FOOTNOTES:

FOOTNOTES:[35]Cf. "Light Sentences and Pardons," by Frederick Bausman, 39 American Law Rev. 727.

[35]Cf. "Light Sentences and Pardons," by Frederick Bausman, 39 American Law Rev. 727.

CHAPTER XI

THE JURY

Is trial by jury successful in criminal cases? Certainly it is popularly so regarded. Even lawyers and prosecutors will usually agree that it "works substantial justice," but this does not answer the question. In about three cases out of five "Judge Lynch" himself works "substantial justice." The function of the jury is not to "work justice" at all, but to decide a limited question of fact. They are there for the purpose of determining the issue without prejudice on the one hand or sympathy upon the other, and having no regard for the consequences of their verdict; they must accept unquestioningly the law from the judge upon every point and base their conclusions solely upon the sworn evidence in the case. This they swear that they will do. Yet they do not. Why? Is it want of intelligence, lack of regard for law, or vital misconception of their function?

Certainly it is not from want of intelligence. There can be no question as to the capability of the ordinary juryman to perform his duties. The independent American is singularly adapted to just this form of investigation. If the English be "a nation of shopkeepers," we are a nation of natural cross-examiners. You will find fully as good verbal fencing in a New England corner grocery store about mail time as you will in most courts of justice. But the very innate capacity of the native American to perceive the truth and get to the bottom of things, leads him to believe that he knows equally well, if not better than the judge, what ought to be done about it and what punishment, if any, should be inflicted upon the defendant under the circumstances. It is not that our jurors are incapable or uninterested, but, paradoxical as it may seem, that they are too capable and too interested. They want to be not only jurors, but district attorney, counsel for the defendant, expert witness, and judge into the bargain.

Your shopkeeper in England makes a less intelligent, but a far more satisfactory juror. There they will empanel a jury in a few moments in a capital case, and so deeply implanted in the bosom of each juryman is a respect for the law as such and an inherited reverence for the judiciary, which its uniformly high character has done so much to foster, that, provided the facts are sufficiently established, the sex of the defendant, the condition of his or her family, the character of the motive for the act, will not be the subject of discussion or even of consideration in determining the verdict. It is enough that they are sworn to decide the facts and the facts alone. They are told by the judge what evidence they may consider, and what facts theymay notconsider, and did they not obey his instructions they would receive the severe censure of the public and the press.

There is an historical reason for this. In 1666, when a jury found a verdict of manslaughter after having been instructed that the evidence showed that it was murder, Kelyng, C.J., promptly fined them five pounds apiece. On petition, he reduced it to forty shillings, "which they all paid." In 1667 he fined eleven of the grand jury twenty pounds apiece for refusing to indict for murder. The judges of the King's Bench said he was quite right, adding, "and where a petty juror, contrary to directions of the court, will find a murder manslaughter, ... yet the court will fine them" (Kingvs.Windham, 2 Keble, 180). For centuries it was the common practice to punish severely by imprisonment, fine, and attainder juries who refused to convict on what appeared to the court to be sufficient evidence. Perhaps Throckmorton's case in 1554, when the jury acquitted the defendant of treason, is the most famous illustration of this. The court committed the jury to prison, eight being confined from April 17 to December 12, and on their discharge fined them, some sixty and some two hundred and twenty pounds apiece. The reasoning under the circumstances was obvious. If a jury found a man guilty improperly, he could be pardoned, but "if, having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime ... the prisoner escapeth...." It is refreshing to observe that even English juries "will do [this] sometime." All this naturally created, as it was designed to create, a tremendous regard for the judge and his instructions.

There is at the present time little of this wholesome regard for law in America. The jury realize that the judge's elevation to the bench is often a matter of politics alone, and sometimes have comparatively little respect for his character, learning, or ability. They frequently feel by no means confident that the punishment will fit the crime, and are anxious, so far as they can, to dispose of the case for themselves. For example, in one case where three defendants were found guilty of stealing in companya single article of value, the jury rendered a verdict of grand larceny in the first degree against one, grand larceny in the second degree against another, and petty larceny against the third. They did this because of the varying ages of the defendants, but in so doing obviously violated their oaths and usurped the functions of the judge. Very likely "substantial justice" was accomplished.

There are hundreds of jurors who, having in all honesty taken the oath to "a true verdict find," will, once in the jury-room, frankly turn to their fellows and exclaim: "Oh, let him go! He's only a kid. Give him another chance!" "Substantial justice," again at the expense of our regard for law.

As an example of what may occur, the case of Rosa di Pietro, tried for murder before the Recorder, in December, 1904, is illuminating. The defendant was a young Italian woman of good repute charged with shooting and killing her brother-in-law, who, the evidence clearly showed, had endeavored to persuade her to yield to his desires. She claimed to have shot him in self-defence. Her story was so obviously a fabrication that no jury could have believed her, and must have found (if they had considered the matter at all) that she pursued her would-be seducer down the stairs and shot him in a dark hallway, as he was leaving the building. A "special" jury of perfectly intelligent men promptly acquitted her. The writer presumes that after this all the Italian residents will get their wives to do their killing for them.

In a well-known case the jury found the defendant guilty of manslaughter, instead of murder, because one of their number had read that the prisoner hadbeen a "Rough Rider" in the Cuban campaign. After they had returned their verdict they learned that he had been nothing of the kind.

The action of the New York County jury in a criminal case is right as to the defendant's guilt or innocence about four times out of five, but less frequently as to the appropriatedegreeof crime.[36]The percentage of proper verdicts differs, of course, in different varieties of crime. In cases of common felony, such as larceny, burglary, rape, robbery, arson, forgery, etc., it is usually high; in homicides and gambling much lower; and in commercial frauds and liquor-tax cases smaller still, the number of convictions being inconsiderable. Making due allowance for the unconscious prejudices, sympathies, and idiosyncrasies of mankind, we have still, as citizens, a right to demand a far higher degree of accuracy in the verdicts of our juries—to expect the murderer to be found guilty of murder and the thief to be stigmatized as a thief. What is the explanation for this?

The fundamental reason for the arbitrary character of the verdicts of our juries lies not in our lack of intelligence as a nation, but in our small regard for human life, our low standard of commercial honesty, our hypocrisy in legislation, our consequent lack of respect for law, and the general misapprehension that the function of the jury is to render "substantial justice"—a misapprehension fostered by public sentiment, the press, and even in some cases by the bench itself, to the complete abandonment ofthe literal interpretation of the juror's oath of office.

The writer has heard judges from the bench congratulate juries upon having rendered a "merciful verdict"! They are popularly expected "to temper justice with mercy," "exercise a wise discretion," and "to be moved to magnanimity." But the jurors who satisfy their emotions at the expense of their honesty, and the judge who countenances the performance, are worse law-breakers than the defendant himself.

We carry upon our statute books laws which we have no intention of enforcing, and which, in our present state of development, are actually unenforceable. Even law-abiding, law-loving, and (ordinarily) conscientious jurors will become lawless when compelled to sit in a case of this character. Thus while the three judges of Special Sessions find guilty some sixty per cent of those brought before them for violations of various phases of the liquor-tax law, a conviction by a jury in the General Sessions is practically unheard of. The grand jury have now reached the point where they practically refuse to indict at all in liquor-tax cases.[37]Just as long as we havehypocrisy in religion, in business, and in legislation, so long shall we have hypocrisy in our courts of justice.

Of course, as we live in an age when violence is found inconvenient and annoying, your jury naturally condemns by its verdict crimes of a violent character, and will make but short work of highwayman and thug. Burglars are unpopular both with the public and with the juror; and it needs no burst of rhetoric to induce a jury to find a verdict against a "firebug" or a "cadet." But once step into that class of cases, the subject of which is commercial fraud, and the jury look upon the prosecution withaverted eye. Just so long as dishonesty of one kind or another is openly countenanced in business, just so long it will be practically impossible, except under unusual conditions, to convict the fraudulent bankrupt or the retailer who has secured goods and credit upon false representations. Mayhap there is upon the jury some tradesman who has "padded" his own credit statement; some one who has placed a fictitious valuation on his stock, or has told alluring but unsubstantial stories as to his "orders on hand," "cash in bank," and "bills receivable." What chance under those circumstances of a conviction?

"The jury, passing on the prisoner's life,May have in the sworn twelve a thief or twoGuiltier than him they try."

"Why," says a juror, "here they are trying to convict this fellow Einstein of what everybody does every day in the year. Rubbish! AmIa thief!Idon't have anycriminal intent. He was just tryin' to boost his assets a little. He's no criminal." And out he goes to the jury-room and persuades the other eleven that the defendant is no worse than everybody. Of course, everybody isn't a thief. The syllogism is irrefutable.

"I suppose you didn't believe that Mr. Einstein made those false statements?" says the writer, approaching him as he steps into the corridor. The juror pauses in lighting his cigar.

"Sure, he made 'em!" he remarks. "Ofcoursehemade'em! But,H—l, he's no criminal!" This is an actual experience.

Our distaste for physical violence has had a rather paradoxical result so far as the jury is concerned,for it appears to be coupled with a small (and what seems to be a decreasing) regard for human life. Verdicts of murder in the first degree are exceedingly rare, and it requires a crime of a peculiarly atrocious character to induce the jury to send the defendant to the electric chair. This is due in part to cowardice and in part to the misconception of their function already dwelt upon, since in almost all murder cases the jury regard themselves as fixing the penalty. Inasmuch as most persons who meet death from violence are themselves of violent character, the jury frequently seems to believe that the defendant is entitled to a certain amount of consideration for ridding the community of his victim, and this often finds joyful expression in a verdict of manslaughter.

Totally distinct, however, from this trifling with justice, whether it be wilful or voluntary, is the unconscious bias of each member of the human family due to race, religion, education, and character. Hence jurors are examined with an elaborate care and minuteness of investigation which in practice is often shown to be ridiculous. In fact certain maxims having almost the force of legal doctrines have grown up about the selection of a jury. A defendant's counsel will invariably challenge an Irishman if his client be a negro, and vice versa. This is likewise apt to be the case if the client be an Italian. Talesmen with wives and children are generally supposed to be more susceptible to arguments directed to their sympathies. Hebrews are presumed to make particularly undesirable jurors for the defence where the crime charged is one of violence or arson, and are likewise usually challenged when the defenceis self-defence. Old men are popularly supposed to make indulgent jurors, although the writer's own experience is to the contrary, and he has noticed that persons with long, drooping mustaches are invariably excused. Neither side as a rule cares for missionaries or persons engaged in philanthropic enterprises, since the prosecutor feels instinctively that their eleemosynary tendencies will extend to the prisoner, while the defence has a presentiment that they will lead him to favor the damaged complainant. Writers, editors, and publishers are generally excused by the defence astoo intelligent,i.e., too prone to theoretic arguments as distinguished from a "broad view," which from the prisoner's standpoint means one including every sympathetic reason that can be suggested. Artists are distrusted by prosecutors as romantic and imaginative. Butchers, coffin-makers, sextons, grave-diggers, undertakers, and dealers in electrical supplies are invariably excused for obvious reasons by the defendant in homicide cases. Liquor dealers are believed to be prone to take a lenient view of the shortcomings of humanity in general, while persons of brisk, incisive manners naturally suggest heartlessness to the cowering defendant. The writer knows an assistant who will not try a case if there is a man with a pompadour on the jury, and neither prosecution nor defence cares for long-haired jurors of the "yarb doctor" variety, while the dapper little man with the "dickey" and red necktie is invariably excused by the defence unless the defendant be a woman.

The frivolous character of these rules needs no comment. Almost every lawyer and every prosecutor believes himself to be a past master in the studyof character from external evidence, and upon the most trivial and unnatural of pretexts will challenge a talesman so unfortunate as not to suit his fancy. Yet when all is done and when, after the most exhaustive examination and cross-examination of several hundred special talesmen, wrenched from their places of business or the bosoms of their families, twelve men have been finally selected and sworn, it is probable that they are in no respect superior to the first twelve who might have been chosen.

In murder cases each side may challenge peremptorily thirty talesmen, and numerous are the legal "jumps" over which they must successfully ride before they can qualify for service. Thus it is unusual in a homicide case to select a jury in less than two days, and in some instances it has taken two weeks. On the other hand, equally satisfactory juries have occasionally been selected in such cases in less than an hour.

The general futility of trying to secure a jury of particular capacity or intelligence, or one which will contain no juror of pronounced idiosyncrasies, is rather well illustrated by the following incident: The defendant's counsel, a man of considerable repute at the criminal bar, had spent over two days in the elaborate selection of a jury. It had taken him two hours to get a foreman to his fancy, but at last he had accepted a solid-looking old German grocer. After a trial lasting several days the jury convicted the defendant in short order, greatly to the disgust of the eminent lawyer, who vented his indignation rather loudly in the presence of the foreman as he was leaving the box. The old German leaned over good-naturedly and remarked, pointing to the doorin the back of the court-room leading to the prison pen: "Vell, Mr. ——, if you vant to know vat I tinks, I tells you. Ven I see him come in through dot leetle door back dere, den Iknowshe's guilty!"

This lawyer now selects a jury in thirty minutes.

Of course, some examination into the general qualifications of jurors and their possible bias in the case is imperative, and frequently the interposition of a peremptory challenge is not only justifiable, but absolutely necessary. A talesman will sometimes betray by an inflection of his voice a sentiment or prejudice which hiswordsdeny, or suggest to the vigilant counsel for the defendant the juror's susceptibility to the insidious flattery of the prosecutor in making him a part of the "organization of the court."

During the selection of a jury to try Moran, the dynamiter, in March, 1906, before Judge Foster, in the General Sessions, a little old man took the stand who qualified satisfactorily as a juror so far as the prosecution was concerned. Daniel F. Cohalan, attorney for the defendant, then took him in hand somewhat as follows:

"Have you any prejudice against a man accused of crime?"

"I have not," replied the little old man.

"Or against this defendant?"

"I have not."

"Do you think you would make an absolutely fair and impartial juror?"

"I do."

"Do you know of any reason to the contrary?"

"I do not."

Cohalan turned to another line of examination.

"Do you read the papers?"

"Yes. Yes."

"What paper do you read?"

"What paper?"

"Yes. What paper do you read in the morning?"

The little old man settled himself in his chair and, eyeing Cohalan suspiciously, replied:

"I read theHerald,Times,World,Journal,Sun,Tribune,Press,Staats Zeitung,Telegraph——"

"Stop!" cried Cohalan feebly; "that's quite enough. Don't you do anything but read the papers?"

The little old man regarded the lawyer scornfully.

"I spend six hours a day keeping myself informed of what is going on. I flatter myself that there is nothing in the whole world with which I am not fully acquainted. Knowledge is power!"

Cohalan collapsed into his seat.

"That is all. You are excused. You know too much for us!"

As the little old man shuffled off he whispered to the prosecutor:

"I'd have given the —— twenty years!"

On the other hand, the hyper-sensitiveness of counsel renders it easy for talesmen to escape who do not wish to serve. The writer knows an estimable man who is regularly drawn about four times a year upon the special jury. He has never served. His method is as follows: Having taken his seat upon the witness-stand he wrinkles his forehead and looks fiercely at the defendant. When asked if he has any objection to capital punishment he thrusts out his under jaw and exclaims: "I shouldsay not! I think hangin's too good for 'em!" In reality he is themildest, the most sympathetic and the "easiest" of human beings. Another observant talesman who appears periodically has learned, the writer believes, his trick from the first. His stock reply to the same question relative to capital punishment is, "I havenot. I believe in the Biblical injunction of 'an eye for an eye,' and 'a tooth for a tooth,' and, 'Whoso sheddeth man's blood by man shall his blood be shed.'" Needless to say, he leaves the stand with the same alacrity as the other. Jurors readily enter into friendly relations with the prosecutor and defendant's counsel, but rarely with any effect upon their verdicts. In the first trial of Mock Duck, a Chinaman indicted for murder, where the defence interposed was an alibi, to wit, that the prisoner had been buying a terrapin in Fulton Market at the time of the commission of the crime (whence the prosecutor claimed that it was the case of a Mock Duck with amock turtledefence), a juryman met the defendant's counsel during recess and told him that there was no further need for him to call any more witnesses for the defendant, as the jury "understood the situation perfectly." The lawyer took the hint, and upon the reopening of court closed his case, feeling sure of an acquittal or at least of a disagreement. When the jury had retired the talesman in question made a long speech in favor of murder in the first degree, and refused to vote for any other crime. Such performances are rare. Of course, it not infrequently occurs that a juror by his manner of asking questions shows plainly his state of mind. The feelings of a prosecutor can be easily imagined when a juror turns in disgust from one of the People's witnesses, or those of a defendant's counsel when another,looking towards the prisoner, grinds his teeth as the evidence goes in and ejaculates, "Brute!"

The jury offers a fertile field for the study of human nature, and lawyers and prosecutors learn to look regularly for certain characters. Of these may be mentioned the too officious juror who asks hundreds of incompetent and irrelevant questions to which the lawyers are naturally afraid to object, and whose inquisitiveness has to be curbed by the court itself. Such a juror usually shows much conviction one way or the other in the early stages of the case, and before he has heard the evidence. Unfortunately his executive abilities usually fill the balance of the jury with such disgust that to have a juror of this sort on one's side is more of a misfortune than a boon.

Jurors of this variety frequently at inopportune moments interrupt counsel during their addresses. In one case an aggressive talesman broke in upon a burst of carefully prepared eloquence with the brutal interrogation: "How about theknife?" The counsel stopped, bowed to the juror, smiled, and said calmly: "Thank you, Mr. Smith, I'mgladyou spoke of that. I am coming to it in a moment." The juror, satisfied, leaned back contentedly, but the lawyer has not "come" to the knife yet.

Practically the thing most desired by prosecutors and lawyers who are both convinced of the justice of their cause is homogeneity of some sort in the jury-box. Naturally antagonistic elements are undesirable, and a wise selector of juries will try to get men of approximately the same age, class in society, nationality, religion, and general character. Of course, this is a difficult matter, but without afriendly and helpful spirit among the jurors cases will result frequently in disagreements. This is naturally less objectionable to the defendant than to the People, for ordinarily it may be said that "two disagreements are equivalent to an acquittal."

The common idea that juries are prone to leave their decisions to chance, as by flipping a coin, or to act upon impulse, whim, caprice, or from a desire to get away, is grossly exaggerated.

It was Pope who sang in the "Rape of the Lock":

"The hungry judges soon the sentence sign,And wretches hang, that jurymen may dine."

Unfortunately, if the jury is hungry or exhausted and anxious to dispose of the case, the defendant invariably gets the benefit of it. The "wretches" don't "hang," but instead are turned out with a rush. Instances of verdicts being determined by such considerations are in fact rare.

Much of the seeming misguidedness of juries in criminal cases is due, just as it is due in civil cases, to the idiosyncrasy, or the avowed purpose to be "agin' the government," of a single talesman. In an ideal community, no matter how many persons constituted the jury, provided the evidence was clear one way or the other, the jury would always agree, since they would all be honest and reasonable men. But just as a certain portion of our population is mentally unbalanced, anarchistic, and criminal, so will be a certain portion of our jurors. In addition to these elements there will almost invariably be found some men upon every panel who are so obstinate, conceited, and overbearing as to be totally unfit to serve, either from the point of view of thepeople or the defence. It is enough for one of these recalcitrant gentlemen that eleven other human beings desire something else. That settles it. They shall go his way or not at all.

The writer believes, therefore, that some allowance should be made for the single lunatic or anarchist that gets himself drawn on about every fifth jury, for if he once be empanelled a disagreement will inevitably follow. This could be accomplished by reducing the number necessary for a verdict to eleven.[38]Hundreds of juries have been "hung" by just one man.[39]The trouble, as Professor Thayer points out, began a long, long time ago in a case reported in the Book of Assizes in 1367.

"In another assize before the same justices at Northampton, the assize was sworn. They were all agreed except one, who would not agree with the eleven. They were remanded and stayed there all that day and the next, without drink or food. Then the judges asked him if he would agree with his associates, and he said never,—he would die in prison first. Whereupon they took the verdict of the eleven and ordered him to prison, and thereupon a daywas given upon this verdict in the Common Bench.

... And afterwards by assent of all the justices it was declared that this was no verdict. It was therefore awarded that this panel be quashed and annulled, and that he who was in prison be enlarged, and that the plaintiff sue a new venire facias....Note, that the justices said they ought to have taken the assize with them in a wagon until they were agreed."

How much happier would not only the eleven, but the twelfth juror, who swore he would "die first," have been if, unanimity not being required, they could comfortably have agreed to disagree and yet returned to court and rendered a verdict.

A jury naturally tends to lean towards the defence—to let the accused go if they can conscientiously do so; to find somewhere a reasonable doubt as to the prisoner's guilt—and it is only because the cases are so well sifted before they come to trial at all, and the wheat separated from the chaff (the defendants in very weak cases being frequently discharged on the recommendation of the district attorney himself), that the percentage of acquittals is not vastly greater.

This natural feeling of sympathy for the accused makes it all the easier for juries to be affected consciously or unconsciously by considerations they have sworn to disregard. Then if the defendant be a woman, or a poor man with a large family, or his crime has injured no one's purse, or restitution has been made, or if the offence charged is merely that of swindling by means of false representations as to credit, or the defendant is very young or very old, or wears a clean collar, or has an attractive personality, or, better, a beautiful wife, he is turned out with a cheer.

"For twelve honest men have decided the cause,Who are judges alike of the facts and the laws."

Yes, the jury system in criminal cases is a "practical success"—and it "works substantial justice." It works the exact justice that we want—the exact justice that we deserve. As we grow to have a greater respect for human life and a higher regard for law and honesty, the verdicts of our juries will continue to keep pace with our condition. Then we shall want something better, and we shall have it. The day will come when dishonesty in business will lead to the ball and chain as assuredly as arson and rape. But the time is not yet.

Then juries will decide the issues submitted to them upon the evidence alone, without prejudice or sympathy, in accordance with the laws which they are sworn to uphold, without truckling to popular sentiment or fear of newspaper disapproval; then they will allow the judge to perform the functions vested in him by law without usurpation by their verdicts; and will "true deliverance make" between the People on the one hand and the defendant on the other. Then there will probably be no need for juries—for there will be no criminals.[40]

FOOTNOTES:[36]This estimate does not apply to the actions of juries outside of New York County. In other cities and in other states, particularly in rural districts, the percentage of convictions is often shockingly small.[37]The following figures may be of interest to those readers who are interested in the question of amending the laws governing the sale of liquor:In the year 1907, out of a total of 1,237 cases which came before the Court of Special Sessions, there were 334 convictions, 7 pleas of guilty, 223 acquittals, 18 discharges and 116 transfers to the General Sessions. During the last eight years, out of a total of 7,416 cases, there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals, 395 discharges, 361 demurrers allowed and 1,144 cases transferred, on the defendants' motion, to General Sessions, to be tried under indictment. During this period, very nearly half the cases have resulted in convictions.These cases were tried, as the reader is aware, by a bench of three judges, who decide both law and fact. Compare this record with the result of 91 transfers, taken as illustrative, from the Special to the General Sessions in 1905. Of course, each case had to be taken first before the grand jury. Eighty-four of these cases were summarily dismissed by that body. In the remaining seven instances, indictments were secured. Four of these seven defendants pleaded guilty, two were acquitted by the jury, one was discharged on his own recognizance and none were convicted. In other words, out of the whole bunch of transfers, less than four per cent of the defendants were convicted, as against nearly fifty per cent of convictions in the Special Sessions, in all liquor-tax cases in the last eight years. In the same period, out of a total of 1,241 cases presented to the grand jury, 987 were dismissed by that body. Of the balance, viz., 254 in which indictments were secured, 25 pleaded guilty, 36 were discharged on their own recognizances, in 12 cases the bail was forfeited, and of the 181 cases which actually were tried before juries, 165 defendants were acquitted and 16 were convicted.In 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. In 1907 there were 98 transferred andall were dismissedby the grand jury.The significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. They can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. The barkeeper who violates the law and is caught, comes to trial in the Special Sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. The owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. This process can be continued indefinitely. But when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. These are the men who apply for and are apparently able to secure transfers of their cases to the General Sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. The transfer of a liquor-tax case upon the order of the judge sitting in Part I of the General Sessions is practically tantamount to a dismissal of it.[38]Whatever the actual origin of the number twelve for this purpose there certainly lingered in olden times a feeling that it had a sacred or foreordained character, and in Duncomb's Trialsper pais, the following illuminating explanation is to be found:"And first as to their number twelve: and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve. Therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the Exchequer Chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)[39]Cf. "Criminal Law and Its Administration," by Robert Earl, 2 Columbia Law Rev. 144.[40]Many cases result in mis-trials owing to the sickness or death of a single juror. In persecutions which it can be foreseen will be long the swearing of anextra jurorwould obviate this difficulty. Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.

[36]This estimate does not apply to the actions of juries outside of New York County. In other cities and in other states, particularly in rural districts, the percentage of convictions is often shockingly small.

[37]The following figures may be of interest to those readers who are interested in the question of amending the laws governing the sale of liquor:In the year 1907, out of a total of 1,237 cases which came before the Court of Special Sessions, there were 334 convictions, 7 pleas of guilty, 223 acquittals, 18 discharges and 116 transfers to the General Sessions. During the last eight years, out of a total of 7,416 cases, there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals, 395 discharges, 361 demurrers allowed and 1,144 cases transferred, on the defendants' motion, to General Sessions, to be tried under indictment. During this period, very nearly half the cases have resulted in convictions.These cases were tried, as the reader is aware, by a bench of three judges, who decide both law and fact. Compare this record with the result of 91 transfers, taken as illustrative, from the Special to the General Sessions in 1905. Of course, each case had to be taken first before the grand jury. Eighty-four of these cases were summarily dismissed by that body. In the remaining seven instances, indictments were secured. Four of these seven defendants pleaded guilty, two were acquitted by the jury, one was discharged on his own recognizance and none were convicted. In other words, out of the whole bunch of transfers, less than four per cent of the defendants were convicted, as against nearly fifty per cent of convictions in the Special Sessions, in all liquor-tax cases in the last eight years. In the same period, out of a total of 1,241 cases presented to the grand jury, 987 were dismissed by that body. Of the balance, viz., 254 in which indictments were secured, 25 pleaded guilty, 36 were discharged on their own recognizances, in 12 cases the bail was forfeited, and of the 181 cases which actually were tried before juries, 165 defendants were acquitted and 16 were convicted.In 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. In 1907 there were 98 transferred andall were dismissedby the grand jury.The significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. They can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. The barkeeper who violates the law and is caught, comes to trial in the Special Sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. The owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. This process can be continued indefinitely. But when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. These are the men who apply for and are apparently able to secure transfers of their cases to the General Sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. The transfer of a liquor-tax case upon the order of the judge sitting in Part I of the General Sessions is practically tantamount to a dismissal of it.

[37]The following figures may be of interest to those readers who are interested in the question of amending the laws governing the sale of liquor:

In the year 1907, out of a total of 1,237 cases which came before the Court of Special Sessions, there were 334 convictions, 7 pleas of guilty, 223 acquittals, 18 discharges and 116 transfers to the General Sessions. During the last eight years, out of a total of 7,416 cases, there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals, 395 discharges, 361 demurrers allowed and 1,144 cases transferred, on the defendants' motion, to General Sessions, to be tried under indictment. During this period, very nearly half the cases have resulted in convictions.

These cases were tried, as the reader is aware, by a bench of three judges, who decide both law and fact. Compare this record with the result of 91 transfers, taken as illustrative, from the Special to the General Sessions in 1905. Of course, each case had to be taken first before the grand jury. Eighty-four of these cases were summarily dismissed by that body. In the remaining seven instances, indictments were secured. Four of these seven defendants pleaded guilty, two were acquitted by the jury, one was discharged on his own recognizance and none were convicted. In other words, out of the whole bunch of transfers, less than four per cent of the defendants were convicted, as against nearly fifty per cent of convictions in the Special Sessions, in all liquor-tax cases in the last eight years. In the same period, out of a total of 1,241 cases presented to the grand jury, 987 were dismissed by that body. Of the balance, viz., 254 in which indictments were secured, 25 pleaded guilty, 36 were discharged on their own recognizances, in 12 cases the bail was forfeited, and of the 181 cases which actually were tried before juries, 165 defendants were acquitted and 16 were convicted.

In 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. In 1907 there were 98 transferred andall were dismissedby the grand jury.

The significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. They can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. The barkeeper who violates the law and is caught, comes to trial in the Special Sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. The owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. This process can be continued indefinitely. But when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. These are the men who apply for and are apparently able to secure transfers of their cases to the General Sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. The transfer of a liquor-tax case upon the order of the judge sitting in Part I of the General Sessions is practically tantamount to a dismissal of it.

[38]Whatever the actual origin of the number twelve for this purpose there certainly lingered in olden times a feeling that it had a sacred or foreordained character, and in Duncomb's Trialsper pais, the following illuminating explanation is to be found:"And first as to their number twelve: and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve. Therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the Exchequer Chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)

"And first as to their number twelve: and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve. Therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the Exchequer Chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)

[39]Cf. "Criminal Law and Its Administration," by Robert Earl, 2 Columbia Law Rev. 144.

[40]Many cases result in mis-trials owing to the sickness or death of a single juror. In persecutions which it can be foreseen will be long the swearing of anextra jurorwould obviate this difficulty. Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.

CHAPTER XII

THE WITNESS

The probative value of all honestly given testimony depends, naturally, first upon the witness's original capacity to observe; second, upon the extent to which his memory may have played him false; and third, upon how far he really means exactly what he says. This is just as true of testimony in cases of so-called circumstantial evidence as in cases where the evidence is direct, for the circumstances themselves must be testified to by witnesses who have observed them, and the authoritativeness of everything these witnesses have to say must lie in their ability to see, remember, and describe accurately what they have seen.

The subject of perjury is so distinct and far-reaching that it deserves separate consideration. The crime is easy to commit and difficult to establish by competent proof, for it is a highly technical offence and one which juries seem to find it easy to condone. The brother or friend of the accused has but to take the stand and swear to an alibi and lo! he is free. The chance of detection is small in comparison with the immediate benefit secured, while the temptation to swear falsely must, at least in the case of the immediate family of the prisoner, often be overwhelming. Where convictions for perjury are secured heavy sentences are invariably imposed and a wholesome apprehension instilled into the heartsof prospective witnesses, yet the amount of deliberate false swearing in our criminal courts would be inadequately described as shocking. To estimate its quantity would be difficult if not impossible, for it varies with the character of the case and the nature of the defence. When the latter is an alibi the entire testimony for the prisoner is frequently manufactured out of whole cloth, and it is probably not very wide of the mark to say that anywhere from a quarter to seventy-five per cent of the testimony offered by the defendant's witnessesupon the direct point in issuein the ordinary run of criminal trials is perjured.

Yet a careful scrutiny of even the honestly given testimony in such cases gives rise to the belief that the amount of strictly accurate evidence adduced is relatively small, so small as probably to stagger the credulity of the layman and to give the lawyer ground for reflection. It must be borne in mind, however, that this refers to criminal trials only and to testimony of a character closely relevant to the issue.

The first consideration is how far the witness was originally capable of receiving correct impressions through his senses. Naturally this depends almost entirely upon his physical equipment and the keenness and accuracy of his general observation, both of which are usually evidenced to a considerable degree by his appearance and conduct upon the stand.

Children are proverbially observant, and make remarkable witnesses, habitually noticing details which inevitably escape the attention of their elders; while various classes of persons by reason of theirprofessional requirements are, of course, better qualified than others to observe certain facts or conditions, as a gem merchant the shape and cutting of a diamond, or a doctor the physical condition of a patient.

Witnesses are often honestly mistaken, however, as to their own ability to observe facts, and will unhesitatingly testify that they could hear sounds and discern objects at extraordinary distances. Lawyers frequently attempt to induce aged or infirm witnesses to testify that they could hear plainly what was said by the defendant, in an ordinary tone, at a distance, say, of forty feet. The lawyer speaks in loud and distinct tones during the preliminary examination, and then gradually drops his voice to that usually employed in speaking, in the hope that the witness will ask him to repeat the question. This ruse usually fails by reason of the fact that the lawyer, in his anxiety to show that the witness could not possibly hear the distance claimed, lowers his voice to such an extent that the test is obviously unfair.

For similar reasons counsel often call upon such witnesses to state the time by the clock which usually hangs upon the rear wall of the court-room. A distinguished but conceited advocate, not long ago, after securing an unqualified statement from an octogenarian, who was bravely enduring cross-examination, that he "saw the whole thing as if it had occurred ten feet away," suddenly challenged him to tell the time by the clock referred to. The lawyer did not look around himself, as he had done so about half an hour before, when he had noticed that it was half after eleven. The old man looked at the clockand replied, after a pause, "Half-past eleven," upon which the lawyer, knowing that it must be nearly twelve, turned to the jury and burst into a derisive laugh, exclaiming sarcastically, "That isall," and threw himself back in his seat with an air of having finally annihilated the entire value of the witness's testimony. The distinguished practitioner, however, found himself laughing alone. Presently one of the jury chuckled, and in a trice the whole court-room was in a roar at the lawyer's expense. The clock had stopped—at half-past eleven.

The professional actor upon the stage presents theillusionof nature by exaggerating those details of action which ordinarily would escape the attention of the observer.

In daily life we are quite as likely as not to be deceived by what we have seen, and this fact is so familiar to jurors that they are apt to distrust witnesses who profess to have seen much of complicated or rapidly conducted transactions. They want the main facts stated convincingly. The rest can take care of themselves. The extraordinary extent to which the complex development of modern life has dwarfed our powers of observation is noticeable nowhere more markedly than in the court-room. Things run so smoothly, transportation facilities are so perfect, specialization is carried to so high a degree, and our whole existence goes on so much indoors, that it ceases to be a matter of note or even of interest that the breakfast is properly cooked and served, that we are whisked downtown (a little matter say of five miles) in ten or twelve minutes, that we are shot up to our offices through twenty floors in an electric elevator, that there is a blizzard or adeluge, or that part of Broadway has been blown up or a fifteen-story building fallen down. We pass days without paying the remotest attention to the weather, and forget that we have relations. Instead of walking home to supper, pausing to talk to our friends by the way, we drop into the subway, bury ourselves in newspapers, and are vomited forth almost without our knowing it at our front doorsteps. The multiplicity of detail deprives us of either the desire or the capacity to observe, and we cultivate a habit of not observing lest our eyes and brains be overwhelmed with fatigue. Observation has ceased to be necessary and has taken its place among the lost arts.

Compare the old days when a Greek could go to hear the "Œdipus," and on returning home could recount practically the whole of it from beginning to end for the benefit of the wife, who was not allowed to go herself, or even the comparatively recent period when the funeral oration over Alexander Hamilton could be reported in the "Evening Post"from memory.

Much the more difficult problem, however, is to determine how far the witness is the victim of his memory and is unconsciously confusing fact with imagination, or knowledge with belief. It is a matter of common experience that almost all cases are stronger in court than they give the impression of being when the witnesses are first examined in the private office. Time and again, cases which in the beginning have seemed hopeless to prosecute have resulted in verdicts of conviction, and defences originally so fragile as to appear but gossamer have returned many a defendant to his despairing family.

The reason is not far to seek. Witnesses to the events leading up to a crime are acquainted with a thousand details which are as vivid, and probably more vivid, to them than the occurrence in regard to which their testimony is actually desired. It may well be that the immaterial facts are the only ones which have interested them at all, while their knowledge of the criminal act is relatively slight. For example, theyknow, of course, that they were in the saloon; arepositivethat the complainant and defendant were playing cards, even remembering some of the hands dealt; aresurethat the complainant arose and walked away;have a very vivid recollectionthat in a few moments the defendant got up and followed him across the room; arepretty clear, although their attention was still upon the game, that the two men had an argument; andhave a strong impressionthat the defendant hit the complainant. In point of fact, their evidence is really of farlessvalue, if of any at all, in regard to theactual strikingthan in regard to the events leading up to it, for at the time of the blow their attention was being given less to the participants in the quarrel than to something else. Their ideas are in truth very hazy as to the latter part of the transaction. However, they become witnesses, pronouncing themselves ready to swear that they saw the blow struck, which is perhaps the fact. Their evidence is practically of no value on the question of justification or self-defence. But finding, on being examined, that their testimony is wanted principally on that aspect of the case, they naturally tell their entire story as if they were as clear in their own minds upon one part of it as another. Being able to give details as to theearlier aspect of the quarrel, they feel obliged to be equally definite as to all of it. If they have an idea that the striking was without excuse, they gradually imagine details to fit their point of view. This is done quite unconsciously. Before long they are as glib with their description of the assault as they are about the game of cards. They get hazy on what occurred before, and overwhelmingly positive as to what occurred towards and at the last, and on the witness-stand swear convincingly that theysawthe defendant strike the complainant, exactly how he did it, the words he said, and that the complainant made no offer of any sort to strike the defendant. From allowing their minds to dwell on their own conception of whatmusthave occurred, they are soon convinced that itdidoccur in that way, and their account flows forth with a circumstantiality that carries with it an irresistible impression of veracity.

The witness remembers in a large proportion of cases what hewantsto remember, or believes occurred. The liar with his prepared lie is far less dangerous than the honest, but mistaken witness, or the witness who draws inadvertently upon his imagination. Most juries instinctively know a liar when they see and hear one, but few of them can determine in the case of an honestly intentioned witness how much of his evidence should be discarded as unreliable, and how much accepted as true.

The greatest difficulty in the trial of jury cases so far as the evidence is concerned lies in the fallibility of the human mind, and not in the inventive genius of the devil. An old man who combines a venerable appearance with a failing memory is the witness most to be feared by either side.

In a recent case a patriarch of some eighty-five years positively, convincingly, and ultra-dramatically identified the defendant as a man who had knocked him down and robbed him of a ring. The identification was so perfect that on the evidence of this aged witness alone the jury convicted the defendant after but a few moments' deliberation. He was sentenced to ten years in State's prison, although he denied vehemently that he had everseenthe complainant. As he was being led from the bar, the real criminal arose among the audience and gave himself up, stating that he could not sit by and see an innocent man receiveso greata punishment. The inference was, that had the sentence been lighter his conscience would not have pricked him sufficiently to sanction his act of self-sacrifice. In cross-examination lies the only corrective of this sort of specious testimony, but it would be manifestly inadequate to prevent injustice in such an instance as that just described. Juries must and do take the evidence of most well-intentioned witnesses with a grain of salt.

Both men and women habitually testify to facts as actually occurring on a specific occasion because they occurred on most occasions:

Q."Didyour husbandlockthe door?"

A."Of course he did."

Q."How do you know?"

A."Healwayslocks the door."

Witness after witness will take the stand and testify positively that certain events took place, or certain acts were done, when in point of fact all they can really swear to is that they usually took place or usually were done:

Q."Did he put on his hat?"

A."Certainly he did."

Q."Did youseehim?"

A."No, but hemusthave put on his hatif he wentout."

And the probability is that the whole question to be determined was whether or not "he"did go outor stay in.

The layman chancing to listen to a criminal trial finds himself gasping with astonishment at the deluge of minute facts which pour from the witnesses' mouths in regard to the happenings of some particular day a year or so before. He knows that it is humanly impossible actually torememberany such facts, even had they occurred the day before yesterday. He may ask himself what he did that very morning and be unable to give any satisfactory reply. And yet the jury believe this testimony, and because the witness swears to it it goes upon the record as evidence of actual knowledge. In ninety-nine cases out of a hundred counsel's only recourse is to argue to the jury that such a memory is impossible. But in the same proportion of cases the jury will take the oath of the witness against the lawyer's reasoning and their own common-sense. This is because of the fictitious value given to the witness's oath by talesmen who attach little significance to their own. "Heswearsto it," says the juryman, rubbing his forehead. "Well, hemustremember it or he wouldn't swear to it!" And the witness probably thinks hedoesremember it.

Yet who of us could state with certainty the guests at a particular dinner six months ago? Or the transactions of a morning only a week ago, with any accuracy as to time? What the witness frequently does is to discuss the matter with his friends who were present on the occasion in question, and, as it were, form a sort of "pool" of their common recollections, impressions, and beliefs. One suggestion corrects or modifies another until a comparatively lucid and logical story is evoked. When this has been accomplished the witness mentally exclaims: "Of course! That was just the way it was! Now I remember it all!" The time is so distant that whatever the final crystallization of the matter may be, it is far from likely that it will thereafter be shown to be inaccurate by any piece of evidence which will present itself to the witness and his friends. The account thus developed by mutual questions and "refreshing" of each other's recollection becomes, so far as the parties to it are concerned,the fact. The witness is now positive that he did and said exactly so and so, and nothing will swerve him from it, for inherently there is nothing in the story or its make-up that affords any reason for questioning its accuracy. This story repeated from time to time becomes one of the most vivid things in the witness's mental experience. He repeats it over and over, is cross-examined by his own attorney upon it, incorporates it in an affidavit to which he swears, and when he takes the stand recounts these ancient happenings with an aggressiveness and enthusiasm that bring dismay to the other side.

But what a farce to call this recollection! What is this circumstantial romance when it comes to be analyzed? Jones, a friend of Smith the prospective witness, is anxious to establish an alibi, and asks Smith if he doesn't remember meeting him in theclub on February 12, two years before. Smith has no recollection of it at all, but Jones says: "Oh, yes, you were going to the theatre with Robinson." Of course, if Jones is so sure, Smith naturally begins to think it is probably the fact, and he does remember vaguely that he and Robinson spent an evening together. So he consults his diary and finds it recorded there that he did attend the theatre on the day in question with Robinson. He does not remember the play, but Robinson recalls that it was "The Chinese Honeymoon," and believes that they dined together first at the club. Smith now thinks he remembers this himself. Then Robinson suggests that they probably went to the theatre in a cab. They look in a file of old papers and find that it was raining. That settles it—ofcourse, they went in a cab. The next question is the hour. They have no recollection of being late, so they must have arrived on time. Well, the paper says the play commenced at eight, and it takes a cab about twenty minutes to get from the club to Daly's Theatre, so it is reasonably clear that they must have started a little before eight. Smith unconsciously is persuaded to believe that if Jones was right about their going to the theatre, hemustalso have been in the club at the time he says he was there. Both he and Robinson recall that Jones was always hanging round the club two years ago, and as neither can remember an evening when he wasn't there, they decide he must have been therethatnight. Robinson has a dim recollection that they had a drink together. That is a pretty safe guess and has all the air of verisimilitude. In an hour or two Smith is ready to swear positively fromrecollectionthat he dined with Robinson at the club on February 12 two years ago, met Jones, had a drink with him, that this occurred at seven fifty-five, that it was raining, that they took a cab, etc., etc. In its elements this testimony is entirely hearsay upon the only vital point,i.e., Jones's presence in the club at that time, and the immaterial remainder is made up of equal parts of diary, newspaper, play-bill, weather report, usual custom, reliance on Robinson's alleged recollection, and belief in Jones's innocence. He has practically no actual memory of the facts at all, and the only thing he really does remember is that a long time ago he did attend some theatre with Robinson.

The common doctrine of what is known as "refreshing the memory" in actual practice is notoriously absurd. Witnesses who have made memoranda as to certain facts, or even, in certain cases, of conversations, and who have no independent recollection thereof, are permitted to read them for the purpose of "refreshing" their memories. Having done so, they are then asked if theynowhave,independently of the paper, any recollection of them. In ninety-nine cases out of a hundred it would be absolutely impossible for them really torememberanything of the sort. They read the entry, know it is probably accurate, and are morally convinced that the fact is as thereon stated. They answeryes, that their recollectionhasbeen refreshed and that they now do remember, and are allowed to testify to the fact as of their own knowledge. In most instances they do not clearly understand the distinction they are called upon to draw between actual independent recollection and a strong belief on their own part that the fact must be as recorded. It is the exceptional witness indeed who makes any such distinction.

There are also many cases where a defendant has been put in jeopardy because some one, remembering that heintendedto do an act, becomes convinced that hehasdone so, to the extent of being willing to swear thereto. No better illustration of this kind of error could be given than the disappearance of the famous necklace of a prominent resident of Newport during the summer of 1904. There lives hardly a family which has not frequently had such an experience. Some night the husband can't find his pearl shirt-studs. He knows he had them on the evening before. The hue and cry is raised. Maledictions are called down upon Anna or Delia or Nora. But the studs are not in the shirt. Their owner swears he left them there. Then Delia tremblingly suggests that "master dined in his ordinary clothes last evening," and he realizes that it was so late when he got home that at the last minute he decided not to change. Amid great excitement the studs are located in the bureau drawer where they belonged.

The final question to be determined by the juror in regard to the testimony of any witness is how far the latter has succeeded in conveying his actual recollections through the medium of speech and gesture. This necessarily depends upon a variety of considerations. Among these are his familiarity with the English language; inadvertent accentuation of wrong words or of the less important features of his testimony; his physical condition, which in nine cases out of ten is one of extreme nervousness and timidity, if not of actual fear; and a hundred other trifling, but, in the aggregate, material matters.

The most effective testimony is that which is given with what the jury regard as the evidences of candor. It is a familiar fact that the surer a person is of anything, particularly among the laboring classes, the more loudly will he assert its truth. This is so well known to the jury as ordinarily constituted that unless testimony is given with positiveness it might as well not be given at all. Much as it is to be deprecated, an assertive lie is of much more weight with a jury than an anemic statement of the truth. The juror imagines himself telling the story, and feels that if he were doing so and his testimony were true, he would be so convincing that the jury could have no doubt about it at all. Ofttimes a witness leads the jury to suspect that he is a liar simply because he has too strong a sense of the proprieties of his position vehemently to resent a suggestion of untruthfulness. The gentleman who mildly replies "That is not so" to a challenge of his veracity, makes far less impression on the jury than the coal-heaver who leans forward and shakes his fist in the shyster's face, exclaiming: "If ye said that outside, ye little spalpeen, I'd knock yer head off." "Ah," say the jury, "there's amanfor you." Just as your puritan is at a disadvantage in an alehouse, and your dandy in a mob, so are the hyper-conscientious and the oversensitive and refined before a jury. The most effective witness is he whom the general run of jurors can understand, who speaks their own language, feels about the same emotions, and is not so morbidly conscientious about details that in qualifying testimony he finds himself entangled and rendered helpless in his own refinements. A distinguished lawyer testifying in a recent case was socareful to qualify every statement and refine every bit of his evidence that the jury took the word of a perjured loafer and a street-walker in preference. This kind of thing happens again and again, and the wily witness who thinks himself clever in appearing overdisinterested is "hoist by his own petard." The jury at once distrust him. They feel either that he is making it all up, or is in fact not sure of his evidence, else, they argue, he would be more positive in giving it.

Most witnesses in the general run of criminal cases have no comprehension of the meaning of words of more than three syllables. It is hopeless to make use of even such modest members of our national vocabulary as "preceding," "subsequent," "various," etc. A negro when asked if certain shots weresimultaneousreplied:

"Yas, boss. Dat's it! 'Zactly simultaneous! Onerightafter de odder."

The ordinary witness usually says "minutes" when he means "seconds." He will testify without hesitation that the defendant drew his revolver and immediately shot the complainant, illustrating on the stand the rapidity of the movement. When asked how long it took, he will answer: "Oh, about two or three minutes."

A proper medium in which to converse between the lawyer and witness is sometimes difficult to find, and invariably much tact is required in handling witnesses of limited education. The writer remembers one witness who was completely disconcerted by the use of the word "cravat," and at the precise moment the attorney was so confused as not to be able to remember any synonym. The Tenderloinand the Bowery have a vocabulary of their own differing somewhat from that of beggars and professional criminals. The language of the ordinary policeman is a polyglot of all three. Popular writers on the "powers that prey," and dabblers in criminology in general, are apt to become the victims of self-alleged "ex-convicts" and "criminals" who are anxious to sell unreliable information for honest liquor. A large part of the lingo in realistic treatises on prison life and "life among the burglars," originates in the doped imagination of whatever fanciful "reformed" thief happens to be the personal gold mine of that particular author. Thieves, like any distinct class, make use of slang, some of which is peculiar to them alone. But for the most part the "tough" elements in the community make themselves easily understood either in the office or on the witness-stand.

Where the witness speaks a foreign language the task of discovering exactly what he knows, or even what he actually says, is herculean. In the first place interpreters, as a rule, give the substance—as they understand it—of the witness's testimony rather than his exact words. It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply. One could cross-examine a deaf-mute by means of the finger alphabet about as effectively as an Italian through a court interpreter, who probably speaks (defectively) seventeen languages.

The reader might perhaps conclude from what has been said that the action of the ordinary jury in mostcases must be founded simply upon shrewd guesswork. To a certain degree this cannot be denied, and it is equally true that all the delicate processes of the human mind, and the shadowy presences there of intent, motive, and recollection, can never be demonstrated save by inference. Our machinery is crude indeed. Ofttimes it is like trying to dissect a butterfly with a pair of pincers, and the wonder is that the jury are able to get at the truth as frequently as they do. Hence the necessity for the advocate to assist the jury and remedy their ignorance of the psychology of testimony by his own observation, knowledge, and experience. With the jury keenly alive to all the possibilities of error in the testimony of even the most honest of witnesses, it is for the advocate, the psychologist of the law, to test by his cross-examination and demonstrate in his summing up the precise probative value of the evidence, frequently revealing, below an apparently limpid stream of truth, a turbid bed of conjecture, assumption, belief, hearsay, and inaccuracy of expression, with the rank weeds of perjury growing just beneath the surface.

CHAPTER XIII

THE VERDICT

The judge having delivered his charge, and the jury having gathered up their collection of miscellaneous garments and retired to the jury-room, a court officer claps the prisoner upon the shoulder and leads him away to the prison pen. Once the door of the court-room has closed behind him, he is conducted along a narrow corridor to the head of a flight of iron steps at the foot of which stands a keeper. As he descends the stairs the attendant notifies the keeper that the defendant is on his way down: and once the latter is safely below the keeper shouts "All right!" to the officer above, who returns once more to his duties in the court-room. Since there is little danger of an escape the officers sometimes become a trifle lax in the handling of prisoners awaiting the verdict.

An incident recently occurred which shows how much care is necessary in guarding a defendant who confidently expects a verdict of conviction. At the conclusion of a trial for grand larceny the jury went out and the prisoner was conducted to the head of the stairs leading down to the pen. The court officer notified the keeper when the prisoner was about half-way down, and distinctly heard the latter reply "All right!" He thereupon departed. The keeper, however, had not uttered a syllable and was entirely unaware of the return of the defendant, who, beingsomething of a ventriloquist, had answered for him, and had then calmly reascended the stairs, passed through the corridor to another court-room where he had mingled with the crowd, and later had had no difficulty in making his escape first into the main corridor and thence into the street. When the jury presently returned and the prisoner was sent for, his flight was discovered. The court waited patiently while the pens, corridors and finally the entire building were searched, but without disclosing a trace of the prisoner. Meanwhile the jury, who had found the defendant guilty, wondered why their verdict was not received. According to law, however, all the proceedings incident to a trial for felony up to and including the rendition of the verdict must take place in the presence of the prisoner, and in this case his voluntary absence compelled the court to declare a "mistrial." When it became evident that the defendant was unlikely to return, terrible was the humiliation of the court officers, who, for a few days, lived in terror of losing their official heads, if not of being imprisoned and fined for contempt.

The prisoner's wife, however, had been present throughout the trial in the court-room, although, as his escape was entirely extemporaneous, she was as much surprised as anybody else at his departure. After the discharge of the jury several detectives followed her to her home in Hoboken. Late in the evening she left the house in response to a message and met her husband in a deserted part of the city, where he was recaptured. He was immediately brought back to New York and his case placed once more on trial; but this time he pleaded guilty. Froma dramatic point of view it is to be regretted that the jury at the first trial had not found a verdict of "not guilty."

As the first talesman who happens to be selected for the jury in any given case becomesipso factoits foreman, amusing incidents sometimes occur owing to his inexperience. Where an indictment contains but a single count, as, for example, "receiving stolen goods," the foreman's answer to the clerk's interrogation of, "Do you find the prisoner guilty or not guilty," is, of course, simple enough; he answers "guilty" or "not guilty," or "not guilty, with a recommendation to the mercy of the court"; but where the indictment contains either a number of counts set forth separately, or the crime charged is of such a character that the jury may find in a lesser degree, some confusion is apt to result. If, for example, a defendant is being tried for murder in the first degree the court is obliged to submit, under the law, not only murder in its first degree, but the lesser crimes of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and occasionally assault in one or more degrees. Sometimes the foreman forgets entirely what he was going to say and stands staring, open-mouthed, until the clerk comes to his assistance.

In a case where the court charged the jury that they could find the defendant guilty of murder, manslaughter, or assault, or else acquit him on the ground that he was justified in taking the life of the deceased, the jury retired and deliberated for many hours. As the time dragged on the defendant became convinced that he was to be convicted. Lateat night the jury informed the court that they had agreed upon a verdict. They filed back and took their places in the box. The defendant was arraigned, pale with apprehension. The clerk arose.

"Gentlemen of the jury," said he, "have you agreed upon a verdict?"

"We have," replied the foreman.

"The jury will rise," continued the clerk. "The defendant will rise." The jury and prisoner arose.

"Jurymen, look upon the prisoner. Prisoner, look upon the jury," continued the clerk, and turning to the foreman, "How say you? Do you find the defendant guilty or not guilty?"

"Guilty," stammered the foreman.

The defendant uttered a loud groan and collapsed into the arms of the court attendant beside him.

"Of justifiable homicide," hastily added the inexperienced foreman. In spite of the laughter of the rest of the jurymen and the smiles of the court it took some moments to convince the unnerved prisoner that he was not to be electrocuted.

In a recent case the jury returned a verdict of "Pretty nearly guilty!"

A very considerable proportion of jury trials in criminal cases result in disagreements. The question of reasonable doubt is always a troublesome one, and even where all the jury believe the defendant guilty, as likely as not half of them will not think that they are convinced beyond what they regard as a reasonable doubt. On this account many jurors are of the opinion that what is known as a Scotch verdict, or a verdict of "Not proven," should be allowed. The writer has been informed on good authority that in one of the recent trials ofNan Patterson eleven of the twelve jurymen believed her guilty, but that only six of them were of the opinion that they were so convinced beyond a reasonable doubt. Had the Scotch verdict been permissible it would probably have been rendered in this case. Inasmuch as the ordinary American petit jury are apt to go outside the evidence and to decide the issue, in some degree at least, on evidence which properly they should not consider at all, no further loopholes of escape from rendering a verdict one way or the other should be afforded them. Had we the Scotch verdict, instead of disagreeing and giving the prosecution the opportunity to try the defendant over again, juries would probably make use of it in all cases where they disliked to render a verdict in accordance with the evidence.

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