UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY REFORMS IN CRIMINAL PROCEDURE Modern American Law Lecture Blackstone Institute, Chicago KEFOEMS IN CRIMINAL PKOCEDURE BT » WILLIAM L. BURDICK, Ph.D., LL.B. rP.OFESSOR OF LAW, CXIVEESITY OF KANSAS One of a Series of Lectures Especially Prepared for the Blackstone Ifistitute BLACKSTONE INSTITUTE CHICAGO Copyright, 1920, by Blackstone Institute T )Szo WILLIAM L. BURDICK ;; WILLIAM L. BURDICK P-' Mr. Burdiek has been a Professor of Law at the University of Kansas Law School since 1898. He was born at East Greenwich in the state of Rliode Island, March 22, 1860, and is a descendant of Robert Burdiek who came from England to New- port, Rhode Island, in 1651, After attending the public schools of Rhode Island, he entered Wesleyan University from which he was graduated in 1882 with the degree of Bachelor of Arts. After obtain- ing his master's degree at the same institution, Mr. Burdiek entered Grant University, from which he obtained the degree of Doctor of Philosophy. Sub- sequently he attended Harvard Graduate School and Yale Law School, receiving his degree of Bachelor of Laws at Yale. For several years after being admitted to the Con- necticut Bar in 1886, Mr. Burdiek practiced his pro- fession. In 1891 he forsook law to act as Principal of Fargo College, resigning that position the follow- ing year to become an instructor at the LTniversity of Colorado. In 1898 he began his present associa- tion Avith the University of Kansas. Professor Burdiek has acquired renown as a pub- lic speaker and a writer of legal textbooks. Among some of his books are : The Elements of Sales, New Trials and Appeals, Real Property and numerous treatises in the Cyclopedia of Law and Procedure. He is also the author of the articles on Criminal Pro- cedure and Landlord and Tenant in Modern Amer- ican Law. He is a member of the Phi Beta Kappa and Psi Upsilon fraternities, and the American Bar Association, as well as various other civic and frater- nal organizations. The author's long experience as an educator, lec- turer and writer furnishes ample assurance that the following pages are filled with interesting and prof- itable reading. REFORMS IN CRIMINAL PROCEDURE By William L. Buedick, Ph.D., LL.B. In the desire of promoting, if possible, a more satisfactory adjustment of the administration of the criminal law to the present needs of the people, this Lecture upon the subject of reforms in our criminal procedure has been prepared. It is offered in no spirit, however, of radicalism, or of hostile criticism of a great and ennobling profession, but with the con- viction that one who aspires to the name of ''lawyer" in its ancient and honorable sense should above all things wish to be just, patriotic, and serviceable to the public welfare. In the first place, let it be understood that the term ''reform" is here used in its true and lofty signifi- cation, namely, to bring about improvements, to bring from bad to good, to remove faults and abuses, to introduce better methods. Unfortunately the words "reform" and "reformer" are being used, at the present time, in so many and diverse ways that they more frequently suggest thoughtless hysteria and fanatical clamor for mere change than sound judg- ment and beneficial improvement. To substitute one thing for another, to experiment with something dif- 5 6 MODERN AMERICAN LAW LECTURE ferent is not necessarily to reform. Sucli attempts frequently tend to deform. Nor is fickleness reforma- tion. True reform results always in changing a worse condition to a better. Many savage tirades against tlie law and the legal profession of late years have come from various irre- sponsible sources. Such "criticisms" have been too often based upon extravagant theories and unfounded assertions of self-seeking demagogues. Many ill-in- formed articles upon the * 'law's delays" have also been published in not a few newspapers and popular magazines. While these attacks have undoubtedly made considerable impression upon the popular mind, yet they do not, in themselves, make for true reform. They are essentially destructive, not constructive. Is There Need of Reform? Understanding, then, at the outset, that the real object of reform is to correct long-standing abuses, it is first necessary to learn if such abuses exist. To begin with, it should be determined whether it is true or not true that there is something that ought to be corrected. Applying this test to criminal procedure in this country — is it true that our present system of procedure does not reasonably meet the practical needs of modern society? Is our procedure such as ought not to be approved and is it approved by the great body of good and intelligent men and women? Is there, as a matter of fact, a widespread disrespect among the masses for the present enforcement of our criminal law ? Is our procedure ineffective and slow, and do the guilty often go unpunished? Is there, REFORMS IN CRIMINAL PROCEDURE 7 in fact, one law for the rich, and another for the poor ? In our criminal procedure are abuses prevalent, tech- nicalities absurd, costs and length of trials excessive, justice delayed ? Upon the truthful answers to these questions in each case and the righteous reform of all abuses, if such exist, the dignity, the justice, the efficiency, and the stability of our criminal laws depend. Our Criminal Procedure a Disgrace. Criminal procedure in this country must plead guilty to the above arraignment. There is no defense. The tes- timony is all on one side. The best and ablest men in the legal profession, the deepest students of our laws, and our greatest and wisest jurists are prac- tically unanimous upon this point. The American Bar Association and many state bar associations ac- knowledge the existence of evils in our criminal pro- cedure and are already planning many reforms therein. A former President of the United States, who is also an able lawyer and a distinguished judge, said two or three years ago, in a public speech in Chi- cago, ''The administration of criminal law in this country is a disgrace to civilization." Before proceeding to the consideration of some needed reforms in our criminal procedure, it seems important to say a word, by way of preface, in ex- planation of the origin of many of our present day rules governing the accusation and prosecution of offenders. It may serve to put our judges and law- yers in a different light when it is shown that they are not responsible for the rules and methods so severely criticized, but that they are merely the heirs, 8 MODERN AMERICAN LAW LECTURE SO to speak, of a procedure once justified but now, in many particulars, obsolete. The American law of criminal procedure grew up, historically, in the Eng- lish common law courts, and many rules there had their origin in justice and mercy. The former penal laws of England were written in deeper blood than the laws of Draco, and many of the niceties of plead- ings in indictments were created by the courts in a spirit of humanity. Many Technicalities Survive from Obsolete Eng- lish Rules. In fact, the mass of technicalities of criminal procedure, coupled with the rule of strict construction of penal statutes, is a monument to the sense of justice of the early English common law judges, who were wont to rule in merciful considera- tion of the life of the accused — ''when barbarous law," as Professor Maitland, of England, says, ''was tempered by luck." This justification, however, for many of the old, complicated rules of procedure has passed away, and, today, their continued application has, through vastly changed conditions, become an instrument of injustice to society rather than of par- donable mercy to the accused. Today, the criminal is, by these rules, often unduly protected, while the sense of justice of the people is offended. The excuse for the old rules having passed away, the old rules them- selves should vanish with it. It is due to our inertia and too great conservatism in meeting new conditions that they have not been changed in many states of this country. They were changed years ago in Eng- land and hardly a vestige of them now remains in that country. REFORMS IN CRIMINAL PROCEDURE 9 II. WHERE REFORM IS NEEDED. Let us now consider specifically the most conspicu- ous faults and abuses in our system of criminal pro- cedure in the United States, and determine, if pos- sible, by what means it may be improved. It should not be understood, however, that the criticisms herein made apply equally to all our states, since some juris- dictions have already rid themselves of some or many of these evils. But some reforms still need to be made in practically all of our states, and many mat- ters require improvement in not a few of them. The Third Degree. At the very outset it is insisted that reforms are necessary in many parts of our country in the treat- ment of arrested persons from whom the police au- thorities desire to obtain evidence of guilt. I refer to that American iniquity known as ''the sweat box," and also as ''the third degree," the latter term being borrowed from certain secret society initiations where it is popularly supposed a candidate is put to a su- preme or crucial test. I call this practice of police- extorted confessions an "American iniquity," because I believe, from observation in this and in other coun- tries, that it is an instrument of greater abuse in certain parts of the United States than in any other civilized land. The interrogation of accused or even suspected per- sons by proper authorities in order to obtain, if pos- 10 MODERN AMERICAN LAW LECTURE sible, evidence of certain crimes may be justifiable in certain cases, and such procedure may also be logical and natural. A parent, for example, will nat- urally question Ms child who is suspected of wrong- doing, as will likewise a master his servant. Under the procedure in criminal cases in continental Europe, the "questioning" of arrested persons by a magis- trate is familiar practice and is expected, but these cases are quite different from the practice in some parts of this country, where brutal violence is re- sorted to by police departments for the purpose of extor.ting involuntary confessions. Such methods are of the same character as the tortures of medieval inquisitions. A Fetv Illustrations. To specify more clearly the nature of the so-called "third degree," a few illus- trations are appended, all actual occurrences in this country. A Chinaman was recently arrested for a heinous crime. He was placed in a cell; continually ques- tioned by a relay of detectives and other officials; forcefully kept without sleep for two or three days, in the expectation that his mental torture and phys- ical exhaustion would become so acute that he would be glad to "confess" in order to obtain relief. A woman was arrested for murder; at midnight the corpse of the victim was brought to her cell that the dramatic horror of the scene might compel her to "confess." Another prisoner was denied food; an- other brutally beaten, "slugged" is the word, until he was forced to speak. Other atrocities are practiced, such as highly salt- REFORMS IN CRIMINAL PROCEDURE 11 ing the food and denying water to the victim ; plac- ing prisoners in solitary confinement; or in bitterly cold cells, when the weather aids; or in frightfully superheated rooms at other times. Red pepper has been blown into their cells, and other indignities, too numerous to mention, perpetrated in order that a ** confession" may be extorted from a helpless wretch. Such is a hint of "the third degree" in Christian America in the twentieth century. While such prac- tices are brutal abuses of authority, even criminal, occasionally, in themselves, nevertheless the crowning shame is that they are done in the name of the law, and directed, in most cases, against humble and friendless individuals who regard their jailers as the representatives of the law. The severest condemna- tion of such practices should prevail and the persons guilty of them should be fittingly punished. How Reform May Be Brought About. In Eng- land, it is provided by statute (11 & 12 Vict.) that no person accused of crime shall be questioned unless first informed that he need not answer, and that if he does his admission may be used against him. Sun- ilar statutes could be passed in this country to the effect that no statements or alleged confessions of accused persons should be received in evidence against them unless it is shown at the trial that they were fully warned of their constitutional rights to refuse to testify against themselves. In 1912, Kentucky passed a statute prohibiting the extortion of informa- tion, by threats or other unlawful means, from per- sons accused of crimes, for the purpose of using such information against them. 12 MODERN AMERICAN LAW LECTURE The Grand Jury. Turning to the instruments of the law itself, let ug consider the grand jury, in connection with which there is much room for reform. The Federal Con- stitution provides that "no person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury." Although this provision applies only to federal courts, nevertheless similar constitutional provisions exist in most of the individual states. The grand jury has an ancient and honorable his- tory. It has existed in England for eight hundred years. The King's judges, as early as the twelfth century, went into the various counties to hold court, and they made inquiries of good and true men of the vicinity concerning crimes committed in the neigh- borhood. These good and true men, as protectors of society and as defenders of law, thereupon did accuse, upon their oaths, all malefactors and criminals known to them. At the time of its origin and thereafter dur- ing its long-continued effectiveness, the grand jury was a sensible, protective, and just system. Today, however, it is a piece of archaic legal machinery, a millstone upon the neck of justice. The Loopholes for the Criminal in the System. The grand jury must consist of qualified members, must be duly drawn and summoned, and must proceed in accordance with law. If, for example, an ineligible person sits upon the jury, or if an unauthorized per- son asks questions in the grand jury room, it has been held that the proceedings are vitiated, the in- REFORMS IN CRIMINAL PROCEDURE 13 dictment invalid. Hence, a murderer escapes in a southern city because a member of the grand jury, as was afterwards learned, could not read; and a bank wrecker in a northern city goes free because an accountant, not employed by the prosecuting attorney, was present in the grand jury room and interrogated certain witnesses. These instances are, however, only illustrations of hundreds. The possibilities of irregu- larities in grand jury proceedings are so great, the questions that can be raised so multiple, that delays of months or of over a year in the trial of a case may result, and have resulted, from this source alone. The Grand Jury SJiould Be Abolished. Where the Constitution makes necessary the intervention of a grand jury in a criminal prosecution, the system can- not, of course, be abrogated except by constitutional amendment, but such an amendment to the Federal Constitution is not, for the present, practical. Some states, however, have substantially abolished the grand jury, and permit informations to be filed di- rectly by a prosecuting officer. In all jurisdictions, statutes could obviate many of the unreasonable rules that by common law are held applicable to grand jury proceedings. Mr. Justice Riddell of the Supreme Court of On- tario, Canada, said in an address before the Amer- ican Institute of Criminal Law and Criminology, at Montreal, in September, 1913, that he utterly failed to see the advantage of a grand jury in any criminal case. He also said that the grand jury in Ontario is now, by statute, composed of but thirteen persons instead of the common law number of twenty-three, 14 MODERN AMERICAN LAW LECTURE and that in some parts of Canada grand juries have been abolished altogether. Indictments and Informations. It is in the law relating to indictments and informa- tions, however, that one of the chief culture-mediums of the maladministration of criminal law is found. The indictment, prepared and drawn by the public prosecutor, receives the formal approval of the grand jury, the jurors, as individuals, being, of course, ab- solutely ignorant of the requisites of indictments. In other words, whether a criminal prosecution is instituted by the finding of a grand jury, or, as in some states, by direct information of the prosecuting attorney, the grand jury being dispensed with, the validity of the instrument of accusation, as the law, generally speaking, now stands, depends upon the integrity, or the learning, or the good fortune of the draftsman. A hundred years ago, Jeremy Bentham, attacking with profound insight and with trenchant pen the like evils of his own day, said : * ' The power of grant- ing effectual pardon to all criminals — murderers not excepted — belongs incontestably to every person by whom the function of penning the instrument of accu- sation is performed." It is a reproach and a shame upon the administration of the criminal law today that the same charge is still true. A corruptible prosecuting attorney has it in his power to draw an indictment which, although to a layman apparently invulnerable, will, nevertheless, be set aside by the courts. Granting that most prosecuting officers are REFORMS IN CRIMINAL PROCEDURE 15 honest, even granting that they are learned, yet the possibilities of pitfalls are so numerous that only good fortune may save them from adverse and humil- iating decisions. Illustrations of Hoiv They Serve as Pitfalls in the Way of Conviction. A few illustrations from among hundreds, all of them actual American deci- sions, and nearly all of them good law even now in their respective jurisdictions, must suffice: (a) On the ground that the misspelling of the indi- cated essential word rendered the indictment mean- ingless, indictments have been held fatally defective because the word ''father" was written "farther"; because the word ''breast" was written "brest"; be- cause the word "larceny" was written "larcey"; because the word "dwelling" (in an indictment for burglary) was written "dwell." The doctrine of idem sonans did not apply, it seems, in any of these instances, and it may, at this juncture, be pertinent to inquire of the reformed (?) spelling enthusiasts whether there is not a possibility that some of their recommendations may, indirectly, at some time, add to the present increasing immunity of crime. (b) On the ground that no word can be omitted which is an integral part of the offense, indictments have been quashed because the word "to" was omitted from the phrase, "intent to kill and murder," and because "of" was omitted in the expression "from the possession of." (c) On the ground that one must not be charged with an offense in language that is disjunctive or alternative, a criminal escapes because the indictment 16 MODERN AMERICAN LAW LECTURE charges the accused with the illegal sale "of spirit- uous or intoxicating liquor"; likewise, because bad for repugnancy, for the reason that the accused was named as *' Douglas Jones, alias Dug Jones, whose true Christian name is to the grand jurors unknown/' These illustrations should be sufficient to establish the "certainty" in which the bribe-taking or friendly prosecutor may prepare his pleadings for the pro- tection of the accused, and, on the other hand, to show the perils into which even the most careful and most zealous public prosecutor may fall. Here are three other notable decisions: (1) A is indicted for defrauding the "First Na- tional Bank of C." The indictment was held fatally defective because it did not state whether such bank were an individual, a partnership, or a corporation. An ordinary person might presume, of course, that a "National" bank was a corporation, but it is a sufficient answer to such "an ordinary person" to say that, although he is presumed to know the law, yet he evidently does not. (2) The Supreme Court of a certain state set aside an indictment because the " Railroad Corpora- tion" (its legal name) is designated as the " Railroad Company/' (3) Two men were convicted, in Chicago, of the forgery of a note. There seems to have been no ques- tion as to their guilt. The Supreme Court, however, set aside the judgment and discharged the defendants because the indictment in describing the note read that it was "in substance as follows." Now it is the general rule that forged instruments, unless de- REFORMS IN CRIMINAL PROCEDURE 17 stroyed or otherwise non-accessible, must be set out according to their ' ' tenor, ' ' that is, set out in an exact copy. The court held in this case that the words "in substance" did not purport an exact copy, and, there- fore, the indictment was fatally bad. Despite the fact that the instrument was literally copied word for word into the indictment, and despite the admis- sion of the court that, if the words "in substance" had not been inserted, the words "as follows" would have been satisfactory as showing "tenor," the crim- inals escaped, and the comity paid the expenses of a fruitless prosecution. Technical Verbiage Should Be Eliminated. There is no valid reason why an indictment or an informa- tion cannot be made short and simple, and at the same time sufficiently inform the accused of the crime with which he is charged. Reforms in this particular are very urgent, and can be made very practical. The verbiage, repetitions, and prolixity of a typical in- dictment or information, as framed in most of our states, are really a travesty, although they are neces- sary under the prevailing present practice. From the standpoint of common sense, however, such ver- bose, redundant phrasing is worse than useless, since its only result is to produce a highly technical accusa- tion in which shrewd and learned counsel for the defense may find many a flaw. It is a just and important rule that the accused should be informed of the identical offense with which he is charged. Such a rule is fundamental, and is a necessary safeguard to life and liberty. It should not be considered necessary or important, hov\'ever, that 18 MODBEN AMERICAN LAW LECTURE useless, iminaterial, and senseless details of the al- leged crime be set out. Tliey serve no purpose in the interests of justice or of reason. Take, for instance, an ordinary indictment or in- formation for murder by means of shooting with a gun. The indictment usually alleges, substantially, that the accused at a certain time and place feloni- ously, deliberately, premeditatedly, and of his malice aforethought made an assault upon (the deceased) by means of a certain gun, then and there loaded with gunpowder and leaden bullets, which said gun, then and there, held in both the hands of the said accused, the said accused did then and there feloniously, delib- erately, premeditatedly, and of his malice afore- thought, shoot off and discharge at and against the body of (the said deceased), and that by such means the accused inflicted then and there upon the body of (the said deceased) one mortal wound (the older indictments specified the part of the body wounded, and many still do so; they, moreover, used to de- scribe the length and depth of the wound), whereby the said (deceased) did then and there instantly die, or (if the death were not immediate) did languish and languishing did live from a certain day to a certain day, upon which latter day he died, etc. Such an indictment is, in fact, a very simple illustration as to form, many indictments for murder being much more cumbersome. It is safe to say, however, that no one, unless trained in the approved precedents of forms of indictments, would ever think, originally, of charging the crime of murder in such a way. A Practical Indictment. Every reasonable requi- REFORMS IN CRIMINAL PROCEDURE 19 site of the charge could be stated in a very few words, as, for example, as follows: ''That John Doe on the 10th day of February, at the City of Chicago, did murder Richard Roe." That is certainly a specific, definite charge, and is all that should be required to be alleged in the formal accusation. The accused knows with what he is charged, and if there is any reason why he should be given further information, it can be given to him upon his request. Such an indictment is not fanciful. It is practical. It is, in fact, the ordinary form of an indictment for murder in Canada today. Moreover, under the present Eng- lish statute (24 & 25 Vict. c. 100) it is not necessary in an indictment for murder or manslaughter, in that country, to set forth the manner or the means by which the death was caused. In a charge of murder it is sufficient, in England, to allege that the accused did feloniously, willfully, and of his malice afore- thought kill and murder the deceased. In an indict- ment for manslaughter, it is sufficient to allege that the accused did kill and slay the deceased. ( See Laws of England, Vol. 9, p. 588.) A Forgery Indictment. In a similar way, indict- ments or informations for all other offenses could, by statute, be made equally simple. One further illus- tration must, how^ever, suffice. Let us briefly con- sider an indictment, say, for forgery. In not a few ■jurisdictions an indictment for this offense must be carefully and skillfully drawn since, otherwise, there are many technical possibilities of its being held bad. Reference to the case in Illinois cited above will show how, under the common law in connection with the 20 MODERN AMERICAN LAW LECTURE technical doctrine of ''tenor" and "purport," an in- dictment for forgery may be fatally defective. In fact, it is said in a Minnesota case (State v. Green- wood, 76 Minn. 211, 78 N. W. 1042, 1117) that a common law indictment for forgery is ''very lengthy, technical, and full of minute allegations of matter." There is nothing inherent, however, in the crime of forgery that necessarily makes its charge a compli- cated one. Under the statute of Massachusetts, for example (Eev. Laws, ch. 218, paragraph 67), the form of an indictment for forgery is very simple. It is as follows: "That A B with intent to injure and defraud did forge a certain instrument purporting to be, etc. (give the name of the instru- ment, description, tenor, or substance as the pleader chooses)." In England, the following form may be used : ' ' That John Jones on the day of March in the year of our Lord, feloniously did forge a certain (e. g., bill of exchange) with intent thereby to defraud, against the form of the statute in that case made and provided." (Laws of England, Vol. 9, p. 763.) Tlie Aim Should Be a Fair Trial on the Merits. These illustrations show that substantial, practical reforms can be made in the drafting of accusations. Moreover, it should be provided by statute that in- formations may be amended as to form, either before or after the beginning of the trial, as to all matters that do not materially affect the rights of the accused. Likewise no indictment or information should be quashed for any mere clerical omission that ordinary common sense readily perceives to be such an omis- REFORMS IN CRIMINAL PROCEDURE 21 sion, or for any defect, imperfection, surplusage, or repugnancy, which is purely technical, providing suf- ficient matter is alleged to charge distinctly the of- fense, and to indicate the person, always provided that the substantial rights of the accused upon the real merits of the case are not prejudiced. The stat- utes of some of our American states already provide for such reforms, while it is to the credit of the broader spirit of jurisprudence of some of our judges of other states that, even without the enabling au- thority of statutes, they have sustained indictments that upon frivolous objections have been quashed in other jurisdictions. Delaying the Trial. After the indictment and during the time preced- ing the actual trial, there are many dilatory steps in our American practice that advocates may take. There are possibilities of various motions, pleas to the jurisdiction, pleas in abatement, demurrer, ab- sence of important witnesses, other engagements of counsel, in fact, possibilities enough to postpone and delay the trial for months and even years. The courts, it is contended, are not, as a rule, to blame, since under the present state of the law judges are given too little power to hasten the day of trial. Our system, as President Taft said, '4s a game in which the advantage is with the criminal and, if he wins, he seems to have the sympathy of a sporting public." On the other hand, while delay is largely brought about by the fertility of expedient on the part of counsel for the defense, yet is counsel not justified in 22 MODERN AMERICAN LAW LECTURE taking advantage of every technicality possible in his client's favor? As long as defending counsel acts within the law, it is his duty, I believe, to safeguard the interests of the accused in every honorable way. Many of the ablest and most respected members of the bar are retained in criminal cases, men whose integrity is unquestioned, whose honor is unassail- able. The Fault Is with the System Itself. The fault, therefore, lies not with the courts, or with the de- fendant's lawyers, but with the system itself. The judges who preside over criminal courts should be given broader powers of discretion in many details of practice than they have, in most jurisdictions, at the present time. They are too often bound hand and foot, so to speak, by positive rules, the infringement of which by them amounts to error. Those persons who are, today, demanding greater restriction of our courts are only aggravating, in their blindness, the prevailing evils. Great care should be exercised in the choice of judges, and only men of ability and of known integrity should be selected. To them, how- ever, should be given authority and discretion in order to dispatch with greater promptness the busi- ness of the courts. Our Trials Too Long. Not only are the possible delays prior to the trial sources of great abuse, but our criminal trials them- selves are too long, unnecessarily and wearisomely drawn out, thereby causing great injustice to juries, witnesses, and all other persons connected with the REFORMS IN CRIMINAL PROCEDURE 23 cases. In notorious prosecutions exciting wide- spread public comment, a week or two weeks is often consumed in getting a jury. In San Francisco, in the Calhoun case, ninety-one days were actually spent in impaneling the jury. In a Chicago case, 4,821 jur\Tiien were examined in order to get twelve. In England and in Canada, a jury in a criminal case is usually obtained in a few minutes. Mr. Justice Riddell of Ontario says that in an experience of over thirty years he never knew it to take more than half an hour to get a jury in a criminal case. That important reforms in this particular are imperative in this country no one can truly deny. Examination of Witnesses. The time, further- more, taken up in examining witnesses is one of the most prolific causes of just criticism, coupled, as it is, with the possibility of reversible error, upon re- view, in the court's rejecting or admitting evidence. Our system is faulty in not giving the judges greater authority to keep the trial moving, to exclude all but the salient points of the case, as is done in the English courts. Frivolous objections on the part of attor- neys as to matters of evidence should be severely suppressed, and members of the bar should under- stand that the tribunals of justice represent a great department of the state's business, and that the court room is not an arena for dramatic self -exploitation. Moreover, the present latitude now given counsel, or assumed by counsel, in the cross-examination of wit- nesses should be greatly curtailed. The average citi- zen regards it a great hardship to be subjected to the innuendo, insinuation, and even brutal attack 24 MODERN AMERICAN LAW LECTURE that, "ander the cover of alleged proper cross-exam- ination, he may have to endure. In English courts, objections to questions are rarely heard, because im- proper questions are rarely asked. Counsel there are well-instructed in the rules of evidence, and very lit- tle time is lost in the examination of witnesses. The Defense of Insanity. The most abused doc- trine, however, in our criminal procedure, and one prolific of great delay, particularly in murder cases, is the defense of insanity. So much has been said and written upon this subject, that it is superfluous to add anything here, but there is no greater reproach upon the American system of criminal procedure than this. As in almost everything else criticizable in our laws, the fundamental principle, the substan- tive law, is sound, is scientific, but its application, in so far as it relates to the adjective law, is disgrace- ful. Nothing better illustrates and better justifies the popular clamor of ''One law for the rich, an- other for the poor," than the miscarriages of justice that are due to the defense of insanitj^ ** Expert testimony" in connection with this de- fense has become a by-word, a mockery, a mere pros- titution of great talents for shameless hire. Numer- ous specialists are engaged, large sums of money ex- pended, and a criminal trial prolonged for days and even weeks, upon an issue of whether or not the accused was insane at the time of the commission of the act, when, were it not for the exigencies of the case, no one would have suspected the mental irre- sponsibility of the defendant. Then, in addition, what is more farcical, more absurd, than the practice REFORMS IN CRIMINAL PROCEDURE 25 of submitting to the "expert" a long, hypothetical question, often thousands upon thousands of words long, containing a sjruopsis of all the evidence, requir- ing, sometimes, nearly a whole day to read it, which is to be answered by a mere "yes" or "no," when everybody understands just how it will be answered by the particular witness ? To such an extreme has society been wronged and justice been mocked by this plea, that, very recently, a special committee of the bar association of a great state (a commonwealth that has peculiarly suffered from this travesty upon justice) has gone so far as to recommend the abolishment of insanity as a de- fense in criminal cases. While such a step would be wrong, because legally unscientific, nevertheless much needs to be done to correct the present procedure. Statutes passed for the purpose of regulating the use of expert testimony in criminal cases may, of course, under present conditions, be held unconstitu- tional, as evidenced by the recent attempts of the leg- islature of Michigan in that direction. (See State v. Dickerson, 164 Mich. 150.) Constitutions may be amended, however, if necessary, and the recent con- stitutional convention in Ohio recommended that the new constitution for that state should empower the legislature to enact such laws. In Wisconsin, sev- eral attempts to pass similar legislation have been made, the latest being, I understand, in the 1913 ses- sion. This measure provided, in brief, that the gov- ernor should appoint from twenty-five to fifty state- accredited alienists from whom, when the defense of insanity is made in criminal cases, tlie trial judge 26 MODERN AMERICAN LAW LECTURE should choose three to examine the accused and to testify as to their opinions, and giving further au- thority to each side, in the discretion of the court, to call three other expert witnesses, and fixing the com- pensation at not more than twenty-five dollars per day and expenses. The bill passed the senate by a large majority, but was defeated in the assembly. Summing Up hy Counsel. In some jurisdictions, the time allowed counsel to sum up the case, the lati- tude given for irrelevant outbursts of eloquence and fantastic flights of oratory, are further causes of de- moralization in our courts. In a recent sensational case in Memphis, one attorney spoke for six hours, an admiring newspaper saying of his address : ''His audience at one time wept without restraint under the spell of his pathos, and, again, flamed with red-hot wrath " In a notorious case in New York, a whole day was not sufficient for the closing address of counsel for the defense, the burden of his appeal being, in effect, an entreaty to the jury to disregard the law applicable to the case, and to show, by their acquittal of the prisoner, that they believed with the speaker in the existence of an American code that was higher than the law of the land. It is indefensi- ble by any correct principles of law to permit counsel to depart in their arguments from the law and the evidence of the case, and a lawyer who seeks by impassioned appeal to persuade a jury to disregard the law of his country, urging its members, in sub- stance, to violate their oaths which were solemnly given to decide the case ''according to the law and evidence," should be publicly censured by the court. EEFORMS IN CRIMINAL PROCEDURE 27 The Charge of the Court. As to the charge by the court, into what a maze and tangle our modern pro- cedure has led us ! No longer, in most jurisdictions, is the judge permitted to sum up the evidence and to enlighten the jury thereon, which was formerly the chief duty of the court, and which process lies at the very foundation of the theory of trial by jury. The judge is now compelled to decide hastily as to the law upon a voluminous mass of requests to charge, involv- ing many intricate questions cunningly devised by keen and adroit advocates, in connection with any one of which, either by refusing to charge or charging, as requested, he may fall into reversible error. He must, thus, decide offhand complicated questions of law, which a reviewing court has the opportunity to consider at leisure, with the help of briefs, arguments of counsel, and consulting associates. The system is wrong, injurious, unscientific. There would seem to be no valid objection to a re- form that has been suggested in this matter, namely, that the instructions should be prepared by the court with the assistance of counsel representing both sides, and that objections to such charge should be made at that time and not be permitted to be raided subse- quently. Moreover, as now provided by statute in some jurisdictions, no judgment should be reversed or new trial granted for any error in the admission or exclusion of testimony, or in the instructions to the jury, unless it appears to the reviewing court that the rights of the accused were thereby substantially affected, or that if such error had not been committed a diff'erent verdict might have been rendered. 28 MODERN AMERICAN LAW LECTURE Compared With the Length of Trials in This Coun- try, How Different It Is in England, the Home of Our Common Law! I am not one who is fond of extolling English institutions as superior to our own, yet, hav- ing observed the procedure in the Central Criminal Court at the Old Bailey, in London, candor compels me to say that in the prompt dispatch of business the English courts are able to teach us much. Recently in London, to cite one illustrative instance, the trial of Lai Dhingra, the young East India student who murdered Sir Curzon Wyllie, lasted less than two hours. It is true he had no counsel, no provision ex- isting in the English law requiring the appointment of counsel by the trial court (which, of course, is un- just), but that fact probably did not, in itself, hasten matters. The witnesses were called in rapid succes- sion ; the questions were brief and leading (permis- sible in the English direct examination) ; the presid- ing judge (none other than the Lord Chief Justice himself) permitted nothing to be said or done that did not bear directly upon the issue. All was over, the prisoner convicted and sentenced to death, in less than a hundred minutes, and no rea- sonable man could say that the accused did not have a fair trial in accordance with English law. Of course, this was a clear case, but is it exaggeration to say that, in this country, a similar case might have been prolonged for days, if not for weeks? Mr. Justice Riddell, of Ontario, says he never tried a murder case that took over a day and a quarter, and never heard of one in Canada that took over four days. REFORMS IN CRIMINAL PROCEDURE 29 Appeals. The greatest source of delay in our criminal pro- cedure, and a fruitful cause of great abuses, is our system of appeals. If the possible delays before the trial are a source of grave injustice to society, what is to be said of this greater evil, the comparative ease with which a convicted criminal, providing he is well supplied with money, may, for even two or three years, postpone the end ? In the case of a poor man, however, the result may be different. The Expense of Appeals, One illustration must suffice. A few years ago, in the city of Chicago, a murder trial resulted in conviction, and the defendant was sentenced to death. He naturally desired to ap- peal, but he was destitute of funds. The cost of pre- paring a transcript of the record was estimated at $700, but this he could not raise. The final day for the filing of the transcript in order to perfect his ap- peal and thus to obtain a stay, was almost at hand, and had not some sympathetic person, a stranger to the accused, it is said, contributed the necessary costs as a gift, the year or more of life which was thus secured to the prisoner by the stay would not have been possible. Granting that the conviction was just, that the prisoner was a notorious criminal, neverthe- less it is a shame to American jurisprudence that, under the administration of its cruninal law, the lack of a f CAV hundred dollars may send, today, one convict to the gallows, while the possession of it may, to- morrow, stay the execution of the sentence of another criminal for a year or more, with the possibility of a final reversal for error in the voluminous record. 30 MODERN AMERICAN LAW LECTURE Tlie English System of Appeals. The right of ap- peal in criminal cases is either constitutional or statutory. There is no appeal in such cases at the common law. In fact, there were no appeals in criminal cases in England prior to the year 1908 (7 Edw. VII c. 23). In that country, at the pres- ent time, one who has been convicted on an indictment may appeal to the Court of Criminal Appeal as a matter of right on any ground that involves only a question of law, and by leave of the trial judge or of the Court of Criminal Appeal on any ground involv- ing a question of fact alone, or a mixed question of both law and fact, if such judge or court certifies that the case is a fit one for appeal. The appeal must, however, be taken, if taken at all, by notice given within ten days from the date of conviction. The registrar of the Court of Criminal Appeal must ob- tain and lay before the court all documents, exhibits, and other things relating to the proceedings in the trial court. The trial judge may also be required to furnish the registrar with his notes of the trial and a report of his opinion concerning the case. The appel- late court may also examine any witness who could have been required to testify at the trial, or any other competent witness, and may allow the reading of dep- ositions. In this way an appeal is quickly taken, speedily disposed of, and with practically no expense to the appellant. Counsel may be assigned to an appellant if he is unable to procure such for himself. Short- hand notes taken at the trial are not essential, and in a recent case (R. v. Bennett, 1909), the statement of REFORMS IN CRIMINAL PROCEDURE 31 counsel for the appellant who was present at the trial (where there were no such notes) was accepted. Even where there are shorthand notes, the appellate court will be guided by the judge's notes in case of discrepancy between them. From this brief outline of the present English pro- cedure the great difference in the time required for the disposal of appeals in cruninal cases in the two great English-speaking countries can be readily seen. It is also evident that the poorest man stands on an equal plane of justice with the richest. Practical Reforms in Appeals. There is no reason why in this country appeals cannot be limited to a brief time, and such parts of the record as are neces- sary to the case be transmitted to the appellate court without expense to the defendant. Criminal appeals should be docketed as prior to all other appeals, and should promptly be decided. The administration of the criminal law should not be delayed by the pres- sure of court business. If the courts are crowded with work, separate courts of criminal appeals could easily be created. III. THE INDIFFERENCE TO REFORM. The greatest stumblingblock in the pathway of legal reforms in this country has been indifference. Able and conscientious members of our profession admit that abuses are deeply seated, that they have long existed, yet they tell us that in one form or another they have been the targets for criticism for 32 MODEEN AMERICAN LAW LECTURE many generations, and that there is no panacea for the law's delay, that much of it is inevitable, that the real explanation of it all is to be found in the peo- ple themselves, in litigants, and that there will have to be a general reformation of selfish human nature before ''the impractical dreams of theorists" can be realized. The Duty of Lawyers. Such statements contain something of truth, but, nevertheless, much of error. If the present evils in our legal system are to be remedied, the work must be done by the lawyers, because no other class of men can do it. Only men thoroughly trained in the law, its history, its practice, its needs, are able intelli- gently to improve conditions. In all ages the ablest of men have been enrolled in the ranks of the legal profession. From the days of the Roman prsetor to the present it has been the jurist, the philosopher in governmental and legal science, that has done most for the state, and it must always be so. The great cause for regret, however, is that so few lawj^ers seem to realize the debt they owe to their profession. Are not the remarks of the distinguished Lord Bryce, the recent Ambassador from England, equally applicable to our own country? In his vale- dictory lecture at Oxford, where he had been a law professor for many years, he said, with deep regret : "There are few countries in which so small a propor- tion of the men engaged in professional work show an active interest in legal reforms." Nevertheless, that same country, whose obsolete legal principles EEFORMS IN CRIMINAL PROCEDURE 33 we still SO largely and so ])liiidly follow, lias far outstripped our own in very many phases of legal advancement. TJte Laivyer Should Determine Whetlier the Lata Is Fulfilling Its Mission. The lawyer should be a social philosopher, a real student and advocate of social betterment, not leaving these great problems to others who often, in their lack of training in the law and in the history of legal institutions, harm- fully meddle with so-called legal reforms. The ques- tion is not one merely of business, or of income, but whether the law, as a great science like the science of medicine, is fulfilling its mission in meeting the needs of society. Our legal machinery must necessarily adapt itself to changing needs and changing conditions. The only correct theory of remedial justice is that which best promotes the peace, the prosperity, the welfare of the whole people ; that which equally protects the interests and liberties of the individual citizen with- out, however, doing injustice to the state; and that which secures to even the humblest his just rights without unreasonable cost and without unreasonable delay. GAYLAMOUNT® PAM PHIET BINDER ..^_ Syrocuse, N.Y. ' ^^5 Stockton, Colif. ;;,„;;' ;jHfr^;:Hf I, iM'jA, ,,hhah FACILITY AA 000 605 693