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It is believed that with the removal of these unwise, unwarranted and unnecessary exemptions, and a disposition upon the part of Trial Judges carefully to define the important part the trial juror acts in the administration of justice, and properly to instruct him regarding his duties that the popular conception of jury duty will be changed; that the standard of qualification will be raised; that with a larger number to draw upon the duty will be thought less arduous, and that gradually the citizen will come to understand that service upon a trial jury is an important civic duty which he should uncomplainingly perform as he patriotically would perform military duty in time of war.

The primary responsibility of bringing about this result rests with the members of the Bar. They are and of right should be the leaders in all matters of reform which affect the administration of justice, for they know better than any other class of American citizens that, as Webster said. in his eulogy of Chief Justice Story, "Justice properly administered is the great interest of man on earth." (Applause.)

The President:

The subject is now open for general discussion.

Henry A. Forster, of New York:

Mr. President, I would like to supplement what Judge Clearwater has just said, although I do not know what his views on my points are, and also to bring up for consideration and reflection a matter which will certainly come before the constitutional convention. We have in most States of our Union exempted practically every class of responsible citizens that ought to be made to do jury duty from doing it, and one consequence is that we have on our State jury lists a class of less responsible jurymen who are often unfit to be entrusted with the disposal of other

people's property, liberty and lives, and the result is throughout the State Courts of our State we do not have as good results from jury trials as we ought to have, or as is obtained from Federal, English and Scotch juries. Now, as to the question of unanimity. Since the time of Jeremy Bentham, who taught that "jury unanimity increases the corruption" (5 Bentham's Works, Bouring's ed., pp. 8488), law reformers everywhere have thought jury unanimity was very difficult, if not impossible, and they point to the satisfactory experience in Scotland with majority verdicts from good juries of fifteen. One-third of the Scotch jurors in criminal cases are special jurors. There are no bad exemptions and majority verdicts, that is, eight out of fifteen, even in criminal cases have produced and do produce good results in Scotland. If we get the responsible citizens now exempt that ought to do their share of a juror's duty to do it, we will find unanimity very hard to obtain, for the very strong reasons that Bentham so ably pointed out in favor of the law reform idea of verdicts by a large majority. Are the Bar in a position any longer to assert the duty and right of five Supreme Judges out of nine to annul a law desired by a majority of the voters in either the rural States, or in the largely urban States, and yet insist that unanimity is requisite to the decision of every question of fact submitted to a jury in all the Federal Courts and in most of the States?

The other point I make is in regard to a thing which is more apparent in the West and South than it is here, but which is liable to creep in here and to some extent has crept in here, viz.: that the Trial Judge instead of being as he was under the law of this State down to 1891 and by the law as administered in the Federal Courts and by the law of England to-day, a Judge is reduced to a moderator in certain respects by some decisions which,

although in conflict with the prior and unreversed decisions, have not been overruled or ordinated with the prior decisions. Down to 1891 a Trial Judge in this State, whether in civil or criminal cases, had the constitutional right, and it was also his duty in a proper case, where necessary or expedient, to assist or aid the jury, or by way of advice to express his opinion on a question of fact so long as he left the jury to be the exclusive judges of that fact and of all questions of fact. Several decisions of the Court of Appeals and the prior Court of last resort recognized the right and duty of a Trial Judge in a proper case to express his opinion on questions of fact so long as he also instructed the jury that they were the absolute judges of all the facts and of all questions of fact. (Fireman's Ins. Co. v. Walder, 12 John., 513, 517-9; Vail v. Rice, 5 N. Y., 160; Massoth case, 64 N. Y., 524, 533-5.) In the Flack case (125 N. Y., 324) a decision was made which is deemed by many to be inconsistent with the rule that a Trial Judge might express his opinion to aid or advise a jury, and which some Trial Judges, but not all, nor most, have interpreted as tending to make the Trial Judge to some extent a moderator. The Flack case was a criminal action for conspiracy. One element in that case, although not in my opinion the vital or controlling one, was a vacated and set aside decree of divorce, which the Court of Appeals unanimously held to be a fraudulent divorce. (125 N. Y., 330.) Five out of seven members of that Court then held Justice Barrett was in error in assisting, aiding or advising the jury by stating as his opinion that the decree of divorce, which the Court had unanimously held was fraudulent, was fraudulent, in fact although he had repeatedly instructed the jury that they were the sole judges of that question of fact and of every question of fact. The Federal Supreme Court decisions justify Justice Barrett in assisting, aiding or advising

the jury as he did. (Ellis v. U. S., 155 U. S., 118, 123; Simmons v. U. S., 142 U. S., 148, 155; Lovejoy v. U. S., 128 U. S., 171, 173.) There has never been any judicial opinion attempting to either overrule, qualify or reconcile the Flack case with the inconsistent prior State decisions or with the existing inconsistent Federal decisions. Since the Flack decision the Court of last resort has said a Trial Judge may comment on the evidence so long as he does it in a fair and impartial manner, that expressions indicating the bent of the Trial Judge's mind are not error (Fanning case, 131 N. Y., 659, 663; Leach case, 146 N. Y., 396; Poulin case, 207 N. Y., 73, 80), but there is nothing in any opinion showing whether or not, as was the settled law prior to the Flack case, a Trial Judge in order to assist, aid or advise a jury may express his opinion on a question of fact, while instructing the jury, that they were the sole judges of all the facts.

Prior to the decision in the case of McDonald v. Metropolitan Street Railway (167 N. Y., 66) it had been the settled law in New York that a case might be taken from the jury, even though there was a scintilla of evidence.

1828, Stuart v. Simpson, I Wend., 376, 379.

1837, Rich v. Rich, 16 Wend., 663, 676.
1838, Stevens v. Fisher, 19 Wend., 181,

185-6.

1851, Labar v. Koplin, 4 N. Y., 547, 549.

1886, Dwight v. Germania Life Ins. Co., 103

N. Y., 343, 358-60.

1890, Bulger v. Rosa, 119 N. Y., 459, 464. 1893, Linkhauf v. Lombard, 137 N. Y., 418,

425-6.

1893, Hemmens v. Nelson, 138 N. Y., 517,

529-30.

1899, Laidlaw v. Sage, 159 N. Y., 73, 94-7.

In the McDonald case (167 N. Y., 66) something occurred which has also given rise to confusion. The McDonald case was a typical negligence case where the Court of Appeals held there was a severe conflict in the evidence. The Trial Judge ought to have submitted it to the jury; for some reason he did not and it was reversed, but in delivering the opinion of the Court, Judge Martin used language which some Trial Judges have interpreted as introducing the Western doctrine that the Trial Judge is more or less of a moderator only, at least to the extent that they deem it a decision that a Trial Judge is bound to leave a scintilla of evidence to the jury, and then is entitled to set aside a verdict that may be rendered under it. I do not interpret it in that way, but in the work of the City and State Bar Associations, in support of some of the bills so ably discussed in Judge Clearwater's report, we have for four years been unsuccessfully endeavoring to convince the Legislature that in the McDonald case the Court did not mean to diminish the constitutional rights of Trial Judges to direct verdicts, dismiss complaints, also to assist, aid and advise the jury. Very many of the legislators thought it meant to decide what some Trial Judges have inferred from it, viz. that their powers to assist, aid and advise the jury have been reduced. There have been innumerable cases since the McDonald case where there was a scintilla of evidence and yet where a directed verdict in accordance with the weight of evidence has been sustained by the Court of Appeals. Nevertheless, the McDonald decision remains undistinguished from the prior decisions which many think conflict with the jury trials in the State, where the Judges have acted somewhat as moderators than there ever were before. There are and have been a majority of Trial Judges who have in every sense been and are Judges

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