Year: 1870

ccnce, it is the duty of his advocate 10 inc
beat of his ability, by fair comments upon tne
evidence, TO secure, il he can, an aclulttai.
But it should be understood, and we suspect
that il is not generally or well understood ny
thc public that the benevolent presumption oi
innocence is less intended for the protection
of the prisoner than for the safety OF many
innocent men, who, if the rules of evidence
were broken down, might wjusdy suffer. The
law simply forbears to press conYiciion'
when conviction might establish dangerous
and inequital,le precedent.


So far, them The duty of counsel to Whtch
The testimony and TO maintain upon IT Il theory
of the prisoners innocence, may lie conceded
But he would err egrcgiousy who supposes
that this great privilege, OF this simple fght,
if we please so TO consider it, is not limllcd
both by The GOOD sense and 10y the good faith
of counsel. The hight carefully and lngenl-
ously to defend one person WHO - Oh tilal NY
no means implies the right extra a-judicially to
araign another person who il not on tiial aC
all. The advocate for the defense holds no
license TO travel out OF the record in quest Of
extrancOus facts, or more probably OF notions
which may possibly help his client ut the expense
of somebody else. For instance, upon The trl.tl
of John Jones for murder, it is barely possible
that the Court might hold as admissible cyi-
dence to show that the murder was committed
by some highly respectable and perfectly inno-
cent member of society. Now, such is the ma
ture of practice, that if an advocate sees tit to
rise and suggest guilt in the most astonishing
and unsupported quarter, although the Court
may and would probably silence him az soon
as possible, the mischief would be done before
the scandal could be arrested. This is an in
evitablc inlrmity of legal procedure from
which in the nature of things there is no cs-
cape, except through the chiyalry and honor
Of counsel. All the more, possessing tins
tremendous power, should the advocate be
careful so to use it that the rights
Of other parties outside the case may not De
in the least compromised. This, indeed, is his
best policy; for in the end system OF rowing
inquisitions in quest Of evidence half true to
bolster Up theories wholly mtenahle can do
the advocate no good. 1t is a game at which,
if il is 80 he permitted, the prosecution can, in
in the nature of things, beat him in nine
cases out of ten.


The general idea is that an advocate, III
managing the cause of his client, should re-
member his client alone; and within proper
limitations aud as between the respondent and
the Government, the idea is a good and sound
one. But surely, even the most remote deduc-
tons from this theory give a practitioner III
the criminal courts no moral right however
he may suppress The true, to suggest the false
to the damage of innocent persons. In con-
ductmg Il cross-cXaminati0n, for instance, 1t
may be proper for counsel to pre3uppOse that
the memory of the witness has failed him upon
the direct or that he has not shown the
proper relation to each other Of the facts
brought out in his evidence; but, except iii rare
and papable cases, we should very much doubt
the moral right of cross-eXanining counsel TO
assume that the witness has already COM
mitted perjury; and to do this merely for the
sake of confusing and embarrassing witness
would be ungentleman!y and dishonorab.c III
the extreme, however it might be profession
ally considered. Thus we see that the appaI-
ent license which the lcniency of the law al
lows TO criminal defense is itself hcdged
about by certain laws OF personal honor. Inc
advocate himself is an officer OF the Court, ana
has a personal interest in maintaining its dig
nifty, its equity, ana lis good name. lie Is to
save his client if he can, but he is not to
save him at the expense OF other regulations.
If he is paid for furnishing one character, it
doe, not charter him maliciously to blacken
another He may comment fairly upon the
evidence; but hint, innuendo, and malicious
suggestO are not now, never have been,
never will be- in Court OF out Of II, such Il
commentary.