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

by Arthur Cheney Train

"John Keenan, alias Foxy Keenan, alias Gum-Shoe Jack, do you now desire to withdraw the plea of 'Not guilty' heretofore entered by you, and to now plead guilty to grand larceny in the second degree?"

The defendant acknowledges with no very amiable expression that this is his inclination, and his pedigree, which is taken by the clerk forthwith, discloses that he has served five times in State's prison and twice in the penitentiary. "O.C." looks at his fellow jurors and whistles under his breath. That was the real thing and no mistake. Very likely the jury upon which he is now serving will convict, it having thus been brought to their attention by a concrete illustration that all the defendants are not innocent persons unjustly accused of crime. "Remanded," says the clerk, and Gum-Shoe Jack tramps back to the little door and the interrupted trial goes on. The stream of complainants, witnesses and defendants is as varied as that in Balzac's "Comédie Humaine." "O.C." begins to take a keen interest and now and then to put a question himself. He has taken the opportunity to make the acquaintance of the assistant district attorney at the noon hour and now feels that he is really a part of the machinery of justice.[28]

Ordinarily in a full court day there will occur from two to four complete trials, while an equal number of pleas may be taken. Sometimes a hundred and fifty cases will be got rid of by trial or plea in a single term in one part of the General Sessions alone. On the other hand, if the calendar is made up of "old-bail cases," indictments for receiving stolen goods, misappropriation, and Italian or Chinese homicides, the office accounts itself lucky in getting rid of half a dozen cases in the month. Occasionally, when a brisk, business-like judge is sitting, a "homicide calendar" will be disposed of at the rate of one a day, but this is rare and can occur only when most of the cases are for manslaughter or criminal negligence.

When trials are rapid their speed always redounds to the benefit, not of the People, but of the defendant.

Such a performance in a court of justice as the following, recounted by Lord Brampton, could not take place to-day. It is worth reproduction as marking the progress of criminal procedure:

The first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. As judges and counsel were exhilarated, the business was proportionately accelerated. But of all the men I had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was Muirhouse.

Let me illustrate it by a trial which I heard: Jones was the name of the prisoner. His offence was that of picking pockets, entailing of course a punishment corresponding in severity with the barbarity of the times. It was not a plea of "Guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "Not guilty," and therefore had a right to be tried.

The accused having "held up his hand," and the jury having solemnly sworn "to hearken to the evidence," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look around and see where the voice comes from, he is examined by the prosecuting counsel.

"I think you were walking up Ludgate Hill on Thursday 25th about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. Is that it?"

"Yes, sir."

"I suppose you have nothing to ask him?" says the judge. "Next witness."

Constable stands up.

"Were you following the prosecutor on the occasion when he was robbed on Ludgate Hill, and did you see the prisoner put his hand into the prosecutor's pocket and take the handkerchief out of it?"

"Yes, sir."

Judge to the prisoner: "Nothing to say, I suppose?"

Then to the jury: "Gentlemen, I suppose you have no doubt? I have none."

Jury: "Guilty, my lord," as though to oblige his lordship.

Judge to prisoner: "Jones, we have met before—we shall not meet again for some time—seven years' transportation. Next case."

Time: two minutes and fifty-three seconds.

But to return to our juror. What strikes "O.C.," who has now become entirely disabused of his previous ideas of what criminal trials are like, is the fairness with which those trials are conducted in the General Sessions and the fact that the interests of the accused are safeguarded in every possible way. Plenty of time is taken to try out even a pickpocket case or a street-corner brawl. The judge always covers the law fully and accentuates the necessity of giving every reasonable doubt to the defendant. In his heart "O.C." begins to have a slight feeling that the devil is getting a little more than his due. He has acquitted so many of the persons who have been tried that when he now sees a head he is not at all unwilling to hit it. He is fast reaching that state of mind which the prosecutor has anticipated when he has told his chief that in a few days he will have the jury "knocked into shape," in other words, he no longer believes every hard-luck story that he hears, he knows that certain criminal attorneys are capable of almost any kind of misrepresentation, he realizes that practically every defendant has already had a pretty exhaustive trial in the police court before indictment, he is quite as anxious to see the guilty convicted as he is to see the innocent acquitted, and he has been properly disgusted with the attitude and actions of certain of his colleagues in the jury-room whom he regards quite properly as anarchists or idiots. The district attorney at the end of a week has found out who some of these are. They have been "excused" for the remainder of the term, and he can rely pretty safely on the others rendering a fair verdict in any important case which he now desires to move before them.

What naturally interests "O.C." and his fellow jurors most of all is the defendant's own story of how he came to be involved in the transaction out of which the charge against him arises. For the first few days he very probably gives such explanations rather more credit than they deserve, for he is sympathetically inclined to believe that the prisoner is more likely to be the victim of circumstances than guilty of an act of moral turpitude. The eager attitude of some of the complainants likewise gives him an excuse for believing them to be actuated by more than a mere desire to see justice done and to have the truth prevail. He is inclined to look for hidden motives for every prosecution. This gradually wears off and his attention becomes centred on the defendant himself. Will he put in a defence? Will he testify in his own behalf? What will he say? Little by little "O.C." gets to inventing defences to fit the facts established against the prisoner by the people's case. Meantime he is learning a little law. That "the people must prove the defendant's guilt beyond every reasonable doubt," and "that no unfavorable inference must be drawn as against the defendant from his failure to testify in his own behalf." "O.C." has some difficulty with the "reasonable doubt." Perhaps he says to himself, "I am a reasonable man,—hence any doubt I have must be reasonable." However, the judge's reiteration that not every doubt is a reasonable one and that the words do not mean "a mere guess or conjecture that the defendant may, after all, be innocent, but a substantial doubt arising out of the evidence in the case, for which a reason can be given," and of such a character as would influence him in the important affairs of his daily life, eventually clears his mind on this somewhat abstruse psychological problem, and he translates "beyond any reasonable doubt" into the more lucid and comprehensive "moral certainty" of ordinary existence.[29] But that he shall not permit himself to be prejudiced against a defendant by the latter's refusal to testify is a much more difficult matter. He knows it to be the law, and he tries hard to obey it, but in a majority of cases he cannot escape the sub-conscious deduction that if the defendant were innocent he would not hesitate to offer an explanation. As time goes on and he gains in experience it becomes even harder to follow the instructions of the judge in this respect. He discovers that the district attorney cannot prove the prison record or bad character of the defendant unless the latter subjects himself to cross-examination by taking the witness-stand, and hence is likely to suspect that any defendant who does not testify is an ex-convict. Three jurors out of five will convict any man who is unwilling to offer an explanation of the charge against him. How they reconcile this with their oath it would be hard to understand, if they were accustomed to obey it literally in other respects. The writer has heard more than one talesman say, in discussing a verdict, "Of course we couldn't take it against him, but we knew he was guilty because he was afraid to testify."

As the reader is doubtless aware, under the common law no defendant in either a civil suit or criminal prosecution could testify in his own behalf. He was regarded as a party in interest whose bias must necessarily render his evidence of questionable, if of any, value. This doctrine, along with many others, our fathers adopted on their severance from England, and it continued to be the law in New York for a long time,—in civil cases until 1849, and in criminal until 1869. Then, ostensibly for the sake of the defendant and for the protection of the innocent, the rule was abolished. That the change from the common law was not generally approved either by the bench or bar of New York is clear from the opinion of the Court of Appeals in one of the earliest cases which arose under the new practice.[30] The court expressed the opinion that the change would redound to the benefit of the glib, quick-witted and hardened criminal who could invent a plausible defence, and result in the confusion of the innocent man unjustly accused of crime who might from stupidity or timidity involve himself in apparent contradiction; to say nothing of the fact that if the defendant did not take the stand the jury, however much they were instructed to the contrary, would inevitably draw an unfavorable conclusion from his failure to deny his guilt.