Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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or dared to accuse, the sheriff being thereto required by the bishop, should
swear twelve men of the neighbourhood or village to declare the truth respect-
ing such supposed crime," the jurors being summoned as witnesses or

* A paper presented at the twenty-ninth annual meeting of the New York State Bar Aw»-
c»t«>n, January 16, 1906,



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114 The Criminal Law Journal, [Vol, III

accusers, rather than as judges. It is generally conceded that the grand
jury system was either created or reorganized by this statute. (Spence
Eq. Jur., 03.)

Adverting to the rehition o£ the old English inquest to the initiation
of criminal proceedings l)y indictment, a later authority refiers to the
accusing jury of Henry II. thus : "The ancestors of our grand jurors are
from the first neither accusers nor exactly witnesses; they are to give voice
to the common repute." (2 Poll. & Maitl., 639.)

In the very beginning it is apparent that the system emanated from
fear of royal influence and was designed to stand as a barrier protecting
the accused from the baseless and malicious charges of the accuser.

(Viminal proceedings were <^hen merely private affairs. Judges and
magistrates were royal favourites. Tenure of office rested entirely with the
pleasure of the crown. The rights of person were loosely regarded and
more than ordiiiary courage was required to bring accusation against those
who enjoyed royal protection. It had become practically impossible to
secure a criminal's punishment, unless the criminal happened to be of the
class whose welfare and existence offered no special concern to those in power.

There was, indeed, a necessity for the existence of some tribunal
where the common people might be heard, without fear of punisfameut for
telling the truth. But even then the protection sought by the people seems
to have been very imperfect and incomplete. It was during? the reign of
Henry VIII. that the grand jury system was boastfully proclaimed to be
the gairdian of "the people's liberties" and "the bulwark of freedom,"
and yet 72,000 persons suffered death by hanging during this reige, in
most cases for trivial offences. Contemporaneous with the birth of the
grand jury, a subject of Great Britain might bring his wife into the pyblio
market place, with a halter around her neck, to offer her for sale, and the
husband might chastise the wife for the discipline of the whole family.

But there exists a vast difference between a theoretical relation of the
grand jury to the ignorant and down-trodden English subject over three
centuries ago and its relation to the free and enlightened citizenship of the
United States of America in the twentieth century. The relief sought by
the yeomen was in a popular system in which they should be both heard
and represented as against every other judicial tribunal dominated by the
crown. Every branch of our government is of the people. We require
no shield to protect the individual from the State's aggressions, and witnes-
ses to the truth need no longer feel the displeasure of constituted authori-
ty. To maintain that the process of inquisition is of great service at the
present time is to concede that under our republican form of government
the liberties of the individual are subject to the same baneful influences as
existed under a despotism in the dark ages.



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Vol. Ill] Thk Criminal Law Journal- 115

"What, then, are the specific charges against the grand jury system ?
At the beginning of the eighteenth century some of the very ablest
minds in England b3gan to appreciate the grievous iniquities of the inqui-
sitorial process, and Jeremy Bentham, as early as 1825, speaking of the
incongruities of the English Penal Procedure, marshalled the following
specifications of impeachment : " The operations before this intermediate
tribunal may be set down as purely mischievous. They once had an object
but that object has been done away. The object was to preserve an innocent
man from the operation incidental to prosecution, and innocent he might well
be pronounced if even upon the face of the evidence produced against him
by the adversary, delinquency did not appear probable. The design was
laudable, and to this design the procedure, whatsoever might be the incon-
veniences attached to it in other respects, was naturally enough adopted.

1. Evidence was received only on one side, on the side of the prose-
cutor, on the side of the defendant not, for to call upon him for his evidence
would be to subject him to the very vexation from which it ^ms intended he
should be prevented.

2. The evidence was received and collected in secret; that is to say, in
so far as secrecy was compatible with the presence and participation of a
number of persons from twelve to twenty-three. In the same intention
these jury-fnen were sworn to secrecy. Why? Because at this time
the defendant knew nothing of the matter. The bill being found by
ihis jury thereupon there went an order of arrestation. Had it not been
for the oath, a friendly juryman might give intimation and the defendant
make his escape. In the first place, the institution is useless ; it has been
so about these twenty-five years. The defendant has already been sub-
jected to the vexation from which he was thus to have been preserved.
From the middle of the sixteenth century examinations, as al>ove descri-
bed, have taken place (i. e., the examinations before a justice).

In the next place, it is mischievous; it is so in no small degree. One
of the great boasts, as well as one of the greatest merits, of English proce-
dure, is its publicity. This security, it has been seen, is sacrificed; sacrificed
and so continues to be after the object for which the sacrifice was made
is gone. The consequence is an unlimited domination to popular prejudice;
to party, if not personal mterest and affection; to false humanity; to caprice
under all its inscrutable modifications." (Rationale of Judicial Evidence,
Book 3. chap. 15.)

After a lapse of nearly a century of time the evils enumerated and
inveighed against by Bentham not only exist with us but have grown to
more harmful proportions.

The first, and probably the paramount, objection lies in the fact that a
free man may be held to answer for a felony, as a suspect, in secret



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116 TuK Criminal Law Journal. [Vol. Ill

proceedings. He may never know that he is under suspicion until appre-
hended as a criminal after indictment. The evidence on which the indict-
ment is based is presented to the jurors without notice to the party against
whom the accusation is made. The ox-parte statements of witnesses, who
may be influenced by malice and revenge, are sufiicient to brand the most
innocent citizen with the foulest crime. And the accused is unheard I
He may not even appear before the tribunal to explain or to contradict
the testimony offered against him, and the accusing witnesses are not
subjected to cross-examination.

No man should be held to answer for a crime without a hearing and
without an opportunity to meet his accusers face to face. In a civilized
society a person charged with infraction of the law should at least be
informed by whom the charge is made.

It is our peculiar distinction that in New York State we have main-
tained, in the very essence, the most vicious provisions of the grand jury
system. Conforming generally to the rules of the common law, wo have
embodied in statute form the following direction :

"The grand jury ought to find an indictment when all the evidence
before them, taken together, is such as in their judgment would, if
unexplained and uncontradicted, warrant a conviction by the trial jury.'*
(Code Crim. Proc., Sec. 258.) In effect, therefore, the indictment is the
opinion of at least twelve men that the accused is probably guilty. An
indictment must l)e found if the evidence is such that if "unexplained" and
"uncontradicted," a conviction would be justified. And the accused is pro-
hibited from presenting any evidence whatever that might contribute to the
very explanation and the contradiction which might lead the investigating
body to a different conclusion.

It is certainly unjust that there should exist any sort of a presumption
that the accused is guilty before trial. But this is practically the result of
every indictment. At the threshold of trial the prisoner is confronted with
the solemn edict of one jury of his peers that there is evidence sufficient to
warrant his conviction. Instead of a presumption of innocence until proved
guilty beyond a reasonable doubt, a legal tribunal has already delivered an
opinion and created the presumption that the accused is a criminal.

Surprising as may be the declaration, it has been confirmed by
experience that a very large proportion of trial jurors indulge the belief
that the prisoner would not be arraigned under an indictment if he were
entirely innocent. Upon the trial the accused must meet, therefore, not
only the people's evidence, but the subtle and dangerous influence carried
with the indictment, found as a result of proceedings to which the accused
could not be a party. It is true that some degree of suspicion will exist
in every case, whether the accused is held under an indictment or by order
of a committing magistrate. But experience has justified the conclusion



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Vol. Ill] The Ohiminal Law Jocrnal. 117

that trial juror:? are not nearly so likely to assume that some truth exists
in the charge against the prisoner, when the latter is held by a magistrate,
as where at least twelve men, constituting a prior jury, have believed the
charge to have been well founded on the evidence. It is the judgment of
those who have made special study of the existing procedure that trial jurors
will be strongly influenced by an opinion rendered by their fellow neigh-
l>ours on a question of fact presented before them, while they will regard
with indifference the findings of a magistrate whose judgment may be
based upon the technicalities of the law, as well as upon the facts. Further-
more, even if the opinion of a magistrate must necessarily create some
suspicion as to the probable guilt of the offender, it nmst be remembered
that the court's conclusion has been reached, not upon ex-parte testimony
alone, without cross-examination, but after the person charged has been
given every opportunity to refute the accusations made against him.

A further serious objection is that the inquisition is frequently made
the instrument of extortion. The experience of England and America has
been the same in this respect. It is quite immaterial whether the suspected
person be guilty or innocent. If innocent, his fears are worked upon.
He dreads the public disgrace of the charge, however unfounded it may
|je. It means, at least, a blight to his own hopes and the humiliation of
his family. A final vindication by a trial court may be an assured fact,
still there must be the dreaded publicity, unless the prosecution can be
stopped. Such a result may be effected with much less difficulty, because
there has been no public hearing. No magistrate has listened to the
evidence, and the proceedings of the grand jury room are secret and sacred.
If the party be guilty there is still a deeper motive for compromise.
The innocent man may hope for an acquittal, but the guilty anticii)ates
and fears conviction. All the influence of friends and of money is brought
to bear in order to obstruct or to frustrate justice. Political power is too
often used to the same end. And the reason all this is possible is because
the inquisitorial proceedings are one-sided and secret, and the accused and
the accuser may not meet. There no longer exists a single legitimate
reason why proceedings in any i>art of our judicial system should be
secret, except in examinations or trials, where the testimony to be adduced
is of such a nature that good morals and public policy are not best served
by publicity. "Every movement should be towards publicity," said Ben-
them, "of the procedure before the trial jury, a characteristic and indis-
pensable property is publicity ; of the proceedings before the grand juries, a
property still more characteristic is secrecy.' '

One of the earliest arguments in favour of secrecy in the inquisition
^'as that the accused parties might not escape before legal apprehension*
But this reason has long since disappeared. Time was when transportation
ftnd CQnmunication wei*e so slow, difficult and incomplete that a 9riwnal



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118 The Chimin al Law Journal. [Vol. HI

was aflforded every facility for escape. With the telegraph and railroads
and treaties of extradition with all civilized peoples there is very little
possibility that the guilty may be secure in flight although under any
conditions he may delay capture.

The secrecy of the grand jury room is as unfair and un-American as its
ex-parte characteristic. Particularly at a time in our political development
when the greatest publicity is demanded to insure the people's rights, is it
important that every branch of our executive, administrative and judicial
systems should be open to public observation and investigation.

Fatal as are these objections to procedure by indictment, the arraign-
ment does not stop here. Other evils, if not, perhaps, so serious, still
exceedingly vicious and harmful, contribute additional evidence in
condemnation of the existing law.

It very frequently occurs that a grand jury fails to return an indict-
ment, although the accused may be subjected to the greatest public
criticism. Of course, a "true bill" should not be found, unless on sufficient
legal evidence, but, nevertheless, this procedure places the alleged offender
in a most cruel predicament. He has escaped the charge because the grand
jury has intervened. Grave suspicion may still rest upon him, for the
reason that it may never be known by what means or instrumentality the
proof failed to satisfy the accusers. In its effect libel may be no less a
libel because it is made under cover of the law. The man lives forever a
suspect, without the privilege even of a fair explanation. Whenever it is
believed that sufficient evidence exists to waiTant an arrest for crime, the
party against whom the charge is made should, at least, be accorded an
opportunity for public vindication. Voicing the sentiments of all honourable
men. Sir Nicholas Throdkmorton, after an acquittal of high treason,
declared : **It is better to be tried than to live suspected."

Furthermore, whenever a crime is committed it is essential that the
perpetrators of the crime be apprehended with the least possible delay.
The grand jury system, instead of preventing, makes possible the felon's
escape. In practice, it is quite usual that many weeks intervene between
the time of the commission of the crime and the convening of the grand
jury. In nearly every instance where a preliminary hearing has not been
held before a magistrate, the accused is granted sufficient opportunity to
elude the process of the court.

While the common law privilege of presentment, in the nature of
hiformation upon which an indictment may be framed, has never been
sufficiently observed in this country to have established a general American
practice, still there inheres to the system the right "to make a sort of
general presentment of evil things to call public attention to them, yet not
an instruction for any specific indictment. No one could be called te
answer such a presentment." (Bish. Cr. Pro., 4th ed., sec. 137, subd, .2)



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V'^ol. Hi] Thk OttiMiNAL Law Joiknal. il9

Under protection of this arbitrary power, the acts o£ public officers
and of public bodies may be criticised and condemned, and it matters not
whether there be a reasonable excuse for such action or whether the motive
is malice, revenge or partisan advantage. In this manner, the basest re-
flections may be cast upon the most innocent character, and the person who
is held up to public censure and contempt is left practically without redress.

The exorcise of this prerogative by the grand jury led the court, in
the matter of Gardiner (31 Misc. 3t)7), to declare : " While it may be
obser%'ed that the court has tolerated rather than sanctioned such present-
ments, of things general, yet the grand jury should never, under cover of
a presentment, present an individual in this manner, for if it have legal
ervidence of the commission of the crime it should find indictment against
him upon which he could be held to answer, and if it have no such evidence
it might in fairness to l)e silent." What, then is there to be said in
defence of a system to which statute law permits such irresi>onsible power
and such arbitrary discretion ?

The grand jury may not only find or decline to find an indictment
upon the ex-parto evidence presented, but it may go still further and of its
own motion, with little knowledge or no knowledge of existing facts and
conditions, make such charges which, if true, should be made the basis of
a criminal prosecution, to which the alleged offender should be given the
privilege to answer.

It must also be taken into account that the expense of an intermediate
tribunal amounts, in the aggregate, to a very large sum, to be met by taxation.

Admitting that all these imperfections exist, it is asked, if we do
away wkh the present system, what procedure can be eshiblished more
just and better adapted to our requirements ? They who would seek in
this State a better method than proceedings by indictment are not begin-
ners in an untried field. The undertaking here will not be the commence-
ment of the assault. The sanctity of tradition and the veneration of
ancient rights have not so blinded the people of our sister States that
they have failed to observe and to remove certain legal obtsruetions that
lie in the jmth of the administration of justice.

In nearly one-fourth of the United States of America tlu^ common law
grand jury has either been entirely abrogated or so modified and restricted
in its sphere as to more closely conform to present-day needs. In Indiana,
Illinois, Iowa Nebraska, Oregon and Colorado, the State Constitution
gives the Legislature authority to make laws dispensing with grand juries
in any case. The Legislature of Nebraska may provide for holding persons
to answer for all criminal offences on the information of a public prosecutor.
Alabama and Michigan each permit other process in criminal cases.

Constitutional provisions permitting all criminal proceedings to be
jnade by information, or dispensing wnth grand juries in certain case^



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120 Tmk Ckiminal Uw Journal. [Vol. Ill

further exist in the federal goveruiuent and in the following 8Uktes : Cali-
fornia, Connecticut, Kansas, Louisiana, Montana, South Dakota Utah,
Vermont Wisconsin and Wyoming.*

Referring to trial by jury, before the American Bar Association, in
August, 1905, Mr. Justice Brown, of the United States Supreme Court,
briefly alluded to the rapidly growing sentiment against the grand jury
system and to the wisdom of the changes adopted in the several States. "The
assumption of criminal proceedings by the State,"8ays Mr. Justice Brown,
" and the appointment of attorneys charged with the duty of prosecuting
only those who are held to bail by an examining magistrate upon proof
of probable cause, has been found in practice to aflford ample protection
to the accused. Indeed, as the accused may introduce evidence before
the magistrate to disprove the existence of probable cause, he is even
better protected than he is by a grand jury, which listens only to evidence
of his guilt, given in secret and with no opportunity of explanation."

For more than eighty years felonies have been prosecuted in the State
of Connecticut by information, and in Michigan for more tlian fifty years.
During a long service on the federal bench, Mr. Justice Brown was
afforded every facility for observation of the new system, and he declares
that in all his experience, he has yet to find a lawyer who advocated a
return to the old process. And this is not strange,' for the Michigan
system is sensible, fair and equitable.

Under this procedure, before an indictment can be had, an open ex-
amination must be conducted where all the witnesses can be tested bv
counsel or confronted by the accused, and where all the proceedings are
under the rules of law and where only legal evidence is admissible. Tlie
witnesses are likely to be truthful, as they sign depositions and their
statements are at once exposed to full investigation. In the event of
death, absence or insanity, the State may use their depositions.

A reasonable provision of the Michigan law permits the court, in its dis-
cretion, to summon a grand jury, where the inquisitorial character has been
found efficient in the unearthing of frauds and the abatement of nuisances.

There can be no just objection to a system in this State which would
permit the prosecution of all felonies by information and which would
stdl allow the court, if public necessity seemed to require, to summon a
grand jurj- for purposes of inquisition. It is quite generally admitted
even by those who do not favour abrogation of the grand j^ry system that
Its chief efficiency now exbts onjyjn^specml^instances, relating to matters
• See Hurtado v. People, HO U. 8. 616 ; Kalloch v. Su^CtZMC^'.'mTl^irL^i^^
8 Cal. 499 ; Romero v. State, 60 Conn. 92 ; State v. Bosswell, 104 Ind. 541 ; State r Be>r^
3 Kan. 260 ; State v. Woods, 31 La. An. 267 ; State v. Brett, 16 Mont. 360 ; MiUer v State!
29 Neb. 437; State v. Ayres, 66 So. l>ak. 617 ; Matter of MaxweU, 19 Utah 496 • State v
Jher, 67 Vt. 690 : Rowan v. State, 104 Ind. 341 ; State v. Boulter, 5 Wyo. 3J6. '



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\^ol. Ill] l^HK Criminal Law Jouknal. 121

of public concern. Permit the court, then, in its discretion, to determine
when that need exists, and in all other cases lot the preliminary proceed-
ings be held before an examining magistrate alone. While it is maintain-
ed that results have uniformly and clearly demonstrated the great superi-
ority of the method of prosecuting felonies without the intervention of
a lay tribunal, still the retention of the inquisitorial process, to be used
in the discretion of the court, would serve to allay the fears of those who
seem strongly inclined to believe that an examining magistrate would be
less fearless and less independent in cases requiring the investigation of
wrongs arising from political corruption or malfeasance, than a body of
laymen set apart. It is certainly manifest that the responsibilities of a
magistrate will be greatly increased by the abrogation of the intermediate
tribunal. In those States where prisoners are bound over to ihe grand
jury, it is the consensus of opinion, as expressed by the closest observers,
that the magistrate feels a lesser degree of responsibility and is inclined
to hold prisoners on less convincing evidence than is possible in those
jurisdictions where proceedings by indictment follow the commitment.
And, on the other hand, the grand jurors less appreciate the gravity of
their undertaking, in cases which have already been passed upon by a
magistrate. So that the magistrate is apt to be negligent, relying on the
grand jury for a further investigation, and knowing that the onus of an
indictment rests alone with that body, and the grand jurors, in turn, shift
the burden and are less concerned because a judicial officer has already
directed the accused to be held under the charge. Therefore, the interests
of the people and the individual cannot be conserved by the existence of
these two tribunals, side by side. But the magistrate, who is accountable
directly to the people, with no intervention between himself and the trial
court, is sure to feel the importance of his duties and the necessity that
his judicial acts shall conform to the law and to the facts.

It has been successfully demonstrated, wherever the attempt has been
made, that the prosecution of all crimes may safely be instituted before
an examining court, and that the presentment and indictment of the grand
jury are no longer necessary either to a prompt or to a certain and safe
administration of justice.

Cessante ratione legis cessat et ipsa lex. — A, X.

THE JUVENILE LAWS OF COLORADO.

By Ben B. Lindsey.

There are four principles involved in the juvenile court law.

The first is the principle of probation, and, in this country was first



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 15 of 91)