COMMENT BY THE COURT ON THE WEIGHT OF

EVIDENCE

BY JAMES H. WILKERSON*

There is now pending before Congress a bill which if passed will bring about important changes in the practice in jury trials in the federal courts. The bill has passed the Senate and, having been reported favorably by the Judiciary Committee, is now on the House calendar for consideration at the next session of Congress.

In its present form it provides that in any cause pending in any United States Court tried by a jury it shall be reversible error for the judge to express his opinion as to the credibility of witnesses or the weight of the evidence, provided that the court may direct a verdict or enter a judgment of compulsory non-suit when the same may be required or permitted as a matter of law. The bill also provides that the judge shall deliver his charge to the jury, in writing, at the conclusion of the evidence and before argument of counsel, provided, however, that in United States Courts sitting in states in which the law permits the trial judge to deliver his charge orally and after argument of counsel, such procedure and practice may be followed by the trial judges in the United States Courts sitting in such states.

I wish to consider particularly that portion of the bill which deals with comment on the weight of the evidence.

The bill, in somewhat different form, was passed by the House of Representatives in 1919. There was no substantial opposition to it. The arguments urged in its favor were, first, that under the practice in the state courts in some of the states the judge is not permitted to comment on the facts and that the proposed change would tend to uniformity in procedure, and,. second, that the power to charge on the facts had been abused to such an extent by judges in the federal courts that it should be taken away from them. The bill was not advanced further at that time. At the last session of Congress, however, it was reported favorably by the Judiciary Committee and passed the Senate, and, as I have stated, is now on the House calendar. The bill

*Paper read at the Michigan State Bar Association meeting, Sept. 5, 1924, by Hon. James H. Wilkerson, Judge of the United States District Court for the Northern District of Illinois.

was considered briefly in the Senate. There was some opposition by one or two Senators, but, as is frequently the case on crowded legislative calendars, the bill went through, it seems to me, without a full appreciation of the true significance and importance of the proposed legislation.

Certainly, regardless of what is done in the end with this bill, it presents questions which should be carefully analyzed and considered before final action is taken. The questions involved are most interesting. They go back to the place marked out for the judicial department by the framers of the Constitution in our plan of government. They deal with the effectiveness of the instrumentalities provided for maintaining the supremacy of the Constitution and the national laws. After having consented to discuss this subject, I became satisfied that it would be impossible for one holding the position of a federal judge to present it fully and in all of its aspects. It should be discussed by members of the bar who can approach it without the suggestion of an interest in the preservation of a power which has been exercised in the federal courts from the beginning. And then there are questions of validity and construction which the courts will have to pass upon if the bill becomes a law. As to those questions a federal judge can do nothing more, of course, than to state them because if the bill becomes a law those questions will doubtless be before the courts for decision.

In my opinion, however, the bar should give very careful consideration to this proposed change. Within the limitations which are imposed upon me I shall make one or two suggestions of points which, it seems to me, should not be overlooked whatever the ultimate decision of Congress may be. Section 2 of Article III of the Constitution, provides: "The trial of all crimes, except in cases of impeachment, shall be by jury * * *" This is more than a preservation of a right. It is a limitation upon Congress. It makes trial by jury the method of trial for crimes. In other words, the Constitution establishes the procedure to be followed. And, of course, the trial by jury thus established is trial by jury as it existed at common law. This, inview of the history of the Constitution, is not merely the guaranty of a right to a defendant in a criminal trial. It is also a right of the government.

The Sixth Amendment to the Constitution provides: "In all criminal prosecutions the accused shall enjoy the right to a speedy and

public trial by an impartial jury of the state and district, wherein the crime shall have been committed ***." This leaves the method of trial by jury as it was fixed in Section 2 of Article III of the Constitution.

The Seventh Amendment to the Constitution provides: "In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved ***." It is to be noted that there is a difference between the language of the Seventh Amendment and the language of Section 2 of Article III of the Constitution. In the amendment a right is preserved. In the constitutional provision as to criminal trials a method of trial is definitely fixed.

What is meant in the Constitution by "trial by jury"? This is a question about which there is no room for debate. The decisions of the Supreme Court of the United States remove it from the field of discussion. I shall refer only to the admirable statement of Mr. Justice Gray, delivering the unanimous decision of the Supreme Court, in Capitol Traction Company v. Hof, 174 U. S. 1. He said:

""Trial by jury', in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside. their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.

Lord Hale, in his History of the Common Law, c. 12, 'touching trial by jury', says: 'Another excellency of this trial is this, that the judge is always present at the time of the evidence given in it. Herein he is able in matters of law, emerging upon the evidence, to direct them; and also, in matters of fact, to give them great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them

his opinion even in matter of fact, which is a great advantage and light to laymen. And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact, whereof the jury are the judges.' And again, in summing up the advantages of trial by jury, he says: 'It has the advantage of the judge's observation, attention and assistance, in point of law by way of decision, and in point of fact by way of direction to the jury.' 2 Hale Hist. Com. Law, (5th ed.) -147, 156. See also I Hale P. C. 33.

The Supreme Court of Ohio held that the provision of Article 1, Section 19, of the Constitution of that state, requiring compensation for private property taken for the public use to 'be assessed by a jury', was not satisfied without an assessment by a jury of twelve men under the supervision of a court; and, speaking by Chief Justice Thurman, said "That the term "jury", without addition or prefix, imports a body of twelve men in a court of justice, is as well settled as any legal proposition can be.' 'We agree with Grimke, J., in Willyard v. Hamilton, 7 Ohio, pt. 2, 111, 118, that a jury, properly speaking, is an appendage of a court, a tribunal auxiliary to the administration of justice in a court, that a presiding law tribunal is implied, and that the conjunction of the two is the peculiar and valuable feature of the jury trial; and, as a necessary inference, that a mere commission, though composed of twelve men, can never be properly regarded as a jury. Upon the whole, after a careful examination of the subject, we are clearly of the opinion that the word 'jury', in Section 19 of Article I as well as in other places in the Constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence and arguments of the parties.' Lamb v. Lane, (1854) 4 Ohio St. 167, 177, 179.

The Justices of the Supreme Judicial Court of New Hampshire, in an opinion given to the House of Representatives of the state, said: "The terms "jury" and "trial by jury”, are, and for ages have been, well known in the language of the law. They were used at the adoption of the Constitution, and al

ways, it is believed, before that time, and almost always since, in a single sense. A jury for the trial of a cause was a body of twelve men, described as upright, well qualified and lawful men, disinterested and impartial, not of kin nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all bias in favor or against either party, duly empanelled under the direction of a competent court, sworn to render a true verdict according to the law and the evidence given them; who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them.' Opinion of Justices, (1860) 41 N. H. 550, 551.

Judge Sprague, in the District Court of the United States for the District of Massachusetts, said: "The Constitution secures a trial by jury, without defining what that trial is. We are left to the common law to learn what it is that is secured. Now the trial by jury was, when the Constitution was adopted, and for generations before that time had been, here and in England, a trial of an issue of fact by twelve men, under the direction and superintendence of the court. This direction and superintendence was an essential part of the trial.' 'At the time of the adoption of the Constitution, it was a part of the system of trial by jury in civil cases that the court might, in its discretion, set aside a verdict.' 'Each party, the losing as well as the winning, has a right to the legitimate trial by jury, with all its safeguards, as understood when the Constitution was adopted.' United States v. Bags of Merchandise, (1863) 2 Sprague, 85-88.

This court has expressed the same idea, saying: 'In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important and express his opinion upon the facts.' Vicksburg etc. Railroad v. Putnam, (1886) 118 U.