Chapter 9

The court attendant calls the attention of the lawyer to the time, who with a sidelong look at the clock, also "Confidently leaves the case in your hands, gentlemen."

The two lawyers sit down and the judge puts on his spectacles, gathers up the notes he has been making of the main points of the trial, and turning to the jury begins his charge.

XIV

THE HEAVY CHARGE

No, madam, the charge of the judge does not mean his bill for expenses or his salary for trying the case. A charge implies something grave, heavy, and aggressive. It is what the judge tells the jury about the case. It is never light or humorous, but ponderous and hard to understand. The court-room doors are locked, no one must come in or go out during the charge.

The judge looks solemnly at the jury, the jury straighten up from the desponding attitude they gradually have assumed during the address of counsel.

The end is near and they begin to have hope. They appear interested and a gleam of awakened intelligence is in their eyes. Now at least they are going to hear what they wanted to know about the case. The judge will probably tell them something new and clear up the points they did not understand. It may be even he will explain why he made those strange rulings during the trial and what that mysterious conference was when he called the lawyers to his desk and they talked together for so long.

The judge begins: "Gentlemen of the jury, the plaintiff in this case seeks to recover," and then he goes on to tell them what the plaintiff wants, which is just what the plaintiff's lawyer has been telling them. The judge must have been asleep while he was talking for he is saying the same thing over again, only in a little different language. After that the defendant's case is set forth. There again that is what the defendant's lawyer was saying. It does not appear reasonable that they are compelled to hear six times what the case is about. There were the two openings of counsel at the beginning, the two summing up at the end, and now the two explanations of the judge. There ought to be an allowance made for the jury possessing a little intelligence.

The judge then tells again what the witnesses have said, in not quite so many words, but covering the main points. There is no use in that. The jurymen think they ought to remember fairly well what was said. The judge admits it after he is through by saying himself: "Gentlemen, you are to be governed by your own recollection of the testimony rather than by what is said by either side in summing up or by the Court." If he means that he should have kept still and let them have their own recollection.

Then he goes on: "If you believe any witness has wilfully testified falsely as to a material fact, you may disregard that witness's whole testimony." Of course, is that not the reason for their being there? Why, the judge in the beginning made them swear to decide the case "according to the evidence." The jury is going to do exactly that. They are going to decide which side is lying and which side is telling the truth. They are not quite so stupid as not to know that. There seems no need in insulting them by telling them that they need not believe a witness unless they want to. Why are they there?

The judge tells them that the function of the jury is to decide the facts and for him to decide the law. That is fortunate, for they could not understand the law, even if they wanted to; it is a silly business and it is not common sense. What the jury feels is that the judge's charge is leaving it to them without any trouble about the law. But wait a moment, the judge is going on to tell them about the law as applied to the particular facts before them.

The important principle of law they are being told is what is known as the preponderance of evidence and the burden of proof. The judge goes on at great length about the weight of evidence. The weight of evidence, he says, is the preponderance of proof and the preponderance of evidence is the weight of evidence, and the man who has the burden of proof must have the weight of evidence and the weight of evidence being the preponderance of evidence is also upon the man who has the burden of proof. And the preponderance of evidence does not mean proof beyond a reasonable doubt, as in criminal actions, but that the proof must be heavier on one side than the other and the one who has the burden of proof must sustain the preponderance of evidence. That is the law; the judge has said it. What it means the jury give up. The lawyers nod their heads wisely. The judge has stated the law correctly.

The judge may go on a little further and tell them more about the burden of proof and the preponderance of evidence. He may say that the weight of evidence does not mean the number of witnesses. The mere fact that one side has six and the other side only two does not mean that the jury are to believe the side who has six. The jury know that when probably they are all exaggerating somewhat they are going to decide the way the thing happened. Then the judge tells them, having seen the witnesses, "That they may consider their bearing on the stand and their manner of giving testimony." Surely they are going to do that. Is not the best way of knowing whether a man is telling the truth to look at him and watch him while he is talking? There is little sense in the judge advising them to consider his bearing on the stand.

Another thing the judge says is that they are not to be governed by sympathy or prejudice in arriving at their verdict. This is a caution that the judge thinks necessary. He forgets that when they are in the jury-room, with locked doors and no one to disturb them, they are going to do exactly as they are inclined. Prejudice and sympathy are for unintelligent people who do not know what they are about. Both lawyers have been telling the jury what intelligent men they were and it seems unnecessary for the judge to say that they are not to be governed by prejudice and sympathy. Suppose the defendant is a rich corporation, they are not going to find against it because it is rich. The company can stand the loss of a few dollars out of its pocket better than the poor man anyway. Not that they are going to decide for that reason.

As these accumulating evidences of the judge's misunderstanding of their attitude of mind pile up, the jury sink back into their seats. After all, the charge of the judge is not more understandable than most of the other parts of the trial. The saving point about it is that the end is drawing near and they can soon get away and have a smoke in the jury-room, and afterwards go home.

The judge, while he is charging, understands a little of what has been going on in the jury's mind. He has seen the gleam of interest which was in the jury's eyes at the beginning gradually die out. He notices how they fall into resigned attitudes. He has a glimmering that the good old legal aphorisms which he has been enunciating with such care about the burden of proof, the weight of evidence, the credibility of witnesses and the caution about sympathy and prejudice, are not very convincing to the jury. But the conventions require that he must go on.

"Gentlemen," he says, "I must instruct you to eliminate from your minds any discussion of counsel upon questions of law or rulings of the court upon the rejections of testimony, or decisions upon motions to dismiss or direct. They involve matters of law with which you are not at present concerned. In arriving at your verdict you are to consider only the evidence."

Perhaps the judge feels a trifle foolish and therefore he becomes more emphatic and solemn. He carefully and in a painstaking manner defines the law of negligence. He tells them the law of negligence involves two cardinal principles. "The first is that the plaintiff must establish that the defendant by its employees was guilty of negligence, that he failed to act as a prudent and careful man; second, that the plaintiff must have shown himself free from contributory negligence; that unless the jury find both of these, that the plaintiff cannot recover." Then perhaps he interjects a little more about the balance of proof as to these particulars. "If the jury find the plaintiff was negligent and the defendant was negligent, they must find a verdict for the defendant. If they find the plaintiff was not negligent and the defendant was negligent, then they may find a verdict for the plaintiff, provided they find, etc., etc. Otherwise should they find the plaintiff was not negligent and the accident happened not through the negligence of the defendant, then again must they find for the defendant, or again--" but the jury by this time is exhausted. The alternatives do not interest them. The judge may know what he is talking about, but they do not. The interesting question is how much are they going to give the plaintiff.

The judge finally becomes worn out, a kind of self-hypnosis sets in. He remembers so many phrases and legal maxims that he might enunciate, his brain becomes confused as to selection. There are volumes of charges to juries which he has more or less learned by heart. There are so many glittering and vague generalities about the law of negligence, the law of contracts, the law of evidence, the burden of proof, or the weight of testimony, that he could go on indefinitely. The jury have ceased to understand and the judge realizing the hopelessness of this situation, winds up by saying--"So, gentlemen, bearing in mind what I have just told you and the evidence in the case, you will retire and consider your verdict."

The jury begin to gather their hats and coats, when up jumps one of the lawyers and says: "One moment, please. I ask your Honor to charge that if the jury find the cow that was in the plaintiff's garden was a white cow and not a red cow, then their verdict must be for the defendant." "I so charge," says the judge. "I except," says the other lawyer, "and I ask your Honor to charge the jury that if they believe the cow was the property of the defendant, their verdict must be for the plaintiff." "I refuse to charge in those words," says the judge, "there may not have been any cow or he may not have eaten the cabbages." Or the lawyer for the railway may ask the judge, "That if the jury find that the driver was forty feet away from the tracks and the car was a hundred feet away from the corner of Seventy-eighth Street when he first saw the car, and the car was going at a rapid rate and the conductor pulled the bell and the driver was sitting on the right-hand side of the wagon and might have seen the car had the car been one hundred feet below the corner, then in that event I ask your Honor to instruct the jury that the plaintiff was guilty of contributory negligence and cannot recover."

The question is undoubtedly a poser. The judge is evidently worried; if he make a wrong guess and says "yes" or "no" at this juncture, the appellate court may say: "Error, judgment reversed, new trial ordered." What happens is that the judge takes a chance. The lawyer says, "I refer you to 169 New York Court of Appeals Reports, page 492; in the case of Jones _vs._ Metropolitan, the court there said that the refusal to so charge was reversible error." The judge looks wise and finally says, "yes." There is a little playing of politics in this; he has possibly been thinking how the jury are going to decide and realizing that what he charges won't make any difference, he plays safe by charging what the losing side wants.

These requests to charge may go back and forth indefinitely with rulings and exceptions. Either lawyer may except to a portion of the judge's charge, thus serving notice upon him that unless he hurry up and change it he may be reversed on appeal. That is the reason why the charge of the judge has not a great effect. He has to be too careful.

In New York State the judge can not say what he thinks about the case. In other words, the charge must be indefinite. In England and the Federal courts in this country, the judge may legally express his opinion as to how the case should be decided, but that is as far as he can go. The distinction is a relic of the old days of the jury system when the judges would imprison the jury until they found as was wanted. Now the judge may only express a preference and the jury may do as they please. In some courts the democratic idea of the independence of the juryman goes to the extent of not allowing the judge to say anything specific.

The result is that the jury are confused. They are usually of so independent a nature that the judge's charge would not greatly influence them. The clients sit by utterly confounded; they hear the judge wisely say, "I think perhaps yes, but on the whole it may be no," and when he is through, not understanding as much as the jury, they think the judge's charge is very fair. Having said little of import it probably is.

The continental method is so entirely different, that it is shocking. In the courts in France the judge practically says for his charge, "You've heard the evidence, now go on out and do what's right." This again illustrates the difference between the old and the new ideas of courts. The old is a battle ground where the issues are defined, the courts are kept within narrow limits and the rules of the ordeal observed strictly, and the modern, merely an investigation of a dispute with the glamor of a contest left out. It is an investigation of facts, which however bitter may be the personal animosity, should never lose sight of the main idea of arriving at the plain truth, in a common sense way.

At last the lawyers are silent, the trial is over, the judge patiently asks are there any more requests to charge, and there being no more, he turns to the jury and says, "Gentlemen, you will retire and consider your verdict." Slowly they file out, conducted by the court attendant, to the jury-room.

XV

THE TRUE VERDICT

The truth is said. The battle is over and the mighty have prevailed. The decision is made. Justice divine and compelling is about to pronounce its sentence. The truth seeks to burst forth and the jurymen have knocked at the door of the room in which they have been locked for so many hours. The court attendant, who has been standing like a sentinel outside to prevent the approach of eavesdroppers and listeners, turns the key and sticks his head into the room, withdraws, locks the door again, and sends off for the judge.

The judge has been in his chambers taking a rest and enjoying a cigar. The judge always, when he is off the bench, is by courtesy said to be in chambers--other people might call it a room with an office desk, but the dignity surrounding a judge invests even the bare office room where he sits. It is named in the plural, even if it is only one ordinary room. He throws away his cigar. The lawyers or their assistants who have been lounging about the empty court-room, gossiping with one another and trying to evade the importunities of their clients, who insist upon speculating with them on the probable result, have been summoned to the bar. The judge takes his seat on the bench. The jury, marshalled by the court officer, file in. They are lined up in the jury-box.

"Gentlemen," says the judge, "have you agreed upon a verdict?" "We have," answers the foreman of the jury.

When the jury have first been locked in the jury-room they have probably immediately relaxed after the long strain of the trial. They were entitled to a smoke and to feel at their ease. Besides they know that if they finished their deliberations too early, they will be called on another case. It was nearly two when the judge finished his charge, so they have plenty of time to waste; for if they came back to the court-room before three they would be impaneled in another trial.

They have taken a straw vote to find out how the sentiment stood, not with the hope of arriving at a decision but by way of trying out the matter. The result stands nine for the plaintiff and three for the defendant. They light their cigars, for they came well prepared for the tedious hours in the jury-room.

The nine men look at the other three in disgust, the three look at the nine with contempt and then they begin to argue. The deliberations of the jury are always secret, their method of procedure is uncertain, and only the result of their deliberations appears in court. Nevertheless, it is only reasonable to speculate on how they have arrived at their verdict. Their verdict is the climax of the drama, the goal of the race, the award of victory. One side must win and the other be defeated. The psychology of the jury in reaching the verdict is the great mystery and the most intense interest of the trial. The judge does not know, the lawyers are unable to understand. There is a certain respect for the inviolate privacy of a jury-room. If trial lawyers could understand the method by which they arrive at their final announcement they would be far better equipped than by a study of the law for many years.

It is a question whether or not their actions are different from those of ordinary men outside a court-room. They have left the restraining influence of an uncomfortable and conspicuous position and have entered again into the attitude of mind of the everyday world. The control of the judge has disappeared. The lawyers are only memories. They have become only plain business men with something definite to do. They do not know how to do it and the discussion begins in a desultory way.

"Well, we ought to give that boy something."

"I don't like the looks of that last witness."

"That lawyer for the defendant was too smart."

"But do you think the driver tried to cut him off?"

"He couldn't have been in bed six weeks."

"No man would stay in bed that long with a sore knee."

"Oh, well, he only meant he was about the house."

"That doctor was a great one. He loved to get off those terms; he must be just graduated from the hospital."

"Did you hear the lawyer say in a case he tried in Brooklyn he had seventeen of those experts?"

"Well, let's take another vote and see if we can't get together."

"I can't stay here all day. I've got to close something important at four o'clock."

"You'll stay here if you have to; we want to get this settled right."

Another vote is taken. The result is the same and the two sides gradually assume opposing positions. Each one takes a leader and spokesman; the discussion is probably between those two and an occasional interjection by the others. By this time the argument has grown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in the minds of the jury with what has been talked of in the jury room. The recollection of each juror includes the recollection of the discussion that they are having. The mental picture is now a combination of what each witness thought, each lawyer conceived it, how the judge described it, what they imagined it during the trial, and added to the mental concept is the recent present struggle between twelve points of view.

They do not remember what it was the judge told them about their verdict. Suppose they send out and ask him. No, they do not want to appear like fools. It is plain. Their verdict must be for the plaintiff or the defendant. But in that contract case where the other side wanted something back from the plaintiff, how are they going to find a verdict for both? They can't find a verdict both ways. They had better send out and ask the judge. No. Well then they will send for the pleadings, they will show.

"What," says one juryman, "do you think those pleadings would show anything a reasonable man could understand?"

They decide that there was a bill that told the story. They knock on the door. The court attendant opens it. They explain, he gathers in the lawyers, and they go to the judge's desk. There is a thrill. The jury have agreed so quickly it must mean a verdict for the plaintiff. If they had been out longer it would have meant there was a disagreement or a verdict for the defendant. The longer the jury stays out the better for the defendant thinks the lawyer. But the actions of the jury are uncertain and there may be no rule of arriving at their decision.

There is the story of the judge who, after the jury had been out for a long time, made a bet with the stenographer as to how the jury were going to decide. The judge thought himself an expert in determining the probable verdicts of the jury. After they came in and announced their decision and were discharged, the judge having lost looked crestfallen. The stenographer smiled. Then the judge recovered himself.

"You win," he said, "but the next time you and I bet on a decision it is going to be one of our cases without a jury."

The attendant asks for the bill and returns to the jury-room. The court falls into a lethargy of waiting. The jury, having their information, go on with the discussion, probably on the following lines.

"Sure, I told you the silks were worth four hundred dollars."

"Well, I know those kind of people; they are small people and they never did that amount of business in all their lives, let alone one month." Or,

"Don't you know that neighborhood; all the cars speed up whenever they get there."

"Why, yesterday I was getting off a car and the conductor pulls the bell, etc., etc."

"No, I ain't prejudiced against the railroad; I ain't got nothing against the railroad."

"Of course, we ain't going to decide this case on sympathy or prejudice. But that boy's Irish and he looks like he come of good honest people."

"Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve vant is justice."

"Now see here, my friend, if you think you're going to make this a racial matter you're mistaken. Just because that boy's Irish you needn't think he ought not to get nothing. You're prejudiced, that's what you are."

"Oh, let's get down to the evidence anyway; what we want is to decide."

"Vel, the motorman vas Irish, vot you talking about?"

"Sure, but he had to say what he did. Didn't he have to hold down his job with the company?"

The rest of the jury sink back resigned and despondent. They will never get out. One of them ventures.

"The judge told us that the law was--"

He is interrupted.

"Oh, we don't care so much about the law. What we want to do is to do what is right."

Somewhere, somehow, and by non-understandable methods the verdict is reached. If the jury ask for further instructions, they file back into the court-room and the judge proceeds to elucidate the hidden mystery of the law in much the same manner he did in his charge. They return again not satisfied, and take up the discussion.

The most dramatic moment in the trial is when the officer comes in and announces the jury have agreed. While they slowly file in, the prisoner or the parties watch them with soul-tearing eyes; the lawyers with anxious expectancy. There is an electric thrill in the air. In some mysterious manner their verdict becomes known before the foreman speaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner of walking in, and their final pronouncement is only a confirmation of what was expected.