Jury trials - alternatives: evidence briefing

Annex III: Modes of Trial in Different Countries

Overview of the modes of trials in different countries. Note that the list is not exhaustive but illustrates the variety in alternatives to the Scottish system.

Australia

Mode of trial: Single judge or jury

In some of the States and Territories of Australia it is possible for the defendant to request a trial by judge instead of jury. States have slightly different rules when a single judge trial will be granted (see box 3).

All States and Territories follow an adversarial system.

Belgium

Mode of trial: Single judge or 3 professional judges and 12 person jury

Serious offences (including rape) should be tried by 3 judges and jury, however cases can be 'correctionalised' – artificially downgraded to a less serious offence – in order to be tried in a lower court by a single judge (as alternative to plea bargaining).

Follows an inquisitorial system (pre-trial), although jury trial has adversarial elements.

Canada

Mode of trial: Single judge or 12 person jury

Rape cases can be tried both in front of a single judge or a jury.

The Criminal Code of Canada provides the accused the right to elect a trial by single judge or a trial by judge and jury. (with the exception of the most serious offences including murder, treason and terrorism, in those cases the crown attorney has to consent to a single judge trial).

Most criminal offence cases are tried in provincial/territorial courts.

Denmark

Mode of trial: Single judge or panel of judges and lay judges (either 1 judge with 2 lay judges or 3 judges and 6 lay judges depending on severity of crime)

Rape cases are heard by a panel of 3 judges and 6 lay judges.

The lay judges are nominated by social organisations, mainly political parties. The judges sit together with the jury when considering the verdict. Two of the three judges and four of the six lay judges most agree on the verdict.

Germany

Mode of trial: Single judge or panel of judges and lay assessors

Rape cases are heard by a panel of three judges and two lay assessors. The panel works collaboratively and decisions are made by majority. Lay assessors are drawn from a list of people who self-nominate.

It follows a mainly inquisitorial system (judges have a leading role and court has duty to control examination although defence and prosecution support by presenting evidence)

Japan

Mode of trial: Single judge, panel of 3 judges or saiban-in system (panel of 3 professional judges and six lay judges)

The Saiban-in system was introduced in 2009 and hears serious criminal cases, including rape. The panel is responsible for both verdict and sentencing.

In the Saiban-in system a guilty verdict can be given by a majority vote of the lay judges plus at least one of the professional judges. A majority not-guilty verdict by the lay judges is enough for acquittal.

Follows an inquisitorial system

The Netherlands

Mode of trial: Single judge or panel of 3 judges

The most serious sexual offences will be tried by a panel of three professional judges.

Follows an inquisitorial system.

New Zealand

Mode of trial: Single judge or a 12 person jury

In serious sexual offence cases the defendant can opt for a jury trial (judge can override request in offences that carry less than 14 years imprisonment and case is either long/complex or there is a risk of intimidation or jury tampering).

New Zealand is also running a Sexual Violence Pilot Court in Auckland and Whangarei.

Follows an adversarial system.

Norway

Mode of trial: Mixed court (lay and professional judges share decision-making)

In first instance criminal cases are heard by 2 lay and 1 professional judge, with more complex cases having 3 lay judges and 2 professional judges. In appellate court there is a mixed panel of 5 lay and 2 professional judges. Lay judges are picked the municipality for a four year period, mainly nominated by political parties.

Follows an adversarial system.

Sweden

Mode of trial: Panel with one professional judge and three lay judges

Follows an adversarial system, with the victim not regarded as a witness but assuming the role of party in the trial alongside the prosecutor. The victim is entitled to a lawyer who has the authority to challenge proceedings.

The lay judges are nominated by social organisation, mainly political parties.

Trinidad and Tobago

Mode of trial: Single judge or jury

Since 2019 the defendant can choose whether they want a trial by jury or single judge in (serious) criminal cases.

Follows an adversarial system

United states

Mode of trial: Single judge or jury

In some of the States in the US it is possible for the defendant to request a trial by judge instead of jury.

For example, in Texas defendants have the right to waive a jury trial (unless charged with capital murder), but the prosecution and judge have to agree. In Maryland, the defendant can choose a trial by judge with the prosecution having no say in the decision.

All States follow an adversarial system

How to access background or source data

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