The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1924-04-23
HOW OUR LAW FAtORS
CRIMINALS

Modern criminal practice got
much OF It's bent toward leniency
as a reaction from the use of tor
ture in the Seventeenth Century, re-
ports Herbert S. Hadley, former
Governor OF Missouri, who was ap-
pointed by the American Law In
stitute chairman OF committee to
examine American criminal law
and practice. Mr.. Hadley finds
that rules and technicalities, justi-
fed in sterner times TO protect the
innocent, have been turned into
means OF easy escape for the
guilty
An example of this is the pre-
sumption Of innocence until guilt
has been proved. When the prin-
clpal criminal prosecutions were
political, the presumption of limo
cence was warranted, butt under
modern conditions why should there
be presumption either way? There
is not in the criminal procedure OF
France and some other countries
on the Continent
Mr. IIadley epnmerates twenty
six obstacles in, court practice that
favor the criminal. Among them
are these:
Defendant may insist on
speedy trial; State may not.
Defendant must be advised
as to the charge; State is not
advised as to the defense.
Defendant may change his
| defense; State may not amend
the indictment.
Defendant must see names OF
States witnesses; State may
not see names Of defendants
witnesses.
Defendant has right to hear
States case in preliminary
hearing; State may not require
defense to be shown.
Defendant has right to dis
qualify examining magistrate;
State has not.
Defendant may challenge
grand jury members; State
may not.
Defendant my ask change of
venue on ground of public pre-
judice; State may not.
Defendant has, two preemp-
tory challenges of trial to
States one.
Defendant may disqualify
trial Judge; State may not.
Defendant may have as many
lawyers as he can hire; State
lin some States) may not
Gave. special counsel
~ uHendant's counsel may
comment on failure of any
State witness to testify; State
may not comment on defend
: ants failure to testify.
} Defendant may be crosS-eX-
, amined only as to matter OF his
direct testimony; States wit
nesses may be cross examined
on any ground, and impeached.
Defendant may take deposi-
tons of witnesses; State lin
I most States) may not.
g Defendant may use record OF
y preliminary hearings or cor
U oner's inquest. testimony;
- State may not.
q Defendant is presumed to be
innocent, and may be acquitted
on reasonable doubt as to Grim
e inal intent. even when act is
proved; State must prove guilt
O beyond. rea sonaible doubt.
Defendant plea ding insanity
r is required TO show it not be-
vond reasonable doubt but
= only b. proponderance of tes-
n tiTrOn".
= Dcfendant has right to APP
! pcal - tO testimony and rules;
S.tato has not
Defendant may Pied je1p-
ardy, if states case has once
e failed through absence Of a
e witness, state may net show
o previous crime Of defendant
unless he testifies.
!. Defendant may appeal con-
IL viction; State may not appeal
Ell from acquittal, even If acquit-
tai has been obtained by bYib-
~, cry or perjury.
- Defendant my obtain rever.
re sal of conviction on various
r. grounds, but State may not ask
that punishment be increased
These twenty-six points show
~. how many and various ways Am
III lean criminal procedure gives 4
re advantage to criminals. On gu
N tons Of procedure alone, it seer
there are more reversals in Am
lean courts than for all causes
the courts of England. Likew
70 the prohibition placed upon judi
- to comment or advise a jury
~ facts in distinctly an American
IS stitution, and there is much
e. show that it advantages Grimm
by undu!y limiting the power
80 Judges.
III The inevitable conclusion is t
as ancient safeguards which HI
s. become modern abuses should
weeded out in behalf OF speedier +;
more certain justice.-Minneap'
We Journal