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Trial by Jury.
449 is successful, the accusation itself may, for all the most precious purposes of life and character, be equivalent to conviction and sentence. These facts are generally best known to the best and most highly-trained judges, and it is a familiar assertion, founded, no doubt, on truth, that a policeman has a much worse chance of having his unsupported testimony believed by a Judge of Assize than by a Chairman of Quarter Sessions, or, still more, by a Justice of the Peace at Petty Sessions. When once the facility, the articulate expression, the absence of hesitation, and the plausible self-respectful assurance of the police in giving their evidence are fully discounted, the dangers of that evidence going for more than it is intrinsically worth are largely reduced, if not annulled.
Another topic which has recently acquired proininence has been that of the intrinsic value of trial by jury, and, more particularly, of trial by jury as it now exists in England, where a jury of twelve must be unanimous. The case in favour of retaining, or rather, of imposing, jury trial in civil matters has been abandoned, since the institution of the County Courts has introduced the practice of only allowing a jury of six when one of the parties requires it; and the Supreme Court of Judicature Act, following the analogy already supplied by the Probate and Divorce Court, has given the greatest facilities for allowing questions of fact as well as of law to be tried by the Judge without a jury if the parties consent. The argument in favour of retaining trial by jury in criminal cases, at any rate for the heavier species of crimes, rests rather upon necessities which might occur in a conceivable condition of society, than upon any belief in the superior value of the verdict of a jury over the decision on the same
facts given by a Judge. Though Judges are not dependent directly on the Executive authority, still there are now, and may be still more hereafter, cases of a partly social or political character, on wbich the decision of a professional Judge, originally appointed by the Crown, and in constant correspondence with the Home Secretary, as well as in assiduous social intercourse with the more elevated classes of society, would never be removed from a suspicion of partiality. Such cases are those of treason, treason-felony, conspiracy, malicious or blasphemous libels, and all offences in which some important class of society is interested, adversely to some other class or classes. As it is, the opportunity afforded to the Judge of summing up is usually employed, rightly or wrongly, as a medium by which the Judge intimates what he thinks the verdict ought to be. Thus the jury has all the opportunity of the best professional assistance in evaluating the evidence, without being absolutely bound by the conclusion as intimated to them.
Of course, this presupposes that the jury, as now chosen in England, and as required to be unanimous, is in itself a sufficiently satisfactory tribunal as a substitute for the Judge. The requirement of unanimity is pretty well confessed on all hands to be irrational, if not illogical. It is the traditional inheritance of a time when the public interest was sharply opposed, or believed to be opposed, to the interest of the Crown, the Crown requiring convictions, and the public interest acquittals. Thus the requirement of unanimity in the jury marked the highest point of the victory over the Crown, or, rather, marked a point in the natural development of the jury from which the Crown has never suc
Unanimity of Furies.
ceeded in forcing it back. No conviction could be obtained unless every member of a jury was in favour of conviction ; but an acquittal, for the moment at least, could be obtained if a single member of the jury persisted in being in favour of it. In the present day, when this class of constitutional jealousies has long vanished, the requirement of unanimity is a mere fossil and pernicious anachronism. It may be well that, in favour of life and liberty, the majority necessary for conviction should be large, perhaps overwhelming; but common sense demands that there should always be an opening for prejudice, partiality, excessive ignorance, or even corruption, to have its play without bringing public justice to a stand-still. To enlarge the jury, in all cases only triable at the Assizes or at Quarter Sessions, to such a number as would make twelve a majority of twothirds, and to require the agreement of twelve jurymen at least for a conviction, would carry out all that is needed in the way of reform in a spirit literally conformable to the traditions and practice of the Constitution.
Another topic which has of late years been constantly engaging the attention of Criminal Law reformers, and in the proper treatment of which the liberty of the subject is seriously involved, is that of the oral examination of a prisoner under trial for a criminal offence. From causes, some of which have been adverted to above, connected with the development of popular liberty in this country, a prisoner under trial has been habitually treated with a tenderness and considerate indulgence which has, even in his own interests, somewhat overreached the mark. It was a popular doctrine in the last century,—at a time when every sort of impediment was thrown in the way of a prisoner being defended by counsel, or otherwise having an equal chance with those who represented the prosecutor and the Crown in the sort of hazardous game which the form of the proceedings in a way dramatised,—that the Judge was counsel for the prisoner, and that he needed no other help but the presumption of innocence in his favour, and the acuteness of the Judge to detect errors in the conduct of the prosecution. In the present day, however, when the public ends in the administration of criminal justice are better understood and more calmly appreciated, the object of getting at the truth is beginning to rank at least as highly as that of affording a certain number of chances of escape to a person who has found his way into the prisoner's dock. The fact is, that after a committal by a magistrate on a careful consideration of the evidence which affords grounds for suspicion, and after a true bill has been found by the Grand Jury, or after committal on a coroner's warrant, the logical presumption of guilt is against the prisoner. It is true that all the circumstances have to be examined afresh at the trial; and for the purposes of this examination, and in order to ensure its thoroughness, a formal presumption of innocence is always raised. But this last-mentioned presumption cannot do more than enforce the necessity on the part of the prosecution of an affirmative proof of guilt being made out. There must be all along in the minds both of Judge and of jury another presumption, over which mere legal rules can have no hold, that a serious case has already been made out against the prisoner, and that the real purpose of the trial is, to determine whether he can meet it. Thus, whatever may be the formal legal proceedings, the real question at issue is, what explanation the prisoner can
Oral Statements of Prisoners. 453 give of the facts which appear against him. It is thus a startling anomaly to find that, for the purpose of making a statement or explanation during the crisis of the trial, the prisoner's mouth is closed. Where the prisoner is undefended by counsel, and conducts his own case, he usually contrives, whether he is expert or whether be merely follows a natural instinct, to interpolate in his defence a variety of exculpatory statements of fact. Such statements are, of course, not made on oath, nor subject to cross-examination ; and though they are often checked and interrupted by the Judge on the ground of their glaring irregularity, they are also frequently allowed, or even encouraged, by some of the best criminal Judges, from a mere sense of humanity and desire to get at the truth. The only other way in which a prisoner's own explanation of the case can come before the Court is by reading the depositions made by him in the course of a previous magisterial investigation. The objection that is usually alleged to granting facilities for oral statements made by prisoners is, that a statement made by a witness, whether continuous or in reply to a friendly examination, is good for nothing, or worse than good for nothing, as being misleading,unless subjected to another process, that of cross-examination, which has for its purpose the clearing up of what is ambiguous and the further investigation of the grounds on which the statement is made. It is said that this process of cross-examination is essentially of an adversative and somewhat hostile kind, and that it would imply a breach in the familiar attitude of the law to an accused person, if he could be put in a position in which either a prosecuting counsel, or even the Judge, would be entitled and compelled to expose him