A proper medium in which to converse between the lawyer and witness is sometimes difficult to find, and invariably much tact is required in handling witnesses of limited education. The writer remembers one witness who was completely disconcerted by the use of the word "cravat," and at the precise moment the attorney was so confused as not to be able to remember any synonym. The Tenderloin and the Bowery have a vocabulary of their own differing somewhat from that of beggars and professional criminals. The language of the ordinary policeman is a polyglot of all three. Popular writers on the "powers that prey," and dabblers in criminology in general, are apt to become the victims of self-alleged "ex-convicts" and "criminals" who are anxious to sell unreliable information for honest liquor. A large part of the lingo in realistic treatises on prison life and "life among the burglars," originates in the doped imagination of whatever fanciful "reformed" thief happens to be the personal gold mine of that particular author. Thieves, like any distinct class, make use of slang, some of which is peculiar to them alone. But for the most part the "tough" elements in the community make themselves easily understood either in the office or on the witness-stand.
Where the witness speaks a foreign language the task of discovering exactly what he knows, or even what he actually says, is herculean. In the first place interpreters, as a rule, give the substance—as they understand it—of the witness's testimony rather than his exact words. It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply. One could cross-examine a deaf-mute by means of the finger alphabet about as effectively as an Italian through a court interpreter, who probably speaks (defectively) seventeen languages.
The reader might perhaps conclude from what has been said that the action of the ordinary jury in most cases must be founded simply upon shrewd guesswork. To a certain degree this cannot be denied, and it is equally true that all the delicate processes of the human mind, and the shadowy presences there of intent, motive, and recollection, can never be demonstrated save by inference. Our machinery is crude indeed. Ofttimes it is like trying to dissect a butterfly with a pair of pincers, and the wonder is that the jury are able to get at the truth as frequently as they do. Hence the necessity for the advocate to assist the jury and remedy their ignorance of the psychology of testimony by his own observation, knowledge, and experience. With the jury keenly alive to all the possibilities of error in the testimony of even the most honest of witnesses, it is for the advocate, the psychologist of the law, to test by his cross-examination and demonstrate in his summing up the precise probative value of the evidence, frequently revealing, below an apparently limpid stream of truth, a turbid bed of conjecture, assumption, belief, hearsay, and inaccuracy of expression, with the rank weeds of perjury growing just beneath the surface.
THE VERDICT
The judge having delivered his charge, and the jury having gathered up their collection of miscellaneous garments and retired to the jury-room, a court officer claps the prisoner upon the shoulder and leads him away to the prison pen. Once the door of the court-room has closed behind him, he is conducted along a narrow corridor to the head of a flight of iron steps at the foot of which stands a keeper. As he descends the stairs the attendant notifies the keeper that the defendant is on his way down: and once the latter is safely below the keeper shouts "All right!" to the officer above, who returns once more to his duties in the court-room. Since there is little danger of an escape the officers sometimes become a trifle lax in the handling of prisoners awaiting the verdict.
An incident recently occurred which shows how much care is necessary in guarding a defendant who confidently expects a verdict of conviction. At the conclusion of a trial for grand larceny the jury went out and the prisoner was conducted to the head of the stairs leading down to the pen. The court officer notified the keeper when the prisoner was about half-way down, and distinctly heard the latter reply "All right!" He thereupon departed. The keeper, however, had not uttered a syllable and was entirely unaware of the return of the defendant, who, being something of a ventriloquist, had answered for him, and had then calmly reascended the stairs, passed through the corridor to another court-room where he had mingled with the crowd, and later had had no difficulty in making his escape first into the main corridor and thence into the street. When the jury presently returned and the prisoner was sent for, his flight was discovered. The court waited patiently while the pens, corridors and finally the entire building were searched, but without disclosing a trace of the prisoner. Meanwhile the jury, who had found the defendant guilty, wondered why their verdict was not received. According to law, however, all the proceedings incident to a trial for felony up to and including the rendition of the verdict must take place in the presence of the prisoner, and in this case his voluntary absence compelled the court to declare a "mistrial." When it became evident that the defendant was unlikely to return, terrible was the humiliation of the court officers, who, for a few days, lived in terror of losing their official heads, if not of being imprisoned and fined for contempt.
The prisoner's wife, however, had been present throughout the trial in the court-room, although, as his escape was entirely extemporaneous, she was as much surprised as anybody else at his departure. After the discharge of the jury several detectives followed her to her home in Hoboken. Late in the evening she left the house in response to a message and met her husband in a deserted part of the city, where he was recaptured. He was immediately brought back to New York and his case placed once more on trial; but this time he pleaded guilty. From a dramatic point of view it is to be regretted that the jury at the first trial had not found a verdict of "not guilty."