Trial and error

“ Let the way of bringing offenders to justice be direct, clear, and untrammelled. The technicalities of pleading, proof, and proceedings, in many of our States, are painfully absurd. To the minds of most men a criminal trial is a mysterious jumble. ”

“ Between this rabble's-brabble of dolts and fools
Who make up reasonless unreasoning Rome.
"Now for the Trial!" they roar: "the Trial to test
"The truth, weigh husband and weigh wife alike
"I' the scales of law, make one scale kick the beam!" ”

“ Truly I will lead you from these witnesses nor will I allow the truth of this trial, which in no way is able to be changed, to be conveyed in the will of the witnesses which is able to be fabricated, changed, and twisted with trouble at all. We will make our case with arguments, we will refute their charges with proofs clearer than all light; facts will fight with facts, causes with cause, and reason with reason. ”

“ But let such know that the errors of the witness are not here reckoned as the acts of the court; ignorance, error, prejudice, partiality, and presumption, may be said to be faults of the officers of the court, or of the attendants of the judge (as the mind, the will, appetite, passion, sensual disposition, or disordered brain) , or of the jury, who give a false verdict, not of the judge itself; conscience— syneidesis, is properly self-consciousness. Acts of ignorance and error are not acts of self-consciousness, but of some mistaken power ”

“ An important trial has all the high interest of a most exciting narrative, whose catastrophe is yet to come, and where so many influential agencies are in operation to mould it. The proofs themselves, the veracity of witnesses, their self-possession and courage under the racking torture of cross-examination, the ability and skill of the advocate, the temper of the judge, his character of rashness or patience, of doubt or decisiveness ”

“ 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. ”

“ With history it is otherwise. Whether such things have or have not happened, and, above all, if they have happened, the way in which they have happened, is to our general judgment of contemporary men what evidence is to a criminal trial. Facts won't give way. ”

“ As some of these practical rules are based on incorrect assumptions in regard to the value of human testimony, they frequently lead to serious error, and, as they fail to draw just distinctions between the good and bad in evidence, or to give special suggestions for special cases, they are oftentimes of no assistance whatever. ”

“ An action for criminal conversation being brought by a peer against a prince of the blood, you were daring enough to tell the jury that, in fixing the damages, they were to pay no regard to the quality or fortune of the parties;—that it was a trial between A. and B.—that they were to consider the offence in a moral light only, and give no greater damages to a peer of the realm, than to the meanest mechanic. I shall not attempt to refute a doctrine, which, if it was meant for law, carries falsehood and absurdity upon the face of it ”

“ The courts of justice, like the mills of the gods, ought to grind slowly and grind exceeding small—sifting carefully the evidence, examining deeply into the character and motives of accuser and accused. ”

“ Should not the example of the law be followed, which is so tender in criminal cases, that delinquents are often found not guilty, for want of legal evidence, at the same time that the court, the jury, and every one present at the trial feel the strongest moral conviction of their guilt? ”

“ With the jury keenly alive to all the possibilities of error in the testimony of even the most honest of witnesses, it is for the advocate, the psychologist of the law, to test by his cross-examination and demonstrate in his summing up the precise probative value of the evidence, frequently revealing, below an apparently limpid stream of truth, a turbid bed of conjecture, assumption, belief, hearsay, and inaccuracy of expression, with the rank weeds of perjury growing just beneath the surface. ”

“ This trial must be tried!
And when amid the plaintiff's shrieks,
The ruffianly defendant speaks—
Upon the other side;
What he may say you needn't mind—
From bias free of every kind,
This trial must be tried! ”

“ Let us for a moment stoop to the arbitration of popular breath, and usurping and uniting in our own persons the incompatible characters of accuser, witness, judge, and executioner, let us decide without trial, testimony, or form, that certain motives of those who are “there sitting where we dare not soar,” are reprehensible. ”

“ From that moment each looks for evidence and law to sustain his side, and to meet the case made by the other; and invariably we come to the final trial, each honestly thinking he is right. We try the case zealously and sincerely, and the one who is finally beaten, feels that injustice has been done. It is the first task of an advocate to convince himself, and unless he has already done that, he may not expect to convince court and jury; and a man must be a poor advocate, or have a very bad case, who fails to convince himself, however he may fare with a jury. ”

“ If it should be said, that the judgment might be unjust upon the merits, or erroneous in point in law, the proper answer is, that if true, that would furnish no ground for interference; for the evils of a new trial would be greater, than it would cure. Every such judgment ought to be presumed to be correct, and founded in justice. ”

“ In this we think he erred.
Without prescribing the precise rule which should have been laid down, we are of the opinion that the errors in the rulings were of so grave a character that a new trial must be ordered. ”

“ I have accustomed myself much to observe men, and the way in which they act, under particular circumstances, and I never yet saw one who owned he had a fair and impartial trial in every particular, and yet declared himself innocent, unless he was innocent. There has been always a something which he thought unfair--a cause why he had been cast, as it is termed; either the judge was wrong, or the jury was wrong, or the witnesses were perjured, or the counsel for the prosecution had acted unfairly, or something or another had given an unfavourable turn to the trial. ”

“ How could we prove that the clothes were not over the sea if accident had not turned them up in the sewer in Lake View? You see the danger of assuming to be true what we can not disprove. You see the unreliability of circumstantial evidence. You see the difficulty we have in proving a negative. Suppose that one of you were on trial, and suppose that the State's Attorney could introduce a witness to swear he saw you burning a deed or will, and suppose in the middle of the trial the deed should be produced in all its entirety, how rejoiced you would be. ”

“ We have at the same time to bear in mind how much use we actually make of both; even our general rules—e.g., concerning false testimony,—bias, revertibility, special inclinations, etc.—and our doctrines concerning the composition and indirection of testimony, even our rules concerning the value of witnesses and confessions, all these depend upon induction and analogy. We pass by their use in every trial from case to case. A means so frequently and universally used must, however, be altogether reliable, or be handled with the greatest care. ”

“ Can a judgment inflicting fine or imprisonment be reversed by a court of error, because that judgment proceeded on an indictment containing both bad and good counts, and in respect of which some of the findings of the jury were either defective or defectively entered?—Let us now listen to the decision of that venerable body of men, who are, in the language of our great commentator, "the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." ”

“ And as the trial drags its course, with each new link in the evidence seeming to forge a chain that is gradually drawing closer around the wretched being who stands before you in the dock, the intensity of the situation becomes so great and so strained that one is almost tempted to believe that the whole world is awaiting that one word from the lips of the jury which shall set him free once more or send him to his doom. ”

“ If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.' Those observations are as pertinent in connection with the accused's plea as they are in the conduct of a trial. ”

“ Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense. ”

“ And courts have undoubtedly shown an inclination to be less strict about the logical strength of presumptive inferences they will permit in civil cases than about those which affect the trial of crimes. ”

“ Such being the state of knowledge, I feel confident that the trial by jury will not be adopted in practice until the people become more enlightened, and knowledge be more generally diffused throughout the country. ”

“ If, then, this were the only ground on which we were asked to proceed in disposing of these assignments of errors, we should not feel disposed to disturb the judgment; but, when we come to examine the objections that were sufficiently taken to the evidence in question, we find error so serious as to compel a reversal. ”

“ He may even take a case whose justice seems less probable, for the purpose of the trial is to settle the doubt, and not infrequently the cause that seemed doubtful or less probable at the outset is vindicated by the examination. ”

“ Every Term we have to examine the particular circumstances of a particular case in order to apply generalities which no one disputes. It would be equally comfortable if a general formula could determine the unfairness of a state trial for want of counsel. ”

“ Only that which is deemed necessary for the decision of the case is stated, bearing in mind that our power is confined to determining whether error of law was committed in admitting or rejecting evidence, and whether the findings of fact are adequate to sustain the conclusions based on them. ”

“ Again, it has often occurred to us that there is another point of view from which important trials—nay, almost any trial—may be contemplated with lively interest by a logical observer, with reference to the use made of facts by judicial and forensic intellect. ”

“ An examination of this case will present a striking instance of the error into which the strongest minds may be led, whenever they shall depart from the plain, common acceptation of terms, or from well ascertained truths, for the attainment of conclusions, which the subtlest ingenuity is incompetent to sustain. ”

“ Did you, or could you, accept any such as proofs, you would not do justice, and consequently would not uphold discipline. If any one count of the charge cannot be distinctly and unequivocally proved, that count is doubtful, and the law declares that when there is a doubt the accused is to have the benefit of it. But why do I speak of law? Your own feelings will tell you most emphatically that you cannot condemn when you are in doubt. ”

“ Even a court of judicature, with all the authority, accuracy, and judgement, which they can employ, find themselves often at a loss to distinguish between truth and falsehood in the most recent actions. ”

“ The greatest mistakes in a trial occur when this derivation of the objective situation of the crime is made unintelligently, hastily or carelessly, and conversely the greatest successes are due to its correct rendering. But such a correct rendering is no more than the thorough-going use of the principle of causality. Suppose a great crime has been committed and the personality of the criminal is not revealed by the character of the crime. ”

“ Your personal jurors in the Court of Error are myths. Your attorney, False Belief, is an impostor, persuading Mortal Minds to return a verdict contrary to law and gospel. The plaintiff, Personal Sense, is recorded in our Book of books as a liar. Our great Teacher of mental jurisprudence speaks of him also as “a murderer from the beginning.” We have no trials for sickness before the tribunal of divine Spirit. There, Man is adjudged innocent of transgressing physical laws, because there are no such laws. Our statute is spiritual, our Government is divine. ”

“ On the contrary, a criminal trial is not only concerned with the direct perception of facts, but also and especially with their critical reconstruction and psychological appreciation. In civil law the fact is really accessory, and both sides may be agreed in its exposition, whilst disputing about the application of the law to this fact. ”

“ This is the question of Subscription to Articles by the clergy.
Let us now review the evils attendant on subscription, and next consider the objections to its removal.
In the first place, the process of restraining discussion by penal tests is inherently untenable, absurd, and fallacious.
In support of this strong assertion, we have only to repeat, that every man has an interest in getting at the truth, and consequently in whatever promotes that end. We live by the truth; error is death. To stand between a man and the attainment of truth, is to inflict an injury of incalculable amount. ”

“ Gentlemen, you cannot believe any witness unless his evidence is reasonable. Every witness has to be corroborated by the naturalness of his story. Every witness is to be corroborated by his manner upon the stand and by the thousand little indications that catch the eye of a juror or of a judge or of an attorney. Congress has passed a law allowing defendants to swear when they are put upon trial. Will you tell me that that law is a net, a snare, and a delusion, and the moment a defendant takes the stand the prosecution is to say, "Of course he will lie"? ”