It is a question whether or not their actions are different from those of ordinary men outside a court-room. They have left the restraining influence of an uncomfortable and conspicuous position and have entered again into the attitude of mind of the everyday world. The control of the judge has disappeared. The lawyers are only memories.
They have become only plain business men with something definite to do. They do not know how to do it and the discussion begins in a desultory way.
"Well, we ought to give that boy something."
"I don't like the looks of that last witness."
"That lawyer for the defendant was too smart."
"But do you think the driver tried to cut him off?"
"He couldn't have been in bed six weeks."
"No man would stay in bed that long with a sore knee."
"Oh, well, he only meant he was about the house."
"That doctor was a great one. He loved to get off those terms; he must be just graduated from the hospital."
"Did you hear the lawyer say in a case he tried in Brooklyn he had seventeen of those experts?"
"Well, let's take another vote and see if we can't get together."
"I can't stay here all day. I've got to close something important at four o'clock."
"You'll stay here if you have to; we want to get this settled right."
Another vote is taken. The result is the same and the two sides gradually assume opposing positions. Each one takes a leader and spokesman; the discussion is probably between those two and an occasional interjection by the others. By this time the argument has grown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in the minds of the jury with what has been talked of in the jury room. The recollection of each juror includes the recollection of the discussion that they are having. The mental picture is now a combination of what each witness thought, each lawyer conceived it, how the judge described it, what they imagined it during the trial, and added to the mental concept is the recent present struggle between twelve points of view.
They do not remember what it was the judge told them about their verdict. Suppose they send out and ask him. No, they do not want to appear like fools. It is plain. Their verdict must be for the plaintiff or the defendant. But in that contract case where the other side wanted something back from the plaintiff, how are they going to find a verdict for both? They can't find a verdict both ways. They had better send out and ask the judge. No. Well then they will send for the pleadings, they will show.
"What," says one juryman, "do you think those pleadings would show anything a reasonable man could understand?"
They decide that there was a bill that told the story. They knock on the door. The court attendant opens it. They explain, he gathers in the lawyers, and they go to the judge's desk. There is a thrill. The jury have agreed so quickly it must mean a verdict for the plaintiff.
If they had been out longer it would have meant there was a disagreement or a verdict for the defendant. The longer the jury stays out the better for the defendant thinks the lawyer. But the actions of the jury are uncertain and there may be no rule of arriving at their decision.
There is the story of the judge who, after the jury had been out for a long time, made a bet with the stenographer as to how the jury were going to decide. The judge thought himself an expert in determining the probable verdicts of the jury. After they came in and announced their decision and were discharged, the judge having lost looked crestfallen. The stenographer smiled. Then the judge recovered himself.
"You win," he said, "but the next time you and I bet on a decision it is going to be one of our cases without a jury."
The attendant asks for the bill and returns to the jury-room. The court falls into a lethargy of waiting. The jury, having their information, go on with the discussion, probably on the following lines.
"Sure, I told you the silks were worth four hundred dollars."
"Well, I know those kind of people; they are small people and they never did that amount of business in all their lives, let alone one month." Or,
"Don't you know that neighborhood; all the cars speed up whenever they get there."
"Why, yesterday I was getting off a car and the conductor pulls the bell, etc., etc."
"No, I ain't prejudiced against the railroad; I ain't got nothing against the railroad."
"Of course, we ain't going to decide this case on sympathy or prejudice. But that boy's Irish and he looks like he come of good honest people."
"Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve vant is justice."
"Now see here, my friend, if you think you're going to make this a racial matter you're mistaken. Just because that boy's Irish you needn't think he ought not to get nothing. You're prejudiced, that's what you are."
"Oh, let's get down to the evidence anyway; what we want is to decide."
"Vel, the motorman vas Irish, vot you talking about?"
"Sure, but he had to say what he did. Didn't he have to hold down his job with the company?"
The rest of the jury sink back resigned and despondent. They will never get out. One of them ventures.
"The judge told us that the law was--"
He is interrupted.
"Oh, we don't care so much about the law. What we want to do is to do what is right."
Somewhere, somehow, and by non-understandable methods the verdict is reached. If the jury ask for further instructions, they file back into the court-room and the judge proceeds to elucidate the hidden mystery of the law in much the same manner he did in his charge. They return again not satisfied, and take up the discussion.
The most dramatic moment in the trial is when the officer comes in and announces the jury have agreed. While they slowly file in, the prisoner or the parties watch them with soul-tearing eyes; the lawyers with anxious expectancy. There is an electric thrill in the air. In some mysterious manner their verdict becomes known before the foreman speaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner of walking in, and their final pronouncement is only a confirmation of what was expected.
The jury has spoken, the lawyer who has lost moves to set aside the verdict. The jury looks startled. Is it possible that after all that trial and all that deliberation the judge is going to upset it again and have the long trouble gone over. The judge denies the motion or takes it under advisement. Only on rare occasions does he set the verdict aside then and there. The verdict must have been outrageous, absurd, clearly a compromise, or absolutely and shockingly against common sense. The theory of the law is that the verdict of a jury is a final judgment on the facts by the best judges of the facts. It will not lightly or for small reasons be interfered with.
The question of belief in the jury system is one of the most futile of all large questions. In the first place, jury trial is so deeply engraved in the constitutional bill of rights that one might as well ask: "Do you believe in citizenship?" "Do you believe in the United States of America?" Secondly, trial by jury is so completely involved in the present system of court trial and procedure, that they are inseparable. The evils of the whole attach to the part and the beneficent aspect of the courts pertain equally to jury trials.
Coming down to a concrete case and leaving the abstract principle to the theorist, there are certain obvious things to be said for and against jury trial. The jury represents the opinion of the common or ordinary man--the _vox populi_. Twelve men picked at random are probably neither all capitalists nor all laborers. They are made up of a few of both, but the majority, if not all, are the small tradesmen or the great middle class. These men are not ignorant, prejudiced, or unintelligent. They have a limited experience, but their judgment is the judgment of mediocrity and mediocrity is what is wanted. The professional man, the expert, the specialist is needed for the special degree of administration, but for the determination of the actual right and justice, what is needed is the instinct of the ordinary man,--the plain ordinary common sense.
When the criminal says: "I stand a better chance with a jury"; when the civilian says: "If I had the wrong end of the stick give me a jury," he is appealing not to the wrong side of the jury system, but to a quality which is not always recognized.
Law is an exact, definite statement of principles, absolute and apparently immutable. When a man on the street walks up to another and wantonly insults him, the law is, that the insulted party must turn and walk away. If the matter came before a jury they would never convict him for knocking the other down at once. The jury system is the mitigation of the law.
XVI
LOOKING BACKWARD
Extracts from the Graduation Dissertation of a Columbia J.E. upon receiving his degree of Juridical Expert in 1947.
Historical investigation of obsolete customs is of little value beyond preserving some record of what may soon be forgotten.
In the year 1947 it seems almost unbelievable that the universal use by the public of Judicial Corporations should have been a matter of such recent economic growth. It is interesting to trace their development and the social causes from which they sprang.