Page:The Green Bag (1889–1914), Volume 21.pdf/76

 Recommendations as to Judicial Procedure the light of recent cases in New York and elsewhere, is seen to be a farce. "One of the worst results of these cases is the growing opinion among the people at large that men with money can so delay jus tice by every sort of chicanery, that there is a virtual immunity from punishment for the highest crimes. I favor preventing appeals based on mere technical matters and upon errors of trial judges in trifling matters of procedure and the like, which have nothing to do with the question of guilt or innocence." The recommendation as to the certi ficate of reasonable doubt is taken from the New York Code of Criminal Proce dure, section 527. The change which the committee recommended, and which we thought an improvement, is this: Under the New York practice a certifi cate of probable cause may be granted by any justice of the Supreme Court. Under the proposed federal legisla tion such certificate can only be granted by a judge of the Appellate Court. Under the New York practice, and in view of the great number of judges having jurisdiction, the certificate of probable cause has become a matter of course. If one judge does not grant it, it can almost always be obtained from another. In effect, therefore, the re quirement is almost nugatory. It should only be granted by a judge of the Appel late Court, because it is that Court that is to pass upon the question finally. If the counsel for the culprit cannot ex parte satisfy a judge of that Court that there is merit in his appeal, it would certainly seem reasonable that the ap peal should not be taken. To succeed in it he must, after an argument in which his adversary is heard, convince the majority of the judges that there is merit. If he cannot, ex parte, produce such conviction in the mind of the single judge, it would seem clear enough that the appeal is taken solely for delay,

59

and this is the prevalent evil which should by all means be rectified. If this proposed change should meet with the approval of the bar of this state, it might well be recommended to the Legislature for adoption. In that case it should take the form of an amend ment to the section of the Code of Criminal Procedure before mentioned, which would read as follows:— {527. An appeal to the supreme court from a judgment of conviction, or other deter mination from which an appeal can be taken, stays the execution of the judgment or deter mination upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a justice of the appellate division of the supreme court, that, in his opinion, there is reasonable doubt whether the judg ment should stand, but not otherwise. And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. No judg ment shall be reversed, or new trial granted, on the ground of misdirection of the jury or the im proper admission or rejection of evidence, or for error on any matter of pleading or procedure, unless, in the opinion of the appellate court, after an examination of the entire cause it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. We come next to the first recommen dation of the Committee of the American Bar Association which proposes to add to section 1011 of the United States Revised Statutes, which deals with the power of Appellate Courts, the following clause :— No judgment shall be set aside, or new trial granted, by any court of the United States, in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an exami nation of the entire cause, it shall affirmatively appear that the error complained of has re sulted in a miscarriage of justice.