Prosecution

“ The evidence that justifies a man’s imprisonment rests with the judge; in order that a man may prove himself innocent, he must first be declared guilty: that is called an offensive prosecution; and such are criminal proceedings in nearly every part of enlightened Europe, in the eighteenth century. The real prosecution, the informative one—that is, the indifferent inquiry into a fact, such as reason enjoins, such as military codes employ, and such as is used even by Asiatic despotism in trivial and unimportant cases—is of very scant use in the tribunals of Europe. ”

“ In the institution of a prosecution for any offence against the most humble citizen—and I claim for myself no greater rights than he enjoys—the Constitution of the United States, and of the several States, require that he shall be informed, in the very beginning, of the nature and cause of the accusation against him, in order to enable him to prepare for his defence. ”

“ This prosecution of the Commons, I wish to have it understood, and I am sure I shall not be disclaimed in it, is a prosecution not only for the punishing a delinquent, a prosecution not merely for preventing this and that offence, but it is a great censorial prosecution, for the purpose of preserving the manners, characters, and virtues that characterize the people of England. The situation in which we stand is dreadful. These people pour in upon us every day. ”

“ Even magistracy itself seldom looks half so glum upon a predatory marauder of this order as he does upon a night robber, a housebreaker, or a highwayman. Whenever the prosecution is brought up to the point of conviction, the prosecutor always leans to the side of mercy; and the capital is "taken off:" one never hears of a pickpocket being hung. ”

“ But, my lords, we have in the present case no provocations from crimes either openly avowed, or evidently proved; and certainly no incitement from necessity to exert the power of the house in any extraordinary method of prosecution. We may punish whenever we can convict, and convict whenever we can obtain evidence; let us not, therefore, condemn any man unheard, nor punish any man uncondemned. ”

“ Considering therefore, how easily frivolous and unjust Prosecutions are set on foot, and Evidences fit for any Turn may be procur'd, nothing can be a greater Security than this noble Law ; for after all the Arts and Management betwixt a bad Governor, Judge, and Attorney-General, to carry on an illegal Prosecution, the whole Contrivance is at last spoiled by the Impossibility of Packing a Jury for the Purpose. ”

“ We should think it atrocious if, even against the greatest of scoundrels, the prosecution instituted an inquiry into the whole of his life in order to punish him for, and to convict him of, a single offence. ”

“ The modern action for malicious prosecution, represented formerly by the action for conspiracy, has brought down to our own time a doctrine which is probably traceable to the practice of spreading the case fully upon the record, namely, that what is a reasonable and probable cause for a prosecution is a question for the court. That it is a question of fact is confessed, and also that other like questions in similar cases are given to the jury. ”

“ It is for you, gentlemen, after hearing the evidence which shall be laid before you, on the part of the prosecution, and for the prisoner, with the observations and recapitulation of the learned judge, to decide upon his guilt or innocence, and with your decision the prosecutors will be satisfied. ”

“ After this particular specification, as I am informed, he means to call on me, and to demand explicitly on which of these four periods I found my prosecution, and at what particular time I object to his administration as inconsistent with the public interest. Should I refuse to answer, should I attempt the least evasion or retreat, he boasts that he will pursue me and tear off my disguise; that he will haul me to the tribunal, and compel me to reply. ”

“ There are very few cases in which the prosecution says all it knows, and still fewer in which the defence calls for every thing it might call for. Out of ten criminal trials, there are at least three in which side-issues are raised. What will be the charge in court against you? The substance of the romance which the magistrate has invented in order to prove your guilt. You must meet him with another romance which proves your innocence. ”

“ If the action and evidence appear to justify a prosecution, a prosecution is to be set on foot on the secret information of a collector. If it will not justify it, then the only consequence is that the mind of government [553] has been poisoned against a citizen, neither known nor suspecting it, and perhaps too distant to bring forward his justification. ”

“ Personal crimes involving afflictive or ignominious punishments, committed by a member of the Senate, Tribunate, Legislative Body, or Council of State, are prosecuted before the ordinary tribunals only after a decision of the body to which the accused belongs has authorised that prosecution. ”

“ In a prosecution such as this, conducted against one of its citizens by a government, what should be the course of that government, and what is due to the jury and to the prisoner? Whatever there is that can throw light upon the alleged crime should be let into the jury box. All evidence that could go before the human mind calculated to impress it with conviction, or modify its opinions, should be allowed to come before you. What has been the case with regard to this trial? ”

“ In contradiction of the opinion of the legal leader of the prosecution, the attorney-general, the defense contends that before you, gentlemen of the jury, can convict the defendant, Scopes, of a violation of this act, the prosecution must prove two things:
First—That Scopes taught a theory that denies the story of the divine creation of man as taught in the Bible, and
Second—That instead and in the place of this theory he taught that man is descended from a lower order of animals. ”

“ The attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner’s defence and the mode of trial. In the Prosecution of Offences Acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. ”

“ In support of the prosecution, it was urged, that the attempt to prevail, constituted the crime; and that it was like the case of a man’s sending intelligence to the enemy, which was as act equally criminal in the sender, whether the intelligence was received, or not. ”

“ Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. ”

“ The purpose, as outlined by the public prosecutor in London, is "to preserve the standard of outward decency." And you will find that the one essential to prosecution is always that the victim shall be obscure and helpless; never by any chance is he a duke in a drawing-room. ”

“ 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. ”

“ The Constitution and Bill of Rights declare in sweeping unequivocal terms that 'The Trial of all Crimes * * * shall be by Jury,' that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,' and that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.' As it may now be punished criminal contempt is manifestly a crime by every relevant test of reason or history. ”

“ The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused's interests will be protected consistently with our adversary theory of criminal prosecution. ”

“ Sometimes in such a case a criminal conspiracy between the complainant and the officer is disclosed to "do" a mischievous, but not criminal, youth who [Pg 69] has fallen into their disfavor. Then the witnesses are subjected to such a fire of questions that they wilt and wither in the blast, the defendant is acquitted and the prosecution's witnesses sometimes held for the action of the grand jury on a charge of perjury. ”

“ And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.' 4 Bl.Comm. ”

“ A criminal prosecution directed on European criminal procedure at once passes into the hands of the state as an infringement of law which must be repressed, on the ground that the whole community bases its security on obedience to law. In England the repression of all minor crime is left to the injured party. ”

“ Compromises are usually effected between the apprehension of the inculpated parties and the public examination before a magistrate. The object of prosecution has been perhaps obtained by the preliminary step of arrest, or a criminal understanding has been arrived at in the interval; and it is then found utterly hopeless to proceed, however manifest may have appeared the guilt of the prisoner. If you adopt the expedient of compelling the attendance of the accused, it is, in nine cases out of ten, mere time and trouble thrown away. ”

“ Nothing is contained in the section which has any tendency to support the opposite construction, except the words 'suit or prosecution;' and it should not be overlooked that it employs no words exclusively applicable to an indictment, and contains many expressions utterly repugnant to the theory that the proceedings to effect the removal of process were intended to extend to a criminal and indictable offence. ”

“ M. de Sallenauve.—Two words, gentleman, and I have finished. I think the petition to authorize a criminal prosecution has already lost something of its weight in the minds of my least cordial colleagues. ”

“ A criminal prosecution may fail by the absence of a witness, or by reason of a flaw in the indictment, or some irregularity in the proceedings; and, in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be,-a prevailing popular excitement; powerful influences brought to bear on the public mind, or on the mind of the jury ”

“ The law expressly enjoins the prosecution to avoid proceedings except against persons believed to be culpable, and it is a fundamental principle that an accused person shall have the benefit of any reasonable doubt. ”

“ The official men who have the conducting of the prosecution, are not only, generally speaking, men of much smaller abilities than those who have the conducting [195] of the defence, but upon political grounds, as well as from that general aversion which men have to the sanguinary operations of the law, the feeling of the public is opposed to them, and in favour of their antagonists. ”

“ If any person called to testify on behalf of the state before any justice of the peace, grand-jury, or court, upon any complaint, information, or indictment, for any offence made punishable by this act, shall disclose any fact tending to criminate himself in any matter made punishable by this act, he shall thereafter be discharged of and from all liability to prosecution or punishment for such matter of offence. ”

“ When a state prosecution has been determined upon, every step ought to be carefully and anxiously considered, and subordinate officials should not be permitted by acts of officious zeal to compromise their superiors and bring discredit on the administration of the law. ”

“ I would hold that the defendants here were entitled to be tried by a jury after indictment by a grand jury and in full accordance with all the procedural safeguards required by the Constitution for 'all criminal prosecutions.' I am convinced that the previous cases to the contrary are wrong-wholly wrong for reasons which I shall set out in this opinion.
Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inflexible rule. Courts are not omniscient. ”

“ At the conclusion of the complainant's case, if it appear reasonably certain that the magistrate will "hold" the prisoner for the action of a superior court, the lawyer will then "waive further examination," or, in other words, put in no defence, preferring the certainty of having to face a jury trial to affording in prosecution an opportunity to discover exactly what defence will be put in and to secure evidence in advance of the trial to rebut it. ”

“ If we are to adhere to the mandate of the Constitution and not give it merely that meaning which appeals to the personal tastes of those who from time to time sit here, we should read its terms in light of the realities of what 'criminal prosecutions' truly mean. ”