Page:American Journal of Sociology Volume 4.djvu/650

 CRIMINAL ANTHROPOLOGY IN ITS RELATION TO CRIMINAL JURISPRUDENCE.

II.

The principal phases of criminal law and procedure to which the criminal anthropologists have directed their attention maybe included under two divisions — those relating to procedure and those relating to law. Under the first may be enumerated discussions of the jury system, expert testimony, evidence of accomplices, incriminating evidence, insanity and allied defenses, burden of proof, and appeal ; while the second may comprise discussions of habitual criminal acts, indeterminate sentence, public trial, education and qualification of judges, attorneys, and wardens, and carcerial regulations. The crim- inal anthropologists have not been content merely to recognize existing evils. In submitting these proposed changes, they recognize that, when any system has obtained undisputed possession in a country for many years, it has acquired the prescriptive right, and that, if anyone seeks to alter it or substitute a new one, the innovator is bound to show, not only a probability that the new will succeed and be superior to the old, but that it will save for the government and require no new expenditure ; hence the reforms proposed are not revolutionary. The first discussed is that relating to the jury system.

By the United States' and by the various state constitutions it is provided that criminal trials shall be by a jury, which shall consist of twelve citizens, chosen in the district in which the case is to be tried. The verdict must be unanimous, based upon the facts presented in the evidence. The privilege is substantially the same in nearly all of the states. Of the various reforms which have been suggested by thinkers along all lines, that relating to the jury system is best known and has received the strongest criticism. From the point of view of criminal anthropology, the system is not characterized as inherently evil; the criticism applying rather to the degenerate condition into which it has been permitted to lapse. Legislation, while retaining the common- law form, has changed the practice into one of the most fruitful sources of crime. As it now exists, it is inconsistent with any theory of a scientific legal system. Originally jurors testified and decided the issue upon their own knowledge, and were selected from the

630