Second. That while many influences and conditions here and elsewhere cause crime, the greater amount of crime in this as compared with other countries of similar civilization and culture must be assigned to our inefficient system of apprehending and prosecuting those committing criminal offenses. This is evident from the fact that the social, political and economic causes of crime are less marked and frequent in this than in European countries.

also

What are the defects of our system of criminal prosecutions is too large and involved a proposition to be considered here. But in a general way our weaknesses must be found in a comparison between our system and that of England from which we largely derived our criminal law and criminal procedure and in which country areasonably satisfactory condition of law enforcement is conceded to exist. While a full consideration of these differences would unduly extend my remarks, a reference can be made to two that in Opinion seem to be of fundamental importance.

my

ог

In over two-thirds of our states the trial judge is a mere umpire moderator, who has no effective authority to direct the investigation and enforce justice; and even in those states in which he has Some authority to advise the jury as to the facts as well as to the law, there are such limitations upon his authority as largely to impair his influence. Of this feature of our system Professor Thayer in his able work on Evidence says:

"Trial by jury, in a form which would withhold from the jury the assistance of the court in dealing with the facts, is not trial by jury in any historic sense of the term".

The better enforcement of the criminal laws in the federal than in the state courts is, in my opinion, largely to be explained by this difference in the authority of the trial judge.

Another influence which has largely contributed to the ineffective operation of our system is the right of appeal enjoyed by all defendants and the highly critical attitude with which the appellate Courts usually examine the record of conviction. The fact that reversals in the state appellate courts run from 20 per cent to over 50 Cent and that the average for the entire country is over 33 1-3 cent has an evil influence far beyond the cases directly affected.

per

per

The conduct of a trial in the English courts is influenced but little, at all, by fear on the part of the prosecutor and trial judge as to the result when the case comes before the appellate court. In this

if

country, the danger of reversal hangs as a "sword of Damocles" over the heads of judges and prosecutors. It makes the trial judge hesitant and over-cautious in passing on objections by defendants, and disposed to resolve all doubts in their favor. And the jurors, noting that the court rules generally in favor of the defendant, often get the impression that the judge is for the defendant, or that the prosecutor is trying to introduce illegal evidence, and thus the jury is prejudiced in the defendant's favor.

The prosecutor, knowing by experience that from 20 per cent to 50 per cent of the convictions which are appealed are reversed, is disposed to secure some punishment of the defendant and save himself a lot of hard work by accepting a plea of guilty to some minor offense. This demoralizing influence in the administration of criminal justice in this country has not been given the weight and importance that it really has, upon the conduct of criminal trials, in addition to its effect upon the actual cases in which the judgments are reversed, or reversed and remanded.

While the giving to the trial judges of a right effectively to contribute to the enforcement of the law would require legislative and in some cases constitutional changes, the correction of this hypertechnical attitude of the appellate courts towards criminal convictions can be accomplished through public opinion within and without the profession. If the appellate courts should refuse to revise or remand convictions except in those cases where, by reason of the error complained of, they have a reasonable doubt of the defendant's guilt, or if we could establish a system of appeals such as obtains in England, I believe a criminal trial would soon become what it should be-a judicial proceeding for the purpose of ascertaining the truth incident to the protection of the innocent and the punishment of the guilty. To this result the profession can also effectively contribute by enforcing standards of practice and professional conduct which will correct many of the abuses now incident to the trial of criminal cases which, as I have said before, cause them to assume more of the appearance of contests of skill and experience between opposing counsel than judicial investigations of controverted issues of fact and of law.

I have said this much on this subject because I feel that it is the most important with which the Law Institute, and in fact the general public, has to deal; and if the Institute did nothing else than help

in

Some measure to make our criminal laws more clear and our criminal procedure more effective, it would well justify its existence and labors.

The work now initiated by the Council of the Institute is also of importance as evidencing the most comprehensive and best organized effort towards the clarification and simplification of our laws that has ever been undertaken in this country; and it also evidences something which is of even more importance to the profession. It presents the leading law schools of the country in a new status, or rather in a new relation to our profession and the law. Hitherto the principal work of the law schools has been the preparation of their students for admission to the bar and the practice of the law. This work has been well or poorly done according to the standards and the practices of the different schools. In recent years many of Our best schools have endeavored to, and have done more than this; they have dignified the law as a profession by requiring that those who entered upon its study have the preliminary training of a broad, liberal education, and that by their course and methods of study in the law schools they should come to know the history and the philosophy of the law, its relations to all activities of life and its value and importance as the cement that binds together the structure of human institutions. Now the law school has come to have a new and different meaning to the profession through the organization and the work of the American Law Institute. They have become centers of juristic thought for the improvement, the simplification and the adaptation to modern life of the law itself. The profession and the judges have apparently welcomed this leadership of the teaching profession realizing that this work cannot be done in the hurried law office of the day or in the courts, subject as they are to the constant pressure incident to the consideration and decision of cases. profession has also realized that, while commercial enterprises for the compilation of encyclopedias and digests have done much to lessen

the

The

work of the lawyer and the judges, they have not met the ever

increasing demand for an improvement and simplification of the law itself. The profession and the judges have, by force of conditions, been compelled to deal with each case as it arises as a part of the day's work, the final decision of which must of necessity be determined by a selection from a conflicting line of authorities. A decision stating clearly and forcibly correct principles of law was simply

another authority added to the already over-burdened shelves of our law libraries. The increasing volume of adjudicated cases pouring forth from courts of appeal in forty-eight states, from the United States trial and appellate courts, and from the Supreme Court of the United States constitutes a mass of law which, as Gibbon said of the Roman Law in its period prior to the restatements of Theodosius and Justinian, "No fortune could purchase and no capacity digest". And when to this mass of adjudicated cases is added the statutory enactments of forty-eight legislatures and the national Congress and the decisions of almost innumerable boards and commissions of the national government and the different states with judicial or semi-judicial powers, we find a most impressive demonstration of the imperative need of some restatement of the principles of the law which defines our rights and our duties and regulates the increasing complexity of modern society. The work to be done is manifestly both important and difficult, but it is evident that we shall accomplish nothing by emphasizing our difficulties and doing nothing.

The work of the American Law Institute may fail to realize the high hopes and expectations of those responsible for its existence, but that it will accomplish much of good seems definitely assured. Its work of restatement may be but the prelude to other similar undertakings, for we find that at least three comprehensive restatements, including the commentaries of many able jurists, made possible the notable work of Justinian. But a start has been made, and it is with the legal profession as a whole to determine whether the undertaking shall realize the hopes of those who have organized it and meet the pressing need for an improvement of our laws. I shall feel well repaid for my presence here today, if I have helped to impress upon your minds the importance of our doing all that we can do to make more definite, harmonious and adaptable to modern life that great system of jurisprudence which we have inherited and developed; and we shall justify or disappoint the confidence and the hopes of the public as we fail or succeed in the execution of this important work. Let us strive at least to give to the future as great a gift as we have received from the past.

REPORT OF COMMITTEE ON LEGISLATION AND LAW REFORM MICHIGAN STATE BAR ASSOCIATION, 1924

our committee on Legislation and Law Reform is not unmindful Of the grave responsibility resting upon it. Its duty is to draft bills, consider proposals submitted to it and finally to recommend definite legislative action upon measures it deems desirable. With this responsibility well in mind the committee has endeavored to proceed with caution and act only after due deliberation.

The public is entitled to a legal system just as simple as is conSonant with justice. And the public is justified in expecting the lawyers to lead the way toward the accomplishment of that ideal. The profession therefore should at all times be alert toward improvement, actively supporting that which will so aid.

The American Bar Association has a by-law prohibiting the consideration at its annual meetings of any legislative recommendation unless the matter has been submitted to its members in printed form, at least thirty days prior to the meeting. Although such a rule does not restrict this committee, nevertheless we approve of the principle and therefore, we now recommend for definite enforcement by this association only such proposals as have been printed in the Michigan State Bar Journal and so subjected to general criticism of its memThe endorsement of this association is of great importance and should not be lightly bestowed upon the spur of a moment. To follow this course may mean a delay at times, yet we believe it to be the only safe rule.

bers.

The work of the committee on uniform laws is also along legis lative lines. Now that we have in the Bar Journal a ready means of reaching the members, we recommend that such committee follow

the

this

Same plan of printing in the Journal any measures it believes association should endorse.

The field before the Committee on Legislation and Law Reform is a broad one: in fact, it is too broad for greatest efficiency and we, therefore, suggest that from time to time particular subjects be referred to sub-committees working under it.

Yo

our committee recommends that this association give its approval to four specific legislative proposals.