Lay Judges and Juries in Israel

Amongst democratic countries, Israel is within a minority in that it does not allow lay judges or juries to participate in criminal trials (lay judges participate in labour courts in Israel). Of course, Israel is not the only country in this category – for example, in the Netherlands and Czech Republic questions of both fact and law are decided by professional judges, with no input from laity.

At the same time, most Western countries have people participate in the rendering of justice in some capacity. For example, the institution of lay judges has a long tradition in Germany, where most criminal trials are conducted by a panel of one to three professional judges joined by two to three lay assessors. Lay judges decide questions of both fact and law and are provided with extensive legal training before being elected to their position.

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On the other hand, countries following common law, like the US or UK, have a system of juries. Juries are randomly selected from a pool of jurors, who in turn are drawn from voter lists and other registries. They decide questions of fact only (in some US states a jury also decides the question of the death penalty).

In any case, the participation of the citizenry in criminal trials has many benefits. It increases public confidence in the judgment. It allows a person to be tried by a body of their peers, who might understand an individual’s circumstances better. In addition, lay judges can bring expertise in certain fields, of which a professional judge might be ignorant.

I think that Israel should introduce a system where the laity would be able to participate in criminal trials. I do not think that the jury system would serve Israel well, even though Israel is a common law country. Lay judges have a few benefits over the jury system, which would be especially important in Israel.

The jury, for all intents and purposes, bears no consequences for its decisions. A jury can reach a perverse verdict (jury nullification in the US), for wrong reasons, and walk away scot-free. I can easily imagine a Jewish jury wrongly convicting an Arab defendant (or acquitting a Jewish defendant, who committed a crime against an Arab), and Arab jury doing the same.

Lay judges, unlike juries, must face the consequences of their actions. While lay assessors can outvote a professional judge, they, unlike jurors, face re-election, and thus would be far more mindful of their actions. Also, unlike jurors, lay judges serve on multiple cases, and are provided with some legal education, and thus are inclined to take their duties far more seriously.

In conclusion, a system of lay assessors, properly chosen for their positions, would increase transparency in Israeli criminal justice system, provide for citizens’ input into it, provide external expertise to courts, increase citizen’s awareness of the judicial system, while at the same time avoiding the formation of sectarian juries.