it is a fact, which may at first appear paradoxical, that the jury in the ordinary run of criminal cases passes upon the guilt or innocence of very few professional criminals. a moment's consideration will reveal the reason. the professional criminal usually has a "record" and he knows full well that in view of his past history, if there be any sort of a case against him, his own defence, however eloquent or ingenious, will go for nothing. an affirmative answer to the simple question, "have you ever been convicted?" is, in three cases out of five, equivalent to a plea of guilty. now it is an understood thing that any prisoner, who is willing to admit his guilt and save the county the expense and trouble of a trial, shall receive some consideration in return therefor when it comes time to impose his sentence, and usually he expects to receive in addition a guarantee of good faith from the assistant district attorney in the shape of the latter's acceptance of his plea to a lower degree of the same crime. the real "gun" is apt to have his life pretty well mapped out. he anticipates serving about so much time "in stir" and figures on beating about every other case before it reaches an actual trial. if worst comes to worst, and he finds he must face a jury of his peers, he dickers for the lowest plea he can get. whole court terms often go by without a single professional crook[pg 149] being actually tried. if one of them is "caught with the goods" he generally throws up his hands and stolidly takes his medicine.

the ordinary citizen quite naturally gains his impressions of the administration of criminal justice by reading accounts of sensational trials. he imagines that the daily life of the prosecutor consists in demanding the conviction of hardened felons with sordid, crime-tracked features, varied by occasional spectacular "star cases" where counsel for the defendant and the prosecutor vie with one another in stupendous outbursts of oratory in which the bird of liberty screams unrestrained and justice frantically waves her scales. he supposes, if he gives the matter any consideration at all, that defendants languish away their lives in the tombs waiting for trials which never come, and that influential criminals walk the streets while the indictments against them lie accumulating an overcoat of dust in some forgotten pigeon-hole. he frankly assumes that the jury system is pretty nearly a failure, and knows of his own knowledge, or thinks he does, that any one with enough money can either avoid being tried for crime at all or, if by any mischance he be convicted, can easily escape punishment or at least delay it indefinitely by technicalities of procedure and appeals. in his customary dialect he "has no use" for the criminal or the criminal courts, and his only dread is that he may some time be drawn as a juror and be compelled to serve in a region of the city where he will be unable to find a satisfactory place to get his lunch and in the society of those whose companionship he fancies he is not likely to enjoy.

[pg 150]

let us assume that mr. ordinary citizen has been so unfortunate as to receive one of those pink slips which call upon him to "all business or other matters lay aside" and to attend at part i of the general sessions of the peace at ten o'clock on the first monday of the month. he finds himself in a large and well-lighted court-room, at one end of which, on a dais, sits a judge more or less surrounded by various persons who continually approach and engage him in conversation. at a desk in front, a clerk and his assistant are busy with piles of documents, which "o.c." learns later to be indictments, and with big ledgers which are in fact the "minutes of the sessions." the room is crowded, all the benches being filled with a varied, but, on the whole, a respectable-appearing assortment of humanity. in front of the judge and clerk, wandering around inside an enclosure, at one side of which stands the temporarily empty jury-box, are several young men who are earnestly engaged in talking to the lawyers, complainants and policemen who throng at the bar.

suddenly the clerk raises his voice and shouts, "harken to the call of the calendar!" an officer pounds on a railing with a paper-weight, another bellows, "find seats there! an' quit talkin'!" and the judge, gazing at a long sheet of foolscap in his hand, remarks inquiringly:

"people against murphy?"

the young assistant district attorney at once answers:

"people are ready."

"if your honor please," nervously exclaims a stout man pushing his way to the front, "this case[pg 151] has never been on the calendar before. i was only retained last night and i did not receive any notice that it was to be tried until this morning. i ask that it go over until next week."

"what do you say, mr. district attorney?" asks the judge.

"oh, it's a very simple case," answers the assistant. "there's no reason why it should not be tried to-day."

"well, i'll give you until to-morrow," says the judge. "you must be ready then."

"people against smith?" he continues.

both sides happen to be ready in this case.

"people against mccord?"

"defendant's going to plead," says the assistant.

"people against vermicelli?"

"we expect to make a recommendation in that case, your honor," announces the assistant,—and so it goes until fifteen or twenty cases have been marked "ready" or "passed for the day" or adjourned to let the defendant get his witnesses or, in point of fact, for the lawyer to extract his fee.

the clerk then calls the roll of the jury, and after the rush which ensues to present excuses to the effect that the talesman's health or business is in a precarious condition, the court settles gradually down to its routine work.

a jury is empanelled and a lank, seedy-looking youth takes his seat at the bar between a spruce, bald-headed little man and a court officer. he is charged with having "policy-slips in his possession."

so far "o.c.," our juror, has been impressed with the business-like and cheerful manner in which the[pg 152] proceedings have been conducted. most of the lawyers, instead of clamoring for a trial for their languishing clients, have exerted all their efforts to secure delays. then he learns to his surprise that the average length of time which elapses between a defendant's arrest for felony and his trial, unless the prisoner be out on bail, is less than one week.[27]

"jury satisfactory to both sides?" inquires the clerk.

"entirely so," reply the little bald-headed man and the prosecutor together.

suddenly the lank youth leans over and whispers to the lawyer, who after a moment's conversation beckons to the prosecutor. there is a brief consultation and the assistant tosses the indictment to the clerk with the announcement:

"he pleads guilty."

the defendant gets up and shuffles to the bar,[pg 153] where his pedigree is taken and a day set for his sentence, which, in the event of his never having been convicted before, will probably be a fine of twenty-five dollars or a month in the penitentiary.

"call the next case," says the judge.

"people against thompson," shouts the clerk. "bring up thompson."

the door in the back of the room opens and "thompson" is "brought up." he is a good-looking young negro, defended by a member of his own race. the jury say they have no prejudice against negroes and are sworn without leaving the box. the charge is one of assault in the first degree—that is to say, with intent to kill. the complainant is a flashily dressed young mulatto woman, who asserts that the defendant "done crack her head wif an ice-pitcher," and produces the fragments of pitcher, done up in a newspaper. she admits that at the time of the unfortunate occurrence she was living with the defendant as his wife. there are no other witnesses for the people, and the defendant is sworn without more ado. he explains that the complainant accused him of being too attentive to a "yaller gal" on the next street and when he attempted to go out of the house she attacked him with a pen-knife. in confirmation of this he exhibits a small cicatrix on his wrist. after hearing the evidence the assistant announces to the judge that the case ought in his opinion to have been disposed of in the police court and that the interests of justice will be subserved if his honor will discharge the defendant on his own recognizance. this the judge does with an admonitory lecture, and the defendant and the complainant go away together. "o.c.," the[pg 154] juror, begins to conclude that the assistant is a pretty fair sort of a chap.

trial follows trial with great rapidity. gradually the crowd in the court-room thins out. by one o'clock only a dozen or fifteen witnesses and spectators remain, and by half-past three the benches are practically empty. "o.c." has heard a dozen different complaining witnesses tell the story of how as many defendants have wronged them. the bowery merchant whose packing-cases have been broken into has followed as complainant the man who has been robbed in a saloon; the "clothes-line fight" has given place to the story of the actual abduction of a young girl by a "cadet"; the landlady who has received a bad cheque from a lodger can hardly wait to recount the history of her misfortunes, for the man who has lost a horse and wagon through a drunken driver, whom he charges with grand larceny.

generally the "people's case" consists of the complainant's version of what has occurred, somewhat corroborated by another witness or two, and the officer who made the arrest. then the lawyer for the defendant takes his client by the shoulder and with a gruff "go 'round there, young man," or, if he be playing for sympathy, a gentle "please take the stand, william," starts him upon that most dangerous of all adventures, a journey to the witness-chair in his own behalf. in two cases out of three the defendant's own testimony, if he is guilty, is what convicts him. both sides "sum" up in short, disconnected speeches, and the judge delivers a brief charge. the jury file out and another is immediately sworn. as the next trial begins very likely[pg 155] the door from the "pen" will open and the proceedings be interrupted long enough to allow another prisoner to tramp around the court-room, take his stand at the bar, and plead guilty.

"john keenan, alias foxy keenan, alias gum-shoe jack, do you now desire to withdraw the plea of 'not guilty' heretofore entered by you, and to now plead guilty to grand larceny in the second degree?"

the defendant acknowledges with no very amiable expression that this is his inclination, and his pedigree, which is taken by the clerk forthwith, discloses that he has served five times in state's prison and twice in the penitentiary. "o.c." looks at his fellow jurors and whistles under his breath. that was the real thing and no mistake. very likely the jury upon which he is now serving will convict, it having thus been brought to their attention by a concrete illustration that all the defendants are not innocent persons unjustly accused of crime. "remanded," says the clerk, and gum-shoe jack tramps back to the little door and the interrupted trial goes on. the stream of complainants, witnesses and defendants is as varied as that in balzac's "comédie humaine." "o.c." begins to take a keen interest and now and then to put a question himself. he has taken the opportunity to make the acquaintance of the assistant district attorney at the noon hour and now feels that he is really a part of the machinery of justice.[pg 156][28]

ordinarily in a full court day there will occur from two to four complete trials, while an equal number of pleas may be taken. sometimes a hundred and fifty cases will be got rid of by trial or plea in a single term in one part of the general sessions alone. on the other hand, if the calendar is made up of "old-bail cases," indictments for receiving stolen goods, misappropriation, and italian or chinese homicides, the office accounts itself lucky in getting rid of half a dozen cases in the month. occasionally, when a brisk, business-like judge is sitting, a "homicide calendar" will be disposed of at the rate of one a day, but this is rare and can occur only when most of the cases are for manslaughter or criminal negligence.

when trials are rapid their speed always redounds to the benefit, not of the people, but of the defendant.

[pg 157]

such a performance in a court of justice as the following, recounted by lord brampton, could not take place to-day. it is worth reproduction as marking the progress of criminal procedure:

the first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. as judges and counsel were exhilarated, the business was proportionately accelerated. but of all the men i had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was muirhouse.

let me illustrate it by a trial which i heard: jones was the name of the prisoner. his offence was that of picking pockets, entailing of course a punishment corresponding in severity with the barbarity of the times. it was not a plea of "guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "not guilty," and therefore had a right to be tried.

the accused having "held up his hand," and the jury[pg 158] having solemnly sworn "to hearken to the evidence," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look around and see where the voice comes from, he is examined by the prosecuting counsel.

"i think you were walking up ludgate hill on thursday 25th about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. is that it?"

"yes, sir."

"i suppose you have nothing to ask him?" says the judge. "next witness."

constable stands up.

"were you following the prosecutor on the occasion when he was robbed on ludgate hill, and did you see the prisoner put his hand into the prosecutor's pocket and take the handkerchief out of it?"

"yes, sir."

judge to the prisoner: "nothing to say, i suppose?"

then to the jury: "gentlemen, i suppose you have no doubt? i have none."

jury: "guilty, my lord," as though to oblige his lordship.

judge to prisoner: "jones, we have met before—we shall not meet again for some time—seven years' transportation. next case."

time: two minutes and fifty-three seconds.

but to return to our juror. what strikes "o.c.," who has now become entirely disabused of his previous ideas of what criminal trials are like, is the fairness with which those trials are conducted in the general sessions and the fact that the interests of the accused are safeguarded in every possible way. plenty of time is taken to try out even a pickpocket case or a street-corner brawl. the judge always covers the law fully and accentuates the necessity of giving every reasonable doubt to the defendant. in his heart "o.c." begins to have a slight feeling that the devil is getting a little more than his due. he has ac[pg 159]quitted so many of the persons who have been tried that when he now sees a head he is not at all unwilling to hit it. he is fast reaching that state of mind which the prosecutor has anticipated when he has told his chief that in a few days he will have the jury "knocked into shape," in other words, he no longer believes every hard-luck story that he hears, he knows that certain criminal attorneys are capable of almost any kind of misrepresentation, he realizes that practically every defendant has already had a pretty exhaustive trial in the police court before indictment, he is quite as anxious to see the guilty convicted as he is to see the innocent acquitted, and he has been properly disgusted with the attitude and actions of certain of his colleagues in the jury-room whom he regards quite properly as anarchists or idiots. the district attorney at the end of a week has found out who some of these are. they have been "excused" for the remainder of the term, and he can rely pretty safely on the others rendering a fair verdict in any important case which he now desires to move before them.

what naturally interests "o.c." and his fellow jurors most of all is the defendant's own story of how he came to be involved in the transaction out of which the charge against him arises. for the first few days he very probably gives such explanations rather more credit than they deserve, for he is sympathetically inclined to believe that the prisoner is more likely to be the victim of circumstances than guilty of an act of moral turpitude. the eager attitude of some of the complainants likewise gives him an excuse for believing them to be actuated by more than a mere desire to see justice done[pg 160] and to have the truth prevail. he is inclined to look for hidden motives for every prosecution. this gradually wears off and his attention becomes centred on the defendant himself. will he put in a defence? will he testify in his own behalf? what will he say? little by little "o.c." gets to inventing defences to fit the facts established against the prisoner by the people's case. meantime he is learning a little law. that "the people must prove the defendant's guilt beyond every reasonable doubt," and "that no unfavorable inference must be drawn as against the defendant from his failure to testify in his own behalf." "o.c." has some difficulty with the "reasonable doubt." perhaps he says to himself, "i am a reasonable man,—hence any doubt i have must be reasonable." however, the judge's reiteration that not every doubt is a reasonable one and that the words do not mean "a mere guess or conjecture that the defendant may, after all, be innocent, but a substantial doubt arising out of the evidence in the case, for which a reason can be given," and of such a character as would influence him in the important affairs of his daily life, eventually clears his mind on this somewhat abstruse psychological problem, and he translates "beyond any reasonable doubt" into the more lucid and comprehensive "moral certainty" of ordinary existence.[29] but that he shall not permit himself to be prejudiced against a defendant by the latter's refusal to testify is a much more difficult matter. he knows it to be the law, and he tries hard to obey it, but in a majority of cases he cannot escape the sub-conscious deduction that if the defendant were innocent he would not hesitate to offer an explanation.[pg 161] as time goes on and he gains in experience it becomes even harder to follow the instructions of the judge in this respect. he discovers that the district attorney cannot prove the prison record or bad character of the defendant unless the latter subjects himself to cross-examination by taking the witness-stand, and hence is likely to suspect that any defendant who does not testify is an ex-convict. three jurors out of five will convict any man who is unwilling to offer an explanation of the charge against him. how they reconcile this with their oath it would be hard to understand, if they were accustomed to obey it literally in other respects. the writer has heard more than one talesman say, in discussing a verdict, "of course we couldn't take it against him, but we knew he was guilty because he was afraid to testify."

as the reader is doubtless aware, under the common law no defendant in either a civil suit or criminal prosecution could testify in his own behalf. he was regarded as a party in interest whose bias must necessarily render his evidence of questionable, if of any, value. this doctrine, along with many others, our fathers adopted on their severance from england, and it continued to be the law in new york for a long time,—in civil cases until 1849, and in criminal until 1869. then, ostensibly for the sake of the defendant and for the protection of the innocent, the rule was abolished. that the change from the common law was not generally approved either by the bench or bar of new york is clear from the opinion of the court of appeals in one of the earliest cases which arose under the new practice.[30] the court expressed the opinion that[pg 162] the change would redound to the benefit of the glib, quick-witted and hardened criminal who could invent a plausible defence, and result in the confusion of the innocent man unjustly accused of crime who might from stupidity or timidity involve himself in apparent contradiction; to say nothing of the fact that if the defendant did not take the stand the jury, however much they were instructed to the contrary, would inevitably draw an unfavorable conclusion from his failure to deny his guilt.

now to any fair-minded american it must seem almost rudimentary justice that the accused should have a chance to tell his own story. that in itself is a sufficient reason for the rule. just why, theoretically, if a defendant does not see fit to give an explanation and subject himself to cross-examination, the jury should not be permitted to draw an unfavorable inference is not so clear.

experience has demonstrated that an innocent man need have no fear about taking the stand. jurors sympathize with a defendant who is subjected to a withering fire of questions, and do not expect him to be able to give a lucid account of himself since the day of his birth, or to explain without the minutest contradiction every detail in the evidence against him. but they do want him to deny his guilt and to have an opportunity to "size him up." on the other hand, the slightest word of explanation may suffice to change the whole complexion of a case.[31] in the old days the guiltiest of[pg 163] criminals could, almost with impunity, shield himself behind his lawyer's eloquent assertion that his client had a "perfect defence," but that the law "had sealed his lips." to-day in the vast majority of cases the prisoner who does not take the stand is doomed. out of three hundred defendants tried by the writer's associate, mr. c.c. nott, twenty-three failed to take the stand in cases submitted to the jury. of these twenty-one were convicted, one was acquitted, and as to one the jury disagreed. had these men been prevented by law from testifying in their own behalf, the ratio would have been very different.

thus a rule originally intended to benefit the innocent defendant by permitting him to offer his explanation of the charge against him has practically resulted in compelling all defendants, guilty or innocent alike, to testify. it goes without saying that this has resulted in a considerable benefit to the community. its only disadvantage, and this is[pg 164] probably more theoretical than practical, is that ex-convicts on trial can no longer successfully conceal their pasts. if they do not testify they will probably pay the usual penalty, and if they do testify they are more than likely to be convicted "on their records." clever criminals often seek to avoid this dilemma by declining the services of counsel and conducting their own cases, thus rendering it impossible for themselves to take the stand, for in such an event there would be no lawyer to examine them. this ruse is well calculated to deceive the ordinary juryman.

the jury are also far less inclined to draw an unfavorable inference from a defendant's failure to testify if, on the conclusion of the evidence of the prosecution, he merely "rests on the people's case" and puts in no defence at all, than if he puts in only a partial defence. they readily appreciate that his counsel may honestly believe that as matter of law no case has been made out against him, and they bend their energies to the determination of the simple and unobstructed issue of whether the uncontradicted evidence of the prosecution has of itself established the guilt of the prisoner beyond a reasonable doubt. if he puts in a defence and calls witnesses to contradict those of the people, the jury are apt to concentrate their attention upon the question of the relative truthfulness of the witnesses on either side. juries, quite naturally, are quick to infer guilt from any attempt at deception on the part of the defence, and habitually visit the sins of his witness upon the prisoner. every criminal lawyer has had the unpleasant experience of seeing his client convicted merely because the jury have caught one of the wit[pg 165]nesses for the defence lying on an immaterial point. whether the jury hear one or both sides of a case, they inevitably labor under the disadvantage of never being able to pierce the screen which the law has hung between them and the truth in every case. many a jury is struggling manfully with the question of the defendant's guilt or innocence, while the latter sits in the pen chewing the cud of narcotic contentment and wondering whether the yarn he "framed" for them will be believed. he has figured out what he is likely to get, knowing that even if he were found guilty the judge would probably not "give" him "more than elmira," and has resolved to "take a chance." as the elmira sentence is indeterminate, the defendant has nothing to gain by pleading. once there, he will be released in fourteen months if his conduct appears to warrant it. the only real "chance" that he takes, is, that the judge may send him to state's prison, but he usually has made a study of the judge's character and past performances. similarly he may have offered to plead to a lower degree of the same offence and his offer may have been refused, yet the matter is confidential and the case has to be tried by the district attorney as though he had no knowledge of the defendant's guilt. so the jury retire and frequently end their deliberations by acquitting the defendant, who leaves the court-room triumphantly to the great chagrin of the prosecutor. the jury, on the other hand, are filled with complacent satisfaction at having restored to liberty a man unjustly accused of crime. but these trifling considerations are as nothing when compared with the limitations which the laws of evidence and procedure place upon the[pg 166] presentation of what is ofttimes a perfectly plain case.[32]

the prosecutor who has thoroughly investigated a case has a knowledge of its real merits which can never be brought to the minds of the jury. there is much evidence, not technically admissible, which properly should be considered by him in determining his official action, and there is usually an equal amount of evidence, the competency of which will depend on the course of the trial. he occupies a delicate and frequently a very difficult position, since he must prosecute the case without reference to facts which might conclusively prove the defendant guilty, could they be introduced in evidence. the real character of the accused can almost never be demonstrated, for unless he takes the stand in his own behalf his "record" is inadmissible, and even when he does take the stand, he can deny with[pg 167] impunity any allegation as to his past offences and conduct, since the law does not permit the prosecutor to disprove such denials unless they relate to actual convictions for crime. similarly the excellent character of the complainant and his witnesses may not be shown, unless the defendant himself directly attacks it, so that it is probable that throughout the case the injured party and the wrong-doer appear to the jury to be of equal credibility. the district attorney is a "quasi-judicial" officer, who must be at one and the same time the friend and right arm of the court and the advocate of the public right. his official position gives him an influence with the jury which honor forbids him to abuse, and demands an impartial consideration of the evidence and a dignified method of conducting the case, irrespective[pg 168] of the tactics of the defence. he represents not only the public, but the defendant, who is one of the public. he should be glad to welcome at any stage of the proceedings credible evidence tending to establish the innocence of the accused, and if it convinces him that the defendant is not guilty, he should, even in the midst of a trial, arise and move that the jury be discharged and the prisoner set free. but this is by no means inconsistent with a vigorous insistence upon the people's rights, nor does it require that the prosecutor should refrain from using the advocate's customary weapons of attack and defence. while he is cross-examining the witnesses for the defence and arguing to the jury, he is for the time being the lawyer for the people, and the appellate courts have said that it would be manifestly unfair not to extend to him in summing up the case an equal latitude of expression and scope of argument with counsel for the defendant.

it is the consciousness that he is indeed sore let and hindered in really laying the truth before the jury that makes the accusation of "unfairness" so bitter to a prosecutor, and it is the cause of whatever "overzealousness" it is often popular to ascribe to the district attorney's office. one would think, to read the communications in the evening papers during a recent trial, that the community had no privileges at all. a prosecutor frequently reaches that conclusion from experience. the writer is not aware that the constitutional guarantees which protect the liberty of the individual were intended to deprive the public of an advocate. in the nature of things, if justice is to be done, the people should be entitled to the same rights as the individual. if we[pg 169] are to have respect for law, the law must be deserving of respect, and law which makes rather for the acquittal than for the conviction of the guilty is not of that sort.

but with a trained panel of jurors, at the end of the second week of the term, the chaff having been separated from the wheat, the prosecution may reasonably expect to see the mill of justice grinding smoothly and reasonably fine, the jury at home in the court-room, familiar with their duties, and appreciative of the fact that all the assistant is trying to accomplish is the disposal of as many cases as possible consistent with fair trials and just verdicts. by the middle of the term he must be a very indifferent sort of fellow if he has not made friends of the jury; and assuming that he has done his work disinterestedly and in a business-like fashion, he will find that he has now the good-will and respect of the entire panel,—a regard which may well stand him in good stead later on in his career. this is the prosecutor's reward,—to try cases before a body of men who know that he is anxious to do the right thing, ready to welcome any evidence that really tends to establish the innocence of the accused, but insistent that no guilty man shall go free unless his act is first stamped as wrong by a conscientious verdict on the part of the jury.

yet, as the writer has already stated, when the jury disband at the conclusion of the term with the thanks of the court, they have seen few professional criminals, save for a fleeting glance as one or two are led to the bar to admit their guilt. one exception readily suggests itself,—namely, the prosperous swindler who, by means of the "wire-tapping,"[pg 170] "sick engineer" or other similar device, has parted some gullible person from his savings. yet these gentry always save plenty of money with which to engage able counsel and are only forced to trial after they have exhausted every means of delay known to the law. they never plead guilty, but fight until the last gun is fired, believing that as they have escaped punishment in the past, so they will in the future. their records rarely make it possible for them to take the stand in their own behalf, and if the case goes to the jury at all they are immediately convicted. almost every panel has the opportunity to hear at least one "sucker" tell his story and to render a speedy verdict in his favor. it needs little explanation from a prosecutor to convince the twelve hard-working tradesmen before him that the defendants in this class of cases are the "real" criminals,—systematic enemies of society.

the great bulk of cases, that is to say, nearly seventy-five per cent, are disposed of by plea, by direction of the court, or "recommendation," that is to say, on the written application of the district attorney that the defendant's bail be discharged. hundreds of cases are thus "turned out" every year, and for the most part represent those instances where the magistrate and grand jury have not had either the time or the inclination to assume the responsibility of discharging the defendants, preferring to put the question "up" to the district attorney or a petit jury. these recommendations are made on numberless grounds, the principal being (1) that it is clearly apparent that a reasonable doubt exists on the evidence; in other words, that as a matter of law the case should not be submitted to[pg 171] a jury; (2) that the people's witnesses have disappeared or left the jurisdiction; (3) that the case has once been tried with the jury standing almost unanimously for acquittal; (4) that owing to the peculiar circumstances in the case it is quite unreasonable to suppose that any jury would convict,—such as where an entirely respectable young woman being out of work has, in a fit of despair, attempted her own life.[33] two or three cases are disposed of in this manner in each part of the sessions almost every calendar day in the year.

the defendants who plead guilty are professional criminals, ex-convicts, and prisoners whose guilt is so overwhelmingly clear that they have no hope of getting even a disagreement.

thus most of the cases tried are neither "dead open and shut," as the saying is, nor exceptionally weak. they usually present some question of doubt,—usually only a conjectural one, however, or at least admit of a more or less logical argument for an acquittal on the part of the defence.

in trivial cases the jury are inclined to take the[pg 172] law into their own hands. boys charged with attempting to pick pockets or burglarize small stores, with assaulting police officers, carrying concealed weapons such as knives and brass knuckles, having policy-slips in their possession, rioting, malicious mischief, etc., are usually acquitted. this is because the jury think that they have been already punished enough for the character of offence which they have committed,—not because they believe them innocent. cases where the charge is a serious one and which are tried before trained panels on a substantial amount of evidence usually result in conviction. in so-called "important" or "star" cases, defendants are rarely acquitted. if the reader will recall the sensational first trials of the last ten years he will find that there is hardly a single acquittal among them.[34] it is the petty law-breaker who profits by the lawlessness of the modern jury.

the fact that the prosecutor appears every day before the general panel of jurors in the part to which he is assigned throughout the term and soon gains among them the reputation of being fair, and that he on his side knows their peculiarities and idiosyncrasies is what makes the jury system in criminal cases work more accurately and accomplish better results than in civil trials, where the jury usually has never seen either counsel before and probably distrusts both of them. a prosecutor who knows his petit jury, its faults, virtues and foibles, can move an important case before[pg 173] it, even though it be composed of retail cigar and newspaper dealers and small tailors from the east side, more safely and with a better expectation of a just verdict than before a "special" panel of bankers and architects with whom he is unfamiliar. the ordinary panel at its daily task during the last two weeks of every term illustrates the jury system at its best. cases moved at the beginning of the term usually result in acquittals. occasionally a jury will open a term with a rather unexpected conviction, but it takes three or four days before they realize that a reasonable doubt is not meant to include "a mere guess or conjecture that the defendant may, after all, be innocent." wily criminal practitioners seek if possible to have their cases put on the calendars at the opening of a term, and to secure adjournments at the end of the term in order that they may go over to the beginning of the next.

court officers often win fame in accordance with their ability as "plea getters." they are anxious that the particular part to which they are assigned shall make as good a showing as possible in the number of cases disposed of. accordingly each morning some of them visit the pens on the floor below the court-room and negotiate with the prisoners for pleas. the writer suspects that the assistant in charge of the part is usually depicted as a fierce and relentless prosecutor and the jury as a hardened, heartless crew who would convict their own mothers on the slightest pretext. the joys of elmira as contrasted with other places of confinement are alluringly described and a somewhat paradoxical readiness to accept any sort of plea, in view of his bull-dog character, is attributed to the assistant.

[pg 174]

the writer has known of the entire population of a prison pen pleading guilty one after another under the persuasion of an eloquent bluecoat assisted by an opportune conviction. of course the prisoners expect to be treated with a considerable degree of leniency, and if one of their comrades goes up to plead and returns with the story that the judge is "easy" and the assistant "all right," and a sentence to elmira, the others are apt very quickly to follow suit. if, however, the first of the batch called for trial does not come back at all (having been acquitted), the remainder will not "plead" under any circumstances. the same thing is true if the first prisoner who pleads gets a severe sentence. prosecutors anxious to dispose of business hope for light sentences at the beginning of the term.

most of the homicide cases are tried in the criminal term of the supreme court, and a great many pleas to "manslaughter" are accepted by the judge where the technical charge is murder in the first degree. the grand jury indict for murder in almost every homicide case on the theory that some evidence may possibly be given at the trial which will warrant such a verdict. a very large proportion of these defendants plead guilty to manslaughter, and are encouraged in all legitimate ways to do so. about two years ago, in the supreme court, the first defendant called to the bar concluded that discretion was the better part of valor and pleaded guilty. the judge, who had never sat in criminal term before, promptly gave him eighteen years,—only two less than the maximum, although the shooting had occurred during a quarrel over a game of "craps." not a single other prisoner offered a plea to any[pg 175] degree of crime during the remainder of the term.

a great deal of interest is felt everywhere in the practical results of the jury system, and particularly in the proportion of convictions to acquittals. figures purporting to show such ratios should be scrutinized with great care, as they usually include among "verdicts of conviction" pleas of guilty voluntarily offered by the defendant, and similarly include among "acquittals" all cases where defendants are discharged without trial on the motion of the prosecutor. the only figures which have any particular bearing on the question of how far the jury system is efficacious are those drawn from the results of actual trials in which verdicts have been rendered.

the following table shows the comparative number of convictions, pleas, acquittals, etc., in new york county during the last eight years:

year convictions pleas acquittals by jury and direction discharged on own recognizance bail discharged indictment dismissed forfeitures declared insane sentenced on another indictment superseded indictment dismissed by grand jury discharged on writ discharged (comp.) total

1900 424 1,672 733 366 185 76 74 13 60 19 1,093 4 141 4,860

1901 551 1,838 688 434 192 165 113 8 77 36 1,045 4 116 5,267

1902 419 2,009 698 351 457 257 97 5 67 62 863 2 73 5,360

1903 485 1,918 615 321 299 92 62 12 65 40 807 7 86 4,809

1904 495 1,971 700 363 272 50 63 8 63 37 898 20 99 5,039

1905 489 2,001 602 352 207 57 51 8 82 38 1,035 5 93 5,020

1906 464 2,079 560 428 344 99 47 11 137 45 980 2 69 5,265

1907 582 2,266 656 493 202 100 45 12 179 38 1,529 4 131 6,237

total 3,909 15,754 5,252 3,108 2,158 896 552 77 730 315 8,250 48 808 41,857

during 1907 in new york county out of 4,573 indictments .62 per cent. (including pleas of guilty) resulted in convictions. the following table shows[pg 176] a gradually increasing percentage of such convictions for the past eight years:

year number of indictments

disposed of total convictions ratio

1900 3,620 2,096 .5790

1901 4,096 2,389 .5839

1902 4,410 2,528 .5506

1903 3,909 2,403 .6144

1904 4,022 2,466 .6131

1905 3,887 2,490 .6405

1906 4,214 2,543 .6035

1907 4,573 2,848 .6228

during this eight-year period 32,731 indictments were finally disposed of either by trial, plea, direction of the court or on the recommendation of the district attorney. these dispositions bear the following ratios to each other:

year convictions by verdict pleas of guilty acquittals by verdict acquittals directed discharges minor dispositions

1900 .1171 .4619 .1013 .1012 .1707 .0478

1901 .1345 .4487 .0840 .0840 .1831 .0657

1902 .0950 .4556 .0792 .0791 .2324 .0587

1903 .1239 .4905 .0786 .0785 .1770 .0515

1904 .1231 .4901 .0887 .0853 .1685 .0443

1904 .1231 .4901 .0887 .0853 .1685 .0443

1905 .1258 .5148 .0769 .0779 .1585 .0461

1906 .1101 .4934 .0584 .0745 .2067 .0569

1907 .1273 .4955 .0577 .0857 .1739 .0599

what the reader is naturally most curious to discover is in what proportion of cases (where they had any say in the matter at all) the jury let the defendant go. roughly speaking, the proportion of convictions to acquittals by actual verdict is considerably more than two to one,—the ratio for 1907 being as 69 is to 31:

year number convictions by verdict number acquittals by verdict convictions per cent acquittals per cent

1900 424 367 54 46

1901 551 344 62 38

1902 419 349 55 45

1903 485 307 61 39

1904 495 357 58 42

1905 489 299 62 38

1906 464 246 65 35

1907 582 264 69 31

[pg 177]

the writer desires very particularly not to be understood as suggesting that because the district attorney in all these cases thought the defendant guilty or even knew him to be guilty, the action of the jury was necessarily improper. so far as his opinion may be worth anything he believes thoroughly in the jury system in criminal cases, with some trifling modifications. in a vast proportion of the cases in which acquittals resulted there was undoubtedly room for an honest difference of opinion as between reasonable men,—men in the long run better qualified to judge of the defendant's guilt on the evidence than the prosecutor himself, who is always at the disadvantage of knowing the "inside" or "unprovable" elements of the people's case, a fact which is apt to lead him to believe that the record establishes his own contention more than it appears to do so to the jury. the propriety of any jury's action must be determined only upon the basis of the evidence presented to them, and upon which they are permitted to act. the writer is inclined to believe that nearer eighty than seventy per cent of the defendants tried should be convicted. in the heat of conflict he might even claim ninety per cent and maintain that if a majority of eleven on each jury could render a verdict, nine out of every ten defendants, after a hearing in the magistrate's court, an examination by the grand jury, and a careful investigation by the prosecutor's office, should be convicted. the writer submits that the increasing percentage of convictions shown on the opposite page is evidence of the effectiveness of the jury in criminal cases in new york county.

footnotes:

[27] this is a vast improvement over the conditions which existed in this regard six or seven years ago, when defendants in prison could count themselves fortunate if tried within three weeks, or, if on bail, within a year. it was by no means unusual to have cases appear upon the calendars from three to five years old, the backs of the indictments being covered with the names of assistants long since departed from official life. the writer once tried a case that had appeared on the calendar twenty-eight times, and cases which had appeared there from ten to twenty times were the rule, not the exception. in the days when the present district attorney was a deputy, indictments were so carelessly found and treated that in order to clear the calendars bushel baskets of them would be brought into court and dismissed "on the recommendation" of the district attorney. a house-cleaning process of this sort would ordinarily occur just before it became necessary to make an official report on the number of cases "disposed of." to-day there are very few indictments not tried within the year, and almost any defendant who wants one can get a speedy trial, such delays as arise being generally caused by the defendant himself. of course during the summer months when but two courts are open, and the judges sit from only ten-thirty to one o'clock, action is somewhat less speedy, and as homicide cases usually require more time for trial than others, and are tried seriatim in order of age, the defendants may have to wait a little longer than in cases of less gravity. even in such cases defendants generally have to be "forced to trial" against their will.

[28] the writer's colleague, mr. charles cooper nott, jr., has recorded, as follows, the actual proceedings of an ordinary court day:

"maria dzialozindky takes the stand and swears that after a brief acquaintance she married (as she supposed) the defendant before a rabbi of his choosing; a man in charge of an officer is identified by her as the rabbi; he is brought over from the penitentiary on blackwell's island where he is serving a sentence for larceny, being a thief and not a rabbi; maria then goes on to relate how the defendant then procured from her one hundred and forty-nine dollars, and disappeared, leaving her alone in the suffolk street tenement which was to have been their connubial bower of bliss; it further appears that the defendant had a wife living at the time that he went through the ceremony of a mock marriage with maria. defendant takes the stand, modestly admits that he is possessed of such unusual attractions that maria persecuted him into this marriage; that she forced the one hundred and forty-nine dollars upon him, and that he unfortunately slumbered in a saloon and it was stolen from his person. the jury fail to give credence to his tale, and promptly convict him. the next defendant is smooth and well dressed, a hanger-on in the region known as the tenderloin. testimony is given that he and another did take and carry away and sell certain typewriting machines from an office in thirty-fourth street. defendant with an engaging smile tells how his companion had just been discharged from the office in question, and had enlisted his (defendant's) aid to remove the machines, which he informed defendant were his own, and how shocked he was later to learn that this wicked companion had no right or title to them. his smile is so engaging, and his looks so respectable, that the jury acquit him, and are somewhat chagrined when the judge, in discharging him, states that in the court's opinion he is a smooth and plausible thief and guilty beyond a doubt—which is the fact, as previous to the trial he had offered to plead guilty to a lower degree of the crime charged. next comes a stalwart irishman who describes with much feeling how the defendant (unfortunately a much smaller man), without any provocation whatever, viciously assaulted him in the hallway of the west side tenement-house where they both lived, and cut him in various vital parts with a pocket knife. defendant (bandaged to no less a degree than complainant) describes how he had "an argument" (a term embracing any affray ending in anything short of murder in the first degree) with complainant and his brother over a game of cards, whereupon they followed him to the hallway, threw him down and kicked him, and then struck at them with a large key. his talk sounding reasonable and being corroborated by several neighbors, defendant is acquitted. lastly, an unsuspecting passenger and an alert trolley-car conductor tell how defendant, a shifty-looking young gentleman, while sitting next to the unsuspecting passenger, kept with one hand a newspaper shoved under the latter's chin, while with the other he abstracted a fine diamond scarf pin adorning his cravat. when their tale is completed, the defendant and his counsel put their respective heads together, and counsel then announces that his client, the sole support of a widowed mother, did, in a moment of temptation induced by filial anxiety, endeavor to acquire this pin, and he therefore desires to throw himself upon the mercy of the court and plead guilty, which he does. it appears, however (of course to counsel's astonishment), that his portrait has for several years ornamented the rogues' gallery, and that his record as a son is not all that it might be, whereupon he is sentenced upon the spot, and court adjourns. this is the summary of the actual record of a court day presenting no unusual features"—"in the district attorney's office," atlantic monthly for april, 1905.

[29] cf. "reform in criminal procedure," by everet p. wheeler, 4 columbia law rev. 356.

[30] ruloff vs. the people, 45 n.y. 221.

[31] mr. nott cites the following case:

"the complainant, a, a well-dressed bartender, testified that he had known the defendant, b, for some time; that on the night in question b came to a's rooms, and shortly after b's departure, a found that his watch was missing; the watch had been in the pocket of a's vest, which a had left hanging on a chair, and a had stepped out of the room for ten minutes, leaving b alone there. b afterwards admitted to a that he had "hocked" the watch. of course this testimony, if believed, made a case against b, and it is difficult now to realize how any one could ever have believed that the chance of explaining or contradicting it could be more dangerous to b than the certainty of having a's testimony go to the jury uncontradicted. b took the stand and testified that he was getting a good salary as manager of an "intelligence office"; had never been even arrested before; that a had obtained a loan of fifteen dollars from him and had left the watch with him on the understanding that b was to pawn it for fifteen dollars and give a the ticket; b did pawn it in his own name and was shortly thereafter arrested. this case is a fair illustration of a puzzling class. on the one hand, no motive or reason was shown why a should cause the arrest of his friend on a false charge (unless that of getting the watch back from the pawnbroker without payment of the fifteen dollars, on the ground that it had been stolen, is an adequate one). upon the other hand, b's character and position in life seemed to make it unlikely that he would commit such a theft, and his act in pawning the watch under his true name gave color to his story. the jury acquitted, and who can say that there was not at least a reasonable doubt?"

[32] mr. nott gives the following illustration from an actual trial:

"take, for example, a certain case tried in the criminal branch of the supreme court in the january term of 1902. the jury saw the defendant, a stalwart, open-faced laboring man of nearly sixty years, on trial for murder in the first degree; they heard a bartender and a smooth-shaven, bullet-headed witness describe how the defendant in the saloon became involved in a dispute with the deceased, caused by the defendant's bad taste in reminding him that he had done time for killing his own father; and they heard him of the bullet-head admit on cross-examination that a scar adorning his neck had been inflicted by the deceased some two years before; they heard the two witnesses describe how the deceased left, breathing threatenings and slaughter, and how a few minutes later the defendant, in the room back of the saloon, was approaching the rear door, cutting a plug of tobacco with his knife, which he had providentially drawn for that purpose, when the deceased leaped upon him from the door and tried to stab him, whereupon a fight ensued, in which the defendant was cut, and after which the deceased left, followed a few minutes later by the defendant and the bullet-headed, who saw naught further of him. to mar the symmetry of this tale of self-defence (proved by the prosecution's own case), but two jarring facts appeared—first, the saloon proper (not the rear room) was found soaked in blood, and, second, the deceased was found shortly after the defendant's departure at three a.m. lying on the sidewalk in plain sight of the rear door, with his throat cut from ear to ear. no evidence was put in for the defence, the defendant modestly refrained from taking the stand, and of course an acquittal was inevitable.

"from behind the scenes, however, the facts assumed a different aspect. the frank-faced defendant was one 'red,' who had served time for robbery and other offences; the bullet-head surmounted shoulders upon which rested a heavy load of crime and violence, their owner having served the state several times and been implicated in numerous crimes, including murder; the bartender would have considered it quite as safe, and far more comfortable, to put a bullet through his head than to testify against this choice pair; while it was true that the deceased had killed his own father, the act was performed while parent and son were in a drunken fight, by striking the old man on the head with a water pitcher, and had occasioned great mortification to the son when he became sober; and it was true that defendant and the bullet-headed were both bitter enemies of the deceased. on this statement of facts, there is little doubt that the deceased was murdered in the saloon where the blood was found, and his body thrown out on to the sidewalk, and the story arranged, the defendant shouldering the quarrel because he had received a cut in the course of the fight. as the defendant did not take the stand, his record and character could not be shown; as the state was compelled to call the bartender and the other witness (they being the sole witnesses to the occurrence), it could not impeach their veracity nor attack their character. to the prosecuting officer, therefore, was presented the choice of recommending the 'turning out' of a desperate criminal without a trial, or of putting in what facts the law permitted to be shown, and leaving the jury to acquit, while marvelling that such a weak case should be presented to them."

[33] the number of these cases is one of the saddest commentaries upon the conditions of life in a great city. upon this charge during the year 1905, 268 males and 114 females, a total of 382, were arrested. thirteen males and no females were held for trial and the others were discharged.

comparison with previous years

number arraigned number held for trial

year males females total males females total

1896 147 72 219 30 6 36

1897 228 130 358 42 12 54

1898 202 159 861 26 15 41

1899 257 140 397 40 13 53

1900 251 173 424 40 12 52

1901 244 143 387 24 3 27

1902 244 158 402 23 6 29

1903 374 156 530 15 4 19

1904 234 123 357 15 .. 15

1905 268 114 382 13 .. 13

1906 269 136 405 20 2 22

1907 258 136 393 13 1 14

[34] peo. vs. molineux, peo. vs. bissert, peo. vs. glennon, peo. vs. mills, peo. vs. patrick, peo. vs. ammon, peo. vs. "al" adams, peo. vs. hummel, peo. vs. wickes, peo. vs. wooten, peo. vs. rothschild, peo. vs. kanter, peo. vs. summerfield, peo. vs. sam parks, peo. vs. weinseimer, peo. vs. burnham, peo. vs. gillette, peo. vs. h. huffman browne.