Thus most of the cases tried are neither "dead open and shut," as the saying is, nor exceptionally weak. They usually present some question of doubt,—usually only a conjectural one, however, or at least admit of a more or less logical argument for an acquittal on the part of the defence.

In trivial cases the jury are inclined to take the law into their own hands. Boys charged with attempting to pick pockets or burglarize small stores, with assaulting police officers, carrying concealed weapons such as knives and brass knuckles, having policy-slips in their possession, rioting, malicious mischief, etc., are usually acquitted. This is because the jury think that they have been already punished enough for the character of offence which they have committed,—not because they believe them innocent. Cases where the charge is a serious one and which are tried before trained panels on a substantial amount of evidence usually result in conviction. In so-called "important" or "star" cases, defendants are rarely acquitted. If the reader will recall the sensational first trials of the last ten years he will find that there is hardly a single acquittal among them.[34] It is the petty law-breaker who profits by the lawlessness of the modern jury.

The fact that the prosecutor appears every day before the general panel of jurors in the Part to which he is assigned throughout the term and soon gains among them the reputation of being fair, and that he on his side knows their peculiarities and idiosyncrasies is what makes the jury system in criminal cases work more accurately and accomplish better results than in civil trials, where the jury usually has never seen either counsel before and probably distrusts both of them. A prosecutor who knows his petit jury, its faults, virtues and foibles, can move an important case before it, even though it be composed of retail cigar and newspaper dealers and small tailors from the East Side, more safely and with a better expectation of a just verdict than before a "special" panel of bankers and architects with whom he is unfamiliar. The ordinary panel at its daily task during the last two weeks of every term illustrates the jury system at its best. Cases moved at the beginning of the term usually result in acquittals. Occasionally a jury will open a term with a rather unexpected conviction, but it takes three or four days before they realize that a reasonable doubt is not meant to include "a mere guess or conjecture that the defendant may, after all, be innocent." Wily criminal practitioners seek if possible to have their cases put on the calendars at the opening of a term, and to secure adjournments at the end of the term in order that they may go over to the beginning of the next.

Court officers often win fame in accordance with their ability as "plea getters." They are anxious that the particular Part to which they are assigned shall make as good a showing as possible in the number of cases disposed of. Accordingly each morning some of them visit the pens on the floor below the court-room and negotiate with the prisoners for pleas. The writer suspects that the assistant in charge of the Part is usually depicted as a fierce and relentless prosecutor and the jury as a hardened, heartless crew who would convict their own mothers on the slightest pretext. The joys of Elmira as contrasted with other places of confinement are alluringly described and a somewhat paradoxical readiness to accept any sort of plea, in view of his bull-dog character, is attributed to the assistant.

The writer has known of the entire population of a prison pen pleading guilty one after another under the persuasion of an eloquent bluecoat assisted by an opportune conviction. Of course the prisoners expect to be treated with a considerable degree of leniency, and if one of their comrades goes up to plead and returns with the story that the judge is "easy" and the assistant "all right," and a sentence to Elmira, the others are apt very quickly to follow suit. If, however, the first of the batch called for trial does not come back at all (having been acquitted), the remainder will not "plead" under any circumstances. The same thing is true if the first prisoner who pleads gets a severe sentence. Prosecutors anxious to dispose of business hope for light sentences at the beginning of the term.

Most of the homicide cases are tried in the Criminal Term of the Supreme Court, and a great many pleas to "manslaughter" are accepted by the judge where the technical charge is murder in the first degree. The grand jury indict for murder in almost every homicide case on the theory that some evidence may possibly be given at the trial which will warrant such a verdict. A very large proportion of these defendants plead guilty to manslaughter, and are encouraged in all legitimate ways to do so. About two years ago, in the Supreme Court, the first defendant called to the bar concluded that discretion was the better part of valor and pleaded guilty. The judge, who had never sat in Criminal Term before, promptly gave him eighteen years,—only two less than the maximum, although the shooting had occurred during a quarrel over a game of "craps." Not a single other prisoner offered a plea to any degree of crime during the remainder of the term.

A great deal of interest is felt everywhere in the practical results of the jury system, and particularly in the proportion of convictions to acquittals. Figures purporting to show such ratios should be scrutinized with great care, as they usually include among "verdicts of conviction" pleas of guilty voluntarily offered by the defendant, and similarly include among "acquittals" all cases where defendants are discharged without trial on the motion of the prosecutor. The only figures which have any particular bearing on the question of how far the jury system is efficacious are those drawn from the results of actual trials in which verdicts have been rendered.

The following table shows the comparative number of convictions, pleas, acquittals, etc., in New York County during the last eight years:

Year Convictions Pleas Acquittals by Jury and Direction Discharged on Own Recognizance Bail Discharged Indictment Dismissed Forfeitures Declared Insane Sentenced on another Indictment Superseded Indictment Dismissed by Grand Jury Discharged on Writ Discharged (Comp.) Total
1900 424 1,672 733 366 185 76 74 13 60 19 1,093 4 141 4,860
1901 551 1,838 688 434 192 165 113 8 77 36 1,045 4 116 5,267
1902 419 2,009 698 351 457 257 97 5 67 62 863 2 73 5,360
1903 485 1,918 615 321 299 92 62 12 65 40 807 7 86 4,809
1904 495 1,971 700 363 272 50 63 8 63 37 898 20 99 5,039
1905 489 2,001 602 352 207 57 51 8 82 38 1,035 5 93 5,020
1906 464 2,079 560 428 344 99 47 11 137 45 980 2 69 5,265
1907 582 2,266 656 493 202 100 45 12 179 38 1,529 4 131 6,237
Total 3,909 15,754 5,252 3,108 2,158 896 552 77 730 315 8,250 48 808 41,857