Courts and Criminals | Page 8

convicted. Thus, the law which permits a defendant to testify in reality
compels him to testify, and a much-invoked safeguard of liberty turns
out to be a privilege in name only. In France or America alike a man
accused of crime sooner or later has to tell what he knows--or take his
medicine. It makes little difference whether he does so under the
legalized interrogation of a "juge d'instruction" in Paris or under the
quasi-voluntary examination of an assistant district attorney or police
inspector in New York. It is six of one and half a dozen of the other if
at his trial in France he remains mute under examination or in America
refrains from availing himself of the privilege of testifying in his own
behalf.
Thus, we are reluctantly forced to the conclusion that all human
institutions have their limitations, and that, however theoretically
perfect a government of laws may be, it must be administered by men
whose chief regard will not be the idealization of a theory of liberty so
much as an immediate solution of some concrete problem.

Not that the matter, after all, is particularly important to most of us, but
laws which exist only to be broken create a disrespect and disregard for
law which may ultimately be dangerous. It would be perfectly simple
for the legislature to say that a citizen might be arrested under
circumstances tending to create a reasonable suspicion, even if he had
not committed a crime, and it would be quite easy to pass a statute
providing that the commissioner of police might "mug" and measure all
criminals immediately after conviction. As it is, the prison authorities
won't let him, so he has to do it while he has the opportunity.
It must be admitted that this is rather hard on the innocent, but they
now have to suffer with the guilty for the sins of an indolent and
uninterested legislature. Moreover, if such a right of arrest were
proposed, some wiseacre or politician would probably rise up and
denounce the suggestion as the first step in the direction of a military
dictatorship. Thus, we shall undoubtedly fare happily on in the blissful
belief that our personal liberties are the subject of the most solicitous
and zealous care on the part of the authorities, guaranteed to us under a
government which is not of men but of laws, until one of us happens to
be arrested (by mistake, of course) and learns by sad experience the
practical methods of the police in dealing with criminals and the
agreeable but deceptive character of the pleasant fiction of the
presumption of innocence.
CHAPTER II
Preparing a Criminal Case for Trial
When the prosecuting attorney in a great criminal trial arises to open
the case to the impanelled jury, very few, if any, of them have the
slightest conception of the enormous expenditure of time, thought and
labor which has gone into the preparation of the case and made possible
his brief and easily delivered speech. For in this opening address of his
there must be no flaw, since a single misstated or overstated fact may
prejudice the jury against him and result in his defeat. Upon it also
depends the jury's first impression of the case and of the prosecutor
himself--no inconsiderable factor in the result. In a trial of importance

its careful construction with due regard to what facts shall be omitted
(in order to enhance their dramatic effect when ultimately proven) may
well occupy the district attorney every evening for a week. But if the
speech itself has involved study and travail, it is as nothing compared
with the amount required by that most important feature of every
criminal case--the selection of the jury.
For a month before the trial, or whenever it may be that the jury has
been drawn, every member upon the panel has been subjected to an
unseen scrutiny. The prosecutor, through his own or through hired
sleuths, has examined into the family history, the business standing and
methods, the financial responsibility, the political and social affiliations,
and the personal habits and "past performances" of each and every
talesman. When at the beginning of the trial they, one by one, take the
witness-chair (on what is called the voir dire) to subject themselves to
an examination by both sides as to their fitness to serve as jurors in the
case, the district attorney probably has close fit hand a rather detailed
account of each, and perchance has great difficulty in restraining a
smile. When some prospective juror, in his eagerness either to serve or
to escape, deliberately equivocates in answer to an important question
as to his personal history.
"Are you acquainted with the accused or his family?" mildly inquires
the assistant prosecutor. "No--not at all," the talesman