The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-11-24
JURY REfORMS.

original conception of the jury system
was very different to the modern nrac'
| tice. Jurors were selected from the Inn
mediate vicinage where crime was
committed or the cause of action arose
| for the very reason that, In common
with their neighbors, they were sup
posed to have some knowledge of or in
formation about the facts. This was OF
course at a period when the world, on
its way to civilization, was practically
divided into small neighborhoods
which. in the then existing condition of
transportation facilities. were widely
separated.
| This primitive mode of solving ques-
lions of fact in the course of time de-
veloped into the entrenchment of the
jury system as a protection to in
dividual liberty against the aggressions
i of centralized authority, and of with
drawing the determination of facts
from judges, whose abstract devotion
to the law was supposed to interfere
with their comprehension of the or
binary affairs of men, and who them
selves We're sometimes the Instruments
of tyranny.
The requirement of unanimity in each
verdict by twelve duly selected and
competent jurors was adopted because
1t was believed, and history proved,
under forms of government different to
our own. that individual rights would
be unsafe under any other rule. on the
assumption, which is usually correct, of
the personal integrity and ordinary in
telligence and education of citizens en-
trusted with the performance of jury
duty, this argument would have no
place in the United States.
In these days, it would be obviously
improper to submit any issue, criminal
or civil, to Jurors who had been wit
nesses to any of the facts upon which
they were empanelled to pass. Per-
sonal bias or prejudice against either
side of a controversy is also a neces-
sary disqualification. An opinion
against or for either party. which 1t
would require testimony to remove, and
which would prevent juror from hear
ing the evidence with a free mind is
also and ought to be a disqualification.
But an opinion (so-called) which rests
upon publications or hearsay, and
therefore, Is purely hypothetical or con-
jectural, Is in reality a mere impress
sion, that no man capable of jury SER
vice could be prevented from forming.
Such an opinion" irrespective of
statutory law, has been frequently held
in no way to disturb the mental
equilibrium essential to just verdicts
and, in a number of the States, the
rule has been expressly formulated
For instance, in California, in civil ac-
tions, it is provided that, juror can
not be successfully challenged for
cause, on this ground. unless he has
IAN unqualified opinion or belief as to
the merits of the action, founded upon
knowledge of its material facts or some
of Them And, in criminal proceed
ings, the Penal Code of that State de-
clares: NO person shall be disqualified
as juror by reason of having formed
or expressed an opinion upon the mat
ter or cause to be submitted to such
jury, founded upon public rumor, state
ments in public journals. or common
notoriety: provided it appears to the
court, upon his declaration, under oath
or otherwise, that he can and will,
Notwithstanding such an opinion, act
and fairly upon the matters
to be submitted to him."
There are necessarily other disqualif-
cations, arising out of personal rela-
tons, consanguinity or affinity, inter-
est, previous jury service on the same
questions, and similar causes of inca
pacity to act fairly which it Is unnec-
essary here to detail. Modern practice,
when honestly applied, without refer
ence to petty technicalities that have
no substantial effect, plainly requires
only that juror shall be able and will
ing to determine issues upon the testi-
mony and the law.
In most, If not all, of the States, Of
fences which are not Infamous" may
De tried without the Intervention of n
jury, and the rule of unanimity has
been frequently and properly invaded.
1t thus appears that some of the re-
forms suggested by Mr.. Justice Brewer
are already in progress. But there are
several of his propositions that demand
legislative notice. Under the old rule,
the coercive policy was adopted, and
Juries were deprived of food, water.
fire and all the necessares of life, until
they agreed or We're discharged. This
was the intiiction of n cruel and inhu-
man punishment for the fulfllment of
q duty, required by n solemn oath, as
well as by sense of public obliga-
ton. Compulsory verdicts settled cases.
but they did not administer justice.
1t Is a truth, not generally observed.
that, under the majority rule of gov
eminent, honest disagreements among
jurors are usually right. that is, they
represent the proportionate difference
OF opinion that would exist among the
mass of average citizens upon the facts
to be determined. This is a very strong
argument in favor of Mr.. Justice Brew
er's protest against the requirement of
unanimous verdicts. even in criminal
except perhaps those involving
the death penalty or very protracted
Imprisonment. In civil actions, the rule
applied In California and in some other
states, of requiring only three fourths !
OF the members of jury to render a !
verdict, has worked satisfactorily. /
There Is no sound reason why this rule |
should not be extended at least TO the |
majority of criminal causes.
To what extent the useful alterations
III the law proposed by Mr. Justice |
Brewer can be made through the ter !