Double Whammy: Lay Assessors as Lackeys in Chinese Courts

Primarily drawing on in‐depth interviews with lay assessors and judges in Chinese courts, this study suggests that assessors are little more than lackeys. To determine the role of lay participation in decision making across different jurisdictions, this article proposes two variables. The first is whether lay assessors are separate from, or mixed with, professional judges; the second is whether the regime is democratic or authoritarian. Viewed according to these variables, China's lay‐assessor institution is subject to a double whammy: one, the superior legal knowledge of professional judges and their dominance in procedures, and two, the ultimate control of the regime over judges, who, for self‐protection, firmly control lay assessors. This article advances our understanding of the operation of the Chinese lay‐assessor institution, and more generally the relationship between lay participation and political regimes.     

An Inside View: Professional Judges' and Lay Judges' Support for Mixed Tribunals

This paper studies the level of specific and general support for mixed tribunals, a form of lay participation in the government. The analyses focus on the opinions provided by 229 Croatian lay judges and eighty professional judges – the insiders in mixed tribunals. The results indicate that the judge's lay or professional role in the criminal justice system and the type of court exhibit stronger influence on the general level of support than any of the variables measuring specific support. Nevertheless, the perceived frequency of lay judges' comments, the most direct measure of members' crucial activity during trials and deliberations among the specific variables included in the models, is significantly related to the respondents' general opinions about mixed tribunals.     

Lawyers about Mixed Tribunals: Do Croatian Professional Judges, State Attorneys, and Private Attorneys Share the Same View?

In this paper, I examine opinions about mixed tribunals, a form of lay participation used widely in the criminal justice systems across Europe. The distinguishing feature of mixed tribunals is the fact that professional and lay judges decide the guilt and sentence jointly. I explore the differences of opinion among lawyers about mixed tribunals in general and about lay judges in particular. Using the theoretical underpinnings of status characteristics theory, I study the impact of the lawyers' role in the criminal justice system and the type of court/office at which they serve or practice law on their opinion about mixed tribunals. The dataset I analyze in this paper consists of questionnaires filled out by Croatian professional judges, state attorneys, and private attorneys.     

论法官的裁判良心

近年来司法界已意识到司法裁决并非全由法律所决定,如果司法裁决并非全部客观,法官的职业行为就变得相关,法官审理具体案件时不仅仅依据的是事实与法律,还要结合自己的良心,要求法官在裁判中要尽量保持良心的客观性。因此,关注法官良心与法的关联性、法官良心的自由与中立及法官良心的社会尊重和养成,直接影响着法官裁判的公正及法院的社会公信力。     

Gender,race, bias and perspective: OR,how otherness colours your judgment

This discussion considers assumptions about judges and judging and suggests that despite what is sometimes perceived as increasing diversity on the bench and in the legal profession, outsider decision makers’ membership of the jurisprudential community is still marked by ‘otherness’. The argument draws upon my ongoing interest in the law's concern with the concepts of ‘objectivity’, ‘neutrality’ and ‘perspective’. I argue that the legal system is inherently suspicious of ‘otherness’ and most specifically so when ‘others’ occupy positions of ‘judgement’. The consequence is to render decisions made by ‘otherised’ judges liable to attack for bias in a way that decisions made by insiders simply are not. The argument is illustrated by a review of a number of challenges made on the ground of ‘bias’ or recusal motions to judges whose failure to match the white Anglo hetero-normative standard of ‘the judge’ is seen as a limit on their ability to be ‘impartial’. The examples used range across many jurisdictions, from Australia, Canada, the US and a challenge to the impartiality of a decision of the International Criminal Tribunal for the former Yugoslavia (ICTY).     

法官法律知识的本源与确证——以法官的实践理性为视角

法律作为一门独立的体系知识而与其他知识区别开来是人类社会分工及知识分化的必然结果。法律知识具有其内在价值,对于法官来说,法律知识本身就是一个自为的目的。法官的知识就是对于正义等理念的沉思。法官必须具有将抽象的法律规范同特殊的个案事件联系起来的司法技巧与方法。法官必须要精通法学领域内的相关法律、法规的理论修养。法官的司法实践必须以法律知识为前提。法官既是法律知识系统,同时也是司法行动系统。确认法律具有普遍的适用性,法官应该理性地思考,在现代法律规范中,所有的规定都应该与人类理性的基本价值、人类行为的实践合理性等基本要求相一致。确认法律必须体现自治的原则。法官要力求达到掌握最完全的法律知识,力求达到最高层次的法的确定性追求。     

Citizen's psychological knowledge,legal knowledge,and attitudes toward participation in the new Japanese legal system,saiban-in seido

A new procedure, saiban-in seido, was introduced in the Japanese criminal court in 2009.1 1. This article was written before the Saiban-in seido started. A mixed tribunal of three professional judges and six lay people selected from a list of voters deliberate the verdict in serious criminal cases such as murder, rape, and arson. This study researched lay people's attitudes toward the new system, their psychological knowledge (e.g. the reliability of eyewitness testimony) and legal knowledge (e.g. ‘presumed innocent’), and the relationship between attitude and knowledge. Study 1 examined the responses of 294 citizens to a questionnaire; 90 responses were examined in Study 2 (both samples consisted of two age groups, i.e. (1) 20s and (2) 40s and 50s, and two education levels, i.e. (1) college or below and (2) university or more. In both studies, respondents showed concerns about their lack of ability and knowledge to become a lay judge. Although legal knowledge was related to attitude – i.e. the more legal knowledge, the less negativity – no relationship was found between psychological knowledge and attitude. Relevant support for citizens to become lay judges was discussed.     

论“混合制”陪审模式的建立

人民陪审制在我国是舶来品,其建立的基本理念主要有两个方面:一是实现人民参与国家政权的管理和司法民主;一是通过人民陪审员的参与,实现准确认定案件事实、适用法律的目的。我国目前人民陪审制的实际运行与以上两个理念冲突,无法实现人民陪审制的功能。在审判方式改革日益深入的当今时代,英美国家的陪审制对我国人民陪审制的完善具有一定的借鉴意义。为此,我国的人民陪审制改革应在立足人民陪审员对法律适用具有一定的发言权的基础上,借鉴英美陪审制的合理因素,建立我国混合式的人民陪审制。     

Faith in the Court: Religious Out‐Groups and the Perceived Legitimacy of Judicial Decisions

The question of whether judges’ personal characteristics and values bias their decision making has long been debated, yet far less attention has been given to how personal characteristics affect public perceptions of bias in their decision making. Even genuinely objective judges may be perceived as procedurally biased by the public. We hypothesize that membership in a religious out‐group will elicit stronger public perceptions of biased decision making. Using a survey experiment that varies a judge's religious orientation and ruling in a hypothetical Establishment Clause case, we find strong evidence that judges’ religious characteristics affect the perceived legitimacy of their decisions. Identifying a judge as an atheist (a religious out‐group) decreases trust in the court, while identifying the judge as a committed Christian has no bearing on legitimacy. These results are even stronger among respondents who report attending church more often. Thus, we argue that perceptions of bias are conditioned on judges’ in‐group/out‐group status.     

Potential Impact of Research on Adolescent Development on Juvenile Judge Decision‐making

This paper discusses how biological and psychological literature on the developmental differences between juveniles and adults may affect juvenile judges in their “dual role” as retributive and rehabilitative decision‐makers in juvenile cases, specifically focusing on sentencing. Particularly, it discusses potential influences of this research on adolescent development regarding four factors known to be integral in juvenile judge decision‐making: legal factors, characteristics of juvenile offenders, and individual structural and social contexts in which judges’ decisions are made. To conclude, implications and recommendations stemming from this discussion are considered.     

人民陪审制的改革与完善——谈“混合制”人民陪审模式的建立

人民陪审制在我国是舶来品,其建立的基本理念主要有两个方面:一是实现人民参与国家政权的管理和司法民主;一是通过人民陪审员的参与,实现准确认定案件事实、适用法律的目的。我国目前人民陪审制的实际运行与以上两个理念存在一定的冲突,无法实现人民陪审制的功能。在审判方式改革日益深入的当今时代,英美国家的陪审制对人民陪审制的完善具有一定的借鉴意义。为此,我主张我国人民陪审制的改革在立足人民陪审员对法律适用具有一定的发言权的基础上,借鉴英美陪审制的合理因素,建立混合式的人民陪审制。     

From Bail to Jail: The Effect of Jail Capacity on Bail Decisions

One of the more important decisions made by judges in the criminal justice system is the bail decision. Factors that judges take into consideration when making a bail decision, such as seriousness of the offense, flight risk, and public safety, are typically seen by researchers as the primary determinants of such a decision. However, one aspect that researchers have not studied extensively—rated jail capacity – could play an important role in a judge’s decision. Overcrowding in jails leads to numerous problems, both for the offender and the system itself, so judges may be more willing to release offenders into the community during the pretrial period if the local jails are overcrowded. The current study examines the effect of rated jail capacity on decisions regarding bail amounts, release on recognizance (ROR), financial release, and conditional release in eight Florida counties. Results indicate that rated jail capacity plays a role in judges’ bail decisions, suggesting that judges are concerned about housing more pretrial offenders in crowded jails.     

HOW JUDGES THINK ABOUT RACIAL DISPARITIES: SITUATIONAL DECISION‐MAKING IN THE CRIMINAL JUSTICE SYSTEM*

Researchers have theorized how judges’ decision‐making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing. Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge's own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws. We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision‐making in organizational contexts.     

国人对民决团在英美法庭中的功能的误解

民决团仅仅负责事实审,决定事实问题;法官则负责法律审,决定法律问题。这个认识的错误在于：普通法中没有“事实审”、“法律审”的术语,这是国人杜撰出来的。普通法事实发展出来法律,法律是事实的积累。民决团事实上既决定法律又决定事实。它在美国,具有最高权力,大于总统、国会和最高法庭。另外民决团在美国7个州还决定量刑,在有死刑的州,还决定死刑。事实与法律的区分和混合,有助于法官将复杂问题交给民决团决定并在上诉中捍卫民决团的最高权力;也有助于法官对法律问题下命令、进行违宪性审查。总之,理解民决团的最高权力,是理解普通法的关键。     

Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening

This article examines how a politics of speed is manifest in a legal context via a detailed ethnography of the French National Court of Asylum (CNDA). It identifies the temporal, spatial, and organizational ordering techniques that characterize asylum appeals in France and discusses the consequences of these techniques for the way in which the appeal process is experienced by legal decision makers and subjects. It reveals adverse impacts of legal quickening on legal quality, in particular through identifying: ‘cracks’ in the performance of legal roles like lawyer and judge that begin to appear when law is executed rapidly and repetitively; dwindling opportunities to demonstrate and experience respect between parties; and the ‘thinning-out’ of legal process, as heuristics rather than deliberation come to dominate legal reasoning. The article contributes to a burgeoning body of socio-legal literature on law and time by establishing the negative impact of excessive legal quickening on role performance, respect, and legal quality.     

论法官直接认知与司法鉴定的界分

法官直接认知是法官直接对本案适用的法律、相关待证事实无需当事人举证证明或者在当事人举证已经达至证明标准时,直接加以确认形成内心确信的情形。司法鉴定是请求专家对案件事实或者证据事实出具相关意见的一种辅助证明活动。在我国的司法实践中存在着逃避法官直接认知而滥用司法鉴定的不良现象,应当在理论、立法和司法上准确理解法官直接认知和司法鉴定的功能与范围,二者不可简单替代,尤其不能以司法鉴定代替法官直接认知。     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

The feasibility and utility of pretrial instruction in the substantive law

Jurors are traditionally instructed in the governing law after trial, just prior to deliberation. Several legal scholars have proposed that instructing jurorsprior to trial would better equip them to evaluate the evidence and integrate it with the law. The most controversial aspect of this position is preinstruction in thesubstantive law. Critics warn that substantive preinstruction may impair jurors' performance and that it poses unreasonable administrative problems. This research surveys the opinions of California Superior Court judges on the advantages and disadvantages of substantive preinstruction to understand the reasons that judges either do or do not preinstruct on substantive issues. The most important advantage to emerge was the potential for a substantive precharge to improve jurors' integration of facts and law. The most critical disadvantages were administrative ones: The judge does not know before trial what substantive instructions are appropriate, and the procedure may cause burdensome delays.     

Popular legal participation in China and Japan

The purpose of this paper is to examine two contrasting styles of the mixed-court system in China and Japan and investigate the extent of their civic legal participation in both nations. In 2004, Japan passed the Quasi-Jury Act to introduce a system of popular legal participation in criminal trials, where defendants have their guilt and sentence determined by a judicial panel of both professional and lay judges. In the same year, the Standing Committee of the Chinese People’s Congress also promulgated the Resolution about the Improvement of the Lay Assessor System in 2004 (the Lay Assessor Act in 2004²) to revise the system of popular participation in law. The act was designed to correct the defects of the lay assessor system that have been sharply criticized by the Western observers for their lack of institutional effectiveness, minimizing the use of lay assessors, pointing at lay assessors’ participatory incompetence and passivity, and disapproving of insufficient funding, among others.There has been, however, little study critically examining the effectiveness of the revised system under the Lay Assessor Act in 2004 in China. In Japan, the first ever quasi-jury trial began in August 2009, but its quasi-jury system suffered from a lack of publicity and insufficient public knowledge about the system, thereby creating the wide-spread public reluctance, or even strong resistance, to participate in the system.The present research is an attempt to shed both theoretical and empirical light on the effectiveness of popular legal participation in these two powerful jurisdictions in East Asia. As both nations are working to adopt a democratic system of popular legal adjudication, this study will provide important clues to measuring the nations’ commitment, as well as the success or failure of the respective governments’ efforts, to democratize their systems of popular participation in legal decision-making.