New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-03-02
OPPOSE MEASURE
THAT HITS BECKER
Silent Foes Fighting Judge
SWann'S Amendment
in Legislature.

! Bills amending the rules or court pro-
oedure. one OF which will AFFECT the seq
ond trial OF Charles Becker. are pending
before the Legislature Judge Swami. the
author OF the bills, and Assemblyman
James Walker and state Senator James
ID. McClelland. who have the bills In
charge, have encountered determined,
though yelled. resistance
. The amendment which. II Il 10 passed.
I can be invoked upon the second Becker
trial. removes the Inhibition which the
J law now places upon the District Attor-
ney regarding comment upon the failure
OF the defendant 10 take the stand In his
own defence. As the law now stands the
District Attorney in summing up isis case
cannot refer TO the defendants failure TO
lake the stand. Judge SWANS amend
ment would allow him 10 do so.
The fact that Becker was indicted and.
In fact tried once. before the amend
ment was even framed would not prevent
its application in his second trial. A de-
cision handed down by the Court or APP
peals on February makes its application
possible
on February in the oualey case the
| Court of Appeals held that rules Of ev-
dence and court procedure were not sub
stantive law and that the application Of
amended rules Of evidence 10 n case which
antedated the amendment is not error.
The hill permitting the District Attor-
now to comment upon the defendants fall
ure 10 take the stand IL embodied In the
constitution OF Ohio. which was passed IN
1912. II is the English law and that OF
every British possession. IL is the law Ia
South Carolina. Maine and New Jersey,
and is the federal practice.
Judge swans other bills leave " 70
the discretion Of the court whether two or
moro defendants shall he put on trial
! separately or together instead OF leaving
the decision with the defendants them
selves, allow the District Attorney to
Join in one indictment several transac-
lions similar or connected in nature and
simplify the wording of indictments
Judge Swami stands almost alone In
his effort 10 simplify and humanize court
, procedure. Ills bills have been approved
by tho Bar Association but 10 one has
to urge its passage. Word came from
Albany yesterday that there was
strong undercurrent OF opposition ana
that lawyers themselves were coNeriiy
opposing tho hills.
Neither the Becker interests nor the
cohorts OF organized crime appear 10 ne
behind the opposition. according TO judge
Swami. lie attributes his difficulties 10
the inbred professional awe with which
lawyers regard the fetishes OF their pro
fession. He quotes John II Nigmore'
dean OF Southwestern University and an
authority upon the rules OF evidence. IN
support OF this view, az follows
The whole opposition TO modernizlnS
the rules cf evidence has its deepest
roots IN the inveterate and unconscious
professional instinct when grows 10
venerate unduly the rules which go ="
form its daily mental pabulum No man
can Justify tho pXaltation of the rules OF
evidence which are mere instruments OF
Investigation. into an end In themselves
as II the whole end and object or trlal
were a contest Of skill In the hanoilns
OF intricate rules OF evidence and rot for
the purpose Of arriving at the facts in
the case
we nave long since passed the period
when II Ia possible 70 punish IN inno-
cent man We are now struggling with
possible to punish the guilty. The Dig
nifty. the truth and the lofty inspiration
Of great constitutional principles arc
frittered away and degraded.
damental ideals Of political liberty nave
come 10 be lightly questioned as 'mprac-
ticahle or cyncallv ignored as obsolete,
on the other hand the constitutional
safeguards Of procedure and evidence are
inyoked with such fatuous frequency ana
such misplaced technicality that their
respect is lowered and their true rur-
poses are defeated