Q: "Did you examine the pistol and find one undischarged cartridge only?"
Q: "Had the other pistol six undischarged cartridges in it?"
Q: "Did you find two bullets similar to these in the wall?"
To such an extent was leading carried in the Dhingra trial that occasionally the answer did not follow the lead, thus:
Q: "Did you ask him 'What is your name and where do you live?'"
A: "I can't remember what I asked him."
The probable reason for the great latitude in this regard is the fact that apparently nothing in an English trial is a surprise—except to the jury. The court and counsel, knowing practically all the evidence beforehand, are extremely lenient.
Not only are leading questions common but also questions asking for conclusions—not for facts from which the jury may draw their own deductions. Thus, in the Dhingra trial, a doctor, who was sent for after the murder, was asked: "Did the prisoner seem calm, quiet and collected?" A plaintiff, perhaps, will be asked: "How came the defendant to write this letter and what was its object? Did he consider himself remiss?" Of course an American lawyer would successfully contend that a letter speaks for itself, while a man's estimate of his own position could only be put in evidence by repeating his admissions in that regard—not by asking his opponent how he regarded himself.
In favor of the practice of asking witnesses for conclusions—a practice which many American lawyers have found invalidates parts of testimony taken in England for use here—much may be said. To ask a witness the mental attitude of a person, whom he heard talking a year before—whether he was angry, or joking, for example—is to ask an answerable question; but to require him to repeat the exact words, is to demand an impossibility. In replying to either form of inquiry the witness may be honest or the reverse, so that the chances of intentional misinformation are equally balanced, but an attempt at verbatim repetition nearly always requires, consciously or unconsciously, a draft upon the imagination. It seems that our rules of evidence in this regard might, perhaps, be cautiously relaxed with advantage, to accord more with practical experience.
An English criminal trial is quick, simple and direct. Dhingra, for example, whose crime was committed on July first, was sentenced on the twenty-first of that month and was hanged on August seventeenth—all in forty-seven days. The simplicity and directness of such trials is due to the absence of irrelevant testimony and imaginative arguments; these, counsel scarcely ever attempt to introduce—so certain is their exclusion by the judge. Thus, the real object of all punishment—its deterrent effect upon others—is greatly enhanced because it is swift and sure. The public, moreover, are usually spared the scandal and demoralizing effects of prolonged, spectacular and sensational trials.
Until a short time ago any person convicted in an English court was without appeal—the rulings and sentence of a single judge were final—but this manifest injustice has lately been cured by a law granting the right of appeal. It is too soon to estimate the effect of this change, but the prediction may be ventured that the ancient habit of regarding criminal judgments as conclusive, together with the saving common sense which characterizes all English courts, will probably prevent any radical departure from the present methods, which have much to commend them.
Comparison with American conditions is most difficult because, besides the United States courts extending for certain purposes over the whole country, there are forty-six absolutely separate sovereignties whose administration of criminal law, unless in conflict with the Constitution of the United States, is as independent of the rest of the world as that of an empire. Consequently, while differences exist in methods and results, the remarkable fact is that they are, upon the whole, so similar, when only a common tradition and a fairly homogeneous public opinion serve to keep them from drifting in diverse directions.
The administration of criminal law by the United States Courts deals chiefly with the trial of persons accused of murder on the high seas, counterfeiting, forgery, smuggling or postal frauds, defaulting bank officials and, very lately, corporation managers charged with favoritism in freight rates, or with the maintenance of monopolies affecting interstate commerce. Throughout the length and breadth of the land it is prompt, thoroughly dignified, vigorous and fair; indeed, its excellence, as a whole, suffers little if at all by comparison with the best English standards, which have been perfected only by centuries of experience in the highly concentrated population of a small Island.