Juries and Mixed Courts in Civil-Law Systems. Part I: Europe

Juries are a form of lay participation in court proceedings, in that juries are empaneled with lay persons selected for a given case. They act as triers of fact, whereas the judge acts as the trier of law. Juries date back to the English Magna Carta in 1215, but they also have earlier roots tracing back to Roma, with juries that likely were not identified as such. As the US Jury developed, so have jury systems outside the common-law sphere.

The role of judges and prosecutors varies by the legal tradition in a particular country’s jurisdiction: inquisitive or adversarial approach. Civil law legal systems generally use the inquisitive approach more, whereas the common law systems follow the adversarial approach. Many systems, however, are hybrid, in that they traditionally followed the inquisitive approach, but have adopted (or attempted to do so) characteristics of the adversarial approach.

Under the inquisitive approach, the judge oversees the criminal case and directs the process. Particularly they are more involved in an extensive preliminary investigation process to determine whether a crime was committed, and ultimately avoid, as possible, bringing an innocent person to trial. This investigation process is called Sumario or Instrucción in Spanish-speaking jurisdictions, where Judges are known as jueces sumariantes / instructores / de instrucción (investigating judges), described in Spanish as: “el juez que instruye el sumario.” The Civil Law Tradition book refers to them as “instructing judges” and mentions that [depending on the jurisdiction] the judge deciding the case then considers the summary record transmitted to him/him by the hearing judge (114-115).

Under the adversarial approach, the judge serves as a neutral referee or passive umpire to ensure fairness to the accused, and as an arbiter of the law to ensure that the legal rules are followed in criminal procedure. Both sides are heard in an open contest between the prosecution and defense (following the “Adversarial principle,” e.g., the right of confrontation) to determine the facts and application of the law accurately in the adjudication process. In this way, the lawyers are the “competing directors” of the “play” that is put on before the trier of fact when they are also “super-actors” not only performing but creating their own part as the play progresses. As though they direct the proceedings and divert attention away from the accused, while the continental judge directs the proceedings and focuses on the accused.

More of this comparative approach can be read in Adversary Excesses in the American Criminal Trial by the Notre Dame Law Review. With that said, when opening a case in criminal procedure, generally, there is a preliminary investigation stage in civil law systems, where there would be a preliminary proceeding in common-law systems.

In Western Europe, particularly France, separate assessment and bodies of fact and law were abolished and replaced by mixed courts. In mixed courts (tribunales mixtos; tribunales de escabinanos; escabinados; escabinatos), there is no verdict (indeed, there are exceptions to this rule), as the judicial body functions as a single court where lay judges and professional judges reach a decision in the form of a judgment of acquittal or conviction (Sentencia absolutoria o condenatoria).

Like caselaw, juries have been adopted in many civil law systems, making them hybrid.  As my colleague Rebecca Jower explains in her lexicon of Spanish-English legal terminology, with a whole section on Spanish Jury Trial terminology (23.3 Proceso ante el Tribunal del Jurado / Trial by Jury), Spain has Tribunales de Jurado, which operate more like jury trials (rather than a court in a physical sense) in provincial courts, superior courts, and the Spanish Supreme Court. Spain even has its own Jury Legislation effective since 1995 (Ley Orgánica 5/1995, de 22 de mayo, del Tribunal del Jurado, setting out jury trials), available in PDF here.

A law journal article in Spanish worth checking out, with considerable terminology on mixed court and jury systems, is El Jurado Español, El Jurado Anglosajón Y El Escabinato. Instrucciones Y Veredicto. The Spanish Jury was established following the “modelo de Escabinato” (mixed court systems, consisting of professional and lay judges)––continental style.

Spain stands unique from Western European jurisdictions, in that it sort of had adopted the notion of “unanimous lay jury” in favor of a mixed court model, keeping the trying of fact and law inseparable and satisfying the constitutional requirement for reasoned verdict, as particularity provided in the 1995 Jury Legislation and commonly used in the mixed court model, in contrast with the US jury.

To conclude this post, I will discuss Latin American juries and include a related term list in Part II in the next post.


Jower, Rebecca. Thematic Lexicon of Spanish-English Legal Terminology.

El Jurado Español, El Jurado Anglosajón y El Escabinato

Kessel, Gordon Van. “Adversary Cecesses in the American Criminal Trial,” Notre Dame Law Review.

Merryman, John Henry and Pérez-Perdomo, Rogelio. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, Fourth Edition, Redwood City: Stanford University Press, 2018.

Ley Orgánica del Tribunal del Jurado (“Spanish Jury Act”) (Ley Orgánica 5/1995, de 22 de mayo, del Tribunal del Jurado), https://www.boe.es/eli/es/lo/1995/05/22/5/con

About Seth Phillips

- Legal and Financial Translator (10 years) - Avid Marathon Runner (16 full marathons and 30+ half marathons)
This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s