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Published online by Cambridge University Press: 16 January 2009
The success of any system of law depends, in the last resort, on the personnel who administer it. However perfect the procedure of a system may be in theory, it will not work well in practice if the officials who operate it are inefficient or lack proper powers: whereas, with efficient personnel having adequate powers, imperfections of procedure may be of little consequence. The fundamental principles of criminal procedure are the same in England and the United States; yet in the one country there is satisfaction, amounting, perhaps, to complacency, with the operation of the criminal law; while in the other there is almost universal dissatisfaction. This dissatisfaction has provoked a great deal of detailed research in America into the deficiencies of criminal justice, by both public commissions and private individuals, and, consequently, the publication of much frank and vigorous criticism. An examination of this criticism shows that, in the opinion of the American commentators, the factor of personnel is at the root of a great many of their troubles.
It is indeed the submission of this article that the important differences in the actual administration of the criminal law in England and America arise, in large measure, from the difference in status and character of the personnel who administer the law; and, in particular, from the differences in the distribution of powers among them. A comparison of some aspects of the powers, prestige, character and abilities of the judges, juries and counsel who, between them, are responsible for dispensing criminal justice in the higher courts in the two countries, will, it is believed, reveal that this is so.
1 The observer of a foreign system can see so little personally that reliance must necessarily be placed very largely on the observations of those who live with the system. No apology is therefore made for the high proportion of subsequent material which appears in quotation marks. The works principally referred to are: The Reports of the Cleveland Foundation Survey of the Administration of Criminal Justice in Cleveland: Criminal Justice in Cleveland (1922); The Reports of the National Commission on Law Observance and Enforcement (The “Wickersham Commission”) on “Criminal Procedure”; “Prosecution” and “Lawlessness in Law Enforcement” (1931); Roscoe, Pound, Criminal Justice in America (1930)Google Scholar; Orfield, Lester B., Criminal Procedure from Arrest to Appeal (1947)Google Scholar; Lummus, Henry T., The Trial Judge (1937).Google Scholar
2 Frankfurter, J., Rochin v. California, 342 U.S. 165Google Scholar; 72 Sup.Ct. 205; 96 L.Ed. 183 (1952).
3 (1936) 22 A.B.A.J. 345.
4 Works (ed. Ford, ) vii, p. 192.Google Scholar
5 Carpenter, W. S., Judicial Tenure in the United States (1918) 168.Google Scholar
6 “The Selection and Tenure of Judges in England: a Standard for Comparison” (1953) 39 A.B.A.J. 279. “In the remaining thirteen states judges are appointed by the Governor usually with the consent of the legislature or of one house of the legislature; but in a few of these thirteen states, Missouri, for example, variations of the appointive method are used.”
7 Warren, and Cabot, : “Changes in the Administration of Criminal Justice during the Past Fifty Years” (1937) 50 Harv.L.Rev. 583, 604.Google Scholar
8 Judge Lummus of the Supreme Judicial Court of Massachusetts writes: “A judge in office for a term of years who does not consider the coming election invites a martyr's crown—and many deem a martyr only a glorious sort of fool. Why, indeed, it may be asked, should a judge risk his livelihood for the sake of people who value impartial justice so little that they deliberately set him upon an unstable perch to be pushed and jostled by every individual and every group that can make claim to political power?” (The Trial Judge, 92.) There is indeed evidence that some judges are influenced by the prospect of the forthcoming election. “A judge facing re-election has had to ensure his survival through one or several of the following ways: catering to petty bosses who control votes; patronising certain influential groups—racial, religious or industrial; general publicity in the newspapers or otherwise. Whichever way the premium is paid, the judge and his high office are degraded.” Criminal Justice in Cleveland, 260.
9 Perry, Stuart H., “Politics and Judicial Administration,” Journal of the American Judicature Society (1934) xvii, 133.Google Scholar According to Criminal Justice in Cleveland (p. 519): “The range of competition leads newspapers to go beyond the mere reporting of crime and of the efforts of law enforcement and drives them to scoring ‘scoops’ and ‘beats.’ As a result a personal relation is sought between the newspaper men and the officers of the law, with a view to facilitating opportunities for such ‘scoops.’ In turn a play for the favor of the newspapers is made by officials whose public or professional life depends not inconsiderably upon advertising. Eager for special opportunities, the reporters play favorites with police officials, judges and prosecutors. The barriers of impersonalness which should exist between law enforcers and the press are thus broken down. The result is a confusion of standards, and conscious or unconscious partiality and exploitation by the press.”
10 Perry, Stuart H., op. cit.Google Scholar
11 Cf. Black, J. in Bridges v. California, 314 U.S. 252Google Scholar; 86 L.Ed. 192; 62 S.Ct. 190 (1941) “… to assume that the English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.’” A committal will be valid only where the words used constitute “a clear and present danger to the fair administration of justice.” Cf. Pennekamp v. Florida, 328 U.S. 331; 90 L.Ed. 1295; 66 S.Ct. 1029 (1946). Craig v. Harney, 331 U.S. 360; 91 L.Ed. 1546; 67 S.Ct. 1249 (1947). Ballimore Radio Show v. Maryland, 193 Md. 300 (1949).
12 Clarence Darrow, quoted by Perry, Stuart H., “The Courts, the Press and the Public” (1932) 30 Mich.L.R. 288.Google Scholar Some judges have gone to extraordinary lengths in order to attract publicity. A judge is Cleveland is reported to have said: “I have told newspaper men that if something is going on in the city and if somebody says something for which he doesn't want to be quoted, they can quote me as saying it.” When asked on what grounds he had seen fit to give such an unusual authority. he said: “It doesn't matter what they say; it's all constructive.” Criminal Justice in Cleveland, 555.
13 Cf. Hyde, : “Judges: Their Selection and Tenure,” Journal of the American Judicature Society (1947), xxx, 152Google Scholar: “It is an old saying that by looking at a frog one cannot tell how far he can jump. It is likewise true, although perhaps not as fully realised, that by seeing a man's picture on a telegraph pole voters cannot tell whether he possesses the three essential judicial qualities. Many voters have little more than this as a basis for their decisions on statewide judicial officers or even on local judicial officers in large cities.” The three essential judicial qualities, according to the writer, are personal integrity, judicial temperament and adequate legal training.
14 Governor Smith, Alfred E., The Citizen and his Government (1935), 85.Google Scholar
15 Quoted (1939) 52 Harv.L.Rev. 582.
16 “Of the three justices in New Hampshire after independence, one was a clergyman and another a physician. A blacksmith sat on the highest court of Rhode Island, from 1814 to 1818, and a farmer was chief justice of that state from 1819 to 1826.” Pound, , The Formative Era of American Law (1938) 92.Google Scholar
17 Howe, , “Juries as Judges of Criminal Law” (1939), 52 Harv.L.Rev. 582.CrossRefGoogle Scholar
18 A considerable proportion of the politicians in the states are lawyers, and they have tended to oppose changes which would have resulted in an increase of judicial power at the expense of their own. “… the bar, instead of supporting the bench in its adherence to traditional procedure, became in a sense its rival and sought to transfer the conduct of trials from the hands of the judge into its own.” Perry, , Journal of the American Judicature Society (1934), xvii, 133.Google Scholar
19 R. v. O'Donnell (1917) 12 C.A.R. 219.
20 Orfield, L. B., Criminal Procedure from Arrest to Appeal (1947), 452.Google Scholar
21 “It is of the highest importance in the administration of justice that the court should never invade the province of the jury, should give them no intimation of his opinion on the facts but should leave them wholly unbiased by any such intimation to ascertain the facts for themselves”: People v. Ramirez, 113 Cal.App. 2d, 842, 249 P. 2d, 307 (1952).
22 The Law of Evidence, Some Proposals for its Reform (1927) 11. In a recent case in Oklahoma it appeared that the judge adopted the curious practice of leaving the bench at the close of the evidence and making himself inconspicuous during closing arguments in order to impress upon the jury the importance of their responsibility from that point on. On the occasion in question the judge retired to his office 40 feet away, where he could not at all times see or hear what was taking place. Several wrangles occurred between the attorneys and the judge had to be sent for to rule on objections. An appellate court held that the judge had gone too far in this instance, and had lost control of the trial, so that the conviction must be quashed and a new trial ordered. Ridenour v. State, 231 P. 2d, 395 (Okla.Crim.App. 1951).
23 Treatise on Evidence (3rd ed., 1940). s. 2551.
24 65 Harv.L.Rev. 1281, 1283 (1952).
25 Wigmore characterised the withdrawing of judicial power to comment on the evidence as “an act of intemperate folly”: Treatise on Evidence, s. 2551, n. 5. Dean L. Green believes that it is that power “which has given trial by jury its chief, if not its only, dependability”: Judge and Jury, 402.
26 The Last Serjeant (1952), 288. An interesting contrast is Judge Jerome Frank's opinion that the judge's instruction is merely part of “an elaborate ceremonial routine” which has no effect whatever on the jury's verdict. “… everyone who stops to see and think knows that these words might as well be spoken in a foreign language—that, indeed, for all the jury's understanding of them, they are spoken in a foreign language.” aw and the Modern Mind (1948), 181. Cf. the comment of Judge Lummus: “If the view that instructions are futile has reference only to the debased forms of jury trial that prevail in some states, by which the judge must instruct the jury before counsel argue and is denied the last word; or worse, may instruct them only by a written essay; or worse still, is confined to affirming or denying such propositions of law as counsel choose to draft and present, leaving counsel in effect to charge the jury in the name of the judge through the skilful use of such propositions drafted by partisans, to which the judge has been compelled to yield assent; then I am inclined to agree that instructions are futile. The very purpose of such practices is to reduce the trial judge to impotence, and make the trial a duel between counsel.” (The Trial Judge, 28.)
27 Orfield, , op. cit. 458.Google Scholar
28 History of the Criminal Law (1882), i, 455.
29 Cf. Seaborne, Davies, “The Court of Criminal Appeal The First Forty Years,” Journal of the S. P. T. L. (1951), 425, 430.Google Scholar
30 R. v. Totty (1914) 10 C.A.R. 78; R. v. Immer (1917) 13 C.A.R. 22; R. v. Keating (1909) 2 C.A.R. 61.
31 Woolmington v. D. P. P. [1935] A.C. 462.
32 Campbell, , Lives of the Chancellors, II, 428.Google Scholar
33 Green, , Judge and Jury, 380.Google Scholar
34 Report on Criminal Procedure, 26.
35 Moley, R., Our Criminal Courts (1930), 109.Google Scholar
36 Dession, G. H., Criminal Law, Administration and Public Order (1948), 966Google Scholar, quotes a suggested sequence of questioning jurors by the defence, which consists of thirty-two questions.
37 “In one Chicago case, 1,350 jurymen were summoned and 646 examined before 12 were selected. In a San Francisco case a few years ago it took ninety days to choose the jury… Such scandals… are largely due to weak judges and to their lack of authority themselves to examine and qualify the jurors.” Glueck, S., Crime and Justice (1936), 86.Google Scholar
38 Green, , op. cit., 396.Google Scholar
39 Report on Criminal Procedure, 26. Where challenges are exercised on a large scale the natural tendency appears to be to eliminate the stronger elements. Kenny tells us that “Maitre Lachaud, that most successful defender of prisoners in France, made it his rule ‘I challenge every man that looks intelligent.’ In Ireland a kindred rule was at one time current: ‘Challenge every juror who wears a necktie.’” Outlines of Criminal Law (16th ed., 1952), 503. Cf. Humphreys, Sir Travers, Criminal Days (1946), 224Google Scholar: “… in the Casement trial the defence freely availed themselves of the right, with the object, so far as I could judge, of getting rid of the most respectable looking of the persons summoned.” Even if it is not the conscious aim of counsel to eliminate the better-educated jurymen, yet, says Dean Green, “the intelligent juror caught on the panel discovers quickly how to disqualify himself.” Judge and Jury, 396.
40 According to Sir Travers Humphreys, the exercise of the right of challenge “is quite unnecessary, since the Clerk of the Court will always replace any juror to whom either side objects, by another juror chosen in the same way.…” Criminal Days, 224.
41 Report on Criminal Procedure, 26.
42 Cf. Morris, Richard B.Fair Trial (1953), 8.Google Scholar “In those states where waiver of jury trial is permitted, the accused eagerly grasp the opportunity of not being tried by their peers.”
43 Report on Criminal Procedure, 28.
44 Ibid.
45 Unlike English arrangements. An American observer comments: “An American efficiency expert would doubtless be appalled at the lack of a uniform method of conducting prosecutions and would immediately set out to tinker with the existing arrangements. The Englishman does nothing of the sort, because, despite an occasional scandal, the system seems somehow to work, and he is not greatly interested in learning how it works or why it works. At all events he grows melancholy at the thought of changing it. The pragmatic test is for him sufficient.” Howard, P., Criminal Justice in England (1931), 93.Google Scholar
46 National Commission, Report on Prosecution, 12.
47 Ibid., 27.
48 Ibid., 20.
49 Raymond, Moley, “Criminal Law Administration,” Political Science Quarterly, XLII, 497, 508Google Scholar; Morris, Richard B., Fair Trial, 8.Google Scholar
50 The Trial Judge, 75.
51 Cf. The Canons of Professional Ethics of the American Bar Association, 5: “The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”
52 Cf. “Misconduct in the Prosecution of a Criminal Case” (1954), 54 Columbia L.Rev. 946, 948.
53 In the notorious Hauptmann case the prosecuting counsel in his closing speech referred to the accused as “That animal, that desperate character, burglar, murderer, Hauptmann,” and declared, “I am not concerned about what the mob is clamouring for, as counsel refers to it, but you can bet your life if there is a clamour from the people of this country for this man's conviction I have sufficient faith in the American people to know that it is their honest belief and conviction that he is a murderer.” Cf. Robbins, A. H., “The Hauptmann Trial in the Light of English Criminal Procedure” (1935) 21 A.B.A.J. 301.Google Scholar In a Texas case (Hazzard v. The State, 111 Tex Cr. 539, 15 S.W. 2d 638 (1929)) the prosecutor told the jury, “The eyes of Comanche country are upon you. Look at the crowd in this courtroom, and a crowd has been here all during this trial. The will and wish of every law-abiding citizen of Comanche country wants a verdict of death.” The desired verdict was given and reversed.
54 The Trial Judge, 76.
55 “The so-called ‘better-class’ lawyer… prides himself on his lack of knowledge of criminal laws and of conditions which prevail in the criminal courts.” Justin, Miller, “Lawyers and the Administration of Criminal Justice” (1934) 20 A.B.A.J. 77.Google Scholar
56 The National Commission, Report on Prosecution, 27.
57 Moley, , Our Criminal Courts, 63.Google Scholar
58 Cummings, Homer S., “The Lawyer Criminal” (1934) 20 A.B.A.J. 82.Google Scholar
59 Cf. Llewellyn, , “The Bar Specialises—With What Results?” (1933) 167 Annals, 177.Google Scholar “Outside of defending bank directors or opposing extradition of utility magnates, what contact with the criminal law do even the few litigation experts of the high-class office have?… The professional crook seeks out the professional criminal lawyer.… “As for the accused who is no professional crook, especially if he is thin of pocket, he is permitted to fit into the scheme built up for the professional.”
60 Pound, . Criminal Justice in America (1930), 157.Google Scholar
61 The National Commission (Report on Prosecution, 29) reported that, “It must be emphasised that, but for a few jurisdictions where the whole body of practitioners has been incorporated, there is, in substance, no responsible profession of the law. There are only in each locality of importance so many hundred or thousand individual lawyers, each following a money-making calling as he pleases, with little check beyond his own conscience.”
62 Pound, , Criminal Justice in America (1930), 159.Google Scholar
63 Llewellyn, op. cit.
64 “Towards a Better Criminal Law” (1935) 21 A.B.A.J. 499.
1 Supra, p. 81.
2 Ibid..
3 Vanderbilt, , Minimum Standards of Judicial Administration, 20–21.Google Scholar