"When she will, she will, You may depend on't; When she won't, she won't, And there's an end on't." Are written instructions superior to instructions orally given? Much may be said on both sides. Mere accuracy in stating points of law is not the only thing to be considered. The trial judge who familiarizes himself with the pleadings, who listens attentively to the evidence, who notes well all objections and arguments, and reads law himself as the trial proceeds, literally becomes so saturated with the evidence and law of the case on trial, that he can effectively charge the jury orally. The jury are told in language they understand and comprehend. For most minds truth is easily imparted, and readily received, when conveyed by word of mouth. An experienced trial judge, who is diligent, attentive and students, should have little or no difficulty in expressing himself orally in a simple, concrete, and consistent manner, in language, that can be understood by the average juror. In talking with men, who have served as jurors in the federal, circuit, superior and municipal courts, I have had many tell me that in the oral charge they get a more distinct and accurate understanding of their rights and duties as jurors; and that they are the better enabled to perform their labors and return just verdicts, than where written instructions only are given and taken to the jury room. In criminal cases, the jury in Illinois may determine both the law and the facts. The jury is required to accept and act upon the law as laid down by the court, unless they can say upon their oath that they are better judges of the law than the court, when they are at liberty to disregard the instructions. So long as juries are at liberty to take the law into their own hands in criminal cases there is neither merit nor demerit in oral or written charges. In his book, "Moral Overstrain," published in 1906, George W. Alger, in discussing criminal law reform, says: "In many of the states a criminal trial means two things. It means not only the sifting of the evidence of guilt or innocence of an accused person,-it means also a rigid, schoolboy examination of the trial judge on the law. If the accused be found guilty on sufficient evidence, but the judge has not passed a perfect examination, there must be a new trial. The counsel for the accused prepares, after long deliberation before the trial, propositions of law, voluminous, intricate, carefully studied, and which have some theoretical or possibly practical application to the case to be tried. When the trial comes, and after the evidence of the witnesses has all been taken, the judge must then decide at once, with little opportunity for deliberation, on the correctness and applicability of this law proposition. He must either add it to his charge to the jury or refuse to do so. In case his client is found guilty the propositions which were refused are argued as "errors" on appeal. The Appellate Court, examining solemnly each of the propositions finds one which should have been charged. It may have been one which as a matter of fact, the jury would never have understood. But that makes no difference. The guilt of the convicted man may be clear, but he gets a new trial. He keep on getting a new trial until the lower court judge can pass a perfect examination on every material proposition of law put before him on the trial, and has correctly decided every squabble betwen the opposing lawyers over any matter of imaginable substance. Then, the law being satisified, justice can be done." It appears to me these are not exaggerated statements. The criminal law in Illinois, both in its substance and in its administration, continues in an unsatisfactory condition. The observations quoted are peculiarly true in Illinois. Written instructions have merit. Few men, however great their ability, possess minds so clear and comprehensive that they can orally enunciate the legal principles applicable to an important case with the clearness and exactness that a charge should have. One purpose of requiring written instructions is that they may be prepared with due deliberation and with the exactness necessary to assist jurymen unlearned in the law to apply principles, perhaps for the first time brought to their attention. Then again, the bar is given an opportunity to help the court in submitting the case to the jury. No matter how learned and wise, none, not even the best, can properly discharge the functions of judge without the aid of the bar. The judge is greatly handicapped when not assisted by able counsel. Where a judge gets inadequate assistance from the bar, he must be of more than ordinary ability not to fail in error. Requests to charge, either orally or in writing, prepared by able, thoughtful counsel, are a great help in the administration of justice. Every conscientious judge eagerly avails himself of the benefits derived from the research and reasoning of counsel, and gratefully acknowledges the assistance which they afford. In the language of the Bible, they are "a very present help in trouble. Give instructions to a wise man, and he will be yet wiser; teach a just man and he will increase in learning." If the trial judge in the Municipal Court of Chicago has any doubts or misgivings concerning his ability and capacity to charge orally, the statute furnishes him the opportunity and gives him the right to say that he will instruct in writing in an instant case. Our legislature builded wisely for some when that power was inserted in the statute. Let me suggest, if there be any "me-too's" present, that they have the Legislature see to it, if the Practice Act is to be amended to provide for oral charges, that the law shall be so framed as to make it optional with the judge to charge orally or in writing. The average jury are confused by a mass of written instructions so framed as to be difficult to understand. The written instruction also imposes great labor on the judge. If he strikes out on an original line he must formulate the instruction in writing himself. The practical result is that the trial judge is likely to accept without change written instructions as framed by counsel, which are frequently drawn to test the judge's knowledge of the law, rather than to aid the jury in deciding facts. The practice of the writing of instructions has developed a new art of special pleading. It is largely used to get errors in the record. There is the advantage of direct discourse to the jury in an oral instruction, and the ability of the judge to make explanations which are valuable. A lawyer does not lose all facility of oral expression and exposition upon his elevation to the bench. An experienced, painstaking trial judge can and does, in my opinion, better instruct a jury orally than he can in writing. Clearness and precision of speech and logical thinking accompany each other. Macauly says: "Propriety of thought and propriety of diction are commonly found together; obscurity of expression generally springs from confusion of ideas." The end sought is better and more just verdicts. I know not whether you share in my feelings on this point, but I have often thought and am convinced that the oral charge makes for the better administration of justice. The provision of our Municipal Court Act whereby the trial judge may instruct orally or in writing, in his discretion, has worked well in actual practice. Morton v. Casey, 237 Ill., 26, is the first of a number of rulings approving such form of procedure. The authority of experience is a good guide. I have examined and read every case I can find in the Supreme and Appellate Courts of Illinois that pass upon oral instructions given by Municipal Court Judges since the law and rules have been in force. I have found no case, and know of none, which has been reversed or remanded for new trial for error alleged to exist in the oral charge. |