66
The Green Bag
administration of various sorts in our different states, and on the reading of newspapers, magazines, and books in great variety, but rarely characterized by the scientific spirit of accuracy and thoroughness. I must beg you, there fore, to regard the following paper as the production of a well-meaning repre sentative of the general public who is quite aware that he has rashly invaded your professional province. JURIES ONE CAUSE FOR DISSATISFACTION A frequent cause of dissatisfaction with the conduct of criminal trials is the extreme difficulty in some states — Massachusetts is not one of them — of procuring a competent jury of twelve men. The public does not believe in the exclusion from a jury of all persons who say that they have formed an opinion on the case to be tried. In these days of newspapers and periodicals which not only print the news, but dis cuss all questions suggested by the news, every fairly intelligent man may be expected to have formed some opinion on any interesting case, a crude and imperfect opinion to be sure, but still an opinion. The only possible result of requiring exclusion for that reason is the formation of a dull and ignorant jury. From the exaggerated application of this principle great de lays result, many days, weeks, and even months being consumed in the operation of procuring a jury. It would be far better if the judge, and not the counsel, should put the questions to the proposed juror; and the better view is that the judge should decide whether the im pressions about the case which the juror has already received are such as to pre clude a fair verdict on his part, when the whole evidence in the case shall have been put before him, and that the judge's decision should be final and not
open to appeal. Under such conditions, the intelligent men on the panel would not necessarily be shut out. Among the evils attending the selec tion of jurors are excessive challenging and excessive excusing from service. The practice of different states differs in these regards, but experience has shown that peremptory challenges with out giving of reasons should be few except in major criminal cases, where the defendant's counsel may reason ably have many challenges. There is a tendency in judges to excuse competent persons from service on juries because they have business to attend to. The public believes that the general accept ance of this excuse may easily result in the impaneling of juries consisting mainly of incompetent men who have no private business of any consequence to do. The public also fears that in the long-drawn process of impaneling a jury there may be opportunity of get ting into the jury, by design of counsel, men who later could be bribed, or men who could be intimidated, and these suspicions impair the public faith in the traditional value of a jury trial. It would help to restore faith in that value if juries could be promptly impaneled from a large panel by the action of the judge. Many failures of justice have resulted from the dismissal of suits because of flaws in the indictments, and these fail ures are peculiarly exasperating to the intelligent public. To its thinking, an insignificant error in spelling or grammar or in describing a place or a person, should never be allowed to block the course of justice. An indictment need only have that degree of accuracy which will enable a sensible man to understand what is charged against the accused. Persons need to be described with that degree of accuracy necessary to unquestionable
