The usual procedure in a jury trial, therefore, is this: When the jury has been chosen and sworn to decide the issue fairly, the prosecuting attorney (or, in a civil case, the counsel for the plaintiff) states briefly to the court what he intends to prove. Then the witnesses for the prosecution, or for the plaintiff, are called, put upon oath, and questioned. As each witness finishes his direct testimony the defendant’s counsel takes him in hand for cross-examination. The purpose of this cross-examination is to test the witness, to see if he is telling the truth, or to induce him to say things which will weaken his original testimony.[[150]] When the witnesses for the prosecution have finished, the witnesses for the defendant are called and they likewise are cross-examined by the other side. After all the testimony is concluded the counsel on both sides make addresses to the jury, the judge explains to the jurymen the points of law bearing on the case, and the jury retires to consider its verdict. This it does in secret, remaining in a room which no one is allowed to enter or leave.

Second jeopardy.

In criminal cases the verdict must be unanimous one way or the other; if not, the case has to be tried all over again.[[151]] In civil cases unanimous verdicts are required in some states but not in others. The verdict, whatever it may be, is reported in open court and is ordinarily conclusive. In some cases, however, the presiding judge is empowered to set a unanimous verdict aside and to order a new trial.[[152]] Where an accused person is found not guilty by the unanimous verdict of a jury he may never, under any circumstances, be placed on trial for the same offence again.[[153]] If he is found guilty, on the other hand, he has in most cases the right to appeal, on points of law, to a higher court.

Value of the Jury System.—The jury system has great value but also some serious defects. Its value consists in assuring to everyone a fair determination of the facts by an impartial body of his neighbors, each one of whom is sworn to decide without fear or favor. It is a great safeguard against the tyranny of judges and public officials. On the other hand it makes judicial administration expensive (for the jurymen have to be paid); it results in making trials much longer than if the evidence were heard by a judge alone; and the requirement that verdicts shall be unanimous often results in no verdict at all. Exemptions from jury service have been given too freely, so that juries are sometimes made up of men who serve because they have no other work to do. The others are either exempted by law or ask to be excused by the court. Prolonged trials and close confinement make jury service a burden which many people try to evade. In serious cases the jurymen are sometimes not permitted to visit their homes for weeks at a time; they sleep in the courthouse, have their meals under the watchful eye of the sheriff, and are not permitted to read the newspapers while the trial lasts. Occasionally we have witnessed the absurd spectacle of a jury kept under guard while the prisoner was out on bail. Yet with all its faults the jury system affords a safer method of trying criminal cases than trial by a judge alone. On the other hand the use of jury trials in civil cases, particularly where the matters in dispute are not of great importance, tends to delay the work of the courts. It has been suggested that all such cases ought to be tried by the judge alone.

The Law’s Delays.—Much complaint is heard nowadays because lawsuits are so long and involve so much expense. The courts are often so overwhelmed with cases that a lawsuit which is brought today cannot be tried for many months. The privilege of appealing from the decisions of lower courts is so widely granted, moreover, that when lawsuits are once begun they may not be ended for years. The claim is often made that all this gives a great advantage to the rich man or the large corporation as against the ordinary individual who cannot afford the expense involved in prolonged litigation. Lawsuits require the hiring of lawyers by both sides and the assistance of lawyers is costly. Judicial procedure can be much simplified, and it ought to be. It probably would be simplified were it not for lawyers. Lawyers profit by the law’s delays; the more lawsuits and the more prolonged they are, the more profitable it is for them. And lawyers form a large element in the legislatures which make the laws relating to court procedure. This is not to imply, however, that lawyers on the whole fail to promote the interests of justice. They do perform great services in this respect. The ends of justice would be far less perfectly served were it not for lawyers.

Reasons for these delays.

The main reason for the slowness with which justice is administered in the United States can be found in the great (and perhaps unnecessary) amount of care which is taken to assure every individual his legal rights. This has multiplied appeals, encouraged technicalities, and given the courts far too much to do. The right to be given a full and fair trial, to have a jury in most cases, to appeal, and to have due process of law with all that this implies—these are rights which the constitution guarantees and which we greatly value. Valuable they are, no doubt, but they make the course of justice slower in the United States than in other countries where these constitutional safeguards do not exist. A famous Prussian king, Frederick the Great, once ordered that every lawsuit should be brought to an end within a year. Despots can make their courts move quickly in this way; but nothing of the sort is possible in a democracy.

Keep the courts incorruptible.

Yet the courts are, when all is said and done, the most important among the institutions of free government. Corruption and incompetence in legislatures, or in the executive branch of the government, are serious evils when they exist, to be sure; but when incompetence and corruption invade the judiciary they reach to the very heart of the Republic. The Great Charter of 1215 provided that “justice should not be sold, delayed, or denied to any man”. That is a principle which must be maintained at all costs.

General References