AMERICAN LAW INDICTED

Hawera Star, Volume LIV, 2 March 1935, Page 12

AMERICAN LAW INDICTED

Effort to Give Judge Power to Comment on Case

A BRUTAL murder was committed in Chicago. A gangster shot down an undersized workn.an wlxen the latter discovered him cheating at cards. The matter came to trial. Defendant made the usual “hip>-pocket defence,” namely, that the working man had reached for his hip as though for a weapon. Actually, the working man had never carried a revolver in his life. \

The Judge hadi.heard this defence before. He groaned inwardly when lie heard it repeated. But he was unable to voice his disgust. He was debarred from commenting on the weight of testimony or the credibility of witnesses, under the procedure common in American States bv which, as William Howard Taft remarked, the one man best qualified in Court to appraise the evidence is gagged, states the Christian Science Monitor.

Defendant had a bad character, but his weeping mother went on the stand to tell about “her boy,” other -weeping relatives took the stand, the eloquent defence lawyer broke down, too, and' the jury—struggling to restrain its sobs—freed the killer.

When the jury got -home they were amazed to find long statements in the newspapers about evidence of which they knew nothing. They were accused of sentimentalism.

“But why didn’t the. Judge tell us about this?” they exclaimed. “Why didn’t we know that /failure of the accused himself to take the stand probably indicated }iis guilt?”

The answer is that in most State jurisdictions the old custom, originating as a reaction against self-incrim-ination produced, by torture, still persists. Judge and counsel are forbid-

Will the legislatures act? That depends alone on the pressure of public opinion.

den to comment on the failure of defendant to take the stand. If the gangster had been put on the witness stand in Chicago the whole amazing bubble of sentiment would have burst. The first question would have shown the defendant had been in gaol before; the second that he was carrying a loaded revolver, the third —some other confounding detail. Now the Attorney-General’s Crime Commission, just concluded in Washington, wants to tear down this ancient and outworn protection for the accused—long since abandoned by the country which invented it. The Model Code of Criminal Procedure, prepared by the American Law Institute, endorsed by the American Bar Association and the Association of American Law Schools, and now the crime conference, would take the gag out of the Judge’s mouth, and let him comment on trials. He would be, what he is on other common-law countries, in Canada and in England, the real guide of the trial, instead of a mere umpire in a sort of sporting event carried on between rival counsel.

With forty-two State Legislatures convening next month, the crime conference adopted this resolution for enactment by those State Legislatures which still preserve the ancient fetish : “Adoption of a rule permitt Court and counsel to comment to the Tv jury in the failure of the defendant in a criminal case to testify in his own behalf. ’ ’