320 DUBOIS— OBSERVATIONS ON THE [April 23. 



.In point here, is a paragraph from Lazt> Notes (Alarch, 1910) : 



" Judge Caldwell who had served nearly 35 years on the bench of the 

 Federal District and Circuit Courts said that trial by jury was guaranteed 

 in the Constitution 'because the people knew the judges were poor judges 

 of the facts ' and that ' every day's experience confirms the wisdom of their 

 action. Equally strong testimony has been given by some of the greatest 

 judges this country has ever known,' .... How many self-respecting men 

 will condescend to serve willingly on juries if they know the judge is likely 

 to hold them up to public scorn because he disagrees with their unanimous 

 opinion delivered under oath?" 



Now let us add to this question the weight of the fact that the 

 greater the intelhgence and moral force of the juror the greater his 

 antipathy to such an unjust service. And in his resentment lies the 

 psyschological menace to his natural qualifications. And surely the 

 lower grade of man is not to be preferred because of his being the 

 more subservient. 



Not having sufficiently investigated the claim of the incompetency 

 of judges to judge of " facts " I make no comment on it — except 

 that apriori grounds seem to me to favor it. But if it be true then 

 many a case suffers (as indeed every juror knows) from the exclu- 

 sion as well as the inclusion of testimony. If the juror is a better 

 judge of " facts " than the judge is then the juror should have power 

 to call for such facts as appear to him to bear on the case. I for 

 one have heard witnesses choked ofif by the incessant objecting of 

 attorneys until the testimony was squeezed dry of all that essence 

 which gives to a story its true value. True, a witness may over- 

 color and may run into imaginings and expeditionary sallies of sen- 

 timent and statement and this freedom should be limited. Never- 

 theless, the dry skeleton of what the court calls " facts " is often 

 as untrue by default of important facts as the overweighted story 

 tends toward giving an untrue impression of the case. 



The juror should not be submitted to the strain of shutting out 

 what he heard ruled out by the judge as not being relevant or admis- 

 sible as evidence. I remember hearing a jury debate the import of 

 an offhand written promise to pay a large sum. A youthful juror 

 reminded us that the judge had said that we could consider the oral 

 testimony in such a case. At least half the jury disregarded the 

 paper because the judge permitted the oral testimony to count. The 



