Page:The Green Bag (1889–1914), Volume 17.pdf/654

 THE ADMINISTRATION OF THE JURY SYSTEM

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THE ADMINISTRATION OF THE JURY SYSTEM1 BY HON. HENRY B. BROWN AN experience of thirty years on the Bench, one-half of which were spent in •courts of original jurisdiction, and the other half in an appellate court, could not fail to call attention to certain departures from the ancient common law methods, which have crept into the trial of jury cases. Of the great body of American law, I have little criticism to make. It is founded upon principles of natural justice, and consorts well with the habits and traditions of the people. Such amendments as local con ditions require, such pruning of ancient usages as the gradual progress of civilization suggests, the legislatures are usually alert to make in response to a popular demand. If there be any error in this particular, it is usually in the direction of conservatism. Perhaps the most startling of these inno vations in the practical administration of justice is the abolition, except in special cases, of grand juries in about one quarter of the states, notably Connecticut, Michigan, California, Missouri, Indiana, Nebraska, Oregon, Utah, Colorado, and Wyoming. Grand juries were undoubtedly of great value in the days when criminal proceed ings were private affairs, and a body of intelligent and disinterested men was needed to stand between the accuser and the accused, for the protection of the latter against unfounded and malicious charges. But the assumption of criminal proceed ings by the state, and the appointment of attorneys charged with the duty of prose cuting only those who are held to bail by an examining magistrate, upon proof of prob able cause, has been found in practice to afford ample protection to the accused. Indeed, as the accused may introduce evi dence before the magistrate to disprove the 1 Response by Mr. Justice Brown to a toast at the annual banquet of the American Bar Associa tion at Narragansett Pier, August 25. 1905.

existence of probable cause, he is even better protected than he is by a grand jury, which listens only to evidence of his guilt t given in secret and with no opportunity for explanation. The system of prosecuting felonies by information has obtained in Connecticut for eighty years, and in Michi gan for over fifty years, and so far as I know, no voice has ever been raised for the restoration of the useless and expensive procedure by indictment. If there be a lawyer in Michigan who advocates it I have never heard of him, although for several years it was my duty to deal with grand juries in the Federal Courts of that state. Whatever changes in the common law are accepted without protest and continued for years without complaint, may be looked upon as well within the line of safety. A wise provision' of the Michigan law permits grand juries to be summoned at the discre tion of the court, where their inquisitorial character has been found of value in the unearthing of frauds and the abatement of nuisances. A like reception seems to have been accorded to recent statutes of a majority of the Trans-Mississippi states abolishing, or permitting the legislature to abolish, the rule of unanimity, and allowing juries in civil cases to return a verdict by a threefourths or five-sixths vote. The advan tages of this system seem to largely out weigh an occasional hardship. I say this, notwithstanding the fact that in a few in stances I have known the odd man to be clearly right; but as a rule well-nigh univer sal, a minority of two or three will refuse to agree upon grounds quite irrespective of the merits of the case. If the requirement of unanimity occasionally saves an unjust ver dict against a corporation, in a great number of cases it prevents a disagreement, which is often as disastrous as a wrong verdict.