Mock trial

“ This decision I regard as in strict conformity with the doctrines promulged by the fathers of the law, the doctrine which alone can prevent the inestimable trial by jury from becoming a mere mockery and a deception to those who have been taught to revere and rely upon it as the best safeguard of these rights. Transforming this institution from what it was intended to be, and once was in reality,-a trial by the country,-into a mere formula, to be moulded at the discretion of the court. I think that the judgment of the Circuit Court should be reversed. ”

“ I venture to say that rarely in the annals of criminal trials has the life of an accused been assailed by such an array of false testimony as is exhibited in the evidence of these nine witnesses - and rarely has it been the good fortune of an innocent man, arraigned and on trial for his life, to so confute and overwhelm his accusers. ”

“ The exceptions have a central foundation: distrust of the jury's ability to evaluate this kind of evidence. Many rules of exclusion are bottomed on this distrust, of course. But it is clearly misplaced when directed at the jury's capability in weighing the value of uncommunicated threats in a murder trial. The evidence is simple; it is not calculated to inflame; it is far more difficult to fabricate than are communicated threats; the prosecution can easily question its importance; and it provides solid support for a defendant's self-defense theory. ”

“ If we rid ourselves of the assumption that we can measure the moral culpability of the accused, the whole process of a criminal trial consists in the assemblage of facts, the discussion, and the decision upon the evidence. For the classical school, on the other hand, such a trial has been regarded as a succession of guarantees for the individual against society, and, by a sort of reaction against the methods of legal proof, has been made to turn upon the private conviction, not to say the intuition, of the judge and counsel. ”

“ The sanctity of jury verdicts has been so frequently violated by reckless use of pardoning power, that the value of blood-bought [pg 91] jury trial has dwindled into a mere mockery, an arena for spectacular professional jugglers. Ample legal machinery has long been provided for the rehearing and unbiased review of all criminal cases, whenever new witnesses or new and vital facts cast any doubt on the wisdom or justice of judge and jury. ”

“ Especially is this true in times of public clamor, which affects all human conduct. A court trial with an insanity defense often comes down largely to the relative impression of the testimony of the experts who flatly contradict each other, leaving with intelligent men a doubt as to whether either one really meant to tell the truth. The jury knows that they are paid for their opinions and regards them more or less as it regards the lawyers in the case. It listens to them but does not rely upon their opinions. Expert testimony is always unsatisfactory in a contested case. ”

“ The crime is highly technical and the evidence almost entirely a matter of chemical analysis and expert opinion. The battle goes on for weeks or even months. A jury would have become hopelessly confused and the issue successfully obscured, but the three judges are expert jurymen, and in due course, if he be guilty, the defendant is inevitably convicted. Such a trial may cost the parties tens of thousands of dollars for expert testimony alone, while the sentence of the defendant will very likely be not more than a two-hundred-and-fifty-dollar fine. ”

“ Still in these days of progress and experiment, when everything is on trial at the bar of human reason or conceit, it is quite the fashion to speak of jury trial as something that has outlived its usefulness. Intelligent and well-meaning people often sneer at it as an awkward and useless impediment to the speedy and correct administration of justice, and a convenient loop-hole for the escape of powerful and popular rogues. Considering the kind of jury trials we sometimes have in the United States, it must be admitted that this criticism is not without foundation. ”

“ Almost never is any serious inquiry made as to the heredity and environment of the accused. Probably trial by jury has served to save many defendants where the judge would have convicted, and has still more often tempered and modified penalties. Still, juries are by no means free from the mob psychology that surrounds and affects most important and well-known cases. Jurors are generally none too intelligent and not very ready to stand against public opinion. Most men agree with the crowd. ”

“ Accusers were suffered to make private communications to the magistrates and judges before or during the hearings. The presiding officers showed off their smartness in attempts to make the persons on trial before them appear at a disadvantage. In some instances, as in the case of Sarah Good, the magistrate endeavored to deceive the accused by representing falsely the testimony given by another. The people in and around the court-room were allowed to act the part of a noisy mob, by clamors and threatening outcries ”

“ Guilt by association is a danger in any conspiracy prosecution. Its consequences are more serious when a substantive crime is also charged. But when the magic words 'counseling' or 'inducing' are injected to 'define' the substantive crimes, the danger and its consequences reach a new high. It is hard to assess the effect of a trial judge's charge upon a jury's unsophisticated belief in defendants' bad conduct. ”

“ For example, diagrams must be prepared, photographs taken of the place of the crime, witnesses compensated for their time and their expenses paid, and, most important of all, competent experts must be engaged. This leads us to an interesting aspect of the modern jury trial.
When no other defence to homicide is possible the claim of insanity is frequently interposed. Nothing is more confusing to the ordinary juryman than trying to determine the probative value of evidence touching unsoundness of mind, and the application thereto of the legal test of criminal responsibility. ”

“ As in Mapp, therefore, we deal here with a doctrine which rests on considerations of quite a different order from those underlying other recent constitutional decisions which have been applied retroactively. The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. ”

“ This public exhibition of successful falsehood has a disastrous effect on public morals and regard for truth. The mockery of an English trial of a Welsh criminal by a Welsh jury, addressed by counsel and judge in English, is too gross and shocking to need comment. It is nevertheless a mockery which must continue until the people are taught the English language ”

“ It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.'
From time to time members of the Court, recognizing the validity of these protests, have articulated varying alternative justifications for the suppression of important evidence in a criminal trial. ”

“ To increase the possibility of influence and the danger of a 'popular verdict' by subjecting the jurors to the view of a mass audience whose approach to the case has been conditioned by pretrial publicity can only make a bad situation worse. The entire thrust of rules of evidence and the other protections attendant upon the modern trial is to keep extraneous influences out of the courtroom. ”

“ Let the "yellow" newspapers confine themselves simply to an accurate report of the evidence at the trial, with a reiterated insistence that the law must take its course. Let them stop pandering to those morbid tastes which they have themselves created. Let the "Sympathy Sisters," the photographer, and the special artist be excluded from the court-room. When these things are done, we shall have the same high standard of efficiency upon the part of the jury in great murder trials that we have in other cases.
CHAPTER IV. Why Do Men Kill? ”

“ The specifics of trial procedure, which in every mature legal system will vary greatly in detail, are within the sole competence of the States. I do not see how it can be said that a trial becomes unfair simply because a State determines that evidence may be considered by the trier of fact, regardless of how it was obtained, if it is relevant to the one issue with which the trial is concerned, the guilt or innocence of the accused. ”

“ Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. ”

“ It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a 'voluntary' confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room. ”

“ There is scarcely any point of view in which a great trial will not appear deeply interesting to a competent observer, watching how each individual plays his part in the agitating drama. Whether the judge holds the sacred scales even; whether he sees clearly and acts promptly, calmly, resolutely, in detecting fallacy, in order to shield an unsophisticated jury from its subtle and deleterious agency; whether, for this purpose, his intellect and his knowledge are superior, equal, or inferior to those of the advocates pleading before him. ”

“ The parol evidence given in a Court of justice being seldom recollected with accuracy, it affords the most unsafe notice of facts, particularly when they respect matters of art, that can well be supposed. What man, who wishes not to invade the plaintiff's patent, would venture to erect a Hopperboy, merely upon the information which he could gather from this trial? ”

“ As most of the Jurors were unlearned men, not accustomed to intricate questions, it became necessary for the presiding judge, a man of nicer culture, to prepare rules of evidence which should prevent the matter from becoming too complicated for the rustic judgment. Thence came the curious and strange "rules of evidence" which prevail in all countries where trial by Jury is established, but are unknown in lands where the trial is conducted solely by experts, educated men. But as the mass of the people, as in America, become well informed, the old rules appear ridiculous, and will perish. ”

“ The monstrous doctrine is contended for by the prosecutor, that if a man has a libel in his possession, if it was publicly circulated in the country, the possession is prima facia evidence that he put it in circulation. To show the absurdity of such a position he took a case of a favorite popular libel, which would be all sold in a day, and said that it would be impossible to find an [Pg 40] impartial jury to try a case under such a law—because it would not be easy to find twelve men drawn as jurors who would not have been possessors in some way of the libel, and of course equally criminal. ”

“ Besides the guarantees of the constitution, Lieber mentions the following as characteristic of a sound penal trial: the person to be tried must be present (and, of course, living) ; every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must be guilty or not guilty ”

“ For example, Lumpkin stated that all objections to the impaneling of the grand jury should be made by challenge to the array before the indictment is found, where the illegality is known, or, if not known, by plea in abatement to the indictment; objections to 'certain jurors' on the trial jury should be raised by a challenge to the juror when put upon the defendant. ”

“ What the people want in our criminal courts is, of course, a "fair trial," but they want a "fair trial" that results in the acquittal of the innocent and the conviction of the guilty,—so long as he is convicted by what they deem fair means. The people do not expect a judge to be more than human. Did he appear as indifferent to results as theory might seem to require the jury would quickly infer that the case was of slight importance and their action a matter of utter indifference to the court. ”

“ They're only allowed to deal with that part of the trial which the law allocates them, and they usually know less about the results of their work after it's left them than the defence does, even though the defence will usually stay in contact with the accused until the trial is nearly at its end, so that the court officials can learn many useful things from the defence. Bearing all this in mind, does it still surprise K. that the officials are irritated and often express themselves about the litigants in unflattering ways—which is an experience shared by everyone. ”