XIV. Criminal TrialsAccused Guaranteed A Speedy Public Trial By An Impartial Jury Of The Local DistrictI hope no one here this morning will ever be arrested for a crime of any kind, and yet, as I have already explained to you, the innocent are sometimes brought before the court charged with a grave offense. Therefore you should be interested in the investigation of the truth of any charge that may be made against you, whether by a private individual or by a public officer.I have already explained to you that in all grave offenses when a person is charged with a crime, he cannot be brought before the court for trial until the grand jury has investigated the facts and until they have returned an indictment, or written charge, to the court. Until this is done, the court has no power to proceed.But now suppose that you have been arrested, suppose that a grand jury has investigated the charge against you, has heard witnesses, and has returned an indictment. You are then brought up before the court, and the indictment is read to you. This indictment I will explain to you more fully later. When the indictment is read you are then required to say whether you are“guilty”or“not guilty”. If you have committed the crime charged, it may be advisable to plead guilty and ask for the mercy of the court in the punishment which he may impose. Courts usually temper justice with mercy. Courts will usually impose a lighter sentence when a guilty person pleads“guilty”and avoids the delay and expense of a trial. But, if you are innocent, you will plead“not guilty”, and then the government, through[pg 112]its officers, will get ready for trial. You may not be tried right away, as it usually takes some time to investigate the facts and get the witnesses into court. As I will hereafter explain, you will be entitled to an attorney when the time comes for your trial, when you will have a chance to hear the witnesses offered by the prosecution, introduce your own witnesses, and, under our present law, testify yourself, tell your own story.If you will walk into a court some day you will see the judge and over at one side twelve chairs for the jury. When your case is called for trial the first thing will be to select the twelve men who will be the jury in your case. I am not going to give the manner of selection at this time. This will be fully explained later. I wish now to impress upon you the fact that the Constitution expressly guards your rights by providing that you shall be entitled to have your case tried, not before a judge, but by a jury composed of men from the ordinary walks of life, laborers, merchants, farmers, people of all classes; men just like your fathers are. They are called. They hold up their right hands and take an oath to try your case fairly and justly and to make a finding according to the evidence which is brought before them.The Constitution provides:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”66This is an absolute guaranty—a right which is given to you, given to each of you, to every man, woman, and child, young or old, regardless of color or creed. A trial without a jury would be a violation of your constitutional rights. Of course, there are a few minor offenses, misdemeanors, and violations[pg 113]of city ordinances, which are sometimes tried without a jury, but in all infamous crimes, for which life may be taken as punishment or for which a person may be sent to the penitentiary, every one is entitled to a trial before a jury.Is not this a sacred right? Don't you think that it is wise to permit people to have their rights and wrongs determined by a body of plain, honest men? It removes any suggestion of the abuse of power by a person in a public position. It inspires confidence in those who are brought before the court for trial. If we cannot obtain justice before such a body of men, how can justice be obtained in this world?I have already told you that in this country the people are not only the makers of the law but the enforcers of the law. It is in these jury trials where the people enforce the law.Of course, the hearing before the jury is held in court. The judge presides. He directs the proceedings of the trial, sees that it is conducted in an orderly way, endeavors to prevent any falsehoods from getting before the jury, keeps away from the jury any hearsay or gossip, or expressions of prejudice, or other matters not founded on absolute knowledge and truth. But the jurors are the sole judges of what the truth is, and, when the case is closed, when the evidence has all been introduced and the attorneys have made their arguments and pleas, the members of the jury retire to a private room by themselves. There they discuss the evidence, come to some conclusion, make a finding of“guilty”or“not guilty”, and bring in their finding in the form of a verdict.Have you also observed that the constitutional protection of your liberty not only provides for a jury trial, but also provides that it shall be a“speedy”trial. That is, one charged with a crime cannot without his consent, be locked up for weeks and months and years, as has often occurred in[pg 114]other parts of the world. He is entitled to be tried just as soon as the case can be prepared for trial, in justice to both sides. Cases are often postponed for many months, but only by consent of the accused. A case not tried at the second term of court will usually be dismissed except when the defendant consents to the delay.The Constitution also provides that it must be a public trial. Oh! how many men in the long ago have been tried and condemned in private, where only a few enemies were present, where one's friends and neighbors could not hear the charges or the evidence. In this country the doors of the court room must be open. Any one has a right to enter and listen to the proceedings. The public has a right to know what is being charged against the humblest citizen, and what the proceedings against him are. Thus is justice guarded.Then the Constitution provides that the trial shall be before“an impartial jury of the State and district wherein the crime shall have been committed.”This is important. We are not to be sent away among strangers to be tried. That is what they used to do long ago. That is one of the things which our forefathers complained of most bitterly. In the Declaration of Independence the colonies declared:“He (the King of Great Britain) has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation ... for depriving us in many cases, of the benefits of Trial by Jury ... for transporting us beyond Seas to be tried for pretended offenses.”When the Constitution was adopted the people made up their minds that nothing of that kind should ever occur again in free America. They were so careful that they went so far as to provide that the district where a trial shall be[pg 115]held“shall have been previously ascertained by law”. That is to say, that the place of trial, the county or district where it shall be held, must be fixed by law before the crime is committed. The courts or the legislature of any State cannot, after a crime is committed, pass a law providing that such a crime shall be tried in a district then to be named. The law must fix this in advance of the commission of any offense. For instance, without such a constitutional provision, a person who committed a crime in the State of New York might be taken to California to be tried. This would not be American justice. The accused would have the right to point to the Constitution of his country and demand that he should be tried in New York, and any court which would not grant this right would not only violate the oath which every judge takes before he undertakes to perform the duties of such office, but his unlawful conduct would perhaps result in his impeachment. The proceedings would be reversed by a higher court, and the party would be granted a new trial at a place and in accordance with his constitutional privileges.Isn't it wonderful how the little details which may affect one's liberty were so carefully considered away back there when they were planning the Nation and establishing the rules which would guard the rights of the people?[pg 116]ELEMENTARY QUESTIONS1. Why should all of us be interested in a trial?2. Describe a court room scene.3. Why is trial by jury a sacred right? What would it be like if we did not have this right?4. How are jurors selected in your State?5. Why is the trial to be held in the vicinity where the crime was committed? What would be the dangers of taking it far away?6. Why should the jury be impartial?7. If the accused person is guilty, why is it advisable to plead guilty?8. Why is it impracticable to hold a trial immediately after the arrest of the accused person?9. What is the first step in the actual trial?10. After a jury is selected, what is required of them before the trial commences?11. Why is a speedy trial essential to justice?12. Why is it important that the trial should be public?13. State some offenses that are sometimes tried without a jury.ADVANCED QUESTIONSA. Can the judge declare an accused man guilty?B. How is trial by jury an evidence of the rule of the people?C. Show how this benefits the poor man and the rich man equally.D. Why are some trials delayed for many months?E. What is the importance of the clause“shall have been previously ascertained by law”?F. Discuss the relative role of jury and judge in a trial.G. Write a paper on the following:The Method of Selecting Jurors in Your StateDelay in TrialThe Injustice of Remote TrialsTrial by Jury vs. Trial by a JudgeThe Procedure of a Trial From Beginning to End[pg 117]XV. The IndictmentDefendant Must Be Informed Concerning The Accusation Against HimNow, my friends, in order to understand more fully the value of our constitutional rights, let us again imagine ourselves in a place of danger, danger of our liberty or of our life, and let us recall how carefully we have been guarded. To the poorest tramp, or the richest millionaire, the same rules apply. Innocent persons may be accused of crimes; they may be arrested, but they cannot be brought into court and put upon trial until they are fully advised of the charge against them.The Constitution provides:“In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation.”67This is the first step in bringing a person to trial. He does not go blindly. He must be informed“of the nature and cause”of the charge against him. He must be given full knowledge of the crime which it is claimed he committed.How is this done?Well, we have to consider the constitutional provision that one cannot be put upon trial for an infamous crime“unless on a presentment or indictment of a Grand Jury”. What this constitutional provision means is, that a grand jury shall hear and consider the evidence and, if satisfied that a person shall be tried, they shall draw up a writing called an“indictment”, which they shall return publicly in court. This indictment is a brief statement by which the grand jury makes a charge against the person named of having committed a certain offense, and the indictment must state not only the name of the offense, but the manner,[pg 118]briefly stated, in which the grand jury claims the offense was committed.So that under this constitutional guaranty the person accused knows what he is to be tried for. This enables him to prepare for his defense. When his attorney is consulted he examines a copy of the indictment. He sees what is charged in it. He then talks over with the accused the facts and circumstances with relation to the crime charged. He then makes proper inquiry. If possible he secures witnesses with relation to the charge and thus is enabled to come into court ready to hear the evidence offered by the prosecution and ready to introduce witnesses to contradict or explain the testimony introduced by the prosecution.So you see how valuable this right is. One may proceed intelligently, with full light upon the alleged transaction. He is not required to stumble in the darkness, perhaps to tumble into a pitfall. Without such a provision you can see how helpless an innocent person might be if brought suddenly before the court for trial for an offense which he never committed. If he were not first advised of the nature of the charge and the circumstances he might be helpless. You know evidence is brought before the court by witnesses who are called by the attorneys for the prosecution and for the accused. These witnesses take oath to tell the truth. But, unfortunately, witnesses do not always tell the truth. They sometimes commit perjury. One must be ready to meet false testimony. By the constitutional guaranty requiring that the accusation be in writing, stating the crime and its nature, one can be prepared. In many of the States still greater precaution is taken to guard against any possible wrong, by requiring not only an indictment but also requiring that there shall be furnished to the person accused the names of witnesses and a brief statement of the evidence which the prosecution expects to offer, this to be furnished[pg 119]before the trial commences so that the defendant may get ready to meet it.Did you ever go into a court when a man was upon trial for a grave offense? You should do so. Everyone should do so. But you should go there with the proper spirit, not for amusement, not to criticise, but with a full realization of the great human drama there being enacted. There at or near the trial table you will see the defendant, the man who is being tried. He may be a stranger. He may be poor. He may possibly be wicked, but he is a human being; and no matter what faults he may have he is an American citizen, and under the Constitution of our country he cannot be convicted until proven guilty of the particular crime charged in the indictment. He sits there while witnesses are telling their stories. You will see him watching the jury. Occasionally he looks at the judge. But he knows that no matter what the judge may think, he cannot find him guilty. The jury and the jury alone can convict.It is a solemn proceeding, though the lawyers may at times appear to use trifling words in their discussions. The prisoner looks through the court room window. Outside the sun is shining, the birds are singing, and the breezes sway the branches of the green trees. Everything seems to suggest liberty and freedom. At no time is liberty so sweet as when it is in danger. The prisoner realizes that in a few days the trial will be ended and the verdict of the jury will determine whether he shall go out of the court room to freedom or to prison.To-day it is the stranger who is on trial. To-morrow it may be someone who is near and dear to you. If such misfortune should come, then you will fully realize what a wonderful blessing it is that under our Constitution everyone is assured of a fair trial, that a person can only be tried for the specific offense stated in the indictment, and that a verdict[pg 120]of guilty can only be rendered when the evidence is strong enough to convince the jury of guilt beyond a reasonable doubt.[pg 121]ELEMENTARY QUESTIONS1. Restate the guaranties that every man has before being brought to trial.2. Why should the accused be informed of the nature of the accusation?3. What would be the result if he were not so informed?4. Why is it necessary that this accusation be put in writing?5. Why is this important to everybody?ADVANCED QUESTIONSA. Illustrate the dangers of secret charges.B. What chance has a person with malicious and secret gossip?C. Upon a trial can evidence of hearsay or gossip be offered to prove guilt?D. When a person makes a charge against a person and says,“Don't tell anyone that I said this”, what is the effect?E. Tell some of the dangers and injustices of slander.F. What is the first step in bringing an accused person to trial?G. Is it sufficient to charge the defendant with having committed murder without any further explanation? Give reasons.H. What is required of a witness before he is examined?I. What is perjury?J. Why is a trial a solemn proceeding?K. How strong must the evidence be in order that a person may be found guilty?L. Write a paper on the following:The Need of a Public and Written ChargeThe Danger of the Secret SlanderHow An Accused Person Prepares For His TrialA Visit to a Court in Session[pg 122]XVI. Guarding Rights In CourtConfronted By Witnesses—Compulsory Process—Aid Of Counsel—Jury In Civil TrialI am sure that no one until he has studied the Constitution, no one certainly who is not a trained lawyer, will realize the many safeguards necessary to protect persons who may be wrongfully accused of a crime; but the framers of the Constitution knew the dangers from the sad experiences of innocent men and women who had been sacrificed by tyrants who had but little regard for human life or for human liberty.Of course you now understand that in case an indictment is returned by the grand jury, the person accused comes into court, or is brought in, and enters his plea of“guilty”or of“not guilty”. If he pleads“not guilty”a jury is brought together,“empanelled”, as it is called, and they are sworn to hear the evidence, and decide the case according to the evidence.But in these grave criminal trials, in order that the truth may prevail, every accused person is given the right to be confronted by the witnesses against him. The Constitution provides:“In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.”68What does this mean? It means that the government, the prosecution, cannot prove guilt by witnesses who are not present in court where the defendant can see them, where they may be cross examined by counsel, where the jury may observe them, and study their conduct and demeanor, because this often helps in determining whether a person is telling the truth or a falsehood.In ordinary trials where property alone is involved, a[pg 123]witness may live in another State or at some great distance from the place of trial. Witnesses cannot be brought a long distance in those cases. In some States they cannot be compelled to attend a distance of more than seventy miles. In other States, not more than one hundred miles; so that to get their testimony, the parties take their depositions. This means that instead of bringing the witness into court, the parties obtain an order by which they can go to the place where the witness is. There he is sworn before a commissioner, or a notary public, examined, and his testimony is taken in writing. The testimony is returned to the court where the trial is to be held, and is then read to the court or the jury upon the trial.But in the trial of a person accused of a crime, depositions cannot be used against him. Statements of witnesses in writing, or in any other form, cannot be used by the prosecution. The witnesses must be physically in court before the accused, and there orally testify, and the defendant must have the right to cross examine them.But to give the accused person every possible aid in enabling him to have the truth brought before the court and jury, he may take the depositions of witnesses in his own behalf. That is, the prosecution—the State or the Nation accusing a man of a crime—must prove the truth of the accusation by witnesses personally in court confronting the defendant, but the defendant is given the privilege of taking the testimony of witnesses at a distance, in the form of depositions which are read to the jury.This provision of the Constitution may be very important to an innocent person sometimes. The importance of it may never appear to us until unfortunately we be wrongfully accused of a crime, and our life or liberty in danger.Then the Constitution further provides:“In all criminal prosecutions, the accused shall enjoy the[pg 124]right ... to have compulsory process for obtaining witnesses in his favor.”69This is also very important.“Compulsory process”means an order of the court, commonly called“subpoena”, which is served upon witnesses by the marshal, or the sheriff, or other authorized person, commanding them to appear in court for examination before the court and jury as to the truth of matters involved in the accusation against a person on trial.Here I wish you to recall the unfortunate fact that every little while somebody is complaining about our government as“a rich man's government”. It is often claimed that the poor have no chance for justice. The truth is that the rich and the poor stand equal in the courts. In creating the Constitution, it is known of course that someone might be brought before the court who was poor, without money, possibly without friends. He might be innocent, but in order that his innocence might be established it would be necessary for him to have witnesses who might live many miles away, who would not come into court to testify of their own free will. Therefore, there was inserted in the Constitution this provision, that every defendant shall have the right to compulsory process, commanding witnesses to appear, and there is no one so poor that he cannot have this privilege, because the United States—and in most of the States we have a like provision—not only issues subpoenas and compels the officers to serve them, but it pays the expense of serving, and pays the witness fees and mileage, so that the poor man has all of the rights in getting the truth before the court and jury that the richest may have.Furthermore, in the same American spirit, when persons accused of an offense are too poor to employ counsel, the government will furnish counsel. The Constitution provides:[pg 125]“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.”70There is no person so poor, or obscure, or friendless, that when he is charged with a crime which might affect his liberty or his life, he shall not have the right to a full, fair trial. Not only are his witnesses produced and paid by the government, but an attorney is appointed by the government to represent him, and help him establish his innocence.This is a wonderful illustration of the paternal care which is manifested for those who may be unfortunate, and this is all because under our Constitution, liberty is a sacred thing, and it shall not be taken away except in punishment for a crime which has been proven in open court in a public trial before a jury, where the party has been confronted with the witnesses against him, where he has had a chance to furnish witnesses in his behalf and the aid of counsel in his trial.Then the people who brought the Constitution into being, feeling that so far as practicable they should have control of the enforcement of law not only in criminal cases, but in civil cases, included a guaranty in the Constitution that:“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”71Of course there is often more or less controversy about property of small value, where the expense and delay of jury trials might possibly be oppressive, but in any case involving more than twenty dollars in value, triable under the common law, which includes practically all cases except those peculiar cases triable in Chancery, or in Courts of Equity, the parties are entitled to a trial by jury. That is, instead of introducing their evidence and having the judge decide what the truth is between them, the parties are entitled to have a jury of men from the ordinary occupations of life hear the evidence and say from the evidence what is the truth.[pg 126]And furthermore, the people provided in the Constitution that:“No fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”72Here again is the right to a jury trial, and the benefit of a jury trial, and to a trial according to the established rules and precedents of the common law courts carefully preserved.Now my friends, I know that there is much confusion in your minds about trials in court. I do not expect you to know all about trials. We are studying the guaranties of the Constitution so that we shall learn human rights—our rights—under the Constitution. I am talking to you about the safeguards of the Constitution so you shall know your rights, especially so that you will always venerate the Constitution which guards your rights, and defend it against those who may assail it. But I do want you to have a clear idea of what a trial in court is. I want you to know the purpose of the long days of examination of witnesses, the objections of the attorneys to certain questions asked, the rulings of the court, and the arguments of counsel.The main purpose, aim, and object of every lawsuit, as trials are usually termed by people who are not lawyers,is to find the truth. The proceedings in court in every lawsuit are a continuous search for the truth. If in disputes we could agree to what the truth is, there would be few lawsuits to try.A lawsuit only arises where there is a dispute to settle. If people agreed about their rights there would be little need of courts. In criminal cases, the government through the grand jury charges by indictment that a man committed a certain crime. The government says the man did it. He denies it by a plea of not guilty. He says he did not. The trial before the petit jury is merely a search for the truth[pg 127]about the charge.What is the truth about the matter in dispute, that is all that is involved in an ordinary lawsuit.Picture two boys in a dispute about which owns a ball. One positively asserts that it is his, that his father bought it and gave it to him. The other is just as sure that it is his. He says that his brother gave it to him. They quarrel so excitedly that a neighbor coming across the street asks the cause of the trouble. They tell him their claims and ask him to decide. One boy points out a rough spot on the ball which he insists was caused by a blow from his bat while he was playing in his own yard. The other says that his brother gave him a ball with red and white stitches. The neighbor, after hearing these and many other claims, decides the case, giving the ball to the boy whom he finds to be the owner.In this we have every element of a lawsuit. The dispute, the court (the neighbor), the witnesses (the boys), and the judgment based upon what the neighbor finds to be the truth from the evidence before him. That is all that any court or jury can do, but under the Constitution in cases involving life or liberty every possible safeguard is provided so that the truth may be found, so that justice may be done.[pg 129]ELEMENTARY QUESTIONS1. Why should all witnesses for the prosecution speak in the actual presence of the accused?2. Why should the accused be allowed to have testimony in his favor submitted in writing?3. In what cases is written testimony ordinarily admitted?4. What is compulsory process?5. In what ways does the Constitution aid the poor man?6. In what cases may there be a trial without a jury?7. What is the main purpose of any lawsuit?8. What is meant by cross-examination of a witness?ADVANCED QUESTIONSA. In what way do these provisions sustain the fact that our government is a democracy?B. Is a person more likely to commit perjury when not actually facing the person accused? Give reasons.C. What is the provision of the Constitution as to“compulsory process”? Explain the importance of this right.D. Explain the provision of the Constitution as to the right to have counsel.E. Show how compulsory process and free counsel help the poor man.F. Why is jury trial omitted in small controversies?G. What is a“civil”case?H. Write a paper on the following:How Perjury is DetectedOral and Written TestimonyHow the Poor Man is ProtectedThe Purpose of a Trial in CourtThe Story of a Tramp Without Money, Accused of an Offense: How the Constitution Helps Him[pg 130]XVII. PunishmentProhibition Of Excessive Bail Or Fines, Cruel Or Unusual Punishments, And Involuntary ServitudeBefore we finish, I want you to have in your mind a clear conception of the way in which a person accused of an offense is brought before the court, tried, and convicted or acquitted.I have already explained that the first step is the arrest of the suspected person.73Again put yourself in the place of the suspected person.You are arrested. It is the duty of the officer making the arrest to bring you into a court, but this is not generally to a trial court. A person is generally brought before what is called a committing magistrate, a justice of the peace or commissioner—some person having authority to issue warrants of arrest. You may be far from home and friends when you are arrested. You may be entirely unacquainted in the neighborhood. The government is not ready to proceed to your trial. Witnesses must be summoned, not only for the government, but if you have witnesses you desire to use, they must be brought in.The general rule is to set the case for hearing—a“preliminary hearing”in a day or two, or a week possibly. You must therefore wait until this time comes. What are you going to do? Must you go to jail until they get ready to have the hearing? No, you are entitled to bail; that is, you are entitled to be discharged upon a bond fixed by the magistrate, commissioner, or judge. There are usually only two offenses which are not, as the saying is, bailable—murder and treason. Usually[pg 131]where murder or treason is charged, the person is not admitted to bail. He is locked up in a cell to await trial; but as a general rule, when a person is arrested his bail is fixed—that is, the amount of the bond which he must file in order to be discharged pending the trial. For instance, if it were a charge of stealing a bicycle, the court might fix the bail at $500 or $1000. That would mean that if he would file a bond, with sureties, conditioned that in case he did not appear for hearing—that he should run away, for instance—the sureties would pay into the court the amount of the bond. Mostly any person of fair standing in a community can secure some friends who will sign such a bond, so that he may have his liberty until the trial.But the framers of the Constitution, again anxious about the liberties of the people, provided:“Excessive bail shall not be required.”74There were many instances in the olden days where bail was purposely fixed so high—so far beyond all reason in view of the nature of the offense that the party could not furnish the bail, the purpose being to compel the party to remain in prison. Our Constitution guarantees to every individual that the amount of bail fixed shall be reasonable in view of the nature of the offense and if it is not reasonable, the person arrested may have the matter brought before the court, who will make full inquiry, and reduce the amount of the bail if found to be too large.All through these guaranties of the Constitution, all through these provisions guarding the sacred rights of every person, you will see that the effort is that justice shall be done, not injustice; that right shall prevail, not wrong. That no one shall be kept in prison, deprived of his liberty, unless absolutely necessary in the interest of justice.Then after a trial, if a person is found guilty, the Constitution[pg 132]again guards the rights even of the guilty, by providing:“Excessive fines (shall not be) imposed, nor cruel and unusual punishments inflicted.”75When this constitutional guaranty was written persons then living could recall without doubt the barbarous punishments which had been imposed in civilized countries even for light offenses. Common hanging was not regarded as sufficient punishment.“Hanged, drawn and quartered”was often heard in the courts of countries which had been left behind. It was nothing uncommon to see persons upon the roadside in England left hanging to the gibbet for long periods of time where the people could see them as a warning. It was not uncommon in those times to have a penalty of death imposed for the offense of stealing.It is almost impossible to read of the punishments of the olden days, even under decrees of courts, without a shudder. Therefore, every one in America should be filled with gratitude that in the adoption of our Constitution these excessive cruelties were forever ended.We have in this country the death penalty only for the most grave offenses, and it is seldom imposed. Imprisonment is generally regarded as just and sufficient. I might spend an hour if we had time, telling you something of the horrible dungeons which served as prisons in the olden days, into which God's sunlight seldom entered; of the chains the prisoners had to wear; of the starvation; yes, and of the lash—inhumanities which one can scarcely conceive, and which can never disgrace the civilization of America.Again, carefully guarding the rights and liberties of the people we find:“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly[pg 133]convicted, shall exist within the United States, or any place subject to their jurisdiction.”76This is not a part of the original Constitution. It was adopted after the war had driven slavery from our shores. The spirit of America has from the beginning been exerted in enlarging the rights of human beings. Slavery existed before the adoption of the Constitution, and so strongly was it intrenched at that time in some of the colonies that it was impossible then to wipe it out.But it did not belong in America, and the time came when the American people, after a long bitter war, crushed the slave power, and swept from our shores the last vestige of involuntary servitude. That it might not be renewed, the people amended the Constitution so as forever to bar slavery or involuntary servitude except as men might be put in prison in punishment for crime after a full, fair trial.Did you ever read of the debtor's prison? It used to be in nearly every country in the world, that men who were merely unfortunate, who got in debt and who could not pay when the debt was due were sent to prison, and kept there sometimes for long periods. It was most cruel, because in many instances the persons were honest. They wanted to pay their debts, but sickness came, or floods, or fire, or other misfortune, and when the time came they were unable to pay and thus they lost their liberty.In those olden days, men were not only imprisoned, but in some countries they were compelled to labor for the person whom they owed. They were compelled to be slaves.But at last we have reached a stage in America, where no one may be compelled to work for another, unless by his own free will, except under conviction of a crime where the State may compel prisoners to work for some one in order to help pay the expense of maintaining them.The old debtor's prison is gone. No one in this country[pg 134]can now be imprisoned for an ordinary debt. There are a few States in which a person may be imprisoned for debts arising in fraud, but for an ordinary contract debt, mere inability to pay, no one in America can now be compelled to submit to imprisonment.I wish sometime you would think seriously about what America has done for the poor. In the olden days they had few if any rights; but to-day in America, while by law we cannot prevent sickness nor sorrow, or other misfortune, we can and we do guard the liberty of the poorest and the most unfortunate. In fact many laws have been enacted which give to the poor special privileges which are denied to those who have property or money.For instance in nearly every State there are what are called exemptions for a person who is the head of a family, which protect him even in the possession of a limited amount of property which his creditors cannot take away from him in payment of a debt. In most of the States laborers may hold the earnings of a certain period, for instance ninety days, for support of themselves and their families, which no one can touch, which no officers and no court can seize in payment of a debt. Also they are protected in their household goods, their clothing for themselves and their families, and in many other ways.The farmer who may be heavily in debt is protected for himself and his family by having exempted to him a team of horses, harness and wagon, machinery, farm utensils, and food and clothing for the family.I have not time to relate all that has been done by America in sympathetic aid of the poor and the unfortunate. No other country in the world has given such consideration to the poor as has America.We hear much talk of social injustice, that the poor man has no chance. The truth is that more has been done in[pg 135]America during the past twenty-five years to provide justice for the poor and unfortunate and for those who toil, than was done in any other country of the world during the last one thousand years. The spirit of America is right. The people have the power. They are right at heart. The only weakness in America is the failure of many thousands of our men and women to take an active interest in the affairs of government. Hundreds of thousands, yes millions, of our voters fail to go to the polls on election day to vote. They do not seem to feel any gratitude for the privilege of living in a free country where liberty is guarded by written guaranties of a Constitution which cannot be changed, except by the will of the people themselves.[pg 137]ELEMENTARY QUESTIONS1. After a person is arrested where is he generally taken by the officer?2. If the hearing is postponed, what is generally done with him in the meantime?3. What is bail?4. What offenses are not bailable?5. What is the constitutional guaranty as to bail?6. Why should excessive bail be prohibited? What would be the injustice of this practice?7. What happens when a person“out on bail”fails to appear in court at the time set? Is he relieved of further punishment?8. If a magistrate fixes excessive bail, what may the accused person do in order to have it reduced?9. Name some cruel and unusual punishments?10. When was slavery in America abolished?11. What was a debtor's prison?12. How does America protect the poor? Can a debtor be put in prison for failing to pay ordinary debts?13. What is meant by“exemptions”in relation to property and debts?ADVANCED QUESTIONSA. Explain the injustice of requiring excessive bail?B. When a judge determines the amount of bail, what factors does he consider?C. What is the purpose of punishment?D. Discuss the movement for prison reform.E. What is the purpose of the bankruptcy law?F. Write a paper on:Cruel and Unusual PunishmentsPunishment and Crime in the United StatesHow America Protects the Poor ManThe Reformatory Versus the Penitentiary[pg 138]
XIV. Criminal TrialsAccused Guaranteed A Speedy Public Trial By An Impartial Jury Of The Local DistrictI hope no one here this morning will ever be arrested for a crime of any kind, and yet, as I have already explained to you, the innocent are sometimes brought before the court charged with a grave offense. Therefore you should be interested in the investigation of the truth of any charge that may be made against you, whether by a private individual or by a public officer.I have already explained to you that in all grave offenses when a person is charged with a crime, he cannot be brought before the court for trial until the grand jury has investigated the facts and until they have returned an indictment, or written charge, to the court. Until this is done, the court has no power to proceed.But now suppose that you have been arrested, suppose that a grand jury has investigated the charge against you, has heard witnesses, and has returned an indictment. You are then brought up before the court, and the indictment is read to you. This indictment I will explain to you more fully later. When the indictment is read you are then required to say whether you are“guilty”or“not guilty”. If you have committed the crime charged, it may be advisable to plead guilty and ask for the mercy of the court in the punishment which he may impose. Courts usually temper justice with mercy. Courts will usually impose a lighter sentence when a guilty person pleads“guilty”and avoids the delay and expense of a trial. But, if you are innocent, you will plead“not guilty”, and then the government, through[pg 112]its officers, will get ready for trial. You may not be tried right away, as it usually takes some time to investigate the facts and get the witnesses into court. As I will hereafter explain, you will be entitled to an attorney when the time comes for your trial, when you will have a chance to hear the witnesses offered by the prosecution, introduce your own witnesses, and, under our present law, testify yourself, tell your own story.If you will walk into a court some day you will see the judge and over at one side twelve chairs for the jury. When your case is called for trial the first thing will be to select the twelve men who will be the jury in your case. I am not going to give the manner of selection at this time. This will be fully explained later. I wish now to impress upon you the fact that the Constitution expressly guards your rights by providing that you shall be entitled to have your case tried, not before a judge, but by a jury composed of men from the ordinary walks of life, laborers, merchants, farmers, people of all classes; men just like your fathers are. They are called. They hold up their right hands and take an oath to try your case fairly and justly and to make a finding according to the evidence which is brought before them.The Constitution provides:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”66This is an absolute guaranty—a right which is given to you, given to each of you, to every man, woman, and child, young or old, regardless of color or creed. A trial without a jury would be a violation of your constitutional rights. Of course, there are a few minor offenses, misdemeanors, and violations[pg 113]of city ordinances, which are sometimes tried without a jury, but in all infamous crimes, for which life may be taken as punishment or for which a person may be sent to the penitentiary, every one is entitled to a trial before a jury.Is not this a sacred right? Don't you think that it is wise to permit people to have their rights and wrongs determined by a body of plain, honest men? It removes any suggestion of the abuse of power by a person in a public position. It inspires confidence in those who are brought before the court for trial. If we cannot obtain justice before such a body of men, how can justice be obtained in this world?I have already told you that in this country the people are not only the makers of the law but the enforcers of the law. It is in these jury trials where the people enforce the law.Of course, the hearing before the jury is held in court. The judge presides. He directs the proceedings of the trial, sees that it is conducted in an orderly way, endeavors to prevent any falsehoods from getting before the jury, keeps away from the jury any hearsay or gossip, or expressions of prejudice, or other matters not founded on absolute knowledge and truth. But the jurors are the sole judges of what the truth is, and, when the case is closed, when the evidence has all been introduced and the attorneys have made their arguments and pleas, the members of the jury retire to a private room by themselves. There they discuss the evidence, come to some conclusion, make a finding of“guilty”or“not guilty”, and bring in their finding in the form of a verdict.Have you also observed that the constitutional protection of your liberty not only provides for a jury trial, but also provides that it shall be a“speedy”trial. That is, one charged with a crime cannot without his consent, be locked up for weeks and months and years, as has often occurred in[pg 114]other parts of the world. He is entitled to be tried just as soon as the case can be prepared for trial, in justice to both sides. Cases are often postponed for many months, but only by consent of the accused. A case not tried at the second term of court will usually be dismissed except when the defendant consents to the delay.The Constitution also provides that it must be a public trial. Oh! how many men in the long ago have been tried and condemned in private, where only a few enemies were present, where one's friends and neighbors could not hear the charges or the evidence. In this country the doors of the court room must be open. Any one has a right to enter and listen to the proceedings. The public has a right to know what is being charged against the humblest citizen, and what the proceedings against him are. Thus is justice guarded.Then the Constitution provides that the trial shall be before“an impartial jury of the State and district wherein the crime shall have been committed.”This is important. We are not to be sent away among strangers to be tried. That is what they used to do long ago. That is one of the things which our forefathers complained of most bitterly. In the Declaration of Independence the colonies declared:“He (the King of Great Britain) has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation ... for depriving us in many cases, of the benefits of Trial by Jury ... for transporting us beyond Seas to be tried for pretended offenses.”When the Constitution was adopted the people made up their minds that nothing of that kind should ever occur again in free America. They were so careful that they went so far as to provide that the district where a trial shall be[pg 115]held“shall have been previously ascertained by law”. That is to say, that the place of trial, the county or district where it shall be held, must be fixed by law before the crime is committed. The courts or the legislature of any State cannot, after a crime is committed, pass a law providing that such a crime shall be tried in a district then to be named. The law must fix this in advance of the commission of any offense. For instance, without such a constitutional provision, a person who committed a crime in the State of New York might be taken to California to be tried. This would not be American justice. The accused would have the right to point to the Constitution of his country and demand that he should be tried in New York, and any court which would not grant this right would not only violate the oath which every judge takes before he undertakes to perform the duties of such office, but his unlawful conduct would perhaps result in his impeachment. The proceedings would be reversed by a higher court, and the party would be granted a new trial at a place and in accordance with his constitutional privileges.Isn't it wonderful how the little details which may affect one's liberty were so carefully considered away back there when they were planning the Nation and establishing the rules which would guard the rights of the people?[pg 116]ELEMENTARY QUESTIONS1. Why should all of us be interested in a trial?2. Describe a court room scene.3. Why is trial by jury a sacred right? What would it be like if we did not have this right?4. How are jurors selected in your State?5. Why is the trial to be held in the vicinity where the crime was committed? What would be the dangers of taking it far away?6. Why should the jury be impartial?7. If the accused person is guilty, why is it advisable to plead guilty?8. Why is it impracticable to hold a trial immediately after the arrest of the accused person?9. What is the first step in the actual trial?10. After a jury is selected, what is required of them before the trial commences?11. Why is a speedy trial essential to justice?12. Why is it important that the trial should be public?13. State some offenses that are sometimes tried without a jury.ADVANCED QUESTIONSA. Can the judge declare an accused man guilty?B. How is trial by jury an evidence of the rule of the people?C. Show how this benefits the poor man and the rich man equally.D. Why are some trials delayed for many months?E. What is the importance of the clause“shall have been previously ascertained by law”?F. Discuss the relative role of jury and judge in a trial.G. Write a paper on the following:The Method of Selecting Jurors in Your StateDelay in TrialThe Injustice of Remote TrialsTrial by Jury vs. Trial by a JudgeThe Procedure of a Trial From Beginning to End[pg 117]XV. The IndictmentDefendant Must Be Informed Concerning The Accusation Against HimNow, my friends, in order to understand more fully the value of our constitutional rights, let us again imagine ourselves in a place of danger, danger of our liberty or of our life, and let us recall how carefully we have been guarded. To the poorest tramp, or the richest millionaire, the same rules apply. Innocent persons may be accused of crimes; they may be arrested, but they cannot be brought into court and put upon trial until they are fully advised of the charge against them.The Constitution provides:“In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation.”67This is the first step in bringing a person to trial. He does not go blindly. He must be informed“of the nature and cause”of the charge against him. He must be given full knowledge of the crime which it is claimed he committed.How is this done?Well, we have to consider the constitutional provision that one cannot be put upon trial for an infamous crime“unless on a presentment or indictment of a Grand Jury”. What this constitutional provision means is, that a grand jury shall hear and consider the evidence and, if satisfied that a person shall be tried, they shall draw up a writing called an“indictment”, which they shall return publicly in court. This indictment is a brief statement by which the grand jury makes a charge against the person named of having committed a certain offense, and the indictment must state not only the name of the offense, but the manner,[pg 118]briefly stated, in which the grand jury claims the offense was committed.So that under this constitutional guaranty the person accused knows what he is to be tried for. This enables him to prepare for his defense. When his attorney is consulted he examines a copy of the indictment. He sees what is charged in it. He then talks over with the accused the facts and circumstances with relation to the crime charged. He then makes proper inquiry. If possible he secures witnesses with relation to the charge and thus is enabled to come into court ready to hear the evidence offered by the prosecution and ready to introduce witnesses to contradict or explain the testimony introduced by the prosecution.So you see how valuable this right is. One may proceed intelligently, with full light upon the alleged transaction. He is not required to stumble in the darkness, perhaps to tumble into a pitfall. Without such a provision you can see how helpless an innocent person might be if brought suddenly before the court for trial for an offense which he never committed. If he were not first advised of the nature of the charge and the circumstances he might be helpless. You know evidence is brought before the court by witnesses who are called by the attorneys for the prosecution and for the accused. These witnesses take oath to tell the truth. But, unfortunately, witnesses do not always tell the truth. They sometimes commit perjury. One must be ready to meet false testimony. By the constitutional guaranty requiring that the accusation be in writing, stating the crime and its nature, one can be prepared. In many of the States still greater precaution is taken to guard against any possible wrong, by requiring not only an indictment but also requiring that there shall be furnished to the person accused the names of witnesses and a brief statement of the evidence which the prosecution expects to offer, this to be furnished[pg 119]before the trial commences so that the defendant may get ready to meet it.Did you ever go into a court when a man was upon trial for a grave offense? You should do so. Everyone should do so. But you should go there with the proper spirit, not for amusement, not to criticise, but with a full realization of the great human drama there being enacted. There at or near the trial table you will see the defendant, the man who is being tried. He may be a stranger. He may be poor. He may possibly be wicked, but he is a human being; and no matter what faults he may have he is an American citizen, and under the Constitution of our country he cannot be convicted until proven guilty of the particular crime charged in the indictment. He sits there while witnesses are telling their stories. You will see him watching the jury. Occasionally he looks at the judge. But he knows that no matter what the judge may think, he cannot find him guilty. The jury and the jury alone can convict.It is a solemn proceeding, though the lawyers may at times appear to use trifling words in their discussions. The prisoner looks through the court room window. Outside the sun is shining, the birds are singing, and the breezes sway the branches of the green trees. Everything seems to suggest liberty and freedom. At no time is liberty so sweet as when it is in danger. The prisoner realizes that in a few days the trial will be ended and the verdict of the jury will determine whether he shall go out of the court room to freedom or to prison.To-day it is the stranger who is on trial. To-morrow it may be someone who is near and dear to you. If such misfortune should come, then you will fully realize what a wonderful blessing it is that under our Constitution everyone is assured of a fair trial, that a person can only be tried for the specific offense stated in the indictment, and that a verdict[pg 120]of guilty can only be rendered when the evidence is strong enough to convince the jury of guilt beyond a reasonable doubt.[pg 121]ELEMENTARY QUESTIONS1. Restate the guaranties that every man has before being brought to trial.2. Why should the accused be informed of the nature of the accusation?3. What would be the result if he were not so informed?4. Why is it necessary that this accusation be put in writing?5. Why is this important to everybody?ADVANCED QUESTIONSA. Illustrate the dangers of secret charges.B. What chance has a person with malicious and secret gossip?C. Upon a trial can evidence of hearsay or gossip be offered to prove guilt?D. When a person makes a charge against a person and says,“Don't tell anyone that I said this”, what is the effect?E. Tell some of the dangers and injustices of slander.F. What is the first step in bringing an accused person to trial?G. Is it sufficient to charge the defendant with having committed murder without any further explanation? Give reasons.H. What is required of a witness before he is examined?I. What is perjury?J. Why is a trial a solemn proceeding?K. How strong must the evidence be in order that a person may be found guilty?L. Write a paper on the following:The Need of a Public and Written ChargeThe Danger of the Secret SlanderHow An Accused Person Prepares For His TrialA Visit to a Court in Session[pg 122]XVI. Guarding Rights In CourtConfronted By Witnesses—Compulsory Process—Aid Of Counsel—Jury In Civil TrialI am sure that no one until he has studied the Constitution, no one certainly who is not a trained lawyer, will realize the many safeguards necessary to protect persons who may be wrongfully accused of a crime; but the framers of the Constitution knew the dangers from the sad experiences of innocent men and women who had been sacrificed by tyrants who had but little regard for human life or for human liberty.Of course you now understand that in case an indictment is returned by the grand jury, the person accused comes into court, or is brought in, and enters his plea of“guilty”or of“not guilty”. If he pleads“not guilty”a jury is brought together,“empanelled”, as it is called, and they are sworn to hear the evidence, and decide the case according to the evidence.But in these grave criminal trials, in order that the truth may prevail, every accused person is given the right to be confronted by the witnesses against him. The Constitution provides:“In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.”68What does this mean? It means that the government, the prosecution, cannot prove guilt by witnesses who are not present in court where the defendant can see them, where they may be cross examined by counsel, where the jury may observe them, and study their conduct and demeanor, because this often helps in determining whether a person is telling the truth or a falsehood.In ordinary trials where property alone is involved, a[pg 123]witness may live in another State or at some great distance from the place of trial. Witnesses cannot be brought a long distance in those cases. In some States they cannot be compelled to attend a distance of more than seventy miles. In other States, not more than one hundred miles; so that to get their testimony, the parties take their depositions. This means that instead of bringing the witness into court, the parties obtain an order by which they can go to the place where the witness is. There he is sworn before a commissioner, or a notary public, examined, and his testimony is taken in writing. The testimony is returned to the court where the trial is to be held, and is then read to the court or the jury upon the trial.But in the trial of a person accused of a crime, depositions cannot be used against him. Statements of witnesses in writing, or in any other form, cannot be used by the prosecution. The witnesses must be physically in court before the accused, and there orally testify, and the defendant must have the right to cross examine them.But to give the accused person every possible aid in enabling him to have the truth brought before the court and jury, he may take the depositions of witnesses in his own behalf. That is, the prosecution—the State or the Nation accusing a man of a crime—must prove the truth of the accusation by witnesses personally in court confronting the defendant, but the defendant is given the privilege of taking the testimony of witnesses at a distance, in the form of depositions which are read to the jury.This provision of the Constitution may be very important to an innocent person sometimes. The importance of it may never appear to us until unfortunately we be wrongfully accused of a crime, and our life or liberty in danger.Then the Constitution further provides:“In all criminal prosecutions, the accused shall enjoy the[pg 124]right ... to have compulsory process for obtaining witnesses in his favor.”69This is also very important.“Compulsory process”means an order of the court, commonly called“subpoena”, which is served upon witnesses by the marshal, or the sheriff, or other authorized person, commanding them to appear in court for examination before the court and jury as to the truth of matters involved in the accusation against a person on trial.Here I wish you to recall the unfortunate fact that every little while somebody is complaining about our government as“a rich man's government”. It is often claimed that the poor have no chance for justice. The truth is that the rich and the poor stand equal in the courts. In creating the Constitution, it is known of course that someone might be brought before the court who was poor, without money, possibly without friends. He might be innocent, but in order that his innocence might be established it would be necessary for him to have witnesses who might live many miles away, who would not come into court to testify of their own free will. Therefore, there was inserted in the Constitution this provision, that every defendant shall have the right to compulsory process, commanding witnesses to appear, and there is no one so poor that he cannot have this privilege, because the United States—and in most of the States we have a like provision—not only issues subpoenas and compels the officers to serve them, but it pays the expense of serving, and pays the witness fees and mileage, so that the poor man has all of the rights in getting the truth before the court and jury that the richest may have.Furthermore, in the same American spirit, when persons accused of an offense are too poor to employ counsel, the government will furnish counsel. The Constitution provides:[pg 125]“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.”70There is no person so poor, or obscure, or friendless, that when he is charged with a crime which might affect his liberty or his life, he shall not have the right to a full, fair trial. Not only are his witnesses produced and paid by the government, but an attorney is appointed by the government to represent him, and help him establish his innocence.This is a wonderful illustration of the paternal care which is manifested for those who may be unfortunate, and this is all because under our Constitution, liberty is a sacred thing, and it shall not be taken away except in punishment for a crime which has been proven in open court in a public trial before a jury, where the party has been confronted with the witnesses against him, where he has had a chance to furnish witnesses in his behalf and the aid of counsel in his trial.Then the people who brought the Constitution into being, feeling that so far as practicable they should have control of the enforcement of law not only in criminal cases, but in civil cases, included a guaranty in the Constitution that:“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”71Of course there is often more or less controversy about property of small value, where the expense and delay of jury trials might possibly be oppressive, but in any case involving more than twenty dollars in value, triable under the common law, which includes practically all cases except those peculiar cases triable in Chancery, or in Courts of Equity, the parties are entitled to a trial by jury. That is, instead of introducing their evidence and having the judge decide what the truth is between them, the parties are entitled to have a jury of men from the ordinary occupations of life hear the evidence and say from the evidence what is the truth.[pg 126]And furthermore, the people provided in the Constitution that:“No fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”72Here again is the right to a jury trial, and the benefit of a jury trial, and to a trial according to the established rules and precedents of the common law courts carefully preserved.Now my friends, I know that there is much confusion in your minds about trials in court. I do not expect you to know all about trials. We are studying the guaranties of the Constitution so that we shall learn human rights—our rights—under the Constitution. I am talking to you about the safeguards of the Constitution so you shall know your rights, especially so that you will always venerate the Constitution which guards your rights, and defend it against those who may assail it. But I do want you to have a clear idea of what a trial in court is. I want you to know the purpose of the long days of examination of witnesses, the objections of the attorneys to certain questions asked, the rulings of the court, and the arguments of counsel.The main purpose, aim, and object of every lawsuit, as trials are usually termed by people who are not lawyers,is to find the truth. The proceedings in court in every lawsuit are a continuous search for the truth. If in disputes we could agree to what the truth is, there would be few lawsuits to try.A lawsuit only arises where there is a dispute to settle. If people agreed about their rights there would be little need of courts. In criminal cases, the government through the grand jury charges by indictment that a man committed a certain crime. The government says the man did it. He denies it by a plea of not guilty. He says he did not. The trial before the petit jury is merely a search for the truth[pg 127]about the charge.What is the truth about the matter in dispute, that is all that is involved in an ordinary lawsuit.Picture two boys in a dispute about which owns a ball. One positively asserts that it is his, that his father bought it and gave it to him. The other is just as sure that it is his. He says that his brother gave it to him. They quarrel so excitedly that a neighbor coming across the street asks the cause of the trouble. They tell him their claims and ask him to decide. One boy points out a rough spot on the ball which he insists was caused by a blow from his bat while he was playing in his own yard. The other says that his brother gave him a ball with red and white stitches. The neighbor, after hearing these and many other claims, decides the case, giving the ball to the boy whom he finds to be the owner.In this we have every element of a lawsuit. The dispute, the court (the neighbor), the witnesses (the boys), and the judgment based upon what the neighbor finds to be the truth from the evidence before him. That is all that any court or jury can do, but under the Constitution in cases involving life or liberty every possible safeguard is provided so that the truth may be found, so that justice may be done.[pg 129]ELEMENTARY QUESTIONS1. Why should all witnesses for the prosecution speak in the actual presence of the accused?2. Why should the accused be allowed to have testimony in his favor submitted in writing?3. In what cases is written testimony ordinarily admitted?4. What is compulsory process?5. In what ways does the Constitution aid the poor man?6. In what cases may there be a trial without a jury?7. What is the main purpose of any lawsuit?8. What is meant by cross-examination of a witness?ADVANCED QUESTIONSA. In what way do these provisions sustain the fact that our government is a democracy?B. Is a person more likely to commit perjury when not actually facing the person accused? Give reasons.C. What is the provision of the Constitution as to“compulsory process”? Explain the importance of this right.D. Explain the provision of the Constitution as to the right to have counsel.E. Show how compulsory process and free counsel help the poor man.F. Why is jury trial omitted in small controversies?G. What is a“civil”case?H. Write a paper on the following:How Perjury is DetectedOral and Written TestimonyHow the Poor Man is ProtectedThe Purpose of a Trial in CourtThe Story of a Tramp Without Money, Accused of an Offense: How the Constitution Helps Him[pg 130]XVII. PunishmentProhibition Of Excessive Bail Or Fines, Cruel Or Unusual Punishments, And Involuntary ServitudeBefore we finish, I want you to have in your mind a clear conception of the way in which a person accused of an offense is brought before the court, tried, and convicted or acquitted.I have already explained that the first step is the arrest of the suspected person.73Again put yourself in the place of the suspected person.You are arrested. It is the duty of the officer making the arrest to bring you into a court, but this is not generally to a trial court. A person is generally brought before what is called a committing magistrate, a justice of the peace or commissioner—some person having authority to issue warrants of arrest. You may be far from home and friends when you are arrested. You may be entirely unacquainted in the neighborhood. The government is not ready to proceed to your trial. Witnesses must be summoned, not only for the government, but if you have witnesses you desire to use, they must be brought in.The general rule is to set the case for hearing—a“preliminary hearing”in a day or two, or a week possibly. You must therefore wait until this time comes. What are you going to do? Must you go to jail until they get ready to have the hearing? No, you are entitled to bail; that is, you are entitled to be discharged upon a bond fixed by the magistrate, commissioner, or judge. There are usually only two offenses which are not, as the saying is, bailable—murder and treason. Usually[pg 131]where murder or treason is charged, the person is not admitted to bail. He is locked up in a cell to await trial; but as a general rule, when a person is arrested his bail is fixed—that is, the amount of the bond which he must file in order to be discharged pending the trial. For instance, if it were a charge of stealing a bicycle, the court might fix the bail at $500 or $1000. That would mean that if he would file a bond, with sureties, conditioned that in case he did not appear for hearing—that he should run away, for instance—the sureties would pay into the court the amount of the bond. Mostly any person of fair standing in a community can secure some friends who will sign such a bond, so that he may have his liberty until the trial.But the framers of the Constitution, again anxious about the liberties of the people, provided:“Excessive bail shall not be required.”74There were many instances in the olden days where bail was purposely fixed so high—so far beyond all reason in view of the nature of the offense that the party could not furnish the bail, the purpose being to compel the party to remain in prison. Our Constitution guarantees to every individual that the amount of bail fixed shall be reasonable in view of the nature of the offense and if it is not reasonable, the person arrested may have the matter brought before the court, who will make full inquiry, and reduce the amount of the bail if found to be too large.All through these guaranties of the Constitution, all through these provisions guarding the sacred rights of every person, you will see that the effort is that justice shall be done, not injustice; that right shall prevail, not wrong. That no one shall be kept in prison, deprived of his liberty, unless absolutely necessary in the interest of justice.Then after a trial, if a person is found guilty, the Constitution[pg 132]again guards the rights even of the guilty, by providing:“Excessive fines (shall not be) imposed, nor cruel and unusual punishments inflicted.”75When this constitutional guaranty was written persons then living could recall without doubt the barbarous punishments which had been imposed in civilized countries even for light offenses. Common hanging was not regarded as sufficient punishment.“Hanged, drawn and quartered”was often heard in the courts of countries which had been left behind. It was nothing uncommon to see persons upon the roadside in England left hanging to the gibbet for long periods of time where the people could see them as a warning. It was not uncommon in those times to have a penalty of death imposed for the offense of stealing.It is almost impossible to read of the punishments of the olden days, even under decrees of courts, without a shudder. Therefore, every one in America should be filled with gratitude that in the adoption of our Constitution these excessive cruelties were forever ended.We have in this country the death penalty only for the most grave offenses, and it is seldom imposed. Imprisonment is generally regarded as just and sufficient. I might spend an hour if we had time, telling you something of the horrible dungeons which served as prisons in the olden days, into which God's sunlight seldom entered; of the chains the prisoners had to wear; of the starvation; yes, and of the lash—inhumanities which one can scarcely conceive, and which can never disgrace the civilization of America.Again, carefully guarding the rights and liberties of the people we find:“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly[pg 133]convicted, shall exist within the United States, or any place subject to their jurisdiction.”76This is not a part of the original Constitution. It was adopted after the war had driven slavery from our shores. The spirit of America has from the beginning been exerted in enlarging the rights of human beings. Slavery existed before the adoption of the Constitution, and so strongly was it intrenched at that time in some of the colonies that it was impossible then to wipe it out.But it did not belong in America, and the time came when the American people, after a long bitter war, crushed the slave power, and swept from our shores the last vestige of involuntary servitude. That it might not be renewed, the people amended the Constitution so as forever to bar slavery or involuntary servitude except as men might be put in prison in punishment for crime after a full, fair trial.Did you ever read of the debtor's prison? It used to be in nearly every country in the world, that men who were merely unfortunate, who got in debt and who could not pay when the debt was due were sent to prison, and kept there sometimes for long periods. It was most cruel, because in many instances the persons were honest. They wanted to pay their debts, but sickness came, or floods, or fire, or other misfortune, and when the time came they were unable to pay and thus they lost their liberty.In those olden days, men were not only imprisoned, but in some countries they were compelled to labor for the person whom they owed. They were compelled to be slaves.But at last we have reached a stage in America, where no one may be compelled to work for another, unless by his own free will, except under conviction of a crime where the State may compel prisoners to work for some one in order to help pay the expense of maintaining them.The old debtor's prison is gone. No one in this country[pg 134]can now be imprisoned for an ordinary debt. There are a few States in which a person may be imprisoned for debts arising in fraud, but for an ordinary contract debt, mere inability to pay, no one in America can now be compelled to submit to imprisonment.I wish sometime you would think seriously about what America has done for the poor. In the olden days they had few if any rights; but to-day in America, while by law we cannot prevent sickness nor sorrow, or other misfortune, we can and we do guard the liberty of the poorest and the most unfortunate. In fact many laws have been enacted which give to the poor special privileges which are denied to those who have property or money.For instance in nearly every State there are what are called exemptions for a person who is the head of a family, which protect him even in the possession of a limited amount of property which his creditors cannot take away from him in payment of a debt. In most of the States laborers may hold the earnings of a certain period, for instance ninety days, for support of themselves and their families, which no one can touch, which no officers and no court can seize in payment of a debt. Also they are protected in their household goods, their clothing for themselves and their families, and in many other ways.The farmer who may be heavily in debt is protected for himself and his family by having exempted to him a team of horses, harness and wagon, machinery, farm utensils, and food and clothing for the family.I have not time to relate all that has been done by America in sympathetic aid of the poor and the unfortunate. No other country in the world has given such consideration to the poor as has America.We hear much talk of social injustice, that the poor man has no chance. The truth is that more has been done in[pg 135]America during the past twenty-five years to provide justice for the poor and unfortunate and for those who toil, than was done in any other country of the world during the last one thousand years. The spirit of America is right. The people have the power. They are right at heart. The only weakness in America is the failure of many thousands of our men and women to take an active interest in the affairs of government. Hundreds of thousands, yes millions, of our voters fail to go to the polls on election day to vote. They do not seem to feel any gratitude for the privilege of living in a free country where liberty is guarded by written guaranties of a Constitution which cannot be changed, except by the will of the people themselves.[pg 137]ELEMENTARY QUESTIONS1. After a person is arrested where is he generally taken by the officer?2. If the hearing is postponed, what is generally done with him in the meantime?3. What is bail?4. What offenses are not bailable?5. What is the constitutional guaranty as to bail?6. Why should excessive bail be prohibited? What would be the injustice of this practice?7. What happens when a person“out on bail”fails to appear in court at the time set? Is he relieved of further punishment?8. If a magistrate fixes excessive bail, what may the accused person do in order to have it reduced?9. Name some cruel and unusual punishments?10. When was slavery in America abolished?11. What was a debtor's prison?12. How does America protect the poor? Can a debtor be put in prison for failing to pay ordinary debts?13. What is meant by“exemptions”in relation to property and debts?ADVANCED QUESTIONSA. Explain the injustice of requiring excessive bail?B. When a judge determines the amount of bail, what factors does he consider?C. What is the purpose of punishment?D. Discuss the movement for prison reform.E. What is the purpose of the bankruptcy law?F. Write a paper on:Cruel and Unusual PunishmentsPunishment and Crime in the United StatesHow America Protects the Poor ManThe Reformatory Versus the Penitentiary[pg 138]
XIV. Criminal TrialsAccused Guaranteed A Speedy Public Trial By An Impartial Jury Of The Local DistrictI hope no one here this morning will ever be arrested for a crime of any kind, and yet, as I have already explained to you, the innocent are sometimes brought before the court charged with a grave offense. Therefore you should be interested in the investigation of the truth of any charge that may be made against you, whether by a private individual or by a public officer.I have already explained to you that in all grave offenses when a person is charged with a crime, he cannot be brought before the court for trial until the grand jury has investigated the facts and until they have returned an indictment, or written charge, to the court. Until this is done, the court has no power to proceed.But now suppose that you have been arrested, suppose that a grand jury has investigated the charge against you, has heard witnesses, and has returned an indictment. You are then brought up before the court, and the indictment is read to you. This indictment I will explain to you more fully later. When the indictment is read you are then required to say whether you are“guilty”or“not guilty”. If you have committed the crime charged, it may be advisable to plead guilty and ask for the mercy of the court in the punishment which he may impose. Courts usually temper justice with mercy. Courts will usually impose a lighter sentence when a guilty person pleads“guilty”and avoids the delay and expense of a trial. But, if you are innocent, you will plead“not guilty”, and then the government, through[pg 112]its officers, will get ready for trial. You may not be tried right away, as it usually takes some time to investigate the facts and get the witnesses into court. As I will hereafter explain, you will be entitled to an attorney when the time comes for your trial, when you will have a chance to hear the witnesses offered by the prosecution, introduce your own witnesses, and, under our present law, testify yourself, tell your own story.If you will walk into a court some day you will see the judge and over at one side twelve chairs for the jury. When your case is called for trial the first thing will be to select the twelve men who will be the jury in your case. I am not going to give the manner of selection at this time. This will be fully explained later. I wish now to impress upon you the fact that the Constitution expressly guards your rights by providing that you shall be entitled to have your case tried, not before a judge, but by a jury composed of men from the ordinary walks of life, laborers, merchants, farmers, people of all classes; men just like your fathers are. They are called. They hold up their right hands and take an oath to try your case fairly and justly and to make a finding according to the evidence which is brought before them.The Constitution provides:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”66This is an absolute guaranty—a right which is given to you, given to each of you, to every man, woman, and child, young or old, regardless of color or creed. A trial without a jury would be a violation of your constitutional rights. Of course, there are a few minor offenses, misdemeanors, and violations[pg 113]of city ordinances, which are sometimes tried without a jury, but in all infamous crimes, for which life may be taken as punishment or for which a person may be sent to the penitentiary, every one is entitled to a trial before a jury.Is not this a sacred right? Don't you think that it is wise to permit people to have their rights and wrongs determined by a body of plain, honest men? It removes any suggestion of the abuse of power by a person in a public position. It inspires confidence in those who are brought before the court for trial. If we cannot obtain justice before such a body of men, how can justice be obtained in this world?I have already told you that in this country the people are not only the makers of the law but the enforcers of the law. It is in these jury trials where the people enforce the law.Of course, the hearing before the jury is held in court. The judge presides. He directs the proceedings of the trial, sees that it is conducted in an orderly way, endeavors to prevent any falsehoods from getting before the jury, keeps away from the jury any hearsay or gossip, or expressions of prejudice, or other matters not founded on absolute knowledge and truth. But the jurors are the sole judges of what the truth is, and, when the case is closed, when the evidence has all been introduced and the attorneys have made their arguments and pleas, the members of the jury retire to a private room by themselves. There they discuss the evidence, come to some conclusion, make a finding of“guilty”or“not guilty”, and bring in their finding in the form of a verdict.Have you also observed that the constitutional protection of your liberty not only provides for a jury trial, but also provides that it shall be a“speedy”trial. That is, one charged with a crime cannot without his consent, be locked up for weeks and months and years, as has often occurred in[pg 114]other parts of the world. He is entitled to be tried just as soon as the case can be prepared for trial, in justice to both sides. Cases are often postponed for many months, but only by consent of the accused. A case not tried at the second term of court will usually be dismissed except when the defendant consents to the delay.The Constitution also provides that it must be a public trial. Oh! how many men in the long ago have been tried and condemned in private, where only a few enemies were present, where one's friends and neighbors could not hear the charges or the evidence. In this country the doors of the court room must be open. Any one has a right to enter and listen to the proceedings. The public has a right to know what is being charged against the humblest citizen, and what the proceedings against him are. Thus is justice guarded.Then the Constitution provides that the trial shall be before“an impartial jury of the State and district wherein the crime shall have been committed.”This is important. We are not to be sent away among strangers to be tried. That is what they used to do long ago. That is one of the things which our forefathers complained of most bitterly. In the Declaration of Independence the colonies declared:“He (the King of Great Britain) has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation ... for depriving us in many cases, of the benefits of Trial by Jury ... for transporting us beyond Seas to be tried for pretended offenses.”When the Constitution was adopted the people made up their minds that nothing of that kind should ever occur again in free America. They were so careful that they went so far as to provide that the district where a trial shall be[pg 115]held“shall have been previously ascertained by law”. That is to say, that the place of trial, the county or district where it shall be held, must be fixed by law before the crime is committed. The courts or the legislature of any State cannot, after a crime is committed, pass a law providing that such a crime shall be tried in a district then to be named. The law must fix this in advance of the commission of any offense. For instance, without such a constitutional provision, a person who committed a crime in the State of New York might be taken to California to be tried. This would not be American justice. The accused would have the right to point to the Constitution of his country and demand that he should be tried in New York, and any court which would not grant this right would not only violate the oath which every judge takes before he undertakes to perform the duties of such office, but his unlawful conduct would perhaps result in his impeachment. The proceedings would be reversed by a higher court, and the party would be granted a new trial at a place and in accordance with his constitutional privileges.Isn't it wonderful how the little details which may affect one's liberty were so carefully considered away back there when they were planning the Nation and establishing the rules which would guard the rights of the people?[pg 116]ELEMENTARY QUESTIONS1. Why should all of us be interested in a trial?2. Describe a court room scene.3. Why is trial by jury a sacred right? What would it be like if we did not have this right?4. How are jurors selected in your State?5. Why is the trial to be held in the vicinity where the crime was committed? What would be the dangers of taking it far away?6. Why should the jury be impartial?7. If the accused person is guilty, why is it advisable to plead guilty?8. Why is it impracticable to hold a trial immediately after the arrest of the accused person?9. What is the first step in the actual trial?10. After a jury is selected, what is required of them before the trial commences?11. Why is a speedy trial essential to justice?12. Why is it important that the trial should be public?13. State some offenses that are sometimes tried without a jury.ADVANCED QUESTIONSA. Can the judge declare an accused man guilty?B. How is trial by jury an evidence of the rule of the people?C. Show how this benefits the poor man and the rich man equally.D. Why are some trials delayed for many months?E. What is the importance of the clause“shall have been previously ascertained by law”?F. Discuss the relative role of jury and judge in a trial.G. Write a paper on the following:The Method of Selecting Jurors in Your StateDelay in TrialThe Injustice of Remote TrialsTrial by Jury vs. Trial by a JudgeThe Procedure of a Trial From Beginning to End
I hope no one here this morning will ever be arrested for a crime of any kind, and yet, as I have already explained to you, the innocent are sometimes brought before the court charged with a grave offense. Therefore you should be interested in the investigation of the truth of any charge that may be made against you, whether by a private individual or by a public officer.
I have already explained to you that in all grave offenses when a person is charged with a crime, he cannot be brought before the court for trial until the grand jury has investigated the facts and until they have returned an indictment, or written charge, to the court. Until this is done, the court has no power to proceed.
But now suppose that you have been arrested, suppose that a grand jury has investigated the charge against you, has heard witnesses, and has returned an indictment. You are then brought up before the court, and the indictment is read to you. This indictment I will explain to you more fully later. When the indictment is read you are then required to say whether you are“guilty”or“not guilty”. If you have committed the crime charged, it may be advisable to plead guilty and ask for the mercy of the court in the punishment which he may impose. Courts usually temper justice with mercy. Courts will usually impose a lighter sentence when a guilty person pleads“guilty”and avoids the delay and expense of a trial. But, if you are innocent, you will plead“not guilty”, and then the government, through[pg 112]its officers, will get ready for trial. You may not be tried right away, as it usually takes some time to investigate the facts and get the witnesses into court. As I will hereafter explain, you will be entitled to an attorney when the time comes for your trial, when you will have a chance to hear the witnesses offered by the prosecution, introduce your own witnesses, and, under our present law, testify yourself, tell your own story.
If you will walk into a court some day you will see the judge and over at one side twelve chairs for the jury. When your case is called for trial the first thing will be to select the twelve men who will be the jury in your case. I am not going to give the manner of selection at this time. This will be fully explained later. I wish now to impress upon you the fact that the Constitution expressly guards your rights by providing that you shall be entitled to have your case tried, not before a judge, but by a jury composed of men from the ordinary walks of life, laborers, merchants, farmers, people of all classes; men just like your fathers are. They are called. They hold up their right hands and take an oath to try your case fairly and justly and to make a finding according to the evidence which is brought before them.
The Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”66
This is an absolute guaranty—a right which is given to you, given to each of you, to every man, woman, and child, young or old, regardless of color or creed. A trial without a jury would be a violation of your constitutional rights. Of course, there are a few minor offenses, misdemeanors, and violations[pg 113]of city ordinances, which are sometimes tried without a jury, but in all infamous crimes, for which life may be taken as punishment or for which a person may be sent to the penitentiary, every one is entitled to a trial before a jury.
Is not this a sacred right? Don't you think that it is wise to permit people to have their rights and wrongs determined by a body of plain, honest men? It removes any suggestion of the abuse of power by a person in a public position. It inspires confidence in those who are brought before the court for trial. If we cannot obtain justice before such a body of men, how can justice be obtained in this world?
I have already told you that in this country the people are not only the makers of the law but the enforcers of the law. It is in these jury trials where the people enforce the law.
Of course, the hearing before the jury is held in court. The judge presides. He directs the proceedings of the trial, sees that it is conducted in an orderly way, endeavors to prevent any falsehoods from getting before the jury, keeps away from the jury any hearsay or gossip, or expressions of prejudice, or other matters not founded on absolute knowledge and truth. But the jurors are the sole judges of what the truth is, and, when the case is closed, when the evidence has all been introduced and the attorneys have made their arguments and pleas, the members of the jury retire to a private room by themselves. There they discuss the evidence, come to some conclusion, make a finding of“guilty”or“not guilty”, and bring in their finding in the form of a verdict.
Have you also observed that the constitutional protection of your liberty not only provides for a jury trial, but also provides that it shall be a“speedy”trial. That is, one charged with a crime cannot without his consent, be locked up for weeks and months and years, as has often occurred in[pg 114]other parts of the world. He is entitled to be tried just as soon as the case can be prepared for trial, in justice to both sides. Cases are often postponed for many months, but only by consent of the accused. A case not tried at the second term of court will usually be dismissed except when the defendant consents to the delay.
The Constitution also provides that it must be a public trial. Oh! how many men in the long ago have been tried and condemned in private, where only a few enemies were present, where one's friends and neighbors could not hear the charges or the evidence. In this country the doors of the court room must be open. Any one has a right to enter and listen to the proceedings. The public has a right to know what is being charged against the humblest citizen, and what the proceedings against him are. Thus is justice guarded.
Then the Constitution provides that the trial shall be before“an impartial jury of the State and district wherein the crime shall have been committed.”This is important. We are not to be sent away among strangers to be tried. That is what they used to do long ago. That is one of the things which our forefathers complained of most bitterly. In the Declaration of Independence the colonies declared:
“He (the King of Great Britain) has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation ... for depriving us in many cases, of the benefits of Trial by Jury ... for transporting us beyond Seas to be tried for pretended offenses.”
When the Constitution was adopted the people made up their minds that nothing of that kind should ever occur again in free America. They were so careful that they went so far as to provide that the district where a trial shall be[pg 115]held“shall have been previously ascertained by law”. That is to say, that the place of trial, the county or district where it shall be held, must be fixed by law before the crime is committed. The courts or the legislature of any State cannot, after a crime is committed, pass a law providing that such a crime shall be tried in a district then to be named. The law must fix this in advance of the commission of any offense. For instance, without such a constitutional provision, a person who committed a crime in the State of New York might be taken to California to be tried. This would not be American justice. The accused would have the right to point to the Constitution of his country and demand that he should be tried in New York, and any court which would not grant this right would not only violate the oath which every judge takes before he undertakes to perform the duties of such office, but his unlawful conduct would perhaps result in his impeachment. The proceedings would be reversed by a higher court, and the party would be granted a new trial at a place and in accordance with his constitutional privileges.
Isn't it wonderful how the little details which may affect one's liberty were so carefully considered away back there when they were planning the Nation and establishing the rules which would guard the rights of the people?
ELEMENTARY QUESTIONS
1. Why should all of us be interested in a trial?
2. Describe a court room scene.
3. Why is trial by jury a sacred right? What would it be like if we did not have this right?
4. How are jurors selected in your State?
5. Why is the trial to be held in the vicinity where the crime was committed? What would be the dangers of taking it far away?
6. Why should the jury be impartial?
7. If the accused person is guilty, why is it advisable to plead guilty?
8. Why is it impracticable to hold a trial immediately after the arrest of the accused person?
9. What is the first step in the actual trial?
10. After a jury is selected, what is required of them before the trial commences?
11. Why is a speedy trial essential to justice?
12. Why is it important that the trial should be public?
13. State some offenses that are sometimes tried without a jury.
ADVANCED QUESTIONS
A. Can the judge declare an accused man guilty?
B. How is trial by jury an evidence of the rule of the people?
C. Show how this benefits the poor man and the rich man equally.
D. Why are some trials delayed for many months?
E. What is the importance of the clause“shall have been previously ascertained by law”?
F. Discuss the relative role of jury and judge in a trial.
G. Write a paper on the following:
The Method of Selecting Jurors in Your StateDelay in TrialThe Injustice of Remote TrialsTrial by Jury vs. Trial by a JudgeThe Procedure of a Trial From Beginning to End
The Method of Selecting Jurors in Your State
Delay in Trial
The Injustice of Remote Trials
Trial by Jury vs. Trial by a Judge
The Procedure of a Trial From Beginning to End
XV. The IndictmentDefendant Must Be Informed Concerning The Accusation Against HimNow, my friends, in order to understand more fully the value of our constitutional rights, let us again imagine ourselves in a place of danger, danger of our liberty or of our life, and let us recall how carefully we have been guarded. To the poorest tramp, or the richest millionaire, the same rules apply. Innocent persons may be accused of crimes; they may be arrested, but they cannot be brought into court and put upon trial until they are fully advised of the charge against them.The Constitution provides:“In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation.”67This is the first step in bringing a person to trial. He does not go blindly. He must be informed“of the nature and cause”of the charge against him. He must be given full knowledge of the crime which it is claimed he committed.How is this done?Well, we have to consider the constitutional provision that one cannot be put upon trial for an infamous crime“unless on a presentment or indictment of a Grand Jury”. What this constitutional provision means is, that a grand jury shall hear and consider the evidence and, if satisfied that a person shall be tried, they shall draw up a writing called an“indictment”, which they shall return publicly in court. This indictment is a brief statement by which the grand jury makes a charge against the person named of having committed a certain offense, and the indictment must state not only the name of the offense, but the manner,[pg 118]briefly stated, in which the grand jury claims the offense was committed.So that under this constitutional guaranty the person accused knows what he is to be tried for. This enables him to prepare for his defense. When his attorney is consulted he examines a copy of the indictment. He sees what is charged in it. He then talks over with the accused the facts and circumstances with relation to the crime charged. He then makes proper inquiry. If possible he secures witnesses with relation to the charge and thus is enabled to come into court ready to hear the evidence offered by the prosecution and ready to introduce witnesses to contradict or explain the testimony introduced by the prosecution.So you see how valuable this right is. One may proceed intelligently, with full light upon the alleged transaction. He is not required to stumble in the darkness, perhaps to tumble into a pitfall. Without such a provision you can see how helpless an innocent person might be if brought suddenly before the court for trial for an offense which he never committed. If he were not first advised of the nature of the charge and the circumstances he might be helpless. You know evidence is brought before the court by witnesses who are called by the attorneys for the prosecution and for the accused. These witnesses take oath to tell the truth. But, unfortunately, witnesses do not always tell the truth. They sometimes commit perjury. One must be ready to meet false testimony. By the constitutional guaranty requiring that the accusation be in writing, stating the crime and its nature, one can be prepared. In many of the States still greater precaution is taken to guard against any possible wrong, by requiring not only an indictment but also requiring that there shall be furnished to the person accused the names of witnesses and a brief statement of the evidence which the prosecution expects to offer, this to be furnished[pg 119]before the trial commences so that the defendant may get ready to meet it.Did you ever go into a court when a man was upon trial for a grave offense? You should do so. Everyone should do so. But you should go there with the proper spirit, not for amusement, not to criticise, but with a full realization of the great human drama there being enacted. There at or near the trial table you will see the defendant, the man who is being tried. He may be a stranger. He may be poor. He may possibly be wicked, but he is a human being; and no matter what faults he may have he is an American citizen, and under the Constitution of our country he cannot be convicted until proven guilty of the particular crime charged in the indictment. He sits there while witnesses are telling their stories. You will see him watching the jury. Occasionally he looks at the judge. But he knows that no matter what the judge may think, he cannot find him guilty. The jury and the jury alone can convict.It is a solemn proceeding, though the lawyers may at times appear to use trifling words in their discussions. The prisoner looks through the court room window. Outside the sun is shining, the birds are singing, and the breezes sway the branches of the green trees. Everything seems to suggest liberty and freedom. At no time is liberty so sweet as when it is in danger. The prisoner realizes that in a few days the trial will be ended and the verdict of the jury will determine whether he shall go out of the court room to freedom or to prison.To-day it is the stranger who is on trial. To-morrow it may be someone who is near and dear to you. If such misfortune should come, then you will fully realize what a wonderful blessing it is that under our Constitution everyone is assured of a fair trial, that a person can only be tried for the specific offense stated in the indictment, and that a verdict[pg 120]of guilty can only be rendered when the evidence is strong enough to convince the jury of guilt beyond a reasonable doubt.[pg 121]ELEMENTARY QUESTIONS1. Restate the guaranties that every man has before being brought to trial.2. Why should the accused be informed of the nature of the accusation?3. What would be the result if he were not so informed?4. Why is it necessary that this accusation be put in writing?5. Why is this important to everybody?ADVANCED QUESTIONSA. Illustrate the dangers of secret charges.B. What chance has a person with malicious and secret gossip?C. Upon a trial can evidence of hearsay or gossip be offered to prove guilt?D. When a person makes a charge against a person and says,“Don't tell anyone that I said this”, what is the effect?E. Tell some of the dangers and injustices of slander.F. What is the first step in bringing an accused person to trial?G. Is it sufficient to charge the defendant with having committed murder without any further explanation? Give reasons.H. What is required of a witness before he is examined?I. What is perjury?J. Why is a trial a solemn proceeding?K. How strong must the evidence be in order that a person may be found guilty?L. Write a paper on the following:The Need of a Public and Written ChargeThe Danger of the Secret SlanderHow An Accused Person Prepares For His TrialA Visit to a Court in Session
Now, my friends, in order to understand more fully the value of our constitutional rights, let us again imagine ourselves in a place of danger, danger of our liberty or of our life, and let us recall how carefully we have been guarded. To the poorest tramp, or the richest millionaire, the same rules apply. Innocent persons may be accused of crimes; they may be arrested, but they cannot be brought into court and put upon trial until they are fully advised of the charge against them.
The Constitution provides:
“In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation.”67
This is the first step in bringing a person to trial. He does not go blindly. He must be informed“of the nature and cause”of the charge against him. He must be given full knowledge of the crime which it is claimed he committed.How is this done?Well, we have to consider the constitutional provision that one cannot be put upon trial for an infamous crime“unless on a presentment or indictment of a Grand Jury”. What this constitutional provision means is, that a grand jury shall hear and consider the evidence and, if satisfied that a person shall be tried, they shall draw up a writing called an“indictment”, which they shall return publicly in court. This indictment is a brief statement by which the grand jury makes a charge against the person named of having committed a certain offense, and the indictment must state not only the name of the offense, but the manner,[pg 118]briefly stated, in which the grand jury claims the offense was committed.
So that under this constitutional guaranty the person accused knows what he is to be tried for. This enables him to prepare for his defense. When his attorney is consulted he examines a copy of the indictment. He sees what is charged in it. He then talks over with the accused the facts and circumstances with relation to the crime charged. He then makes proper inquiry. If possible he secures witnesses with relation to the charge and thus is enabled to come into court ready to hear the evidence offered by the prosecution and ready to introduce witnesses to contradict or explain the testimony introduced by the prosecution.
So you see how valuable this right is. One may proceed intelligently, with full light upon the alleged transaction. He is not required to stumble in the darkness, perhaps to tumble into a pitfall. Without such a provision you can see how helpless an innocent person might be if brought suddenly before the court for trial for an offense which he never committed. If he were not first advised of the nature of the charge and the circumstances he might be helpless. You know evidence is brought before the court by witnesses who are called by the attorneys for the prosecution and for the accused. These witnesses take oath to tell the truth. But, unfortunately, witnesses do not always tell the truth. They sometimes commit perjury. One must be ready to meet false testimony. By the constitutional guaranty requiring that the accusation be in writing, stating the crime and its nature, one can be prepared. In many of the States still greater precaution is taken to guard against any possible wrong, by requiring not only an indictment but also requiring that there shall be furnished to the person accused the names of witnesses and a brief statement of the evidence which the prosecution expects to offer, this to be furnished[pg 119]before the trial commences so that the defendant may get ready to meet it.
Did you ever go into a court when a man was upon trial for a grave offense? You should do so. Everyone should do so. But you should go there with the proper spirit, not for amusement, not to criticise, but with a full realization of the great human drama there being enacted. There at or near the trial table you will see the defendant, the man who is being tried. He may be a stranger. He may be poor. He may possibly be wicked, but he is a human being; and no matter what faults he may have he is an American citizen, and under the Constitution of our country he cannot be convicted until proven guilty of the particular crime charged in the indictment. He sits there while witnesses are telling their stories. You will see him watching the jury. Occasionally he looks at the judge. But he knows that no matter what the judge may think, he cannot find him guilty. The jury and the jury alone can convict.
It is a solemn proceeding, though the lawyers may at times appear to use trifling words in their discussions. The prisoner looks through the court room window. Outside the sun is shining, the birds are singing, and the breezes sway the branches of the green trees. Everything seems to suggest liberty and freedom. At no time is liberty so sweet as when it is in danger. The prisoner realizes that in a few days the trial will be ended and the verdict of the jury will determine whether he shall go out of the court room to freedom or to prison.
To-day it is the stranger who is on trial. To-morrow it may be someone who is near and dear to you. If such misfortune should come, then you will fully realize what a wonderful blessing it is that under our Constitution everyone is assured of a fair trial, that a person can only be tried for the specific offense stated in the indictment, and that a verdict[pg 120]of guilty can only be rendered when the evidence is strong enough to convince the jury of guilt beyond a reasonable doubt.
ELEMENTARY QUESTIONS
1. Restate the guaranties that every man has before being brought to trial.
2. Why should the accused be informed of the nature of the accusation?
3. What would be the result if he were not so informed?
4. Why is it necessary that this accusation be put in writing?
5. Why is this important to everybody?
ADVANCED QUESTIONS
A. Illustrate the dangers of secret charges.
B. What chance has a person with malicious and secret gossip?
C. Upon a trial can evidence of hearsay or gossip be offered to prove guilt?
D. When a person makes a charge against a person and says,“Don't tell anyone that I said this”, what is the effect?
E. Tell some of the dangers and injustices of slander.
F. What is the first step in bringing an accused person to trial?
G. Is it sufficient to charge the defendant with having committed murder without any further explanation? Give reasons.
H. What is required of a witness before he is examined?
I. What is perjury?
J. Why is a trial a solemn proceeding?
K. How strong must the evidence be in order that a person may be found guilty?
L. Write a paper on the following:
The Need of a Public and Written ChargeThe Danger of the Secret SlanderHow An Accused Person Prepares For His TrialA Visit to a Court in Session
The Need of a Public and Written Charge
The Danger of the Secret Slander
How An Accused Person Prepares For His Trial
A Visit to a Court in Session
XVI. Guarding Rights In CourtConfronted By Witnesses—Compulsory Process—Aid Of Counsel—Jury In Civil TrialI am sure that no one until he has studied the Constitution, no one certainly who is not a trained lawyer, will realize the many safeguards necessary to protect persons who may be wrongfully accused of a crime; but the framers of the Constitution knew the dangers from the sad experiences of innocent men and women who had been sacrificed by tyrants who had but little regard for human life or for human liberty.Of course you now understand that in case an indictment is returned by the grand jury, the person accused comes into court, or is brought in, and enters his plea of“guilty”or of“not guilty”. If he pleads“not guilty”a jury is brought together,“empanelled”, as it is called, and they are sworn to hear the evidence, and decide the case according to the evidence.But in these grave criminal trials, in order that the truth may prevail, every accused person is given the right to be confronted by the witnesses against him. The Constitution provides:“In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.”68What does this mean? It means that the government, the prosecution, cannot prove guilt by witnesses who are not present in court where the defendant can see them, where they may be cross examined by counsel, where the jury may observe them, and study their conduct and demeanor, because this often helps in determining whether a person is telling the truth or a falsehood.In ordinary trials where property alone is involved, a[pg 123]witness may live in another State or at some great distance from the place of trial. Witnesses cannot be brought a long distance in those cases. In some States they cannot be compelled to attend a distance of more than seventy miles. In other States, not more than one hundred miles; so that to get their testimony, the parties take their depositions. This means that instead of bringing the witness into court, the parties obtain an order by which they can go to the place where the witness is. There he is sworn before a commissioner, or a notary public, examined, and his testimony is taken in writing. The testimony is returned to the court where the trial is to be held, and is then read to the court or the jury upon the trial.But in the trial of a person accused of a crime, depositions cannot be used against him. Statements of witnesses in writing, or in any other form, cannot be used by the prosecution. The witnesses must be physically in court before the accused, and there orally testify, and the defendant must have the right to cross examine them.But to give the accused person every possible aid in enabling him to have the truth brought before the court and jury, he may take the depositions of witnesses in his own behalf. That is, the prosecution—the State or the Nation accusing a man of a crime—must prove the truth of the accusation by witnesses personally in court confronting the defendant, but the defendant is given the privilege of taking the testimony of witnesses at a distance, in the form of depositions which are read to the jury.This provision of the Constitution may be very important to an innocent person sometimes. The importance of it may never appear to us until unfortunately we be wrongfully accused of a crime, and our life or liberty in danger.Then the Constitution further provides:“In all criminal prosecutions, the accused shall enjoy the[pg 124]right ... to have compulsory process for obtaining witnesses in his favor.”69This is also very important.“Compulsory process”means an order of the court, commonly called“subpoena”, which is served upon witnesses by the marshal, or the sheriff, or other authorized person, commanding them to appear in court for examination before the court and jury as to the truth of matters involved in the accusation against a person on trial.Here I wish you to recall the unfortunate fact that every little while somebody is complaining about our government as“a rich man's government”. It is often claimed that the poor have no chance for justice. The truth is that the rich and the poor stand equal in the courts. In creating the Constitution, it is known of course that someone might be brought before the court who was poor, without money, possibly without friends. He might be innocent, but in order that his innocence might be established it would be necessary for him to have witnesses who might live many miles away, who would not come into court to testify of their own free will. Therefore, there was inserted in the Constitution this provision, that every defendant shall have the right to compulsory process, commanding witnesses to appear, and there is no one so poor that he cannot have this privilege, because the United States—and in most of the States we have a like provision—not only issues subpoenas and compels the officers to serve them, but it pays the expense of serving, and pays the witness fees and mileage, so that the poor man has all of the rights in getting the truth before the court and jury that the richest may have.Furthermore, in the same American spirit, when persons accused of an offense are too poor to employ counsel, the government will furnish counsel. The Constitution provides:[pg 125]“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.”70There is no person so poor, or obscure, or friendless, that when he is charged with a crime which might affect his liberty or his life, he shall not have the right to a full, fair trial. Not only are his witnesses produced and paid by the government, but an attorney is appointed by the government to represent him, and help him establish his innocence.This is a wonderful illustration of the paternal care which is manifested for those who may be unfortunate, and this is all because under our Constitution, liberty is a sacred thing, and it shall not be taken away except in punishment for a crime which has been proven in open court in a public trial before a jury, where the party has been confronted with the witnesses against him, where he has had a chance to furnish witnesses in his behalf and the aid of counsel in his trial.Then the people who brought the Constitution into being, feeling that so far as practicable they should have control of the enforcement of law not only in criminal cases, but in civil cases, included a guaranty in the Constitution that:“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”71Of course there is often more or less controversy about property of small value, where the expense and delay of jury trials might possibly be oppressive, but in any case involving more than twenty dollars in value, triable under the common law, which includes practically all cases except those peculiar cases triable in Chancery, or in Courts of Equity, the parties are entitled to a trial by jury. That is, instead of introducing their evidence and having the judge decide what the truth is between them, the parties are entitled to have a jury of men from the ordinary occupations of life hear the evidence and say from the evidence what is the truth.[pg 126]And furthermore, the people provided in the Constitution that:“No fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”72Here again is the right to a jury trial, and the benefit of a jury trial, and to a trial according to the established rules and precedents of the common law courts carefully preserved.Now my friends, I know that there is much confusion in your minds about trials in court. I do not expect you to know all about trials. We are studying the guaranties of the Constitution so that we shall learn human rights—our rights—under the Constitution. I am talking to you about the safeguards of the Constitution so you shall know your rights, especially so that you will always venerate the Constitution which guards your rights, and defend it against those who may assail it. But I do want you to have a clear idea of what a trial in court is. I want you to know the purpose of the long days of examination of witnesses, the objections of the attorneys to certain questions asked, the rulings of the court, and the arguments of counsel.The main purpose, aim, and object of every lawsuit, as trials are usually termed by people who are not lawyers,is to find the truth. The proceedings in court in every lawsuit are a continuous search for the truth. If in disputes we could agree to what the truth is, there would be few lawsuits to try.A lawsuit only arises where there is a dispute to settle. If people agreed about their rights there would be little need of courts. In criminal cases, the government through the grand jury charges by indictment that a man committed a certain crime. The government says the man did it. He denies it by a plea of not guilty. He says he did not. The trial before the petit jury is merely a search for the truth[pg 127]about the charge.What is the truth about the matter in dispute, that is all that is involved in an ordinary lawsuit.Picture two boys in a dispute about which owns a ball. One positively asserts that it is his, that his father bought it and gave it to him. The other is just as sure that it is his. He says that his brother gave it to him. They quarrel so excitedly that a neighbor coming across the street asks the cause of the trouble. They tell him their claims and ask him to decide. One boy points out a rough spot on the ball which he insists was caused by a blow from his bat while he was playing in his own yard. The other says that his brother gave him a ball with red and white stitches. The neighbor, after hearing these and many other claims, decides the case, giving the ball to the boy whom he finds to be the owner.In this we have every element of a lawsuit. The dispute, the court (the neighbor), the witnesses (the boys), and the judgment based upon what the neighbor finds to be the truth from the evidence before him. That is all that any court or jury can do, but under the Constitution in cases involving life or liberty every possible safeguard is provided so that the truth may be found, so that justice may be done.[pg 129]ELEMENTARY QUESTIONS1. Why should all witnesses for the prosecution speak in the actual presence of the accused?2. Why should the accused be allowed to have testimony in his favor submitted in writing?3. In what cases is written testimony ordinarily admitted?4. What is compulsory process?5. In what ways does the Constitution aid the poor man?6. In what cases may there be a trial without a jury?7. What is the main purpose of any lawsuit?8. What is meant by cross-examination of a witness?ADVANCED QUESTIONSA. In what way do these provisions sustain the fact that our government is a democracy?B. Is a person more likely to commit perjury when not actually facing the person accused? Give reasons.C. What is the provision of the Constitution as to“compulsory process”? Explain the importance of this right.D. Explain the provision of the Constitution as to the right to have counsel.E. Show how compulsory process and free counsel help the poor man.F. Why is jury trial omitted in small controversies?G. What is a“civil”case?H. Write a paper on the following:How Perjury is DetectedOral and Written TestimonyHow the Poor Man is ProtectedThe Purpose of a Trial in CourtThe Story of a Tramp Without Money, Accused of an Offense: How the Constitution Helps Him
I am sure that no one until he has studied the Constitution, no one certainly who is not a trained lawyer, will realize the many safeguards necessary to protect persons who may be wrongfully accused of a crime; but the framers of the Constitution knew the dangers from the sad experiences of innocent men and women who had been sacrificed by tyrants who had but little regard for human life or for human liberty.
Of course you now understand that in case an indictment is returned by the grand jury, the person accused comes into court, or is brought in, and enters his plea of“guilty”or of“not guilty”. If he pleads“not guilty”a jury is brought together,“empanelled”, as it is called, and they are sworn to hear the evidence, and decide the case according to the evidence.
But in these grave criminal trials, in order that the truth may prevail, every accused person is given the right to be confronted by the witnesses against him. The Constitution provides:
“In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.”68
What does this mean? It means that the government, the prosecution, cannot prove guilt by witnesses who are not present in court where the defendant can see them, where they may be cross examined by counsel, where the jury may observe them, and study their conduct and demeanor, because this often helps in determining whether a person is telling the truth or a falsehood.
In ordinary trials where property alone is involved, a[pg 123]witness may live in another State or at some great distance from the place of trial. Witnesses cannot be brought a long distance in those cases. In some States they cannot be compelled to attend a distance of more than seventy miles. In other States, not more than one hundred miles; so that to get their testimony, the parties take their depositions. This means that instead of bringing the witness into court, the parties obtain an order by which they can go to the place where the witness is. There he is sworn before a commissioner, or a notary public, examined, and his testimony is taken in writing. The testimony is returned to the court where the trial is to be held, and is then read to the court or the jury upon the trial.
But in the trial of a person accused of a crime, depositions cannot be used against him. Statements of witnesses in writing, or in any other form, cannot be used by the prosecution. The witnesses must be physically in court before the accused, and there orally testify, and the defendant must have the right to cross examine them.
But to give the accused person every possible aid in enabling him to have the truth brought before the court and jury, he may take the depositions of witnesses in his own behalf. That is, the prosecution—the State or the Nation accusing a man of a crime—must prove the truth of the accusation by witnesses personally in court confronting the defendant, but the defendant is given the privilege of taking the testimony of witnesses at a distance, in the form of depositions which are read to the jury.
This provision of the Constitution may be very important to an innocent person sometimes. The importance of it may never appear to us until unfortunately we be wrongfully accused of a crime, and our life or liberty in danger.
Then the Constitution further provides:
“In all criminal prosecutions, the accused shall enjoy the[pg 124]right ... to have compulsory process for obtaining witnesses in his favor.”69
This is also very important.“Compulsory process”means an order of the court, commonly called“subpoena”, which is served upon witnesses by the marshal, or the sheriff, or other authorized person, commanding them to appear in court for examination before the court and jury as to the truth of matters involved in the accusation against a person on trial.
Here I wish you to recall the unfortunate fact that every little while somebody is complaining about our government as“a rich man's government”. It is often claimed that the poor have no chance for justice. The truth is that the rich and the poor stand equal in the courts. In creating the Constitution, it is known of course that someone might be brought before the court who was poor, without money, possibly without friends. He might be innocent, but in order that his innocence might be established it would be necessary for him to have witnesses who might live many miles away, who would not come into court to testify of their own free will. Therefore, there was inserted in the Constitution this provision, that every defendant shall have the right to compulsory process, commanding witnesses to appear, and there is no one so poor that he cannot have this privilege, because the United States—and in most of the States we have a like provision—not only issues subpoenas and compels the officers to serve them, but it pays the expense of serving, and pays the witness fees and mileage, so that the poor man has all of the rights in getting the truth before the court and jury that the richest may have.
Furthermore, in the same American spirit, when persons accused of an offense are too poor to employ counsel, the government will furnish counsel. The Constitution provides:
“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.”70
There is no person so poor, or obscure, or friendless, that when he is charged with a crime which might affect his liberty or his life, he shall not have the right to a full, fair trial. Not only are his witnesses produced and paid by the government, but an attorney is appointed by the government to represent him, and help him establish his innocence.
This is a wonderful illustration of the paternal care which is manifested for those who may be unfortunate, and this is all because under our Constitution, liberty is a sacred thing, and it shall not be taken away except in punishment for a crime which has been proven in open court in a public trial before a jury, where the party has been confronted with the witnesses against him, where he has had a chance to furnish witnesses in his behalf and the aid of counsel in his trial.
Then the people who brought the Constitution into being, feeling that so far as practicable they should have control of the enforcement of law not only in criminal cases, but in civil cases, included a guaranty in the Constitution that:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”71
Of course there is often more or less controversy about property of small value, where the expense and delay of jury trials might possibly be oppressive, but in any case involving more than twenty dollars in value, triable under the common law, which includes practically all cases except those peculiar cases triable in Chancery, or in Courts of Equity, the parties are entitled to a trial by jury. That is, instead of introducing their evidence and having the judge decide what the truth is between them, the parties are entitled to have a jury of men from the ordinary occupations of life hear the evidence and say from the evidence what is the truth.
And furthermore, the people provided in the Constitution that:
“No fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”72
Here again is the right to a jury trial, and the benefit of a jury trial, and to a trial according to the established rules and precedents of the common law courts carefully preserved.
Now my friends, I know that there is much confusion in your minds about trials in court. I do not expect you to know all about trials. We are studying the guaranties of the Constitution so that we shall learn human rights—our rights—under the Constitution. I am talking to you about the safeguards of the Constitution so you shall know your rights, especially so that you will always venerate the Constitution which guards your rights, and defend it against those who may assail it. But I do want you to have a clear idea of what a trial in court is. I want you to know the purpose of the long days of examination of witnesses, the objections of the attorneys to certain questions asked, the rulings of the court, and the arguments of counsel.
The main purpose, aim, and object of every lawsuit, as trials are usually termed by people who are not lawyers,is to find the truth. The proceedings in court in every lawsuit are a continuous search for the truth. If in disputes we could agree to what the truth is, there would be few lawsuits to try.
A lawsuit only arises where there is a dispute to settle. If people agreed about their rights there would be little need of courts. In criminal cases, the government through the grand jury charges by indictment that a man committed a certain crime. The government says the man did it. He denies it by a plea of not guilty. He says he did not. The trial before the petit jury is merely a search for the truth[pg 127]about the charge.What is the truth about the matter in dispute, that is all that is involved in an ordinary lawsuit.
Picture two boys in a dispute about which owns a ball. One positively asserts that it is his, that his father bought it and gave it to him. The other is just as sure that it is his. He says that his brother gave it to him. They quarrel so excitedly that a neighbor coming across the street asks the cause of the trouble. They tell him their claims and ask him to decide. One boy points out a rough spot on the ball which he insists was caused by a blow from his bat while he was playing in his own yard. The other says that his brother gave him a ball with red and white stitches. The neighbor, after hearing these and many other claims, decides the case, giving the ball to the boy whom he finds to be the owner.
In this we have every element of a lawsuit. The dispute, the court (the neighbor), the witnesses (the boys), and the judgment based upon what the neighbor finds to be the truth from the evidence before him. That is all that any court or jury can do, but under the Constitution in cases involving life or liberty every possible safeguard is provided so that the truth may be found, so that justice may be done.
ELEMENTARY QUESTIONS
1. Why should all witnesses for the prosecution speak in the actual presence of the accused?
2. Why should the accused be allowed to have testimony in his favor submitted in writing?
3. In what cases is written testimony ordinarily admitted?
4. What is compulsory process?
5. In what ways does the Constitution aid the poor man?
6. In what cases may there be a trial without a jury?
7. What is the main purpose of any lawsuit?
8. What is meant by cross-examination of a witness?
ADVANCED QUESTIONS
A. In what way do these provisions sustain the fact that our government is a democracy?
B. Is a person more likely to commit perjury when not actually facing the person accused? Give reasons.
C. What is the provision of the Constitution as to“compulsory process”? Explain the importance of this right.
D. Explain the provision of the Constitution as to the right to have counsel.
E. Show how compulsory process and free counsel help the poor man.
F. Why is jury trial omitted in small controversies?
G. What is a“civil”case?
H. Write a paper on the following:
How Perjury is DetectedOral and Written TestimonyHow the Poor Man is ProtectedThe Purpose of a Trial in CourtThe Story of a Tramp Without Money, Accused of an Offense: How the Constitution Helps Him
How Perjury is Detected
Oral and Written Testimony
How the Poor Man is Protected
The Purpose of a Trial in Court
The Story of a Tramp Without Money, Accused of an Offense: How the Constitution Helps Him
XVII. PunishmentProhibition Of Excessive Bail Or Fines, Cruel Or Unusual Punishments, And Involuntary ServitudeBefore we finish, I want you to have in your mind a clear conception of the way in which a person accused of an offense is brought before the court, tried, and convicted or acquitted.I have already explained that the first step is the arrest of the suspected person.73Again put yourself in the place of the suspected person.You are arrested. It is the duty of the officer making the arrest to bring you into a court, but this is not generally to a trial court. A person is generally brought before what is called a committing magistrate, a justice of the peace or commissioner—some person having authority to issue warrants of arrest. You may be far from home and friends when you are arrested. You may be entirely unacquainted in the neighborhood. The government is not ready to proceed to your trial. Witnesses must be summoned, not only for the government, but if you have witnesses you desire to use, they must be brought in.The general rule is to set the case for hearing—a“preliminary hearing”in a day or two, or a week possibly. You must therefore wait until this time comes. What are you going to do? Must you go to jail until they get ready to have the hearing? No, you are entitled to bail; that is, you are entitled to be discharged upon a bond fixed by the magistrate, commissioner, or judge. There are usually only two offenses which are not, as the saying is, bailable—murder and treason. Usually[pg 131]where murder or treason is charged, the person is not admitted to bail. He is locked up in a cell to await trial; but as a general rule, when a person is arrested his bail is fixed—that is, the amount of the bond which he must file in order to be discharged pending the trial. For instance, if it were a charge of stealing a bicycle, the court might fix the bail at $500 or $1000. That would mean that if he would file a bond, with sureties, conditioned that in case he did not appear for hearing—that he should run away, for instance—the sureties would pay into the court the amount of the bond. Mostly any person of fair standing in a community can secure some friends who will sign such a bond, so that he may have his liberty until the trial.But the framers of the Constitution, again anxious about the liberties of the people, provided:“Excessive bail shall not be required.”74There were many instances in the olden days where bail was purposely fixed so high—so far beyond all reason in view of the nature of the offense that the party could not furnish the bail, the purpose being to compel the party to remain in prison. Our Constitution guarantees to every individual that the amount of bail fixed shall be reasonable in view of the nature of the offense and if it is not reasonable, the person arrested may have the matter brought before the court, who will make full inquiry, and reduce the amount of the bail if found to be too large.All through these guaranties of the Constitution, all through these provisions guarding the sacred rights of every person, you will see that the effort is that justice shall be done, not injustice; that right shall prevail, not wrong. That no one shall be kept in prison, deprived of his liberty, unless absolutely necessary in the interest of justice.Then after a trial, if a person is found guilty, the Constitution[pg 132]again guards the rights even of the guilty, by providing:“Excessive fines (shall not be) imposed, nor cruel and unusual punishments inflicted.”75When this constitutional guaranty was written persons then living could recall without doubt the barbarous punishments which had been imposed in civilized countries even for light offenses. Common hanging was not regarded as sufficient punishment.“Hanged, drawn and quartered”was often heard in the courts of countries which had been left behind. It was nothing uncommon to see persons upon the roadside in England left hanging to the gibbet for long periods of time where the people could see them as a warning. It was not uncommon in those times to have a penalty of death imposed for the offense of stealing.It is almost impossible to read of the punishments of the olden days, even under decrees of courts, without a shudder. Therefore, every one in America should be filled with gratitude that in the adoption of our Constitution these excessive cruelties were forever ended.We have in this country the death penalty only for the most grave offenses, and it is seldom imposed. Imprisonment is generally regarded as just and sufficient. I might spend an hour if we had time, telling you something of the horrible dungeons which served as prisons in the olden days, into which God's sunlight seldom entered; of the chains the prisoners had to wear; of the starvation; yes, and of the lash—inhumanities which one can scarcely conceive, and which can never disgrace the civilization of America.Again, carefully guarding the rights and liberties of the people we find:“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly[pg 133]convicted, shall exist within the United States, or any place subject to their jurisdiction.”76This is not a part of the original Constitution. It was adopted after the war had driven slavery from our shores. The spirit of America has from the beginning been exerted in enlarging the rights of human beings. Slavery existed before the adoption of the Constitution, and so strongly was it intrenched at that time in some of the colonies that it was impossible then to wipe it out.But it did not belong in America, and the time came when the American people, after a long bitter war, crushed the slave power, and swept from our shores the last vestige of involuntary servitude. That it might not be renewed, the people amended the Constitution so as forever to bar slavery or involuntary servitude except as men might be put in prison in punishment for crime after a full, fair trial.Did you ever read of the debtor's prison? It used to be in nearly every country in the world, that men who were merely unfortunate, who got in debt and who could not pay when the debt was due were sent to prison, and kept there sometimes for long periods. It was most cruel, because in many instances the persons were honest. They wanted to pay their debts, but sickness came, or floods, or fire, or other misfortune, and when the time came they were unable to pay and thus they lost their liberty.In those olden days, men were not only imprisoned, but in some countries they were compelled to labor for the person whom they owed. They were compelled to be slaves.But at last we have reached a stage in America, where no one may be compelled to work for another, unless by his own free will, except under conviction of a crime where the State may compel prisoners to work for some one in order to help pay the expense of maintaining them.The old debtor's prison is gone. No one in this country[pg 134]can now be imprisoned for an ordinary debt. There are a few States in which a person may be imprisoned for debts arising in fraud, but for an ordinary contract debt, mere inability to pay, no one in America can now be compelled to submit to imprisonment.I wish sometime you would think seriously about what America has done for the poor. In the olden days they had few if any rights; but to-day in America, while by law we cannot prevent sickness nor sorrow, or other misfortune, we can and we do guard the liberty of the poorest and the most unfortunate. In fact many laws have been enacted which give to the poor special privileges which are denied to those who have property or money.For instance in nearly every State there are what are called exemptions for a person who is the head of a family, which protect him even in the possession of a limited amount of property which his creditors cannot take away from him in payment of a debt. In most of the States laborers may hold the earnings of a certain period, for instance ninety days, for support of themselves and their families, which no one can touch, which no officers and no court can seize in payment of a debt. Also they are protected in their household goods, their clothing for themselves and their families, and in many other ways.The farmer who may be heavily in debt is protected for himself and his family by having exempted to him a team of horses, harness and wagon, machinery, farm utensils, and food and clothing for the family.I have not time to relate all that has been done by America in sympathetic aid of the poor and the unfortunate. No other country in the world has given such consideration to the poor as has America.We hear much talk of social injustice, that the poor man has no chance. The truth is that more has been done in[pg 135]America during the past twenty-five years to provide justice for the poor and unfortunate and for those who toil, than was done in any other country of the world during the last one thousand years. The spirit of America is right. The people have the power. They are right at heart. The only weakness in America is the failure of many thousands of our men and women to take an active interest in the affairs of government. Hundreds of thousands, yes millions, of our voters fail to go to the polls on election day to vote. They do not seem to feel any gratitude for the privilege of living in a free country where liberty is guarded by written guaranties of a Constitution which cannot be changed, except by the will of the people themselves.[pg 137]ELEMENTARY QUESTIONS1. After a person is arrested where is he generally taken by the officer?2. If the hearing is postponed, what is generally done with him in the meantime?3. What is bail?4. What offenses are not bailable?5. What is the constitutional guaranty as to bail?6. Why should excessive bail be prohibited? What would be the injustice of this practice?7. What happens when a person“out on bail”fails to appear in court at the time set? Is he relieved of further punishment?8. If a magistrate fixes excessive bail, what may the accused person do in order to have it reduced?9. Name some cruel and unusual punishments?10. When was slavery in America abolished?11. What was a debtor's prison?12. How does America protect the poor? Can a debtor be put in prison for failing to pay ordinary debts?13. What is meant by“exemptions”in relation to property and debts?ADVANCED QUESTIONSA. Explain the injustice of requiring excessive bail?B. When a judge determines the amount of bail, what factors does he consider?C. What is the purpose of punishment?D. Discuss the movement for prison reform.E. What is the purpose of the bankruptcy law?F. Write a paper on:Cruel and Unusual PunishmentsPunishment and Crime in the United StatesHow America Protects the Poor ManThe Reformatory Versus the Penitentiary
Before we finish, I want you to have in your mind a clear conception of the way in which a person accused of an offense is brought before the court, tried, and convicted or acquitted.
I have already explained that the first step is the arrest of the suspected person.73Again put yourself in the place of the suspected person.
You are arrested. It is the duty of the officer making the arrest to bring you into a court, but this is not generally to a trial court. A person is generally brought before what is called a committing magistrate, a justice of the peace or commissioner—some person having authority to issue warrants of arrest. You may be far from home and friends when you are arrested. You may be entirely unacquainted in the neighborhood. The government is not ready to proceed to your trial. Witnesses must be summoned, not only for the government, but if you have witnesses you desire to use, they must be brought in.
The general rule is to set the case for hearing—a“preliminary hearing”in a day or two, or a week possibly. You must therefore wait until this time comes. What are you going to do? Must you go to jail until they get ready to have the hearing? No, you are entitled to bail; that is, you are entitled to be discharged upon a bond fixed by the magistrate, commissioner, or judge. There are usually only two offenses which are not, as the saying is, bailable—murder and treason. Usually[pg 131]where murder or treason is charged, the person is not admitted to bail. He is locked up in a cell to await trial; but as a general rule, when a person is arrested his bail is fixed—that is, the amount of the bond which he must file in order to be discharged pending the trial. For instance, if it were a charge of stealing a bicycle, the court might fix the bail at $500 or $1000. That would mean that if he would file a bond, with sureties, conditioned that in case he did not appear for hearing—that he should run away, for instance—the sureties would pay into the court the amount of the bond. Mostly any person of fair standing in a community can secure some friends who will sign such a bond, so that he may have his liberty until the trial.
But the framers of the Constitution, again anxious about the liberties of the people, provided:
“Excessive bail shall not be required.”74
There were many instances in the olden days where bail was purposely fixed so high—so far beyond all reason in view of the nature of the offense that the party could not furnish the bail, the purpose being to compel the party to remain in prison. Our Constitution guarantees to every individual that the amount of bail fixed shall be reasonable in view of the nature of the offense and if it is not reasonable, the person arrested may have the matter brought before the court, who will make full inquiry, and reduce the amount of the bail if found to be too large.
All through these guaranties of the Constitution, all through these provisions guarding the sacred rights of every person, you will see that the effort is that justice shall be done, not injustice; that right shall prevail, not wrong. That no one shall be kept in prison, deprived of his liberty, unless absolutely necessary in the interest of justice.
Then after a trial, if a person is found guilty, the Constitution[pg 132]again guards the rights even of the guilty, by providing:
“Excessive fines (shall not be) imposed, nor cruel and unusual punishments inflicted.”75
When this constitutional guaranty was written persons then living could recall without doubt the barbarous punishments which had been imposed in civilized countries even for light offenses. Common hanging was not regarded as sufficient punishment.“Hanged, drawn and quartered”was often heard in the courts of countries which had been left behind. It was nothing uncommon to see persons upon the roadside in England left hanging to the gibbet for long periods of time where the people could see them as a warning. It was not uncommon in those times to have a penalty of death imposed for the offense of stealing.
It is almost impossible to read of the punishments of the olden days, even under decrees of courts, without a shudder. Therefore, every one in America should be filled with gratitude that in the adoption of our Constitution these excessive cruelties were forever ended.
We have in this country the death penalty only for the most grave offenses, and it is seldom imposed. Imprisonment is generally regarded as just and sufficient. I might spend an hour if we had time, telling you something of the horrible dungeons which served as prisons in the olden days, into which God's sunlight seldom entered; of the chains the prisoners had to wear; of the starvation; yes, and of the lash—inhumanities which one can scarcely conceive, and which can never disgrace the civilization of America.
Again, carefully guarding the rights and liberties of the people we find:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly[pg 133]convicted, shall exist within the United States, or any place subject to their jurisdiction.”76
This is not a part of the original Constitution. It was adopted after the war had driven slavery from our shores. The spirit of America has from the beginning been exerted in enlarging the rights of human beings. Slavery existed before the adoption of the Constitution, and so strongly was it intrenched at that time in some of the colonies that it was impossible then to wipe it out.
But it did not belong in America, and the time came when the American people, after a long bitter war, crushed the slave power, and swept from our shores the last vestige of involuntary servitude. That it might not be renewed, the people amended the Constitution so as forever to bar slavery or involuntary servitude except as men might be put in prison in punishment for crime after a full, fair trial.
Did you ever read of the debtor's prison? It used to be in nearly every country in the world, that men who were merely unfortunate, who got in debt and who could not pay when the debt was due were sent to prison, and kept there sometimes for long periods. It was most cruel, because in many instances the persons were honest. They wanted to pay their debts, but sickness came, or floods, or fire, or other misfortune, and when the time came they were unable to pay and thus they lost their liberty.
In those olden days, men were not only imprisoned, but in some countries they were compelled to labor for the person whom they owed. They were compelled to be slaves.
But at last we have reached a stage in America, where no one may be compelled to work for another, unless by his own free will, except under conviction of a crime where the State may compel prisoners to work for some one in order to help pay the expense of maintaining them.
The old debtor's prison is gone. No one in this country[pg 134]can now be imprisoned for an ordinary debt. There are a few States in which a person may be imprisoned for debts arising in fraud, but for an ordinary contract debt, mere inability to pay, no one in America can now be compelled to submit to imprisonment.
I wish sometime you would think seriously about what America has done for the poor. In the olden days they had few if any rights; but to-day in America, while by law we cannot prevent sickness nor sorrow, or other misfortune, we can and we do guard the liberty of the poorest and the most unfortunate. In fact many laws have been enacted which give to the poor special privileges which are denied to those who have property or money.
For instance in nearly every State there are what are called exemptions for a person who is the head of a family, which protect him even in the possession of a limited amount of property which his creditors cannot take away from him in payment of a debt. In most of the States laborers may hold the earnings of a certain period, for instance ninety days, for support of themselves and their families, which no one can touch, which no officers and no court can seize in payment of a debt. Also they are protected in their household goods, their clothing for themselves and their families, and in many other ways.
The farmer who may be heavily in debt is protected for himself and his family by having exempted to him a team of horses, harness and wagon, machinery, farm utensils, and food and clothing for the family.
I have not time to relate all that has been done by America in sympathetic aid of the poor and the unfortunate. No other country in the world has given such consideration to the poor as has America.
We hear much talk of social injustice, that the poor man has no chance. The truth is that more has been done in[pg 135]America during the past twenty-five years to provide justice for the poor and unfortunate and for those who toil, than was done in any other country of the world during the last one thousand years. The spirit of America is right. The people have the power. They are right at heart. The only weakness in America is the failure of many thousands of our men and women to take an active interest in the affairs of government. Hundreds of thousands, yes millions, of our voters fail to go to the polls on election day to vote. They do not seem to feel any gratitude for the privilege of living in a free country where liberty is guarded by written guaranties of a Constitution which cannot be changed, except by the will of the people themselves.
ELEMENTARY QUESTIONS
1. After a person is arrested where is he generally taken by the officer?
2. If the hearing is postponed, what is generally done with him in the meantime?
3. What is bail?
4. What offenses are not bailable?
5. What is the constitutional guaranty as to bail?
6. Why should excessive bail be prohibited? What would be the injustice of this practice?
7. What happens when a person“out on bail”fails to appear in court at the time set? Is he relieved of further punishment?
8. If a magistrate fixes excessive bail, what may the accused person do in order to have it reduced?
9. Name some cruel and unusual punishments?
10. When was slavery in America abolished?
11. What was a debtor's prison?
12. How does America protect the poor? Can a debtor be put in prison for failing to pay ordinary debts?
13. What is meant by“exemptions”in relation to property and debts?
ADVANCED QUESTIONS
A. Explain the injustice of requiring excessive bail?
B. When a judge determines the amount of bail, what factors does he consider?
C. What is the purpose of punishment?
D. Discuss the movement for prison reform.
E. What is the purpose of the bankruptcy law?
F. Write a paper on:
Cruel and Unusual PunishmentsPunishment and Crime in the United StatesHow America Protects the Poor ManThe Reformatory Versus the Penitentiary
Cruel and Unusual Punishments
Punishment and Crime in the United States
How America Protects the Poor Man
The Reformatory Versus the Penitentiary