Part 3 (1/2)
During the trial a feeling of resentment at court procedure grows. It is not the judge any longer who is keeping and delaying them. The witnesses appear like fools it is true, but the lawyers make them act more foolishly than need be. Why does the judge make such absurd rulings? The law must be an unreasonable thing and the judge evidently knows a great deal about it. Why can't the witnesses tell what they know? The most tiresome parts are when the lawyers begin arguing about the testimony. One side wants the witness to tell something and the other side does not. The judge keeps still and lets the lawyers go on talking as though it were something important, perhaps he can not help it. The lawyers or the judge can not have much to do. The judge it is true is paid to listen, but the lawyers must be pretty hard up when they will go on talking in that way. No juryman would stay here wasting his time during business hours, and afterwards there are the newspapers, supper, and taking the family to the movies, all of which is far more sensible.
”Say, it's like a vaudeville show to see those two go on,” thinks the juryman. ”You couldn't beat it if you put it in an act. Georgie Cohan or Joe Weber could make their fortunes if they only hired the lawyers as actors or came into court for their material.”
Occasionally the judge calls the lawyers up to his desk and together they talk over something which the jury can not hear. The jury look as though they did not care. If they want to talk some more--well, let them. Perhaps they are planning some game, and the jury will wait until their turn comes. In the jury-room they can show them what's what; that is where they know their chance is coming. Even if the judge is only trying to find out something about the case, that is a sensible thing to do. Why don't the lawyers come over and talk to the jury like that? In a few minutes they could ask them some questions that would settle the whole matter.
The strange part is when a witness has said something and told how he or she feels about the whole case, which is exactly what the jury want to know, one of the lawyers jumps up and says he moves to strike that part all out and the judge strikes out. The lawyer having scored a hit, then says:
”I ask your Honor to instruct the jury to disregard the testimony just given.”
”Gentlemen,” says the judge, ”the evidence just given has been ruled out by the court and is not relevant to the issue, and I must instruct you to disregard these words of the witness and in arriving at your verdict not to consider them.”
Of all the absurdities that happen in court, the jurymen think that is the worst. Does the judge or the lawyer believe for a moment that because they say so the jury are going to forget what the witness said, especially when it was the very thing they wanted to find out?
They watch the stenographer and they notice he does not even take the trouble to cross it out of the notebook.
Occasionally a juryman becomes particularly interested and wants to question something. Usually he is too self-conscious to run the risk of being snubbed, but sometimes he is bolder and ventures a question.
”Why,” asks the juryman, ”didn't the defendant give back the goods if they were not what she wanted?” Both lawyers are on their feet. There is a mute appeal to the court; both sides are afraid to object to the question for they think the juryman may have a prejudice if he were stopped. The judge usually comes to the rescue and tells the juryman that he is sorry, but that his question is manifestly improper in form. The evidence should be whether the defendant did a certain thing or did not do it. The reason why he did it is not in point. After two or three attempts of this kind the juryman subsides and sits patiently through the trial without any suggestion. He thinks that there is a hopelessly complicated game being played before him and he does not attempt to interfere.
There may be some truth in the theory of the attorney who says:
”Always look out for the juryman who asks your witness questions. He is against you. If he absolutely believed the witness he would let it pa.s.s without questioning.” This reasoning may be used as an argument either way, for if the juryman believes the witness he may feel that he should like to have him tell more. Or if he does not accept him as truthful, he thinks it will not be worth while to ask him other questions. An inference may be drawn as to the juror's att.i.tude for and against.
An inexplicable thing to the jury is when the judge takes the case away from them and directs a verdict or dismissal of the complaint.
That the jury should be compelled to listen to all that ma.s.s of testimony and then at the end not have a chance to decide is unreasonable. If the plaintiff did not have a case, why did the judge let them go on? He should have found it out earlier instead of wasting all that time.
After the whole case is in, it may happen that both sides move for a direction of the verdict and then the jury have nothing to do. The judge says:
”Gentlemen of the Jury, I direct you to find a verdict for so-and-so.”
Before they have a chance to say whether they will or will not, the clerk announces a verdict for so-and-so. This is very annoying and discouraging, especially when the jury were going to find a verdict directly contrary to the way the judge decided. Technically they have a right to refuse to find a verdict as the judge directs, but if they did, only a mis-trial would result.
It is an ill.u.s.tration of the difference between the function of a judge and a jury. The jury pa.s.s on the facts, the judge on the law.
When the judge dismisses the case, he is saying that the facts may be so and what happened may be truly stated, but even then it does not make any difference. The law is that those facts do not make out a case. Only when the facts make out a case do the jury have any function. Then it is for them to find out whether the facts are as the plaintiff claims them to be or as the defendant. The jury are usually puzzled and do not understand the distinction. In certain cases the judge determines both the facts and the law and decides the whole matter. In those cases, and in what is known as equity, there are no jury, but a judge may always ask for a jury if he wishes one to determine the facts.
A jury is supposed to be advantageous to the defendant in a criminal action and to the plaintiff in a civil action.
”One judge is better than twelve,” says the advocate of the non-jury system. ”Law is a technical thing and you can not put a technical case plainly enough so that twelve men could thoroughly understand it.”
A discussion of the jury system is not in place. The jurymen have already been summoned and are in court and until the structure of the law is changed they will remain. They are ready to try any case that may come before them. The judge feels a sense of relief at not having to pa.s.s upon the facts. The law being laid down, all that remains for him to do is to see that the facts are fairly and plainly presented to the jury, that both sides conduct the case in a reasonable manner and that the trial be as open-minded as possible. The anxious att.i.tude of mind toward the jury is that of the parties who are to be judged, the lawyers and their clients.
The jury do not become very excited over the wrongs of one side or the other. They certainly do not enjoy the trial or look upon it as an example of a good fight although under the present system of procedure that is what it is supposed to be.
V
THE STRENUOUS LAWYER
Of equal importance in the cast are the lawyers. They play the parts that represent action. The judge and jury are the heavy characters.
The clients who make their entrances and exits as they take or leave the witness chair are of minor importance. The lawyers occupy the center of the stage the greater part of the time. Their clients sit watching, the judge and jury keep silent and listen to them.
In order to make a trial or a contest there must be two sides. There may be three or more lawyers, but usually they divide themselves into two groups and take sides. The attacking party,--the plaintiff, complainant, or prosecutor,--naturally the more aggressive, and the man who is defending himself.