The Man in Court

by Frederic DeWitt Wells

The judge then tells again what the witnesses have said, in not quite so many words, but covering the main points. There is no use in that. The jurymen think they ought to remember fairly well what was said. The judge admits it after he is through by saying himself: "Gentlemen, you are to be governed by your own recollection of the testimony rather than by what is said by either side in summing up or by the Court." If he means that he should have kept still and let them have their own recollection.

Then he goes on: "If you believe any witness has wilfully testified falsely as to a material fact, you may disregard that witness's whole testimony." Of course, is that not the reason for their being there? Why, the judge in the beginning made them swear to decide the case "according to the evidence." The jury is going to do exactly that. They are going to decide which side is lying and which side is telling the truth. They are not quite so stupid as not to know that. There seems no need in insulting them by telling them that they need not believe a witness unless they want to. Why are they there?

The judge tells them that the function of the jury is to decide the facts and for him to decide the law. That is fortunate, for they could not understand the law, even if they wanted to; it is a silly business and it is not common sense. What the jury feels is that the judge's charge is leaving it to them without any trouble about the law. But wait a moment, the judge is going on to tell them about the law as applied to the particular facts before them.

The important principle of law they are being told is what is known as the preponderance of evidence and the burden of proof. The judge goes on at great length about the weight of evidence. The weight of evidence, he says, is the preponderance of proof and the preponderance of evidence is the weight of evidence, and the man who has the burden of proof must have the weight of evidence and the weight of evidence being the preponderance of evidence is also upon the man who has the burden of proof. And the preponderance of evidence does not mean proof beyond a reasonable doubt, as in criminal actions, but that the proof must be heavier on one side than the other and the one who has the burden of proof must sustain the preponderance of evidence. That is the law; the judge has said it. What it means the jury give up. The lawyers nod their heads wisely. The judge has stated the law correctly.

The judge may go on a little further and tell them more about the burden of proof and the preponderance of evidence. He may say that the weight of evidence does not mean the number of witnesses. The mere fact that one side has six and the other side only two does not mean that the jury are to believe the side who has six. The jury know that when probably they are all exaggerating somewhat they are going to decide the way the thing happened. Then the judge tells them, having seen the witnesses, "That they may consider their bearing on the stand and their manner of giving testimony." Surely they are going to do that. Is not the best way of knowing whether a man is telling the truth to look at him and watch him while he is talking? There is little sense in the judge advising them to consider his bearing on the stand.

Another thing the judge says is that they are not to be governed by sympathy or prejudice in arriving at their verdict. This is a caution that the judge thinks necessary. He forgets that when they are in the jury-room, with locked doors and no one to disturb them, they are going to do exactly as they are inclined. Prejudice and sympathy are for unintelligent people who do not know what they are about. Both lawyers have been telling the jury what intelligent men they were and it seems unnecessary for the judge to say that they are not to be governed by prejudice and sympathy. Suppose the defendant is a rich corporation, they are not going to find against it because it is rich. The company can stand the loss of a few dollars out of its pocket better than the poor man anyway. Not that they are going to decide for that reason.

As these accumulating evidences of the judge's misunderstanding of their attitude of mind pile up, the jury sink back into their seats. After all, the charge of the judge is not more understandable than most of the other parts of the trial. The saving point about it is that the end is drawing near and they can soon get away and have a smoke in the jury-room, and afterwards go home.

The judge, while he is charging, understands a little of what has been going on in the jury's mind. He has seen the gleam of interest which was in the jury's eyes at the beginning gradually die out. He notices how they fall into resigned attitudes. He has a glimmering that the good old legal aphorisms which he has been enunciating with such care about the burden of proof, the weight of evidence, the credibility of witnesses and the caution about sympathy and prejudice, are not very convincing to the jury. But the conventions require that he must go on.

"Gentlemen," he says, "I must instruct you to eliminate from your minds any discussion of counsel upon questions of law or rulings of the court upon the rejections of testimony, or decisions upon motions to dismiss or direct. They involve matters of law with which you are not at present concerned. In arriving at your verdict you are to consider only the evidence."

Perhaps the judge feels a trifle foolish and therefore he becomes more emphatic and solemn. He carefully and in a painstaking manner defines the law of negligence. He tells them the law of negligence involves two cardinal principles. "The first is that the plaintiff must establish that the defendant by its employees was guilty of negligence, that he failed to act as a prudent and careful man; second, that the plaintiff must have shown himself free from contributory negligence; that unless the jury find both of these, that the plaintiff cannot recover." Then perhaps he interjects a little more about the balance of proof as to these particulars. "If the jury find the plaintiff was negligent and the defendant was negligent, they must find a verdict for the defendant. If they find the plaintiff was not negligent and the defendant was negligent, then they may find a verdict for the plaintiff, provided they find, etc., etc. Otherwise should they find the plaintiff was not negligent and the accident happened not through the negligence of the defendant, then again must they find for the defendant, or again—" but the jury by this time is exhausted. The alternatives do not interest them. The judge may know what he is talking about, but they do not. The interesting question is how much are they going to give the plaintiff.