The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

"Mr. District Attorney," remarked the presiding justice dryly (which did not lessen the confusion of the young lawyer), "is this a fact? Has the defendant a license?"

"Yes, your Honors," replied the assistant; "this paper seems to be a license."

"Defendant discharged!" remarked the court briefly.

The prisoner stepped from the bar and rapidly disappeared through the door of the court-room. After enough time had elapsed to give him a good start and while another case was being called, the old lawyer leaned over to the assistant and remarked with a chuckle:

"I am always glad to give the boys a chance—help 'em along—teach 'em a little. That license was a beer license!"

BEFORE TRIAL

To begin at the beginning, whenever a person has been arrested, charged with crime, and has secured a criminal lawyer to defend him, the first move of the latter is naturally to try and nip the case in the bud by inducing the complaining witness to abandon the prosecution. In a vast number of cases he is successful. He appeals to the charity of the injured party, quotes a little of the Scriptures and the "Golden Rule," pictures the destitute condition of the defendant's family should he be cast into prison, and the dragging of an honored name in the gutter if he should be convicted. Few complainants have ever before appeared in a police court, and are filled with repugnance at the rough treatment of prisoners and the suffering which they observe upon every side. After they have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as they crowd around the husband and father, they begin to realize the horrible consequences of a criminal prosecution and to regret that they ever took the steps which have brought the wrong-doer where he is. The district attorney has not yet taken up the case; the prosecution up to this point is of a private character; there are loud promises of "restitution" and future good behavior from the defendant, and the occasion is ripe for the lawyer to urge the complainant to "temper justice with mercy" and withdraw "before it be too late and the poor man be ruined forever."

If the complainant is, however, bent on bringing the defendant to justice and remains adamantine to the arguments of the lawyer and the tears of the defendant's family connections, it remains for the prisoner's attorney to endeavor to get the case adjourned "until matters can be adjusted"—to wit, restitution made if money has been stolen, or doctors' bills paid if a head has been cracked, with perhaps another chance of "pulling off" the complainant and his witnesses. Failing in an attempt to secure an adjournment, two courses remain open: first, to persuade the court that the matter is a trivial one arising out of petty spite, is all a mistake, or that at best it is a case of "disorderly conduct" (and thus induce the judge to "turn the case out" or inflict some trifling punishment in the shape of a fine); or, second, if it be clear that a real crime has been committed, to clamor for an immediate hearing in order, if it be secured, to subject the prosecution's witnesses to a most exhaustive cross-examination, and thus get a clear idea of just what evidence there is against the accused.

At the conclusion of the complainant's case, if it appear reasonably certain that the magistrate will "hold" the prisoner for the action of a superior court, the lawyer will then "waive further examination," or, in other words, put in no defence, preferring the certainty of having to face a jury trial to affording the prosecution an opportunity to discover exactly what defence will be put in and to secure evidence in advance of the trial to rebut it. Thus it rarely happens in criminal cases of importance that the district attorney knows what the defence is to be until the defendant himself takes the stand, and, by "waiving further examination" in the police court, the astute criminal attorney may select at his leisure the defence best suited to fit in with and render nugatory the prosecution's evidence.

The writer has frequently been told by the attorney for a defendant on trial for crime that "the defence has not yet been decided upon." In fact, such statements are exceedingly common. In many courts the attitude of all parties concerned seems to be that the defendant will put up a perjured defence (so far as his own testimony is concerned, at any rate) as a matter of course, and that this is hardly to be taken against him.