Page:Popular Science Monthly Volume 47.djvu/389

Rh intelligence, and courage to reach unbiased conclusions in accord with the facts. In reality the practice is to gather men who can be influenced by the counsel—men possessing some defect and weakness which can be taken advantage of by one side or the other. The issue of the case will depend on the influences which can be brought to bear on the jury. Usually, jurors are rejected when they swear that they have formed an opinion; but when they assert that such opinions are subject to change from evidence and are not fixed, they are accepted. The real qualifications would seem to be availability, credulity, ignorance, and possibility of personal influence by persuasion, flattery, and appeals to some personal bias that may be known. Each counsel is interested in selecting twelve men he can influence to his view of the case, or, in the court language, "men he can handle readily." It is unfortunately true that jury duty is evaded by the best men, and to a large extent the men who are willing to serve in this capacity are more or less incompetent. In the cities, idle men and professional jurors are always available. In country towns, farmers, mechanics, and others find the jury duty a recreation, and a not unpleasant change from the monotony of their life. While these men are superior to the city jurors in honesty, they are less able or accustomed to the confinement of rooms and the emotional appeals of partisans.

It is evident to any general observation that the average jury is unable to pass judgment on, or even to comprehend in any adequate way, many of the questions submitted to it—such as motives and capacity of the mind and the power of control; the analysis of conduct, and the conditions and influences which have been dominant in certain acts; the application of the law, and the distinctions of responsibility and accountability; the distinctions of science as to the meaning of certain facts, or the recognition and discrimination of facts from the mass of statements. To this incapacity are added the passionate appeals of opposing counsel, who draw the most opposite conclusions from the same set of facts. Then the judge charges that if they shall find such and such conditions to be true, they shall bring in such and such a verdict; and if such and such conditions are not true, another verdict must be given. This brings them into a state of the most bewildering mental confusion, from which only the trained judge could extricate himself. The wonder is that they are able to reach any verdict that even approximates the levels of human justice.

These facts are recognized by all observing men, and have been the subject of serious discussion for a long time. It has not occurred to any one to consider the conditions and surroundings of the jury who are to decide the great questions of life and death