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If your hand is moist and you touch the blade of a knife oxidation will take place, and the print will rust on that blade. Now a finger print is placed alongside that print, which is forged, and it too rusts. A little salt water will make it rust quickly. After the forged finger print has rusted into the blade alongside of the genuine finger print which has rusted into the blade, how are you going to determine from the finger prints, each respectively, which is a forgery and which is not, because the oxidation is absolutely the same in both. In fact, there is one print which I will never be able to determine and prove is a forgery from the print itself. There are various other questions coming up on the subject of finger prints, but these are the two questions to remember, if a person is charged with robbing a bank or murdering a person, and the evidence against him is a finger print, the first problem that confronts the finger print expert—is to prove that that print is made by the contact of the human hand. I make my print there (indicating), but how is another going to prove it? It takes a chemist, it takes an analyst, it takes a skilled person to prove that a print is made by the contact of the human hand. It also takes skill to prove that these things are forgeries or that they are genuine. A forgery is made by means, of tracing handwriting. For instance, here is your signature. A forgery is made by means of tracing handwriting. A skillful man can take your signature, place a light underneath, have a cheek or deed above and make a tracing of that signature, and it is there upon the check or deed. It is your signature, because it has every outline and characteristic of yours, but it is a tracing. It is not made by the contact of your hand, pen in hand. These prints which I have shown to you here as forgeries are the prints of human individuals, but their hands have never touched the places where you see the prints.
SHOULD VERDICTS BE UNANIMOUS IN CRIMINAL
JAMES R. CLARK,
There can be only one purpose in a gathering of lawyers to discuss a subject of this kind. The immediate purpose that we all have in view is to, if possible, encourage and bring about speedier and better justice. The question, therefore, arises, would justice be meted out in criminal trials with any more speed or justice than at present were verdicts to be permitted on the vote of less than all the jurors.
The parent of the modern jury was the inquisition—the practice of the Normans who came into England and ascertained facts by summoning together by public authority a number of persons most likely and competent to know the truth, such as neighbors, and calling for their answer under oath. It was at that time and is now a necessary part of our jurisprudence. It was under Henry II that we find most generally this inquisitorial body consisting of twelve Knights. Originally the presenting jury, equivalent to our present grand jury, also sat as a trial jury and tried to guilt or to innocence. In 1279 there were established for the first time two separate bodies, one to accuse and a special one to try, and thereafter it became a good ground of challenge to find on a trial jury one who served on the accusing or presenting body. It is true that in the beginning the rule of unanimity was by no means universal, but as the system improved we find the unanimous rule to have been made permanent. Then, as now, there was a constant discussion among leaders in our profession as to how to protect the jury system. In the beginning it was protected by what was called the attaint, that is, the findings of the trial or petit jury were reviewed by a jury or body of Knights, and if the finding of the Knights was contrary to that of the trial jury the latter were punished for perjury; in the
beginning by imprisonment and later on by fine. So we see that in the beginning when there was not the freedom of speech that we enjoy today, there was the same criticism that now exists. As a matter of fact, the criticism then was really directed at the actions of the jury. Is this the case today?
It has been my good fortune to have been in the United States Attorney's office for the Southern District of Ohio, for very nearly six years, during which period there has been more criminal business than came into that office during any twenty-five years prior thereto. It has naturally been my endeavor to listen to criticisms which have occurred concerning criminal trials during this period. The result of my endeavors in that direction, determining by reading and hearing and from my own experience where the criticisms justly lie, has brought me to the conclusion that it is the technicalities and the delays which should be justly criticised and not our criminal juries. Many of the technicalities which worked to the benefit of an accused in the centuries ago in England when the accused had not the protection which now surrounds him, and when only witnesses for the Crown were permitted to testify, still exist in spite of the additional protections with which he is guarded at the present day. Unfortunately, of course, it is the accused with means who is able to employ counsel to discover and successfully raise these technicalities. This naturally leads to the criticism we so often hear of, and the same situation prevails in the way of delays, particularly after conviction while pending on error in a reviewing court. I have yet to find a case during my experience in which just criticism was levelled at our present system of arriving at verdicts in criminal cases.
The present rule is an advantage for the defendant and disadvantage for the state or government. Notwithstanding this, as a government prosecutor, I believe in the system as it exists. Like most of you, I have made it my business after each verdict, when possible, to inquire as to the ballots taken and the number for and against conviction, with the result that if the first ballot in the jury room shows a bare majority for acquittal it is almost a certainty that the accused will be acquitted. It is only when more than a bare majority are for conviction that a verdict of guilty is returned or a disagreement reported. And this is partly
due to the different manner in which a juror looks to the defendant whose liberty is at stake or to the cause of the state or government. Being human, most naturally he tends towards mercy and sympathy, and if there is any question or reasonable doubt in his mind whether he signifies that by his first vote or not, he generally comes over to the majority voting for acquittal.
Juries under the common law meant twelve, and verdicts when the jury system was really and firmly established had be concurred in by all members of the jury. It seems to me that an axiomatic expression is fitting in this connection. It is unquestionably true that the greater the number of persons entertaining a conclusion the greater the probability of that conclusion being sound and true. Perhaps those who went before us and framed for us our present systems or rather the system the fathers of this republic adopted, had in mind what Duncomb discussed in his Trials per Pais (1665) for in a paragraph commenting upon the sanctity and the foreordained taking of the number 12 he said:
And first as to their number, 12%"and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelvé thrones must try us in our eternal state, good reason hath the law to appoint the number of twelve to try our temporal. The Tribes of Israel were twelve; the Patriarchs were twelve, and Solomon's officers were twelve. .... Therefore, not only matters of fact were tried by twelve but of ancient times twelve judges were to try matters of law in the Exchequer Chamber, and there were twelve Counsellors of State for matters of State; and he that wageth his law must have eleven others with him to believe he says true, and the law is so precise in this number of twelve that if the trial be by more or less, it is mistrial.”
It is not necessary, however, to go as far back as 1665. With your permission, I quote from Mr. Justice Harlan in Thompson vs. Utah, 170 U. S. 343, at pages 349, 350 and 353 :
When Magna Charta declared that no freeman should be deprived of life, etc., “but by the judgment of his peers or by the law of the land," it referred to a trial by twelve jurors. Those who emigrated to this country from England brought with them this great privilege “as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.” 2 Story's Const, Par. 1669. In Bacon's Abridgment, Title Juries, it is said: “The trial per pais, or by a jury of one's country, is justly esteemed one of the principal excellencies of our Constitution, for what greater security can any person have in his life, liberty or estate, than to be sure of not being divested of, or injured in any of these, without the sense and verdict of twelve honest and impartial men of his neighborhood? And hence we find the common law herein confirmed by Magna Charta." So, in 1 Hale's P. C. 33: "The law of England hath afforded the best method of trial that is possible, of
this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva voce in the presence of the judge and jury, and by the inspection and direction of the judge.” It must consequently be taken that the word “jury” and the words “trial by jury” were placed in the Constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument.
At page 353: But the wise men who framed the Constitution of the United States and the people who approved it were of opinion that life and liberty, when involved in criminal prosecutions, would not be adequately secured except through the unanimous verdict of twelve jurors.
It may seem peculiar that I, as one of the Legislature of Ohio which enacted into law the Constitutional Amendment changing the rule of civil verdicts from the rule of unanimity to the threefourths rule which we now have, should look at criminal cases so differently. It is only fair for me to confess that I am reasoning from a conservative standpoint because I have come to be, particularly during the past three or four years, a conservative or a standpatter, and it pleases me to see our courts, particularly our federal courts, zealously protecting and guarding the rights of individuals, and it is my contention that the present system of arriving at verdicts is just and is as much a protection to an accused as are those particular sections of our constitution which our supreme court and the two United States judges in this district have very recently refused to overlook in connection with the abuse of search warrants.
The situation as it exists in our courts covering a period of six years, can be taken as to the general situation. The few miscarriages of justice that I can at this moment recall can in no wise be laid to the door of our system of arriving at verdicts in criminal cases. The ordinary jury is made up of ordinary men and in some states women. No more can be expected of them than of the prosecuting witnesses, the defendant, his counsel and his witnesses. They listen to all and arrive at what they conclude is the truth. The real serious mistakes that have been made have really been brought about by attorneys, parties interested or witnesses.
During the present day there have been cases, where injustice has been done an accused but in not one instance can it be laid to