The Rule-Ridden Game

by Melville Davisson Post

The Rule-Ridden Game

By Melville Davisson Post

AN EMINENT American jurist was recently the guest of a foreign representative at a country house in one of the fashionable colonies of New England. After dinner in the library the lawyer noticed a shelf of volumes on chess.

"This must be the most complicated game in the world," he said, "with so many books of rules."

"By no means," replied the host; "the most complicated game in the world is played in your profession."

He indicated the bookshelf.

"There are a dozen volumes on the rules of chess, but there are a thousand volumes on the rules for the conduct of a criminal trial in an American court."

This was no exaggeration. There is a rule, with its interminable refinements, for every step in a criminal trial. Sixteen years ago the state library of Pennsylvania contained the works of fifty authorities on the single subject of evidence—that is, on what a witness may say and how he may say it. These works were often in several volumes of from five hundred to a thousand pages. Roughly, a hundred volumes of fifty thousand pages on the rules for a single phase of a legal trial!

Since that date a great number of volumes have been printed on this group of rules. Wigmore alone has written four volumes on evidence, and he has assembled thirty-four thousand cases construing and interpreting their refinements. The Cyclopedia of Law and Procedure alone contains thirteen hundred pages citing sixty-five thousand cases on this one subject.

It seems strange that in our long familiarity with the procedure of criminal trials we have not observed that they degenerated into mere rule-ridden events. The counsel for the state plays on one side, the attorney for the prisoner on the other, and the judge is the referee. The object on the part of these players is to win. The interest of the judge is so to conduct the game that he will have made no mistake in the application of the rules. And the thrills are ample. There is fame to the players, and there is life or death turning on the issue.

Let us think about the moves in this extraordinary game for which the rules are so innumerable. The moment a capital crime occurs, the criminal employs the ablest counsel he can get. The relatives of the dead man, if they are important persons, retain the best lawyer they can find to assist the public prosecutor, and the game begins.

The first move is to bring the prisoner before an examining magistrate, in order to have him committed to jail to await the action of the grand jury. This examining magistrate is almost always an official that the public prosecutor can control. One was recently asked to separate the witnesses before him. And he replied, addressing the prisoner:

"They are separated—your witnesses are here, and ours are in the other room!"

Rules and Forms

HE DOES not decide on the guilt or innocence of the prisoner. He merely determine! whether there is proper cause to hold him. Now, even in the first stages of the game, before this magistrate, the players begin to move for points. The prosecutor does not wish to show his hand. It is his purpose to have the prisoner committed on the least evidence possible, while it is the purpose of the player for the prisoner to find out, at this hearing, all that he can about the state's case. He will, therefore, minutely examine every witness against the prisoner. But when he has found out all about the case for the prosecution, he will waive the examination on his own part; that is to say, he puts none of his witnesses on the stand. He keeps his side of the case a mystery, knowing very well that there is no chance for the release of his client, and that to develop his case will be to uncover his side of the game.

The prisoner is committed to await the action of the grand jury, and an indictment follows. With this part of the proceeding the counsel for the prisoner has nothing to do. It is a move in the game exclusively in the hands of the prosecutor.

But when the indictment is returned and the case is put on the docket, the attorney for the prisoner again takes up the game. There are certain minute rules governing the forms and procedure of the grand jury, all of which must be exactly observed in order to make its finding legal. A single volume of a good digest cites four thousand cases on the refinements of the rules governing precisely how a grand jury is to be organized and its work conducted in order to be able to return a legal indictment.

The attorney for the prisoner begins his game in court by endeavoring to find some violation of these technical requirements that would invalidate the act of the grand jury in returning an indictment against his client. If the attorney for the prisoner succeeds, the judge annuls the work of the grand jury, and the game begins over again. If he can find no flaw along these lines his next concern is to attack the form of the indictment. This is a highly technical paper; its i's must be dotted and its t's crossed. If it varies in the slightest degree from the minute rules governing its structure the judge must annul it.

The technical requirements of this paper are past belief. It must begin with certain words and end with certain words; as, for instance, an indictment for burglary in certain jurisdictions is not valid unless it contains the word "burglarious." The books are crowded with instances where the indictment has been annulled because of some incorrect word or abbreviation, as where an indictment read "against the peace and dignity of W. Virginia," instead of "West Virginia."

We are told that the purpose of the indictment is to inform the prisoner of the nature of the crime of which he is accused. But such is no longer the object of this paper. The object of this paper is to charge the accused with the greatest crime that his criminal act can be construed to fit; for it is a greater renown to the player for the state to hang his man than to have him sentenced to penal service. And the prosecuting attorney must so draw this paper that it will not be subject to any controlling technical objection that the counsel for the prisoner may be able to find in the record of any criminal trial running back through all the law books to the reports of the King's Bench.

This is a closely contested point in the game.

If the public prosecutor accomplishes these two purposes, he wins. If the player for the prisoner can find any required detail wrong in this paper, in the light of the thousands of cases that are supposed to define its structure, he wins, and the whole thing must be begun over again.

The Intricacies of Indictments

LITTLE boys have a rule in the game of marbles that if one says "fen dubs" the player about to shoot can take only one marble out of the ring, although he may strike two out with his shot. There is a like rule in this law game. If the prosecutor puts a name or date in his indictment, he must prove that name or date unless he first says the words "to wit." If he writes the words "to wit" before the name or date, then he is not bound to prove that exact name or date.

The rules of the game are rigid about these little words.

Indictments have been annulled because, in their direct description of the crime, they began with the word "whereas." The presence or absence of these little words may enable the player for the prisoner to win an inning, overturn everything that has gone up to this point, and force the game to start over again. All these early moves are like the start in a horse race. If the attorney for the prisoner can show to the referee—that is to say, the judge—that there has been any contravention of any one of the innumerable rules, then the horses must be rung back and a new start taken.

The average man will never realize what an extremely technical paper the indictment is, and how the rules in it must be observed against all common sense. It is one of these rules that the venue—the place where the crime is said to have been committed—must be stated in the indictment and must be proven at the trial. In Campbell County, Virginia, a prisoner named Anderson was put on trial for murder. The evidence showed that the murder took place at Anderson's store, about one-quarter of a mile from Lynches Station. The indictment did not say the murder was committed at Lynches Station and that Lynches Station was in Campbell County. It alleged the murder simply to have taken place in Campbell County. It was so well known to everybody that Lynches Station was in Campbell County that it never occurred to anyone formally to introduce evidence in proof of that fact. Nevertheless this was a violation of the rules, and the Supreme Court reversed the verdict, holding that it would not take judicial notice that Lynches Station was in Campbell County, and sent the case back for a new trial.

In those states retaining modifications of English common-law pleading the indictment in criminal cases must be drawn with great care and skill. As a new public prosecutor is elected every two or four years, the chances are great that these highly formal papers will very often be not precisely according to the rules, and a skilled lawyer will be able to get a new start for his client.

Assuming that the prosecuting attorney has been able to advance thus far, strictly according to the innumerable rules that he must be careful to follow, he has not yet got the game started. If the judge says the indictment is all right, the question of setting the date for the trial comes up. So far, then, the players have been merely getting ready for the game. Now that the game is determined on, one side wishes to play it at once and the other to put it off as long as possible. Public interest wanes, witnesses drift out of the country and are lost sight of, and the chances increase in favor of the prisoner.

Here the ingenuity of tricksters con-stantly appears in our criminal trials.

They pretend to find witnesses in distant parts of the country, who cannot be gotten into the state early enough for the trial at this term. Certificates of physicians are presented, showing that important witnesses are too ill to attend the court. The papers in the case are sometimes taken from the clerk's office and mislaid, and thousands of subterfuges are brought forward to postpone the date of the game. If the attorney for the prisoner is able to come within the rules with any of these plans of delay, the trial goes over to another term of court. And there are plenty of rules to govern these subterfuges. Go into a criminal court and observe the array of cases that any lawyer can assemble in support of his affidavits for delay! This strategy may go along over a considerable period before the case is set down for trial.

Even after the judge fixes the day on which the delayed game is to be played out before him, this preliminary strategy is not ended.

A jury must be selected. Ordinarily one would think that it would be no trouble to select twelve men to hear a case. But so exacting are the rules that in a capital case of importance it is a matter of the greatest difficulty to get a jury. Hundreds of talesmen are examined. Sometimes this examination goes on for weeks. The whole panel may be interrogated without getting a single juror. It has cost as much as thirty thousand dollars in some cases to get a jury. The result of the minute technicality of the rules governing this feature of the game is that citizens competent for jury service are sifted down to the most unintelligent, and the administration of justice is thereby turned over to the most ignorant and most irresponsible persons in the community.

When such a jury is selected, the trial finally begins. Everything up to this time has been merely preliminary. At last the game is called to be played before a jury of the most unintelligent persons that the attorney for the defendant has been able to get on it, and before a referee whose sole concern is so to conduct the game that he will not violate any of the rules.

Catching the Court in Error

A GOOD judge, under the modern conception of the game, is not one with a broad idea of human justice or with a sound and far-reaching common sense, but one who knows the rules! This is the oldest game in the world. There is a rule for every word and act in it. There is little time for the judge to look up these rules after the game opens. He must know them if he would not have the Supreme Court reverse him.

It will be the primary object of the attorney for the prisoner so to conduct his case that the judge will make some mistake in his application of the rules. This moving object is always before the attorney for the prisoner. He never ceases, from the first moment to the last moment of the trial, to endeavor to maneuver the judge into some error. It must be remembered that every word and act in this game will be taken down precisely as they occur; afterward they will be written out, and after that printed and sent up to the Supreme Court. There the Supreme Court will go over every detail of the proceedings, and if the judge has made any mistake in the rules, the court will send the whole thing back to be played over again.

It should bo carried in mind that in a single state like Pennsylvania some five thousand cases are heard every year, and that some refinement of the rules is dealt with in at least fifty per cent of them. A volume as big as an unabridged dictionary, containing thousands of pages, is sometimes written on the interpretation of one of these rules.

There are forty-eight states in this republic. A single court of last resort in each of them turns out an average of four volumes of reported cases. There are over three hundred cases to each report, with a total of some thirteen hundred cases. In all, sixty thousand cases are turned out by the state courts of last resort alone. The Federal courts add ten volumes, of some forty thousand cases, to this mass. At least one-half of these cases touch on the rules. Fifty thousand cases on the rules for legal procedure! And all this in a single year.

If all the rules governing the conduct of a legal trial, as explained in what are called textbooks and interpreted in the reports of courts of record, were assembled in the public square, they would make a heap as big as the court house.

And within their pages would be found every variety of construction, interpretation and refinement of which the ingenuity of the human mind could conceive. So that "’twixt its north and northwest side" a hair can be very cleverly divided in an American court.

The Longest Way Round

IT must follow that the consuming object of the trial judge is to try to conduct the game according to the rules. He cannot be concerned with anything else. With these innumerable rules and their refinements, and with the skilled player for the prisoner endeavoring constantly to get into the case some error that will enable him to ask a court of review to set the whole thing aside, in the event that his client is convicted, how can the presiding judge regard the merits of the trial?

His whole attention must be centered in one consuming purpose—to make his conduct of the case stand, upon review by the court above him.

Many of these rules are so extraordinary as to strike us with wonder.

One would ordinarily think that if a man were suspected of a crime the practical way to get at his guilt or innocence would be to make him explain all the suspicious circumstances with which he seemed to be connected. This would be the direct, common-sense way of getting at the thing. But it is not the way the game is played? A man suspected of having committed a crime is the one person connected with the whole affair who is not required to explain his suspicious acts! Every innocent bystander is haled into court, put on the witness stand and grilled. The remote, intimate details of his life are gone into. He is insulted and flayed. His motives are questioned, and every event in his life that may be thought to affect his credibility as a witness is dragged into the open. And all this happens while the prisoner charged with the crime is not required to open his mouth about it.

It would be simple and direct to question the prisoner, but that would not be according to the rules. And one must follow the rules, as Tom Sawyer explained to Huck Finn, in a scene of immortal memory. The direct Huckleberry wished to effect the escape of Jim, the runaway slave, by prying off the staple on the cabin door. But Tom Sawyer stood for the regular practice.

 

"No; the way all the best authorities does, is to saw the bed leg in two, and leave it just so, and swallow the sawdust, so it can't be found, and put some dirt and grease around the sawed place so the very keenest seneskal can't see no sign of its being sawed, and thinks the bed leg is perfectly sound. Then, the night you're ready, fetch the leg a kick, down she goes, slip off your chain, and there you are. Nothing to do but hitch your rope-ladder to the battlements, shin down it, break your leg in the moat—because a rope-ladder is nineteen foot too short, you know—and there's your horses and your trusty vassles, and they scoop you up and fling you across a saddle and away you go, to your native Langudoc, or Navarre, or wherever it is. It's gaudy, Huck. I wish there was a moat to this cabin. If we get time, the night of the escape, we'll dig one." {[dhr]} The prisoner can stand silent, for it is one of these rules that not only is he not required to explain his suspicious acts in the affair but that no inference shall be drawn against him because he refuses to explain them.

Nobody is able to see to-day how one charged with a crime could be injured by being compelled to explain the circumstances that seem to bring him under suspicion. If he were innocent, one would imagine that he would be anxious to make this explanation. If he were guilty, then the determination of his guilt would be the quicker arrived at, and in the more direct fashion.

One would naturally think that if a man's handwriting were in question, the best way to settle it would be to bring in a genuine sample of his writing and compare it with the disputed paper. But, no, this would be simplicity—and all things simple have been carefully eliminated from the game. Many state and Federal courts do not permit this method. One must go round about it with experts.

This is always involved and sometimes ridiculous.

In a case in Philadelphia an expert was handed a sample of handwriting and asked to say how it was executed. After a long lecture he said that the writing had been done with what is called the forearm movement. It was then shown that the sample had been written by a freak at Atlantic City, with his foot.

It is another rule that nothing can occur unless the prisoner is present in the court room at the time—that is to say, that no sort of evidence can be heard. His attorney may be present, and what goes on may be of no importance whatever, but if by any chance the rule is violated the case will be sent back to be tried over. In the case of the State vs. Sheppard the following questions were inadvertently asked when the prisoner was not in the court room:

"What is your name?"

"Flora Ayers."

"What is your husband's name?"

"Jont Ayers."

The attorney for the prisoner joyfully observed this infraction of the rules. He called the attention of the court of review to it when the case was taken up after trial, and the Supreme Court solemnly reversed the case and sent it back for retrial.

Objections and Exceptions

IF one examines a printed record of a criminal case or if he goes to the court room he will find almost every question put to an important witness by the prosecuting officer to be followed by a cabalistic dialogue.

"I object," says the attorney for the prisoner.

"On what ground?" inquires the judge.

The attorney for the prisoner will then cite some one of the thousand technical refinements that he pretends to believe the question violates. A single formal objection in the same words was repeated in a recent case four thousand times. The judge must instantly guess whether the form or substance of the question does, in fact, violate any one of these refinements, and which side the court of review will take with respect to it. He cannot be certain, because the supreme judges are not themselves certain. Out of seventy-seven consecutive decisions rendered by the Supreme Court of the United States, twenty-nine were given by a vote of five to four, and forty-six by a vote of six to three; in only two instances did as many as seven out of the nine justices agree.

The judge makes his guess and replies accordingly "sustained" or "overruled." If he says "overruled" the attorney for the defense says "exception," which means that formally, in the printed record, he asks the court of review to say whether or not the judge was right on this particular guess. Thus the printed record of the case goes up with multiplied thousands of these instances where the judge had quickly to guess on the rules. And day by day, as the case progresses, the chances increase that somewhere along the line the judge will guess wrong. An examination of the cases reversed by the New York State Supreme Court, running along over a considerable period, showed that fifty per cent of the cases had been reversed.

The average man never hopes to understand the rules governing the introduction of expert testimony. It is not proper to say to the expert witness:

"Is it your opinion that the prisoner's shot killed the dead man?"

Such directness would not be tolerated for a moment in this game. In order to get the surgeon's opinion as an expert witness, when he has no direct knowledge of the case, one must suppose a case that is just exactly like the real one, and then ask his opinion about the supposed case. You may possibly understand why, if you will wade through the thirteen hundred cases cited by Wigmore alone in a discussion of the hypothetical question.

The Hypothetical Question

THIS infantile subterfuge has no effect on anybody. But it helps to complicate the game, because in the supposed case put to the expert witness must be included every material fact that is contained in the real case, and there is always a chance that in making up the question in the supposed form some one of these material facts may be omitted or by inadvertence something may be included that is not precisely in the real case.

One can see the latitude that this device gives, and the chances of getting in some one of the desired technical errors. This rule, that the hypothetical question put to the expert must include all the material facts in the case, leads in many instances to the most palpable absurdities. A single hypothetical question will sometimes run to two or three thousand words.

One listening to expert testimony in a criminal trial is constantly reminded of the verisimilitude of Mr. Dooley's report of the Leutgert case: {[dhr]} '"Profissor,' says th' lawyer f'r the State, … 'measurin th' vat with gas—an' I lave it to ye whether this is not th' on'y fair test—an' supposin' that two feet acrost is akel to tin feet sideways, an' supposin' that a thick green an' hard substance an' I dare say it wud; an' supposin' you may, takin' into account th' measuremints—twelve be eight—th' vat bein' wound with twine six inches fr'm th' handle an' a rub of green, thin ar-re not human teeth often found in conthry sausage?'

"‘In th' winter,' says the profissor." And then he qualifies his answer: "‘But th' sisymoid bone is sometimes seen in th' foot, sometimes worn as a watch charm. I took two sisymoid bones, which I will call poker dice, an' shook thim together in a cylinder, which I will call Fido, poored in a can iv milk, which I will call gum arabic, took two pounds iv rough-on-rats, which I rayfuse to call; but th' raysult is th' same.'

"Question be th' coort: 'Different?'

"Answer: 'Yis.'" {[dhr]} And after days of this sort of thing one wonders with the philosopher of Archey Road "where th' jury gets off" and what it can possibly learn from these polite discussions, "where no wan is so crool as to ask what anny wan else means."

So complicated does the simplest question become that nobody could answer it correctly unless he qualified his answer in a thousand directions, like an essay of Mr. Henry James in his latest manner. All this brush thrown into the trial of a case serves to obscure the justice in it and inevitably increases the chance that some technical error will occur that will cause the court of review to reverse the whole thing.

After the case is argued, the rules of the game require that the judge shall instruct the jury. In some states the judge reviews the testimony, but in many jurisdictions he is not permitted to comment on the evidence and is required to give his instructions on the law in writing. And so it happens that a skilled attorney will get before a jury a mass of written instructions that they are wholly unable to understand.

Ordinarily everybody knows what "reasonable doubt" means, and what the law means when it says that the prisoner cannot be convicted if the jury has a reasonable doubt of his innocence. But when the judge gives a dozen instructions on reasonable doubt it is clear that nobody could understand what it meant.

Saint Augustine, when questioned about a doctrine of the church, said:

"If you ask me, I don't know; but if you don't ask me, I know very well."

The result is, in any important case, that the confused jury goes out to find a verdict, taking with them an armful of instructions. Half of these instructions will tell them that if they believe certain things, they must find the prisoner guilty, and the other half will tell them that if they believe other things, they must acquit the prisoner; and sometimes these instructions will be so drawn that, upon the statement of the same beliefs, one instruction tells them to acquit the prisoner and the other tells them to convict him. So they do not know what to do and probably toss up a penny on the verdict.

The judge cannot refuse to give these instructions, because it is the right of the prisoner in this game. On the other hand, if he gives an incorrect one, or one that is not precisely according to the rules, the whole trial is apt to be invalidated. And this phase of the procedure is so cluttered with rules that a single modern authority cites five thousand cases that are supposed to construe and define them.

How Rules Defeat Justice

THEN, when the thing is over, if the prisoner is found guilty and sentenced, the record of the whole trial from the beginning, together with every word that was said, is put together into what is called the record. This is printed and taken to the court of review. In the courts of the United States this is a matter of right, and the thing can be taken up without the permission of anybody. The judge must allow the appeal. In some state courts cause must be shown for the appeal, but this rule does not greatly disturb the skilled attorney for the defendant.

In a long, complicated trial he is sure to find something sufficient to bring him within the rules permitting the appeal.

The printed proceedings are now gone over by the Supreme Court, and if it finds that the game has not been played according to the rules it sends the case back to be tried over again. The expense connected with this is appalling. The mere printed record sometimes contains thousands of pages and a number of volumes. The case is argued by the attorneys, printed briefs are submitted.

The game now becomes one of finding some error in this record. The case is examined on the record. The parties have been lost sight of. The primary elements of justice are in the background, the whole thing is now a question of rules. The truth of this statement was appallingly illustrated in the Medley case.

A prisoner was convicted of murder in a state court and sentenced to be executed, but before the date fixed in the sentence the legislature of the stale changed the rules by which the death penalty was to be carried out.

For this reason the prisoner appealed to the Supreme Court of the United States. That court could find absolutely no error in the trial of the prisoner and no reason why he should not be executed for the cold-blooded murder that he had committed. But, because the rules governing the method by which he should be executed had been changed, the Supreme Court of The United States set him at liberty!