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submitted by the court at the request of counsel for the parties, respectively. The courts have quite generally construed these statutes as leaving it discretionary with the trial court whether particular questions shall be submitted for answer by the jury. The trial courts have so uniformly exercised the discretion to refuse any such interrogatories, that attorneys have found it practically a waste of time to request the submission of special interrogatories. There is no practice that would tend more to eradicate improper considerations from the formation and rendition of verdicts than the practice of requiring jurymen to respond with answers to specific questions that may have been submitted to them. A jury that will drift away under a multitude of considerations from the merits of the case and render a general verdict from considerations entirely foreign to the merits of the case, will not fail, however, to respond correctly and faithfully in answer to any specific question of fact or individual circumstance involved in the case that may be submitted to them for answer. When a general verdict is brought in with answers to specific interrogatories concerning material facts in the case, if the general verdict is found by the court to be contrary to the judgment which should be rendered upon the facts as specifically reported in answer to interrogatories, the court is then enabled to render a correct judgment in the case, even if it be in opposition to the general verdict which the jury may have returned. The objection to this practice is that it will for a number of years at least, until the practice has been reduced to a perfected system of rules, and possibly always, tend to occasion more new trials and more reversals in the supreme court. This, while a serious objection, is not determinative. The State cannot afford to allow injustice from erroneous verdicts from any consideration of mere convenience or expense.
64. THE JURY IN CIVIL CASES.
It frequently happens that the Jury is unable to reach a verdict in the case submitted to them. How frequently and with what ill consequences this is the event, is discussed in the following article by Mr. A. C. Braxton: .
A learned author, in a recent book on the jury system, declares that, as the result of the unanimity rule, "the number of mistrials is enormous.' An able writer, in a magazine article, published a year or so since, stated that "not less than 20 per cent. of important jury cases are abortive by reason of disagreement"; and, in a discussion in the recent Constitutional Convention of Alabama, it was stated that at least 25 per cent. of the cases submitted to juries in that State resulted in mistrials, because of their inability to reach a unanimous verdict. Any rule which produces even an approximation to such results, surely pronounces its own condemnation.
It is absurd to presume that verdicts are the result of actual concurrence of opinion on the part of all twelve of the jurors. It is well known that, in every walk of life, it is practically impossible to find twelve men who will agree unanimously upon any given statement of fact, involving an appreciable complexity; and so-called "unanimous" verdicts, in contested trials, are, in nine cases out of ten, the result of an abandonment of their real views by more or less of the jurors. A curious investigator of such matters has published a statement that the probability of a unanimous verdict being honest and without compromise or concessions, is one in 500,000.
The great inconvenience, expense and delay resulting from the unanimity rule in civil juries, could only be justified on the theory that the concurrent verdict of the entire jury is infallible; and yet, in permitting a verdict to be set aside as contrary to the evidence, the law allows the opinion of a single judge to override the judgment of this infallible tribunal, unanimously pronounced-thus attributing to this one man
more wisdom than to the mystic twelve on the jury, notwithstanding their unanimity!
By the unanimity rule, an opportunity is given to every stupid, corrupt or prejudiced man, who may accidentally get upon a jury, to effectually stop the wheels of justice. What better field of operation could the "jury-fixer" desire than one in which it is only necessary for him to successfully tamper with one man out of the twelve? And the danger in this direction is no mere theoretical surmise. In 1899 an investigation into the jury system of Chicago revealed the fact that seven bailiffs of the court were implicated, several of them being in the "regular hire" of certain corporations. Twenty jurors, in their scramble to turn State's evidence, testified either that they had actually received money, or that they were offered it, to hang juries; and doubtless there are many other palaces of justice outside of Chicago, which, if they could but speak, would unfold tales equally as shocking.
How disastrous is it to the rights of the poor litigant, when he has expended his last farthing and exhausted his utmost efforts in presenting his cause for decision, to have the whole thing end in a miserable abortion without any verdict at all, because, forsooth, he was unable to do that which is required of no suitor before any other tribunal on earth-that is, to convince every single one of his judges of the merits of his controversy!
The whole theory of civil trials is, that the facts need only be proven by a preponderance of evidence. The rule requiring the exclusion of all reasonable doubt applies only to criminal cases, and is based upon considerations which have no application to civil controversies. When, therefore, in civil cases, the law demands unanimity in the verdict, it is simply requiring of the jury, as a whole, a unanimity of acquiescence not required of the faculties of any member of the jury, as an individual.
The unreasonableness of the unanimity rule in civil verdicts, the inconvenience and expense resulting from such a rule, and the unsatisfactoriness of its operation, all concur,
as much as in any requirement that could be devised, to make the civil jury system inefficient and unpopular. Several thoughtful writers are to-day contending that the entire jury system be abolished in civil cases, as unsuited to modern conditions. In several States statutory provisions have been enacted discouraging jury trials and accustoming the people to do without them; and many writers on the subject have pointed out the great danger to the maintenance of the civil jury system resulting from the blind adherence to this absurd rule of unanimity. Referring to this subject, the distinguished Dr. Leiber says:
It is by no means certain, that without some change in this matter of unanimity the right of trial by jury, one of the abutments on which the arch of civil liberty rests, can be prevented from giving away in the course of time."
The abolition of the unanimity rule is often opposed by those who assume that they cannot get justice before any jury, and that, when they are obliged to go before such a tribunal, they can only rely upon the one righteous man in Sodom to save them. The whole opposition to the majority rule on a jury rests upon the hypothesis that, in such bodies, virtue and intelligence are always in the minority; but this proposition cannot be admitted. It is certainly true that in some cases the minority will be found to be right and the majority wrong; but with juries, as with all other deliberative bodies, the rule is, that the majority, especially if a substantial majority, will be right and the minority wrong.
It is to the interest of the Commonwealth that there be an end to litigation. Instead of having causes kept upon the docket, and tried, retried and tried again, thus keeping alive and strengthening neighborhood feuds, exhausting the litigants with expense, and burdening the people with double and triple jury service, it were much better that some cases should be decided wrongly, for ofttimes any decision is better than no decision at all.
Should the error in the verdict be glaring, it can be set
aside by the judge and corrected as is done now; and trial lawyers, instead of satisfying themselves, as is often done, with playing upon the prejudices of one or more jurors, in order to obtain a hung jury, will be obliged to address themselves to the more serious task of convincing the majority of the jurors in order to obtain a verdict.
One of the common arguments in favor of the unanimity rule, is that it compels the jury to discuss the case and consider it more carefully, by reason of the length of time required to obtain unanimity; but, without admitting the sufficiency of this reasoning, the same end is fully accomplished in those States where the unanimity rule has been abandoned, by the simple requirements that a majority verdict cannot be rendered upon less than four or six hours' consideration. If, after six hours' discussion, neither party in the jury can convince the other, it is reasonably certain that they could never really agree. The question then arises, whether the law should attempt to force jurors into a verdict against their judgment and conscience, or else have a miscarriage of justice-a futile attempt by the litigants to have their dispute legally decided-or whether it should be conceded that, with a jury, as with every other known tribunal, a majority, especially if a substantial one, should decide the case. It would seem that this should not be a difficult question to solve.
65. CRIMINAL PROCEDURE IN THE UNITED STATES AND ENGLAND.
That many of the delays and mistrials which occur in administering criminal justice in the United States are unnecessary is shown by Professor J. W. Garner in the following comparison with results attained and methods followed in England: .
If we compare American methods of criminal procedure with those of England and the Continent we cannot fail to be impressed with the fact that the chief causes of the widespread popular dissatisfaction with our own system are its cumbersomeness, the slowness with which criminal trials are started and expedited, the importance which is attached to