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

by Arthur Cheney Train

This may be all very well in theory,—but it is very far from what is either followed in practice or, to speak frankly, desirable. What the people want in our criminal courts is, of course, a "fair trial," but they want a "fair trial" that results in the acquittal of the innocent and the conviction of the guilty,—so long as he is convicted by what they deem fair means. The people do not expect a judge to be more than human. Did he appear as indifferent to results as theory might seem to require the jury would quickly infer that the case was of slight importance and their action a matter of utter indifference to the court. Juries need to be kept in order and made to behave themselves, and, if judges did not from time to time exert a disciplinary influence, would easily run wild and become hopelessly demoralized. It is almost impossible to overestimate the awe with which the ordinary juryman regards the judge presiding at a criminal trial. He may have a supreme contempt for his personality or private conduct, but once let the judicial ermine enshroud the individual and he sees only the judge,—the personification of the law, the autocrat of the court-room, the "boss" of the particular "job" upon which he is temporarily employed. He knows nothing of the abstract theory of the situation. He wants to do well as a juryman and believes, quite naturally, that an improper verdict will be visited by the judicial wrath and a just one be acknowledged by a look of benignant commendation. If he thought the judge did not care he would take little interest in the business himself, and the apprehension of the court's approval or disapproval is an ever-present factor in keeping him doing conscientious work,—quite as important in its results as his own lightly murmured oath as a juror.

The judge, in addition to his theoretic duties, is in effect the individual who must keep the gang at work and see that every one of them earns his two dollars a day. If he appeared to them to be star-gazing or studying Epictetus they would soon rest on their shovels. Many juries take their cue from the court, laughing when he laughs, and frowning when he frowns, and instinctively, however much he may admonish them to the contrary, trying to determine from his manner and charge what his own impression of the case may be.

Now, a judge who has sat for ten or fifteen years on the criminal bench is usually keener to detect a liar or see through a "faked" defence than any twelve men drawn indiscriminately from different walks of business activity. A timely question from him may demolish a perjured explanation which, but for his interference, would have acquitted a guilty criminal. Theoretically it is none of his business. Practically it is. An inexperienced prosecutor may be so inadequate to the task of coping with some old war-horse of a lawyer that save for the assistance of the court a rascal would be turned loose upon the community; or, turn about, a stupid lawyer may convict his own client if not prevented by a considerate presiding justice. Theoretically the judge must let the parties fight it out by themselves. In point of fact it is his business to even things up. The old country judge was not so far wrong when on being assigned to the criminal term of the Supreme Court in New York City he said to the prosecutor:

"Mr. District Attorney, I reckon that, between us, we shall let no innocent man be convicted,—and no guilty man escape."

Practically this expresses in a nutshell the popular idea of what a criminal judge is for, and it is certainly the idea which pervades the minds of the jury. Nothing can eradicate it. It is a fact,—an existing condition, which the court must inevitably take into consideration in determining his course of conduct upon the bench. By this it is not meant that a judge should be either counsel for the defendant or district attorney, nor that he should force his ideas upon the jury, but simply that to be effective he must be more than a nonentity, a mere law book, or an ornament, must guide the course of the trial, and, in default of its being done by the counsel on either side, test by his questions the truth or falsity of the testimony. More than this, he should in his charge indicate the tests which the jury should apply to the various phases of the evidence and, while not influencing them upon the questions of fact which they are to determine, should nevertheless so elucidate their task that they may be guided in their deliberations and not go astray among the tangled underbrush of an adroit counsellor's "requests to charge."

The writer has endeavored in the preceding paragraphs to set forth briefly the theoretical function of the judge as opposed to his proper practical function if he is to be of any value in the actual administration of criminal justice. One more step is necessary, namely, to comment on the actual conduct of some judges who from natural disposition or a conscientious purpose to "do justice" are inclined to usurp the function of the jury and practically to direct either an acquittal or a conviction.

Under our prevailing doctrines the court has no right to influence the jury on the facts in the slightest degree, and indeed most judges expressly direct the jury to disregard absolutely any idea they may have obtained of what the court's opinion may be. This, in the face of the balance of the charge, must often seem paradoxical to the talesman, for few judges entirely succeed in concealing their own views of the case, however hard they may honestly try to do so.

It is quite as foreign to the spirit of our institutions for a judge to interfere with the jury on questions of fact as for a jury to arrogate to itself the decision of points of law. The system is designed to do "justice" by means of its several parts working harmoniously together, but neither part "working justice" by itself. If the judge arrogate the jury's function, the jury becomes superfluous. This is not the intent of the Constitution. There is no real trial by jury when the judge decides the whole matter, and it would be far more dangerous for a single man to act as arbiter of the defendant's fate than for twelve. Yet more or less consciously there is often a tendency upon the part of the criminal bench to lend itself to the success of one party or the other, however positively it may declare and direct to the contrary. The actual amount of suggestion needed to give the jury an effective hint is infinitesimal. The almost imperceptible accentuation of a word, the slightest lifting of an eyebrow, and a verdict has been determined—by the judge.

Now a printed record on appeal fails utterly to disclose the tone of the voice or the stage effects of a judge's charge. A distinguished member of the bench, now long since deceased, was accustomed to deliver charges so drastic that a defendant charged with a serious offence rarely, if ever, escaped. Upon appeal absolutely no exception could be taken to his remarks, yet nothing more unfair could be conceived of. The record would show that the judge had charged:

"If you believe the defendant's testimony you will of course acquit him. He is presumed to be innocent until the contrary is proved. If you have any reasonable doubt as to his guilt you must give him the benefit of it. On the other hand, if you accept the testimony offered by the People you may and will convict him."