Page:The Green Bag (1889–1914), Volume 25.pdf/78

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A Layman's Views on Law Reform identification; and the crime needs to be described with only that degree of accuracy necessary to prevent a verdict of "not guilty" from leaving the defendant liable to a second trial on a somewhat different description of his offense. When a trial has aborted because of some flaw in the indictment, the law declares that the accused can be rein dicted and put on trial; but there will always be delays, and as a matter of fact reindictment is extremely rare. When the English criminal law in for mer centuries would hang a boy for poaching or stealing a handkerchief, English judges were glad to use flaws in the indictment as means of saving life, but no such excuse can be given today for the conspicuous defeats of justice caused by dismissing cases because of trivial flaws in the indictments. Motions for new trials on unsubstantial errors which could not have affected the just results have a similar effect on the average American mind, an effect much increased if the new trial granted is long postponed. It is of great im portance in regard to the effect of new trials on the public mind that such trials, for whatever reason granted, should come off quickly, instead of being post poned, as they often are in this country, for a year or two; for the American public has come to regard a new trial as an advantage which the rich can often procure, and the poor cannot. Such postponed trials seem to the public peculiarly discreditable examples of the law's delay. CONTENTIOUS ATTITUDE OF COUNSEL The common contentious attitude of counsel in a lawsuit, and the common attitude of the judge as the umpire in a game, have done much to discredit the administration of justice in the United States. Counsel do not seem to the


American public to be officers of a court seeking for truth and justice, but players of an unethical, intellectual game. The judge seems to regard himself — often perforce — as a mere umpire between contending parties, and not as an agent of the commonwealth to settle con troversies on their merits. The Ameri can public has lost some of its old faith in the judge as a protecting agent for carrying out the substantial require ments of law and justice. Some con siderable portion of the public from time to time gets much interested, through the newspapers, in this game of counsels umpired by the judge. They admire and applaud the ingenuity and spirit with which counsel take technical points for their clients, and the public press often sympathizes with and encourages this misdirected admiration. Of course, the best men in the practice of the law do not insist on technical points in favor of their clients, but rather waive them, and the best judges try to control counsel and direct the course of justice, so far as state statutes permit. Unwise legislation is largely responsible for the particular evil now under consideration, and in recent years there has been much legislation intended to reduce the power of the judge over the procedure in his court. Law yers dissatisfied with the control exercised over themselves by individual judges have originated some of this pernicious legislation.. Much of the injurious prolongation of testimony, cross-examination and argu ment in American courts is due to the fact that the judges have been deprived of effective control over counsel. It is an important function of a good judge to abbreviate testimony by excluding the irrelevant and to limit cross-examina tion and argument. To this end judges should be independent and well paid, appointed to serve during good behavior