Sometimes it may be a question as to whether our own ironclad rules in excluding evidence do not offend against justice to the other extreme. Counsel on neither side may ask questions. If a lawyer thinks a question should be asked he proposes it to the judge. The latter will, if he thinks it proper, ask the witness. The judge alone interrogates the witness. The taking of testimony proceeds very quickly; in a seemingly unrestricted course, each witness telling all he knows in his own way. At times, the judge instead of asking the witness, will turn to the counsel and ask him what he has to say about certain statements. The defendant himself may interpose with a contradiction, a statement or protest. All happens, however, though earnestly done, with decorum. With us the contradiction must wait until in the minds of the juror, a statement may become solidified into established fact. What seems remarkable to a lawyer trained in our own courts is the fact that the witness is allowed to go with little or no cross-examination; a half dozen questions by the presiding judge and he is dismissed. That too has an explanation; on the desk before the judge and in the hands of counsel is the dossier of the "Juge d'Instruction" which contains the result of often prolonged and grinding examination of the particular witness. The trials are very short. After the admission of evidence the Procureur de la Republique who is the prosecuting attorney, makes his argument. He is followed by counsel for the defendant. The judge does not instruct the jury. He asks the jury to find affirmatively or negatively upon certain questions which he submits to them. At times the jury are required in their declaration, as the verdict is designated, to answer as many as 20 questions. The presence of substitute jurors during the entire trial obviates the possibility of a mistrial on account of the illness or incapacity of any of the 12. In the affaire Hoff, which we attended, a boy of 17 years was accused of a brutal murder to which accusation a defense that the deceased had attempted a criminal assault was interposed. The trial began at 12.30 P. M. with the selection of a jury and ended at 4.30 in the afternoon, many witnesses having been heard. The jury submitted their declaration, i. e., to the question: Did the defendant commit the act? Yes. Was the act in self-defense? No. Was he mentally responsible? Yes. Were there extenuating circumstances? Yes, on account of youth. After the verdict, the prosecution asked for the guillotine as the murder was peculiarly savage and was done for money. The advocate for the prisoner pleaded for mercy. The judges retired and after 15 minutes' deliberation pronounced a sentence of seven years in the penal colony at Guiana. In accounting for the smaller number of crimes in France, it must be kept in mind that the Republic has only four cities with a population of more than 250,000 and that 35,000,000 out of 40,000,000 of French inhabitants live in small villages, on farms or in country towns and all in places where their ancestors have lived through generations. Every one's life proceeds under scrutiny. The French character itself must be reckoned with. It is not without plain significance that the laws of France carefully plan and in extreme cases scientifically apply disgrace and exile as a penalty. One can imagine the humiliation of an offender in a community where he is well known being forbidden to take part in the family council, an institution long known to the civil law. Furthermore, another penalty of the French law recognizes a dominant trait in the French character, his love for his native town and his love for France; exile from France is a penalty. Your committee heard in the trial of a case counsel for the defendant plead so eloquently to the judge for a sentence of less than seven years for his convicted client, that tears were brought to the eyes of dozens of listeners. The sentence of more than seven years carries with it the punishment of perpetual exile. The French proceed according to a direct natural method. There is no presumption of innocence. There is no presumption of guilt. Former decisions of the court do not control the case on trial. Former decisions of the same or other courts may be considered, but they may also be disregarded at will. If a private individual in his own family or in his own business were to suspect any one under his control of a theft or of any other wrong against him and he proceeded to investigate that suspicion, the investigator would naturally adopt in a private way the procedure for trial ordained by the French criminal law. A general amendment of the laws concerning practice and procedure and simplification of their processes and a widening of the narrow and artificial limitations upon the methods for discovering the truth are urgently demanded in the quest for an increase in respect for the law in our country. Merely to catalogue here the respects in which such improvement might be accomplished would not, it seems to us, be of especial value to this Association at this time. No report short of a comprehensive volume of substantial size can embody suggestions as to amendment and supply the reasons for their adoption. In the matter of indictments alone we consider the English procedure as a model to be followed, and yet a proper discussion of that subject would consume more time than is allowed for a consideration of this report. We urge, however, an examination of the English forms of indictment attached to this report. Our substantive criminal laws are and always have been fundamen tally sound. Our procedural criminal laws are outworn and cumbersome. Dozens of changes will instantly suggest themselves to every judge and practicing lawyer present. In dealing with the criminal law the conservatism of the Bar is well known. To propose some amendments to the law and to omit others would leave our report open to serious objection. We have contented ourselves with reporting to you: first, the situation of law enforcement in this country; second, for the purpose of measurement or comparison, the situation in two other great countries; third, the chief respects in which the machinery of law enforcement in those two nations differs from our own, together with the immediate results of this difference; and lastly, how by reason of this difference our system lacks in the three great essentials for law enforcement: celerity, certainty and finality. This lack, together with a general public indifference to the situation account in large measure for the want of respect for law in this country and the failure of its enforcement. Only the belief that nothing can be accomplished without a full realization of the situation by the American people impels us to present the figures and statistics embodied in this report and to call the attention of this Association to the striking contrast existing as between the situation relative to crime in America and in these two countries of Europe. Behind every defect in the enforcement of our laws, more dangerous than any fault in the machinery of the law, more powerful than any other factor in accounting for the number of crimes committed in this country is the apathy and indifference of the American people. The first great work to be accomplished in bringing about a better enforcement of law must be the awakening of the public to a clear sense of the situation and of their responsibility for it. Improvement in our laws can accomplish little unless accompanied by a determination on the part of our citizens to have those laws enforced. We believe that this committee has performed so far as it is capable the duties you imposed upon us, and while the honor of serving you and our country in this regard has more than compensated us for the labor and sacrifice of time and means imposed upon us by your commission, we think that further work in this direction is imperatively necessary and we ask that it be taken up by others. We recommend that a permanent commission of this Association, after the manner of the previous commission on uniform laws, be appointed to formulate a standard code of criminal procedure for the states of the union. It is of first importance that such commission should be composed of men who have had large practical experience in the criminal courts and especial care should be taken to exclude mere theorists and faddists. We believe that the American Bar has no greater opportunity for service that is offered in this field. Such a commission with a carefully prepared program, with proposed statutes drafted and actually embodying changes obviously necessary in our legal machinery and backed by the power and influence of this great Association cannot fail to accomplish substantial and lasting benefits to our people. CHARLES S. WHITMAN, Chairman, CHARLES W. FARNHAM, WADE H. ELLIS, ANNETTE ABBOTT ADAMS. REPORT OF THE COMMITTEE ON FINANCE. To the American Bar Association: The Committee on Finance reports as follows: This committee was created by resolution passed at the meeting of the Executive Committee held in Philadelphia on January 5, 1917, and by that resolution was given the power to invest funds of the Association when so directed by the Executive Committee. Pursuant to such direction your committee purchased on January 31, 1917, the following securities: 10 Northern Pacific Railway Company prior lien railway and land grant 4 per cent gold bonds due 1997, 5 Pennsylvania Company consolidated mortgage bonds, issue of 1915, due 1960, 43 per cent. 5 Illinois Central Railroad Company 4 per cent gold bonds of 1952. Your committee paid for said bonds the sum of $19,568.75. Thereafter upon like authority your committee invested $15,000 in 4 per cent Liberty Loan coupon bonds, which securities, aggregating $34,568.75, are still held by the Treasurer. All of the aforesaid bonds are registered in the name of the American Bar Association. August 29, 1923. . FREDERICK E. WADHAMS, JAMES R. CATON, |