The Hawaiian gazette., 1903-11-20
REFORMS OF COURT PROCEDURE.

| Justice Brewers Indictment OF the
American jury system continues to at
tract the thoughtful interest of public
| men. That eminent member of the u.
! S. Supreme Court declares that public
| opinion Is rightly directed against the
| existing jury system ON three points:
First, the provision that n, jury must
be composed OF twelve persons;
second, the methods used for the pur-
| pose of securing a jury free from
| prejudice or Predetermined opinion;
and third, the requirement that the de-
cision be the unanimous opinion of the
| twelve Jurors.
He declares that there is no magic
in the number twelve for Jurors, no
| mysterious reason why there should
be that number instead of eight or six
| teen. The idea of a jury trial is ito
ascertain the average judgment of the
community on the merits of the contro-
| versy." 1t is not necessary, declares
| the Justice, to have fixed number of
| Jurors in getting at this average judy
ment 1T may well be-" he says,
that where a mans life Is at stake,
| or where the amount in controversy IS
large, twelve would not be regarded as
excessive, but where lighter offenses
are charged or the amount in contro-
versy is small, 1t would seem that the
ends of justice would be subserved
were there but six or eight Jurors, and
certainly time and money would be
saved thereby"
But this objection is trivial when
compared to the objection contained in
the second point with respect to the
ma pner m which jnrOra arc selected
Under the practice in most courts the
best material from which juries might
be secured is barred from the selection.
Bright men who read and keep them
selves informed are sure to have in
formation of every crime of conse-
quence, and information without some
sort of an opinion Is an unnatural con-
dition. The struggle of lawyers is to
get on the juries such men as are easily
moved by eloquence, or who may be
confused by contradictory evidence into
condition of doubt. This struggle
has resulted in carrying the doctrine
of mo opinion" to an unreasonable ex-
tent. mo man should be held dis
qualified" declares Judge Brewer, "be-
cause he has read the newspaper re-
port of a transaction or even heard
some of the witnesses talk about it,
and from reading or hearing has form
ed passing opinion upon the case.
No one for a moment supposes that
the judge is disqualified or that he will |
incorrectly declare the law, although !
he may have heard the whole story If
the transaction. No more should an
intelligent, honest man be held dis
qualified from passing judgment upon
the facts for the simple reason that he
has read or heard the story"
Judge Brewer would dignity the jury |
system by freeing the Jurors from the
many annoyances to which they are |
subjected. He would increase the pay |
of the juror. He should not" con-
tinues this eminent authority. be COM !
PEELED to work more hours than the
judge. To shut him up and keep him
confined day and night is crime
against society. He is treated too
often as an object of suspicion-as
though he We're probably dishonest,
and must be specially shielded from
temptation. Why should he be shut
up when the judge is not? A bad man
on the bench or in the jury box viii
surely find ways to be tempted, and
few things are more calculated to de-
grade his office in the sight of the juror
and to bring out all the evil that Is in
him, than the consciousness that he Is
an object of suspicion. I have been
thirty-seven years on the bench, and
take pleasure in recalling that, so far
as it was possible, l always relieved the
juror from confinement other than such
as / myself submitted. to; that l en-
deavored to make him in the discharge
of his duty free from annoyance and
suspicion. And | have not the Slight
est reason to doubt that the course
thus pursued resulted not merely to
the comfort of the juror, but in a bet
ter administration of Justice"
Having brought better class of men
to the jury box through the methods
here indicated, Justice Brewer would do
away with the unanmity rule and
have a verdict returned by two-thirds
or three fourths of the Jurors. why"
he demands, SHOULD the unanimity
rule be deemed essential? Neither in
legislative halls. among judges, in arb-
tration proceedings. nor in scarcely
any other body called to make deter
is it the rule. In my judg-
ment, the great objection to the jury
system as 1t is administered today, and
the one which more than any other
threatens its overthrow, Is this rule
OF unanimity. Were 1T abolished less
time would be wasted in impaneling a
jury, and better class OF jurors would
certainly be selected. More than that,
the truth would be more certainly de-
termined. How often, in criminal
cases, do ten or eleven jurors yield to
the obstinacy of the remaining, and /
agree on verdict for a lower degree
of crime than they really believe the
defendant to be guilty of? And in
actions for the recovery of money, how
often Is the amount of the verdict af-
fected by the obstinacy of a single
juror"
Here in Hawaii the jury system is in
worse case than on the mainland and
Justice Brewers opinion of 1t would
be interesting. Originally we had color
line juries; that is to say. white men
tried white men while aborigines tried
aborigines. The system was as good
n glara ntee of Justice M could be had