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.





3. THE EXAGGERATION AND INGENUOUSNESS OF THE SENTIMENTS OF CROWDS TERMED CRIMINAL CROWDS facebooktwittergoogle_plusredditpinterestlinkedinmail

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