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CRIMINAL JURIES





General characteristics of juries--statistics
show that their decisions are independent of their
composition--The manner in which an impression may be made on
juries--The style and influence of argument--The methods of
persuasion of celebrated counsel--The nature of those crimes for
which juries are respectively indulgent or severe--The utility of
the jury as an institution, and the danger that would result from
its place being taken by magistrates.


Being unable to study here every category of jury, I shall only
examine the most important--that of the juries of the Court of
Assize. These juries afford an excellent example of the
heterogeneous crowd that is not anonymous. We shall find them
display suggestibility and but slight capacity for reasoning,
while they are open to the influence of the leaders of crowds,
and they are guided in the main by unconscious sentiments. In
the course of this investigation we shall have occasion to
observe some interesting examples of the errors that may be made
by persons not versed in the psychology of crowds.

Juries, in the first place, furnish us a good example of the
slight importance of the mental level of the different elements
composing a crowd, so far as the decisions it comes to are
concerned. We have seen that when a deliberative assembly is
called upon to give its opinion on a question of a character not
entirely technical, intelligence stands for nothing. For
instance, a gathering of scientific men or of artists, owing to
the mere fact that they form an assemblage, will not deliver
judgments on general subjects sensibly different from those
rendered by a gathering of masons or grocers. At various
periods, and in particular previous to 1848, the French
administration instituted a careful choice among the persons
summoned to form a jury, picking the jurors from among the
enlightened classes; choosing professors, functionaries, men of
letters, &c. At the present day jurors are recruited for the
most part from among small tradesmen, petty capitalists, and
employes. Yet, to the great astonishment of specialist writers,
whatever the composition of the jury has been, its decisions have
been identical. Even the magistrates, hostile as they are to the
institution of the jury, have had to recognise the exactness of
the assertion. M. Berard des Glajeux, a former President of the
Court of Assizes, expresses himself on the subject in his
"Memoirs" in the following terms:--


"The selection of jurymen is to-day in reality in the hands of
the municipal councillors, who put people down on the list or
eliminate them from it in accordance with the political and
electoral preoccupations inherent in their situation. . . . The
majority of the jurors chosen are persons engaged in trade, but
persons of less importance than formerly, and employes belonging
to certain branches of the administration. . . . Both opinions
and professions counting for nothing once the role of judge
assumed, many of the jurymen having the ardour of neophytes, and
men of the best intentions being similarly disposed in humble
situations, the spirit of the jury has not changed:


Of the passage just cited the conclusions, which are just, are to
be borne in mind and not the explanations, which are weak. Too
much astonishment should not be felt at this weakness, for, as a
rule, counsel equally with magistrates seem to be ignorant of the
psychology of crowds and, in consequence, of juries. I find a
proof of this statement in a fact related by the author just
quoted. He remarks that Lachaud, one of the most illustrious
barristers practising in the Court of Assize, made systematic use
of his right to object to a juror in the case of all individuals
of intelligence on the list. Yet experience--and experience
alone--has ended by acquainting us with the utter uselessness of
these objections. This is proved by the fact that at the present
day public prosecutors and barristers, at any rate those
belonging to the Parisian bar, have entirely renounced their
right to object to a juror; still, as M. des Glajeux remarks, the
verdicts have not changed, "they are neither better nor worse."

Like all crowds, juries are very strongly impressed by
sentimental considerations, and very slightly by argument. "They
cannot resist the sight," writes a barrister, "of a mother giving
its child the breast, or of orphans." "It is sufficient that a
woman should be of agreeable appearance," says M. des Glajeux,
"to win the benevolence of the jury."

Without pity for crimes of which it appears possible they might
themselves be the victims--such crimes, moreover, are the most
dangerous for society--juries, on the contrary, are very
indulgent in the case of breaches of the law whose motive is
passion. They are rarely severe on infanticide by girl-mothers,
or hard on the young woman who throws vitriol at the man who has
seduced and deserted her, for the reason that they feel
instinctively that society runs but slight danger from such
crimes,[24] and that in a country in which the law does not
protect deserted girls the crime of the girl who avenges herself
is rather useful than harmful, inasmuch as it frightens future
seducers in advance.



crimes into those dangerous and those not dangerous for society,
which is well and instinctively made by juries is far from being
unjust. The object of criminal laws is evidently to protect
society against dangerous criminals and not to avenge it. On the
other hand, the French code, and above all the minds of the
French magistrates, are still deeply imbued with the spirit of
vengeance characteristic of the old primitive law, and the term
"vindicte" (prosecution, from the Latin vindicta, vengeance) is
still in daily use. A proof of this tendency on the part of the
magistrates is found in the refusal by many of them to apply
Berenger's law, which allows of a condemned person not undergoing
his sentence unless he repeats his crime. Yet no magistrate can
be ignorant, for the fact is proved by statistics, that the
application of a punishment inflicted for the first time
infallibly leads to further crime on the part of the person
punished. When judges set free a sentenced person it always
seems to them that society has not been avenged. Rather than not
avenge it they prefer to create a dangerous, confirmed criminal.



Juries, like all crowds, are profoundly impressed by prestige,
and President des Glajeux very properly remarks that, very
democratic as juries are in their composition, they are very
aristocratic in their likes and dislikes: "Name, birth, great
wealth, celebrity, the assistance of an illustrious counsel,
everything in the nature of distinction or that lends brilliancy
to the accused, stands him in extremely good stead."

The chief concern of a good counsel should be to work upon the
feelings of the jury, and, as with all crowds, to argue but
little, or only to employ rudimentary modes of reasoning. An
English barrister, famous for his successes in the assize courts,
has well set forth the line of action to be followed:--


"While pleading he would attentively observe the jury. The most
favourable opportunity has been reached. By dint of insight and
experience the counsel reads the effect of each phrase on the
faces of the jurymen, and draws his conclusions in consequence.
His first step is to be sure which members of the jury are
already favourable to his cause. It is short work to definitely
gain their adhesion, and having done so he turns his attention to
the members who seem, on the contrary, ill-disposed, and
endeavours to discover why they are hostile to the accused. This
is the delicate part of his task, for there may be an infinity of
reasons for condemning a man, apart from the sentiment of
justice."


These few lines resume the entire mechanism of the art of
oratory, and we see why the speech prepared in advance has so
slight an effect, it being necessary to be able to modify the
terms employed from moment to moment in accordance with the
impression produced.

The orator does not require to convert to his views all the
members of a jury, but only the leading spirits among it who will
determine the general opinion. As in all crowds, so in juries
there are a small number of individuals who serve as guides to
the rest. "I have found by experience," says the counsel cited
above, "that one or two energetic men suffice to carry the rest
of the jury with them." It is those two or three whom it is
necessary to convince by skilful suggestions. First of all, and
above all, it is necessary to please them. The man forming part
of a crowd whom one has succeeded in pleasing is on the point of
being convinced, and is quite disposed to accept as excellent any
arguments that may be offered him. I detach the following
anecdote from an interesting account of M. Lachaud, alluded to
above:--


"It is well known that during all the speeches he would deliver
in the course of an assize sessions, Lachaud never lost sight of
the two or three jurymen whom he knew or felt to be influential
but obstinate. As a rule he was successful in winning over these
refractory jurors. On one occasion, however, in the provinces,
he had to deal with a juryman whom he plied in vain for
three-quarters of an hour with his most cunning arguments; the
man was the seventh juryman, the first on the second bench. The
case was desperate. Suddenly, in the middle of a passionate
demonstration, Lachaud stopped short, and addressing the
President of the court said: `Would you give instructions for
the curtain there in front to be drawn? The seventh juryman is
blinded by the sun.' The juryman in question reddened, smiled,
and expressed his thanks. He was won over for the defence."


Many writers, some of them most distinguished, have started of
late a strong campaign against the institution of the jury,
although it is the only protection we have against the errors,
really very frequent, of a caste that is under no control.[25] A
portion of these writers advocate a jury recruited solely from
the ranks of the enlightened classes; but we have already proved
that even in this case the verdicts would be identical with those
returned under the present system. Other writers, taking their
stand on the errors committed by juries, would abolish the jury
and replace it by judges. It is difficult to see how these
would-be reformers can forget that the errors for which the jury
is blamed were committed in the first instance by judges, and
that when the accused person comes before a jury he has already
been held to be guilty by several magistrates, by the juge
d'instruction, the public prosecutor, and the Court of
Arraignment. It should thus be clear that were the accused to be
definitely judged by magistrates instead of by jurymen, he would
lose his only chance of being admitted innocent. The errors of
juries have always been first of all the errors of magistrates.
It is solely the magistrates, then, who should be blamed when
particularly monstrous judicial errors crop up, such, for
instance, as the quite recent condemnation of Dr. L---- who,
prosecuted by a juge d'instruction, of excessive stupidity, on
the strength of the denunciation of a half-idiot girl, who
accused the doctor of having performed an illegal operation upon
her for thirty francs, would have been sent to penal servitude
but for an explosion of public indignation, which had for result
that he was immediately set at liberty by the Chief of the State.
The honourable character given the condemned man by all his
fellow-citizens made the grossness of the blunder self-evident.
The magistrates themselves admitted it, and yet out of caste
considerations they did all they could to prevent the pardon
being signed. In all similar affairs the jury, confronted with
technical details it is unable to understand, naturally hearkens
to the public prosecutor, arguing that, after all, the affair has
been investigated by magistrates trained to unravel the most
intricate situations. Who, then, are the real authors of the
error--the jurymen or the magistrates? We should cling
vigorously to the jury. It constitutes, perhaps, the only
category of crowd that cannot be replaced by any individuality.
It alone can temper the severity of the law, which, equal for
all, ought in principle to be blind and to take no cognisance of
particular cases. Inaccessible to pity, and heeding nothing but
the text of the law, the judge in his professional severity would
visit with the same penalty the burglar guilty of murder and the
wretched girl whom poverty and her abandonment by her seducer
have driven to infanticide. The jury, on the other hand,
instinctively feels that the seduced girl is much less guilty
than the seducer, who, however, is not touched by the law, and
that she deserves every indulgence.



whose acts are under no control. In spite of all its
revolutions, democratic France does not possess that right of
habeas corpus of which England is so proud. We have banished all
the tyrants, but have set up a magistrate in each city who
disposes at will of the honour and liberty of the citizens. An
insignificant juge d'instruction (an examining magistrate who has
no exact counterpart in England.--Trans.), fresh from the
university, possesses the revolting power of sending to prison at
will persons of the most considerable standing, on a simple
supposition on his part of their guilt, and without being obliged
to justify his act to any one. Under the pretext of pursuing his
investigation he can keep these persons in prison for six months
or even a year, and free them at last without owing them either
an indemnity or excuses. The warrant in France is the exact
equivalent of the lettre de cachet, with this difference, that
the latter, with the use of which the monarchy was so justly
reproached, could only be resorted to by persons occupying a very
high position, while the warrant is an instrument in the hands of
a whole class of citizens which is far from passing for being
very enlightened or very independent.



Being well acquainted with the psychology of castes, and also
with the psychology of other categories of crowds, I do not
perceive a single case in which, wrongly accused of a crime, I
should not prefer to have to deal with a jury rather than with
magistrates. I should have some chance that my innocence would
be recognised by the former and not the slightest chance that it
would be admitted by the latter. The power of crowds is to be
dreaded, but the power of certain castes is to be dreaded yet
more. Crowds are open to conviction; castes never are.





Next: ELECTORAL CROWDS

Previous: CROWDS TERMED CRIMINAL CROWDS



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