Arizona republican., 1903-12-04
The Right of Appeal and the Law's
 Delay.


 Following Justice Brewers recent I criticisms of the faults in our judicial system which permit the defeat of jus tice through unrestricted appeal, Pro
 lessor Wigmore of the Northwestern University law school at Chicago | makes a vigorous assault in the Col umbla Law Review for the current month upon the practice of granting new trials as a matter of right merely | because some particular piece of evil dence may have been enormously ad- mitted or excluded by the trial judge. To quote the subtitle of Professor WigmCre's article, it is "A Practical Problem for American Justice" and one of the highest importance to relieve the judicial system of this country from the reproach Of being the nest dilatcry in the world. A rule Of pro- cedure which was invented to shield the accused from the danger of un- just verdicts has been so strained that it has become the most frequent cause of injustice.
 The original rule, as Professor Wig
 more remarks. was clear. In the old est case cited by the learned writer, de- cided in 17S1, all the judges were of the opinion that the testimony of a CT tain witness ought net in strictness to have been received; nevertheless the judges did not think themselves bound to stop the course Of justice because there was other sufficient evidence in the case to sustain the verdict. In 1928 the federal supreme court gave it's opinion on the subject in the following words: Tn such cases (name!y, appeals for new trials) the whole evidence ia examined with minute care. and the i1- ferences which the jury might properly draw from it are adopted by the court case justice has been done, and the verdict is substant.ciiy right, no new trial will be granted, although there may have been some mistakes commit ted at the trial" It was in 1885 that the rule as now followed was laid down by the English court Of ex- chequer-a rule which in the later course of interpretation was made to signify that a strict observance of the technicalities of the game is of su- preme Importance; that no error on the part cf the trial judge may be regard cd as ineffective. and that such error must be presumed to have affected the minds oe the trial jurors.
 The theory that a party has a legal right to the judicial observance of the rules of evidence, and that these rules are not merely a means to an end in themselves. doubtless has it's deepest roots in the inveterate and unconscious professional instinct. The most com- mon argument, however in justifica- ton Of the reversal Of judgments on technicalities, and without considering notwithstanding the error) ! Fubgtantial justice has been done. Is that the weighing or evidence and the detcrmina tion Of facts are exclus- i lively the function of juries, which the : bench should not usurp The argu- ment is fallacious, because judges pos ! sess and have always exercised re- | visOry powers over juries in the ascer- ] tainment of facts. Juries may be di- ! rected tC render verdicts conformable i to the views of the bench Of the facts | proven; the findings of juries may be | set aside by the courts as being against ! the weight of evidence. It is simply absurd, therefore, to say that judges | would go beyond their sphere by con- the facts on appeal or decid- | ing. cn the whole record of the case, l the ends of justice have been | conserved.