The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-03-23
Reform I'm Jury Triais-Some of the
Considerations Affecting the Cues

our Courts is necessary The solemn trial OF
man charged with the crime of murder is
fast becoming jest The escape of noto-
rious criminal is expected as a mere matter OF
course. Conviction comes as a surprise TO the
community and punishment seldom follows
conviction The pleas of prisoner charged
with crime are popularity regarded as
ssdodges," aud the '';nsanity dodge" espe-
cially is relied upon q certain ground of
escape. The result of all this is TO bring the
administration of justice into contempt and
to utterly destroy public faith in Courts and
| jurors
which we are suffering can be found in any
case than in the recent trial Of Scannell. The
jury failed to agree because some of the jurors
thought Scannell was insane. 1t is sufficient
answer to the groundlessness of this theory
that not one man in thousand in the COM
munity who has read the testimony believes in
Scannelrs insanity. On the other hand, it is
plain that the murderer followed his victim
persistently and constantly, and at last
shot him again and again with thor
oughly formed and well-considered de-
| termination to kill him. Scannelrs
insanity was the afterthought of coun-
sci, and everybody was aware of
the utter hollowness of the pretence however
solemnly it was urged. No honest jury could
have returned any other verdict than verdict
of guilty, unless indeed, the criminal proce-
dure of our Courts is so much at fault as to
make conviction not only uncertain, but i'm
possible. We are inclined to think that this
view Of our criminal trials is true to an
extent, at least, which allows even an honest
and intelligent juror to be befogged and be-
wildered by the mass of contradictory and
irrelevant testimony which forms a part of
every case We recognize the liberality which
should be allowed the accused in criminal
cases /; but the rules of evidence, even in trials
for murder, may be too literally construed.
Especially is there danger that justice may be
defeated from the unrestrained introduction
of the testimony of experts Opinions based
upon hypothetic statements are never
sufficiently trustworthy to guide jury, and
the tendency in our Courts is to allow
opinions formed on no better ground to be
submitted to the judgment of the jury. In
the Stokes case the private opinions of one of
Fisk's enemies were received as testimony on
the question of reputation. Latitude like this
was never before exhibited in q court Of
justice We fear policy equally obnoxious
obtains in regard to the evidence of medical
experts, and that, too, in the face of the fact
that most medical testimony is a subject of
bargain and sale. The opinions of experts
are bought as readily as the services Of
physician and these opinions are then used to
befog and bewilder the jury.
These are abuses which may be corrected by
strict construction of the rules of evidence
and an honest and intelligent discharge of
duty by the Judges of our Courts, or by
legislative action, but we doubt whether our
Legislature has the power to pass. Bourbon
lawyers even cling to the system of calling in
triers to determine jurors fitness when chal-
lenged, and insist upon it on constitutional
grounds If this position is worthy of mo-
ment consideration it is plain that no change
can be made in the law except by a constitu-
tional amendment. 1t is proposed, even by the
Bar Association of this city, that majority Of
the jury shall have the power to render YER
dict, except in criminal cases. where the PEN
atty is death In cases of murder the majority
is to have power to acquit We submit that
the question is one which ought to be maturely
considered. No hasty action ought to be
taken, but the subject should receive thor
ough discussion by the Bar and the Press
These are some of the points upon which the
discussion ought to hinge:-
What will be the effect of majority verdicts
in civil and criminal cases?
On this point we would inquire whether the
plan suggested by the Bar Association would
impair jury trials or bring the administration
of justice into still further contempt. One of
the crying evils of the day is the impossibility
of bringing guilty men to punishment. Would
the new plan increase or diminish the chances
for the conviction of the guilty? 1t is posi-
BILE that if nine jurors were able to acquit q
murderer few criminals of this class could
be punished There is certainly ne analogy
between the plans proposed, for if nine
jurors are sufficient number to convict of q
felony it is not easy to understand why nine
should not convict Of murder. If nine are
sufficient to acquit Of murder, why should not
nine acquit of felony? All these things must
be considered in connection with the condi-
ton Of society, the forms and practice Of the
Courts and the rules of evidence. If any
wiser system can be devised than the one
which the common law gave us it would be
we'll to have it, but nothing must be done that
will impair the remedy and aggravats the
disease.
Have jury trials as they were under the
common law been impaired by the practice
under the code?