Page images
PDF
EPUB

authority in a report recently submitted to the American Law Institute by a Committee on "A Survey and Statement of the Defects in Criminal Justice." Uncertainties in the substantive law relating to crimes is accounted by the Committee as one of the causes for the unsatisfactory results in attempting to enforce it; and it is recommended that the Institute devote itself to an effort to remove this condition by a restatement of the criminal law. But the committee lays much stress upon the difficulties of enforcement of the law even where no such uncertainty exists, making a contrast between the conditions in England and this country. Alluding to the demand of public opinion in the United States for severe statutory prohibitions, the Committee adds that "the standard of public opinion as to the observance and enforcement of law after the law is enacted is much higher in England than in the United States. This, in part, undoubtedly accounts for the greater prevalence of crime here." And the Committee justly concludes that this is a cause which no restatement of the law can remove, saying:

"The task of gradually moulding public opinion so that it will support a proper administration of criminal justice is a social task. Lawyers can share in it, as all other citizens can, but they do not have here the responsibility resting primarily on them, as in other matters referred to in this report."

The Committee in its comparison of the court procedure here and in England, has hit upon the most widespread and fundamental cause of the inefficiency in administering criminal justice. It says that in England "the trial of a criminal case is regarded by all connected with it solely as an investigation to ascertain the guilt or

innocence of the accused, and less than with us as contest of skill, not always fairly excercised, between opposing counsel." And the Committee very cogently refers as a "predominant factor" to the "difficulties between the power of the English and the American judge in the trial of a case;" and this is a subject much under discussion in this country at present.

There is a marked tendency to create a kind of jury trial which will render a judge a mere moderator and eliminate a feature of trial by jury without which it never would have become, as it now is in many cases, the best practicable method of settling issues of fact. The functions of the judge and of the jury supplement each other. The jury must, of course, be instructed in the rules of law. But the ordinary juryman would be like a ship without a rudder if he was not also aided by the judge in making a concrete application of his instructions to the facts of the case; and that generally cannot be done if the judge does not advise the jury as to the weight which ought to be given to certain evidence, and does not comment upon the credibility of the witnesses. While the jury trial was being developed in England, the custom of giving this kind of assistance came as a result of centuries of experience, and it still prevails in the English courts. If the court is shorn here of its traditional power it will cease to perform its most useful function. Even in those jurisdictions where the power has not been taken away by statute, but has been partially restricted, there has been bred among judges a timorousness and a feeble adherence to conventional forms of instruction which are of little or no value in aiding the jury in its deliberations;-indeed, they are frequently so academic as to be merely confusing.

The effort to lessen the power of the trial judge is predicated chiefly on the theory that if he discloses an opinion as to the facts the jury will meekly accept his conclusions; but if it be assumed that the conclusions of a jury as to the evidence and the witnesses cannot withstand the expression by a judge of a contrary view, it merely argues that a jury is a very irresolute body,— a conclusion refuted by long experience. Juries have intelligence enough to know whether their domain as judges of the facts is being invaded and to resent dictation by a judge, which experienced trial lawyers know is frequently dangerous to the side he favors.

The attempt to diminish the power of trial judges seems to be a phase of recent movements based on political nostrums such as the initiative, the referendum, recall of judges and recall of decisions. The effort is to substitute a sort of popular opinion of an uninstructed group of twelve lay citizens for ordered and impartial conclusions arrived at by the intelligent coöperation of the judge and jury. The idea is running its course; and it will probably suffer the fate of the recall of judicial decisions. But it is already affecting jury trials in criminal cases by producing a tendency with some judges toward ultra-conservatism or even timidity; and it accounts for much of the delay and resulting expense of trials in civil cases.

The deficiencies in the administration of criminal justice in this country are receiving the attention of an increasing number of individuals and groups, who realize that they are a phase of American civilization which is primarily social and economic and must be studied by all elements of the population if conditions are to be intelligently improved. The Crime Commission of Chi

cago, formed principally of business men, has done practical work and has appreciably improved crime conditions in Chicago. In Cleveland a similar movement has resulted in a survey having much value. Recently there has been formed in New York a National Crime Commission to deal with the subject from the national standpoint, and the character of its sponsors gives promise that its work will appreciably contribute to the formation of a public opinion which is essential to any useful reform. Last year the New York legislature appointed a joint committee of both houses to study the subject of the "Coördination of Civil and Criminal Practice Acts," and at its hearings it is receiving the testimony of the most experienced judges and lawyers.

At least it may be said that an encouraging start has been made to improve the administration of criminal justice in this country.

In England since appeals in criminal cases have been taken to the Court of Criminal Appeal, presided over by the Chief Justice of England, criminal cases, even those of a sensational character, have been disposed of with remarkable expedition. The utilization for journalistic purposes of the facts of a murder of especial interest is far more limited in England than in America. There seems to be among the English newspapers a certain sense of propriety springing, perhaps, from the principle of a "fair deal," although the free use by the court of contempt proceedings for premature or improper publications may account for journalistic reticence. The Court of Criminal Appeal gives short shrift to many of the devices by which ingenious American counsel sek to obtain delays and new trials for convicted murderers. It occurs often that the Court after hearing counsel for the pris

oner finds it unnecessary to hear counsel for the Crown, and renders a judgment of affirmance on the spot. It dismisses briefly the numerous grounds of appeal such as alleged errors in the instructions of the court and in rulings upon evidence with the formula "It was obvious that the sole reason why the case came before the court was that it happened to be one of murder." From reports selected at random in the London Times, I found on March 30, 1925, two cases, one of wife-murder and the other of murder for jealousy, and on April 7, 1925, two cases, one of a man who had first betrayed his victim and another of a woman who killed her husband, in which the Court of Criminal Appeal said it was unnecessary to hear counsel for the Crown and dismissed the appeal with the formula just quoted. These cases had sensational and gruesome, but interesting, features, which would have been extensively exploited in the American press and would have taken much of the time of the courts. The attitude of the English courts seems to be supported by public opinion. It obviously tends to repress crime; and it discourages the kind of trial artifices by counsel that we witness all too often in our criminal courts.

But it cannot be denied that the summary administration of criminal justice in England would evoke criticism in this country as giving too little weight to the presumption of innocence, as ignoring technical rules of evidence, and as permitting the court too great power in influencing the result. The effect, however, is such that crime is discouraged and the public is relieved of much expense and is protected in its life and property. And is not that the chief end of government?

« PreviousContinue »