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tered. We believe in jury trials; we believe that twelve men, drawn from the community, on a question of fact submitted to them, constitute a desirable tribunal. This provision that we recommend gives a dignity and value to the jury and its verdict that they do not have under the present system.
Our next proposition is to add to Section 648 of the Revised Statutes of the United States the words which appear in the report, which you have all read. The recommendation is that there be findings upon the issues of fact. The jury finds in answer to questions submitted to them by the judge, and the appellate court, if the case goes to the appellate court, can render a final judgment, one way or the other, and there is no need to put the client to the expense of a new trial, or to put the court to the burden of hearing the case all over again.
The recommendation in regard to criminal procedure, and our recommendation is to add a clause to Section 709 of the Revised Statutes.
Let me say in conclusion, that I have been trying jury cases for over forty years and am satisfied as a result of observation and experience that it is for the interest of the lawyer, as well as for the interest of the public, if he has a good case, to try it as soon as he can upon the merits, and have no reversal for technical questions not affecting the merits. If his case is a bad one let him get through with it and try some better business.
The true function of the lawyer is to promote, not to defeat, the doing of justice.
John R. Dos Passos, of New York:
Mr. President and gentlemen: Perhaps the few remarks that I am about to make will be regarded as more in the nature of a confession than a discussion, a confession, perhaps, of a kind not often made in the debates which take place in this Association.
There is no doubt that criminals escape through the instrumentality and loopholes of technical defenses. I suppose I should know something about the subject. I have been in many prominent criminal cases in New York for a number of years, either as one of the active counsel, or as consulting counsel, and I know I have heard the suggestion from laymen, whether the real culprit is
the criminal or the lawyer, or, to put it in another way, whether the client should be hanged or the lawyer. I suppose that is the normal condition of the public mind when it sees the lawyer armed with all the auxiliaries and weapons which the common law gives him when presenting a case in favor of a person whom he is defending. Still, the technical rules of the law must be upheld because to break wantonly in upon these rules which have been the handmaid of Anglo-Saxon law and civilization, would work inestimable damage to the system of criminal law which we have adopted. There must be rules, even if at times they tend to benefit persons who are guilty.
A comparison between England and the United States in respect to the administration of criminal law, shows a marked difference in favor of England as against our country. There was no Bill of Exceptions in England until very recently, in a crim
The administration of criminal law in England was one of the most magnificent spectacles in the world. A few months ago, however, England went wrong in my estimation, and granted an appeal in criminal cases. If that law-allowing a Bill of Exceptions, in criminal cases-be administered in England upon the lines already laid down by her justices, who constitute the appellate tribunal, I think no great harm will ensue. The real evil in this country is that appeals in criminal cases not only exist, but laws are passed by which a criminal, after conviction, can walk the streets until his case is finally passed on by one or more appellate courts. This presents an anomalous picture, and in my estimation it seriously weakens the moral and purposes of criminal law. The lawyers assembled here, and the lawyers of this country, will never agree, I believe, to abolish appeals in criminal cases. In my estimation, the root of the evil is there, and to make the administration of criminal law in any way approaching perfect, there must be an abolishment of appeals in those cases altogether. A Board of Pardons could be established to review a case, and where there is any doubt of the guilt of the accused, it could intervene. Technically, illegal convictions are doubtless often made, as the records of the appellate courts abundantly show, but convictions against the facts and against the evidence are very rare. In my estimation, it is an anomalous and unbecoming spectacle to behold a man convicted of crime walking the streets of New York with a certificate of reasonable doubt in his pocket, which enables him to postpone the commencement of his sentence, and to mingle with his fellow men precisely as if he had never been convicted of a crime. As long as such spectacles are common, the administration of criminal law will never be approved by the people. Of course many criminals escape by reason of the looseness and ignorance of the judges who try them. The district attorneys, bent on conviction, in cases where they believe a crime has been committed, in default of full and complete legal evidence, fill the record with outside and foreign matters, which complicate the issue, and compel the appellate courts to set a conviction aside. The main issue in a criminal case should be whether the man charged is really, actually guilty, and to ascertain this fact there should be a greater latitude allowed in the admission of evidence, to enable the jury to reach the proper result. As it is now, as the criminal law is administered in this country, I regard it as a general reproach to our civilization, and I believe that we may doctor with this subject in administering temporary and superficial remedies, which from time to time may appease and mollify an aroused public sentiment, but in the end it will be found that the criminal law can never be regarded as satisfactory to students and philosophers, and trained and experienced lawyers, who have the good of the country at heart, until appeals in criminal cases are entirely abolished. I have little hope of seeing that done. I should suppose, if it were put to the American Bar at the present time, it would be rejected; but it may yet come-and the people may see the spectacle of one fair trial—one fair conviction, and no after plays, if I may be pardoned for using the phrase, to throw doubt and discredit upon the principles and purposes of criminal law and justice.
Frederick W. Lehmann, of Missouri:
This report makes recommendations that are different in character, and, therefore, in order to make it more orderly, I move that the first section of the report be adopted, the substance of which is that a case shall not be reversed on appeal because of any error, unless the reviewing court finds that question to have been hurtful to the party, changing the present rule under which prejudice is assumed whenever error is shown.
Ernest T. Florance, of Louisiana :
A vote was taken and the result being in doubt, a division was ordered, whereupon the resolution was adopted by a vote of 65 to 18.
Frederick W. Lehmann:
I now move the adoption of the second recommendation of the committee's report, which provides the amendment of Section 648 of the Revised Statutes of the United States.
Ernest T. Florance:
I sympathize most strongly with the general aims sought by the committee, and I voted for their first recommendation, which has been adopted, but I feel grave doubt about the wisdom of this proposition, as to whether it will accomplish that economy and speed which is sought for.
Frederick W. Lehmann: Suppose I move to amend by inserting that the trial judge may in any case submit the case to the jury? At present the only thing the trial court can do is to set aside the verdict. He cannot render the judgment that he thinks ought to be rendered. Would this suggested change meet the views of the gentleman from Massachusetts ?
William L. Putnam :
I should think that the suggestion would meet the point that I was getting at.
The Chairman :
mittee be amended by substituting the word “may” for the word "shall” in the second line, and substituting the word “any” for the word “all” in the same line.
Frederick W. Lehmann:
On behalf of the committee I will accept that and second the gentleman's motion.
Stephen H. Allen, of Kansas:
I move to amend the pending amendment by leaving in the word "shall” and following it with the words, “on the request in writing of either party made prior to the commencement of the trial.”
William H. Burges, of Texas:
Is the recommendation so framed as to confine it to civil cases, taken in connection with the rest of the statute ?
Frederick W. Lehmann:
I would ask Mr. Lehmann if he thinks this recommendation meets the constitutional provision of the right of trial by jury?
Frederick W. Lehmann:
Undoubtedly. You have your trial by jury and you have it upon the whole issue too. The entire case is submitted to the jury. The court now has the right if it is of opinion that upon the facts proven there is no liability, or any ground of recovery upon the part of the plaintiff, to direct a verdict for the defendant.
Charles W. Smith:
When you say that this power is left with the court and that the court may do this, do you not give the court power to say whether it will do it in any case or not?
Frederick W. Lehmann:
No sir, we do not give to the court by this amendment power to pass upon any issue of fact in the case; the issue of fact is necessarily submitted to the jury. The difference between this and the present practice is that it requires submission of the