680 THE POPULAR SCIENCE MONTHLY. 



men are impressed by the occurrence of things that transpire before 

 their eyes, how impossible it is for us always to agree upon the most 

 ordinary affairs of life, when we remember that the jury is called only 

 because two men, who are the litigants, can not agree, we will see the 

 absurdity of putting twelve men into the jury-box to hear the most 

 contradictory evidence of a particular fact, and then say that they 

 must all agree ! In many cases this agreement, when reached, is only 

 apparent, and occasionally a false verdict is doubtless procured by the 

 tenacity of some determined juryman. And still more frequently are 

 juries discharged because they can not agree, and the parties and the 

 public are subjected to the expense of another trial. 



To give moderate room for honest difference of opinion, to disarm 

 occasional prejudice and render corruption fruitless, I think in all civil 

 causes three fourths of the jury ought to be able to return a verdict. 

 It has been urged that the rule requiring unanimity is necessary to 

 insure that every juror shall be heard and the grounds of his opinion 

 considered. Indeed, this has been defended as the only redeeming 

 feature of the whole system of trial by jury. If, after hearing all the 

 evidence adduced, after counsel have exhausted their powers in pre- 

 senting their respective sides of the case, after the presiding judge 

 has pointed out the issues to be determined and laid down the rules of 

 law applicable to them I say, if, after all this, nine out of the twelve 

 are agreed and are ready to render a verdict without the advice of the 

 other three, it is very probable that the preponderance of evidence is 

 on their side. In Nevada the three-fourths rule in civil cases has been 

 in successful operation nearly twenty years, and bench, bar, and people 

 alike, seem to be well satisfied with the result. Although this provis- 

 ion is in their State Constitution,* yet the Legislature by a two-thirds 

 vote might introduce the rule of unanimity. That no attempt has 

 been made to do so speaks volumes for the practical workings of the 

 three-fourths rule. While I think that three fourths may safely be 

 allowed to return a verdict in civil causes, I am inclined to believe 

 that in criminal causes considerations of humanity demand, and the 

 State can afford to grant every individual, such a strong presumption 

 of innocence that only a unanimous verdict of twelve of his peers shall 

 be able to overcome it. In civil causes, where a preponderance of 

 evidence entitles either party to a verdict, it is illogical to require una- 

 nimity, but in criminal cases, where the defendant must be proved 

 guilty beyond a reasonable doubt, it would be absurd to say that he 

 may be convicted while a single voice from the jury-box is heard pro- 

 testing that he is innocent. Should it be impossible for a jury in a 

 criminal case to agree, they are discharged, and the defendant is put 

 on trial again before another jury. So justice can be defeated only 

 by the unanimous consent of twelve sworn men of the neighborhood, 

 and, if justice may sometimes be delayed and extra expense incurred 



* Constitution of Nevada, Article I, section 3. 



