judges automatically. The general rule if a case gets to the Schöffengericht or a Straftrichter is based on the type of case and the estimated punishment: All civil cases in the first instance get you to just a professional judge in the shape of an Einzelrichter - which is the term §22 GVG uses to demark a professional judge. No way to get a Schöffen there. Civil cases in appeals or revision get seen by (up to) 3 professional judges and there are no Schöffen involved. In a criminal case that would commonly end in less than 2 years if guilty goes to just a professional judge in the shape of an Einzelrichter, who acts as the Strafrichter. He can however sentence up to 4 years, even without Schöffen. For a criminal case between 2 years and 4 years of estimated punishment, if the case ends with guilty, the Schöffengericht is to be consulted, set up of one professional Judge and two Schöffen. If the case brings up evidence that more than 4 years are warranted, the Amtsgericht gives the case to the Landesgericht. Criminal cases that have an estimated punishment of 4 years or more, the case will be handled by the Landesgericht in the first place. There are no Schöffen in any of the layers of Oberlandesgericht, which among others handles appeals cases of the Landgericht as well as revision cases of both Amtsgericht and Landgericht. How do Schöffen influence judgments? The Schöffen are deemed to have not only the same weight but also the same influence on the court case. Since Germany is an inquisitorial system, they can ask questions to witnesses and others during trial just as much as the professional judge and they get the same case file. However, there is a fine limit: Unlike judges, they are not allowed to request visitation to the crime scene and may not do further investigations outside of the courtroom. Besides this point, they are equal in all questions - or rather: the court speaks with a single voice that is made up of all the judges, professionals and Schöffen together. To decide on guilt, a 2/3 majority of the chamber is needed, so in the normal first-instance chamber, the Schöffen could decide on guilt alone, while an enlarged chamber allows them to block a conviction against their will. In mere procedural questions, a simple majority is sufficient, but it is often customary for the Schöffen to follow the opinion of the professional Judge in those administrative matters. Schöffen are called upon for 5 years for as many trials as needed
When it is a mistake of memory, and not intentional (as this question is asking), there are no clear standards, and it is largely up to prosecutorial discretion. This means that whatever factors affect prosecutorial discretion (such as the prosecutor knowing who they have to work with on other days) can become significant in the determination. A prosecutor who announced this decision also specifically noted that it's up to the prosecutor to decide each case separately, with no guidance on fact patterns that could influence the decision either way. The Washington Post Magazine covered this question somewhat in depth several years ago, arriving at that conclusion. This was a surprise to me, but the article seems like a good resource on this - the question turns out to be more interesting and less resolved than it first appeared to be.
Generally speaking, courts take whatever time they need to write their decision and then release it close to immediately. In cases where a judge believes she has the information she needs, she may rule "from the bench," announcing a decision and entering an order for the parties to comply, and then follow up with a written order later. The research process is fairly open-ended, but legal research databases are pretty advanced, and a good researcher can generally get his hands on the vast majority of what he'll need in very short order. But practically speaking, there are few limits on how long that process takes. A litigant who was growing impatient could seek a writ of procedendo to force a court to move faster, but my experience indicates that most attorneys wouldn't attempt that move unless a decision had been pending for at least a year with no action, which would be unusual.
Both civil law and common law have civil codes, so that isn't the difference. It is common in civil law jurisdictions for these to be called civil codes and consolidated into the great big book of law. In common law jurisdictions, the civil code is scattered through legislation, regulation, administrative and case law and often not consolidated although, each piece of legislation typically deals with only one (or a related number) of topics. Adversarial vs Inquisitorial In a common law jurisdiction, the role of the judge/jury is to decide the dispute that the parties have brought to the court based solely on the arguments and evidence that they make. A judge who seeks their own evidence or decides the case based on a law the parties have not argued is making a mistake. The judge is free to say to the parties "But what about xyz law?" and let them make an argument about that but they would be denying the parties natural justice if they decided the case on xyz law if that law was not argued. In civil law jurisdiction, the role of the judge/jury is to find out the truth. They have inquisitorial power and decide the case based on all the evidence, the law that was argued and their own knowledge of the law. Precedence In common law jurisdictions, the cases decided by the courts are just as much the law of the land as the acts passed by parliament. When a court hands down a decision on a certain fact pattern, then all courts lower in the hierarchy must make the same decision when presented by a similar fact pattern. These are binding precedents. In addition, decisions of same level or lower courts (where not actually the ones being appealed) as well as decisions in "parallel" jurisdictions are persuasive precedents. A parallel jurisdiction is anything where the law is close enough that it makes sense to use it: Australian courts will tend to look first to other Australian states, then to England &amp; Wales, Canada, New Zealand and other Commonwealth countries then the United States of America and then to civil law jurisdictions. There is nothing nativist in this, it is just that these are the jurisdictions where the laws are "closest" to one another: partly because the courts have historically done this (which tends to lock the common law together), partly because there has been governmental will in creating harmonized laws in Australia (i.e. enacted in each state and territory but essentially the same law - often word for word) and partly because parliaments, when drafting legislation, nick ideas from other parliaments. If the Supreme Court of Western Australia has made a decision on a similar fact pattern under a similar law, a District Court judge in New South Wales had better have some damn good reasons for deciding this case differently but they wouldn't automatically be wrong if they did. However, if the precedent had been set in the Supreme Court of New South Wales than the District Court judge would be wrong to decide differently. Naturally, a lot of argument in common law courts is about why the facts of this case are sufficiently similar/distinct that the precedent should/shouldn't apply. Also, common law judgments emphasize the reasoning that led the judge from the evidence to the conclusion and include detailed analysis of the case each party presented - this is because they need to be understandable to a wide audience. Court hierarchy can be quite complex, this is the one for NSW, Australia: In a civil law jurisdiction, courts are not bound by the rules of precedence - each judgement is a first principles analysis of the facts and the law. This is not to say that civil law judges do not use other judgments in their analysis but they are not required to do so. Broadly speaking, the common law approach promotes consistency, the civil law approach promotes individualized justice.
On an issue of pure law, an appellate court decides if the trial judge got it right or wrong from scratch, and if there is a case that is a better match than the one that the judge used that leads to a different outcome in the case, then an appellate court is likely to find that the trial court's ruling is a reversible error. On an issue of mixed fact and law, or on a legal issue where a judge has more discretion in how the law is applied (like many evidentiary issues), a judge is given more deference, and the judge will generally only be reversed if no reasonable judge could have applied the correct law to the facts viewed in the light in which the judge saw them, and then, only if an application of the correct law to the facts viewed in the light in which the judge saw them would have changed the outcome of the case. There are a couple of ways that this standard of review is described, one of which is called "abuse of discretion" review.
I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993).
The decision of a court consists of several things: The orders made A summary of the evidence The judge's reasoning from the evidence to their conclusions of what the facts of the case are The judge's reasoning from the evidence to their conclusions of what the law applying to those facts is The judge's reasoning from those findings of facts and law to the orders that were made (ratio decidendi) Reasoning on how things might have been decided otherwise (or the same way) if the facts or the law were different (obiter dicta). We hope that the judge is articulate enough that we can tell which is which. Where there is more than one judge there is more than one opinion. However, there is still ratio decidendi and obiter dicta across all the opinions. Typically, a dissenting judge disagrees with the ratio decidendi in whole or part and his reasoning about that is obiter dicta. The ratio decidendi – "the point in a case that determines the judgement" or "the principle that the case establishes" – creates binding precedent. The obiter dicta creates persuasive precedent. A binding precedent is just that – it binds the decisions of lower ranked courts in the hierarchy. If the facts of the current case match the facts of the precedent then the judge must follow the precedent even if they disagree with it – indeed there are many decisions where the judge expresses their disagreement with the precedent in no uncertain terms. In addition, there can be conflicting precedent, for example, where the High Court of Australia has made a decision on a piece of legislation that conflicts with a decision of the Supreme Court of NSW on an essentially similar provision in a different Act. A wise judge in such a situation should do what McDougal J did in Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 and issue orders referring it to a court that can overturn one (or both) of the precedents. A persuasive precedent can influence the decisions of other courts – they are an authority a judge can look to in formulating their reasons but they are free to consider and reject them even if the facts match. Obiter dicta from same level or higher courts in the hierarchy is persuasive precedent as is ratio decidendi and obiter dicta from same level courts and courts in other jurisdictions.
I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand.