Page:The Green Bag (1889–1914), Volume 09.pdf/124

 Beyond a Reasonable Doubt.

99

T

before them, may seem reasonable to men puzzled by many arguments. This appeal to numbers indicates an appre ciation of the practical side of the theoretical principle that a verdict should express the individual conviction of each juror. It bids him to think not as one man but as one of twelve men. Although the words were ably framed to come within the principle of per sonal convictions of fact, their tendency in the minds of practical men is to lead them to substitute persuasion that the majority are most probably right for conviction that the prisoner is guilty, or that he is not guilty, orthat it is impossible to believe either. Nor is this an evil under the circumstances. It counterbalances the extreme tendency to a disagreement stimulated by introspective questions concerning reasonable doubts. It helps the doubter to consider whether his doubt is big or little; and it leads him to consider how much greater, in force of mind and experience, than his own doubt of the correctness of the majority, is the majority's doubt of his own position. When he hesi tates because every material thing must be proved beyond a reasonable doubt upon which a verdict is to rest, and because cer tain things do not seem to him to be so cer tainly proved, his judgment is apt to accom modate itself to the opinion of the majority by treating those details as either of less im portance than others in which he agrees with the majority, or as to be accepted because consistent with those others. The view of the whole affair under consideration is usual ly the controlling view, as distinguished from particular uncertainties. Men are in the habit of trying to reach the meaning of situ ations and of acting upon them in everyday life. Thus they risk their fortunes, their lives and their chances of happiness. It would be unnatural if they were not disposed to act accordingly when serving as jurymen even when instructed strictly. And of course un der such an invitation, as the charge above given contains, to be candid, the average

mind would be inclined to think: since I agree with the majority that the prisoner is guilty, or not guilty, why should I think any more about my doubts whether they are rea sonable or not? If I do not think about them, I shall not have them. I know what I believe, and I am certain that it is true. This result is often reached by a decision to believe or to disbelieve entirely one or another witness whose testimony, if received, furnishes points then regarded as settled, if rejected, needs no further consideration. But there are minds of a different make to some of whom a suggestion to agree with a majority, or even to consider numbers at all while deliberating upon the evidence and its meaning appears to be absurd, to others of whom such a suggestion seems wrong. Candor or no candor, they say, the opinion of another man is irrelevant to what my opinion should be. I will listen to it, but what of it? If it seems to me to be a better explanation than mine, then I may be influ enced by it, but the mere fact that it is an opinion of somebody has nothing to do with the question what I shall think. These are the minds that have to be really con vinced, or that have to convince their fellows. When they do not succeed in one or the other they disagree and there is no ver dict. The charge above referred to was a sup plemental one given to a jury which after an absence of several hours had not agreed and was consequently sent for by the judge, who instructed them in that manner. Then they went out again and brought in a ver dict of guilty. The prisoner's counsel ob jected that the verdict had been thus in a manner forced by the court. Although the charge has been followed by other courts and approved by the highest authority in the country, there are lawyers who do not ap preciate it. They object to any influence towards forcing or persuading the jury to agree, especially after they have been out for a considerable time. They say that it is