The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-10-04

Editor Advertiser: Anything Mr.
David l. Wilmington may write j,
worthy Of earnest consideration There.
fore his letter TO the Advertiser. upon
your editorial entitled Collapse OF tn,
Jury System in Honolulu" should and
will attract general attention.
do not agree N all points either with
the editorial or with Mr.. Wilmington
letter. do not believe the Jury system
in this Territory has collapsed, though
admit that it is hampered, and almost
blocked. by bad law that needs speedy
and thorough revision Nor do endorse
structures upon the judges, who do not
make the law and whose sworn duty is
TO declare it. as they find it. in this as
in many other matters the responsibility
must rest upon the Legislature
1t is useless to discuss technicalities in
the columns of newspaper. Massa-
chusetts is an ancient well organized
and polished commonwealth. with a
population not exceeded in intelligence
or education in the civilized world. The
jury system there, will not presume to
discuss. Doubtless it is well adapted to
enlightened State. But / will not admit.
and | distinctly contravert. the PROPOSE
ton that the jury system in California
is failure. That State, in this respect,
as in all others, is abreast of the high
est phases of modern progress. Its legis-
| lation, not perfect-what legislation is !?
is nevertheless the result of thought,
| labor and experience and substantially
corresponds to the necessities and the
wants OF well-ordered and aspiring
Western American community.
There was a time in the history of
California, when, in any criminal trial
that excited great public interest, part of
the examination of juror was about as
follows:
Counsel to Juror: Have you read or
talked OF this case?"
II have"
From what you have read or heard,
have you formed and expressed an opin-
ion as to its merits?"
Il have"
rs that opinion qualified or unquali-
fed"
Unqualified.
Would it take testimony to remove
it,"
1T would"
Counsel: Challenged for cause"
The Court: challenge allowed"
In this way, hundreds of qualified
jurors were excused, hearings delayed
beyond endurance. and justice in many
cases defeated Thirty years ago the
statutory definition of actual bias was
changed so as to read as follows:
For the existence OF state OF mind
on the part OF the parties, which will
prevent him from acting with entire inn
Partially and without pre- udce to the
substantial rights of either party
In the same year, by Section 1876 of
the Penal Code, the foregoing definition
of actual bias was protected by this Ian
guage:
. but no person shall be disquali-
fed as juror by reason of having form
ed or expressed an opinion upon the
matter or cause to be submitted to such
jury, founded upon public rumor, state
ments in public journals, or common
notorety; provided it appear to the
court. upon his declaration, under oath |
or otherwise, that he can and will, not
withstanding such an opinion, act i'm
partially and fairly upon the matters to
be submitted to him"
For the purposes of this letter, it is I'M
necessary to refer to any further legisla- |
ton in California. The rule there adopt |
ed has been on the whole closely applied |
and it has worked out excellent results. |
will venture to say that California |
juries in criminal trials will compare,
not unfavorably with juries in every part
of the United States My own observa-
ton does not correspond with Mr. With
ington's impressions. | think any OF the
twelve Supreme Court Judges in San
Francisco will state that, instead of one
criminal trial per week, the average is |
several, and that II is not uncommon for |
two or even three cases to be tried III a |
single day. In the country districts. | |
have frequently seen criminal trials |
pushed with rapidity and precision.
The common law treatment OF juries |
was brutal and would not be tolerated |
by the American republic. Ii is also OBJ |
viouS to my mind that, in modern times |
the right To examine every juror to de- |
velop the existence or non-eXistence OF |
ground of challenge is not only proper |
but essential, and especially in places
where considerable part OF the popu-
laton is tranSitory. Originally juries |
were summoned from neighborhoods,
were generally known. and indeed were
supposed TO have some familiarity with |
the facts Of each particular case Now
most jurors summoned are unknown TO
the party accused or to the counsel by |
whom they are examined To compel a !
for cause before a Juror is |
tested on his voir dire would tend 10 de- |
feat Justice and might often result in the |
condition described by Shakespeare
THE jury passing on the pris-
uners life,
May IN the sworn twelve have
thief or TWO
Guiller than him they try"
The preliminary examination OF Jurors |
Ia q great degree, Is controlled By the |
discretion vested 90 competent Judges,
Who are indifferent between the prosecu-
lion and lhe defense, and cannot per,
'cyr in 20 lhe slightest analogy 10 an |
.nquIsNiuU ur amy substitution ui trial |
If JUROR llr lhc Trial oi lhe prisoner ln
most CAGES suth examinations are hfici /
lnl rapid ln me ease, thry ought io |
hr rAael lni lWI lhr length II trials |
depends lui should depend upon che
tars ani circumstance Of each plf |
HI#U'.F -... hf.... HF..t.