*1 o4 O. CO.
SKIDMORE v. BALTIMORE & R. No. Docket 20862. Appeals,
Circuit Court of Second Circuit.
March *2 Brooklyn, Convisser, of N. Blank Cleveland,
Y.,
Borden, of
and Morris S.
Samuels,
York
(William
Ohio
New
City,
counsel),
plaintiff-appellee.
Schwebel,
City, and
of New York
Robert
White, Plains,
Jones, of
Y.N.
E.
James
Combs,
Rochester,
Y.,
N.
(William C.
defendant-appellant.
counsel), for
HAND,
FRANK,
SWAN, and
Before L.
Judges.
Circuit
FRANK,
Judge.
Circuit
properly
1. The
denied
directed
new
motion
jus-
sufficient to
evidence was
trial. The
tify
concluding (a)
that de-
plaintiff to
fendant directed
work
place
in which he
manner and
.worked,
(b)
negli-
that defendant
was
plaintiff
perform
requiring
gent,
defendant had not
such services when
snow and ice under the
car.
cleared
judge properly charged with
Since
contributory
respect
deduction for
Act,
pursuant
negligence,
we must
jury made such a
deduc-
assume
us, we
record before
cannot
tion. On that,
say
deduction,
reasonable
States,
by jury
after
United
$30,000
(assum-
adopted
European
was excessive
in criminal cases on the
*3
ing
power
there,
continent,1
we have the
to consider
subsequently ceased
question).
pre-Hitler
popul
in
its
days,
maintain
arity.2
explained
be
attitude
Nor can that
argues
Defendant
that the
de
symptom
as a
in
interest
of decreased
erred
denying
request
in
its
for a
Scotland,
mocracy
For
and individualism.
agree.
We cannot
surely
liberty-loving indi
long a land of
Undeniably,
the verdict affords no satis
century
vidualists,
the sixteenth
in
having
factory
jury’s
information
find
re-adopt
jury,3
rejected
virtually
civil
ings.
every
But almost
general verdict
later,
and,
gave
ed
all but
it in
still
greater
sheds similar or even
darkness.
by jury
it up.
whence trial
England,
In
Such
(not all)
account
verdicts
for much
us,
employed in
came to
now seldom
jury.
criticism of the
it is
civil
Some
suits,
criminal
civil
in
jury system
revaluation of the
been abandoned
has
seems not
crimes,
unjustified
prosecutions
major
in
light
other than for
the fact
In
decreasingly.4
ours
only country
is the
even
used
in the
there
world where
prized.
it is
highly
jury-
still
States,
number of
Lauded as
essen
United
liberty
slowly waning
jury’s
tial
individual
democracy,
indicates the
waivers
imported
here,
eighteenth
especially
in the
in the
late
popularity.5
But
many
nineteenth
England
courts,
jury,
centuries
in
civil
and federal
jury (or Namnd)
1 The
summary jurisdiction
Swedish civil
of the courts of
history;
appears
has a much older
to hear
determine indictable offenses.
and.
indigenous growth.
Howard,
have
of ancient
England
Criminal
Justice
Engelman, History
England,
1926, 69,695
Continental
(Millar
1927) 212,
charged
Civil Procedure
ed.
defendants
with indictable of-
217, 225-232, 836-869. As to
fenses were dealt
sum-
with in courts of
jurisdiction
mary
similar ancient
other
7,924
institutions in
Scan
were
countries,
History
Forsyth,
jury
dinavian
higher
see
committed for
trial at
By Jury (1875) Chapter 2;
Howard,
Trial
cit.,
courts.
loe.
407.”
Moschzisker,
By Jury (1930)
Trial
13-
Patón, Jurisprudence
(1946) 459, says
only one-eighth
that “in 1935
in-
2 Seagle, Jury,
Encyc.
of Social Sci
by jury,”
cases
dictable
tried
were
(1932) 498, 499-599; Pound, ibid,
ences
King’s
“in
civil eases in the
Bench
492, 496, 497.
proportion
Division the
cases
accident,
marriage
An historical
only slightly higher,
County
while in
of James V of
Scotland to
French
per
Court
it sank
0.006
cent.”
princess,
seems
Scot
led to
reception
percentage
land’s
Roman
American cases
thus
juries
sixteenth-century
are waived seems
in
abandonment of
on the
(except
courts).
Nevertheless,
the civil
crease.
local
nu.mber
negligible.
See citations in
is not
See the
note
trials
follow
excerpt
Orfield,
ing
Report
See, also,
from the
Criminal
Annual
Procedure
Appeal
From Arrest
Office of the United
361:
Administrative
“Perhaps
important
develop-
1947, as
the most
States Courts
to trials
justice
figures
ment
England
the federal district
courts:
“The
administration of
begun
during
century
for
past
last
trials
half
districts
years
petit
given
been the obsolescence
four
follow
through
enlargement
powers
tabulation:
Total
Total
Civil
Civil
Total Criminal Criminal
Jury
Jury
Trials
Criminal
Civil
Court
Court
2,702
2,323
4,926
1,819
3,107
9,951
5,025
1,513
4,032
2,641
8,390
4,358
2,845
1,391
2,031
7,756
3,153
1,433
3,170
1,139
4,586
1,634
1,441
5,042
3,408
2,429
7,471
figures
supplied
hearings
agreed
These
were
clude
on
the dis-
based
state-
clerks,
reported
facts, disposition
who
ment of
trict court
as trials
proceedings,
including
summary judgment,
all contested
motions,
motion such as for
disposition
findings
judg-
either a court or a
before
of masters or
pretrial
evidence
introduced and
entered as
a result
ments
con-
judgment sought. They
final
do not in-
ferences.”
judges’
if
cases,
except by
juries
right
ignore
con-
be eliminated
had
cannot
then,
must,
legal
applicable
amendments.
instructions
We
stitutional
rules,
cases,6
vari-
would “become as
as to
kind of
assume
“law”
inclinations
prejudices,
able as the
long
be
us.
men”;
parties
passions
“the
many persons regard as its
But what
decision”;
arbitrary
would suffer from an
major
mitigated.
can
One de-
defects
depend entirely
“decisions would
help
that end
vice which will
to achieve
fixed,
settled,
juries
by any
uncontrolled
who
special or fact verdict. Those
is the
“according
principle,”
and would
jury’s
resent
reform which invades
*4
sup-
opinion
in their own
jury
to
the
what
province
his-
should be reassured
be”;
gov-
our
pose
or ought
law is
who teach that the
torians
a government
be
ernment”
“cease to
would
idea,
new-fangled
as
no
but one almost
is
government
become a
of laws and
itself,
old as the
older indeed
only
men”; “jurors
become
would
not
early days,
jury.
In those
modern
well”;
“law”
judges
legislators
as
us,
successfully
jurors
Morgan
often
tells
as
fluctuating
uncertain
and
would “be as
right
to render such ver-
insisted
juries in
opinions of
the diverse
different
dicts against
judges
the desires of the
who
“superior
it”;
jurors would be
regard to
sure,
general
wanted
To
verdicts.7
be
in
legislature,
laws
and its
to the national
country,
part
during
latter
subject
control”
eighteenth
early part
of the nine-
opera-
a
Congress”
would “be
“law
centuries,
right
teenth
a
return
in another.”10
and not
tion in one state
general
highly
was
esteemed
as
jury’s prerogative,
talk can do
especially in criminal
no
of brave
Yet
amount
cases;
that,
jury re
a
then
when
away
instructed the
with the fact
verdict,
juries
they
ordinary
it
were to decide both “the
an
turns
facts,
being
utterly
ignore
law”
what
usually
power
bound
has the
opinion
sub
judge.8
concerning
it
juris-
trial
Most
instructs
rules,
which,
repudiated
power
a
because
legal
dictions
later
doctrine.9 stantive
controlled,11
in
that,
is
legal
courts
writers
generally
be
declared
cannot
6
9
very
course,
opin-
Howe,
Of
num
considerable
loc. cit. The decisive
eases,
by jury
right
practice is,
ber of
ex
as
current
ion
federal
historically
course, Sparf
ists because
determined
and Hansen
v. United
note,
States,
273,
1895,
51,
fortuities.
a suit
Thus in
U.S.
15
156
S.Ct.
right exists, but
in a
suit
to cancel
distinguishable practical purposes, opinion for all uncertain as diverse then, from a “right.”12 Practically, it”; regard to juries different may say jury’s duty when judges but often are “not renders a we now do have the Indeed, de legislatures as well.” very conditions which we warned were pre system praise "it votees the jury right result if the ha'd the cisely say, because, juries, means legal pro-positions: decide cases are often verdicts, can decided “according jury sup to what nullify legal rules pose be”; substantive ought “law,” juries sit, dislike,13 ephemeral when becoming fluctuating “as thus ad hoc ** Co., 375; popular C.C., preserved. 50 F. Bar Clark satisfaction noy Dumping Co., C.C., sup- Mil 109 F. That is what trial does. Ross, plies C.C., flexibility liken v. 70, F.9 46 C.J. rules which justice popular essential con- flexibility tentment. could nev- And Angels Sec If Men Were *5 judge given judge er be trial. The (1942) 83, 84; Commonwealth, Kane case) (as chancery in a write out must Am.Rep. 89 Pa. cf. declaring opinion, his the and the law Frank, Words and Music: Some Re pub- findings this of He cannot fact. in Statutory Interpretation, marks On jot lic re- record deviate one (1947) 1259, Col.L.Rev. 1264-1278. quirements. secrecy jury, and the 13 See, g., Wigmore, Program For A jury indispensable room, of the are the Jury Trial, the Trial aof 12 Am.Jud. justice.” popular elements in Soc. 166: are “Law and Justice Pound, In Law Law Books and inevitably from time to time conflict. in Action, (1910) 12, 18, 19: Am.L.Rev. general That is because law rule is great “Jury the corrective lawlessness is (even exceptions rules the stated the to law in its actual administration. general exceptions); justice are while large imposed will of the at on state precise is the fairness of under this case major- community, reluctant the will of circumstances. as a And rule ity imposed vigorous on a determin- and broadly typical law takes account of minority, ed find same obstacle the average conditions, and is re aimed jury formerly kings confronted local that justice sults, every law do and pur- and ministers. pose is the What Everybody this, coincide. not knows the exten- what occasion of and the supply and can But trouble instances. the juries powers I of the to sions that Law— is Law cannot it. concede Practically purpose have referred? the exact the rule —must enforced —the keep is, largest part, letter of in the to justice. rule, justice no terms the or books, while the in al- law same- the the Equal Law’; ‘All Are Persons before the jury apply lowing differ- the rein free to letters, large injunction, in this solemn extra-legal ent considerations rules or judge’s painted is on the wall -over the cre- in the actual causes —to decision every that Italian court. bench in So existing ate new breaches and widen judge apply finds the the law as he in books and breaches between law general it alike all. not And even the popu- law action. The is that in occasion exceptions that the law itself con thought popular are at lar and action judge get down cede will enable the many and doctrines variance justice case, particular books, and the law is rules in the that basis of instances. The whole extreme trying save latter and accommo- rests confidence our * * * If itself to the former. date rely experience our we can on on that jury charging ritual on But, being him so, the law as it is. this preserved, law with exactness is academic hardship repeated instances of that the ease record show injustice bound and are to occur law, according fact decided long judge’s rulings run will in according jury dealt with jus injure public that same confidence conformity extra-legal notions bring tice, We odium on law. community the time be- views of justice, going think want and we we are ing, up.” through law,’ is get covered ‘the and when we not, posi- ‘the law.’ do we blame Now is Chalmers stated this Justice Mr. jury, “Again, say- where the in. The comes an there is old tion thus: privacy adjusts retirement, of its make law. hard cases bad So ' justice jury. rule of law do when there justice particular Judge case. Thus the odium of to do anxious to the particular parties avoided, rules before inflexible him. To meet gen (un-elected) (a prisingly, state of af of defense legislatures sort by law neglected by fairs most writers seldom voiced singularly eral not breath, yers who, demand jurisprudence,14a well to next who would do legal precedents.14b modify strict by recognizing what their ideas adherence observers,” might “Competent writes “juriesprudence”). Sur be called particular tempted equity admiralty many a qualify hard he is suits —the case exception upon engraft judges to con- or an less reluctant general principle. sound revise unde- When trive flexible rules and to path straight precedents. once leaves the narrow sirable law, fields wanders into wide any legal harsh If are too rules justice, of substantial soon irre he is undesirable, and the otherwise trievably hard lost. But (where unwilling, rules are are law, tried with do make bad statutory) unable, modify them, re- all, for findings make no as far as the law at legislatures had to course should be concerned. today tardy acting less principle kept intact while the pre- they were. It seems unwise to once justice particular ap case legal keep rules leave tend to alive plying it.” Law or nullification amendment “By use Modern Mind 174: consisting legislatures, each series you your jury, eat casually can cake women, selected men or twelve your preserve too. You can rules have it jurors. may be, moreover, unyielding principles unswerving nullification reliance —in the form of instructions desirable remedial rules has retarded *6 n —and you jury’s can a decision have legislatures. legislation the elected (which rights par determines the of the juries theory important, that the More case) upon ties to the respect that based scant legislate rules substantive undesirable for those abstractions as as- false rests on the of existence out appeals. prin emotional The rules and jurors, sumption un- full that with ciples pure remain and unsullied —be derstanding in the rules announced of the cause, clearly enunciated, they are while deliberately judge’s charge, and consci- * * applied. not ‘It cannot be doubt jurors nullify truth, ously them. In says ed,’ Chamberlayne, princi ‘that part understanding that no of often pal jury popular favor is claim the charge (frequently ability gen defy, traditional in a its simply bring prejudice) the basis verdict, an law of the land eral they party general favor. verdict for the ” judge.’ See Ohamber nounced layne, jurors’ legislation blind is thus The Thompson, (1911) § Evidence infra, footnote See unintentional. Ed., Trials, 2d § 25a. Frank, and Music: Words Some Cardozo, following: g., See, Statutory Interpretation, 47 Remarks Process Judicial Nature 1274-1276; Col.L.Rev. Cardozo, (1921); The Growth Angels Frank, If Men Were Theory Legal Friedman, (1924); Law Patterson, To (1944); An Introduction support gen- of this defense F, Cohen, (1946); Jurisprudence S. verdict, eral an oft-cited illustration The Func- Nonsense Transcendental many juries apply refusal Approach, Col.L.Rev. tional harsh fellow-servant rule. But it is unlikely themselves fail- many trea- these, other such Indeed judge-made pre- abolish ed to cisely rule were tises, trial courts if the read as jury verdicts made it seem because virtually non-existent. unnecessary And, to do so. since 14b Modern and The Law juries apply rule, did doubtless “Jury-made law, as uniformity 174: Mind was an unfair lack result pe- law, judge-made compared episodic from its decisions. Aside in the gen- issue It does not form. character, capricious culiar in mak- “law find pronouncements. will not You unnecessarily juries ing” eral seems an reports text- law or nullifying clumsy forth it set method undesirable become embodied It does not precedents. books. can The same be said precedents. pro- general nowhere argument 'It is a series of verdicts jury For each makes own codified. its individualization desirable vide rules, ap- with little no each knowl- law case were which some edge prevent. plied, of or to what has been reference would regard that, where, before or to what be for done done in cases is notable juries reasons, in similar cases.” sit —as thereafter historical
Rossman, jur interviewed the “who have As to 'the element in second trials, that, general law, ors in scores of declare matter is a in many general verdict which necessarily ignorant. cases where employed, principal body was received The issues from the are taken jur coucty, consideration whatever from the say that it is safe to y.14c verdict, then, general has some last man who or allowed be called strange lawyer. They characteristics. As Sunderland sit would be puts general law, it.15 peculiarity get “The dealers in and must second-hand merger supply single They indi it from noth judge. into can matters, themselves; visible residuum mere conduit however are a numerous, pipe supplies whether through of law or fact. It is court compound by the-jury made law goes general which is into the incapable being up nothing broken into But con while the its can contribute parts. concerned, judicial stituent No reagents of value exist so far as the law is qualitative for quantitive mischief, either capacity or a has infinite analysis. supplies law easily the means twelve men more can misunderstand determining found, neither what facts were law in a can ex minute than nor principles plain applied, Indeed, law were anything what an hour. can nor application how the expectation made. more that the There fatuous carefully, three therefore unknown learned elements which the verdict; enter ly laymen into the laboriously expounds (a) n facts; law; (b) operative (c) appli in their box become cation of the law the facts. One it is minds in its form? who And true clear that the verdict is understand liable to three never studied science cannot sourc error, intricacies, es of corresponding appreciate the law to these three exception very elements. It is also clear that if is no to this rule. The error does occur in theory of these matters it cannot and its *7 discovered, predicated upon is premise for the constituents of thus which the com pound practically imperfect cannot be ascertained. No makes certain an or one but jurors the can tell put principles what of law into it and erroneous view of the jurors the compounded will not which say. be heard to are to be into the ver general upon given verdict is as dict. inscrutable and law essen instructions the tially mysterious by jury judgment as the the to the are an effort to which court give, minutes, space issued from ancient Delphi. oracle of of a few .the the laymen Both upon on the pre stand same education twelve the foundation—a sumption protects of wisdom. The court of the involved the case. branch law jury investigation any way. the from all inquiry taught Law such cannot be fully temple as element, the protected accordingly, gen as authorities As the to this priestess spoke necessarily the supplient who is almost a failure. eral verdict votary quite at the probable general shrine. is element in the As to the third that the law wise in is not to tlve permitting the law application verdict—the testify jurors they compoundT as to how facts, difficuly find same the as stability all ed merging would dis first element—a the case of the appear inquiries if open.15a such were way the verdict such a the into 14c Rossman, Judge-Jury states, Relation- however, inquiries In some such ship Courts, permitted, the State 3 F.R.D. pursuant are sometimes statute; Thompson, (2d see 2 Trials Ed.) Verdicts, Sunderland, inquiries § 2677. Where such are General permitted, strange Special, happenings 29 Yale L.J. are as, disclosed, g., seldom Pless, See McDonald v. 238 U.S. by drawing reached its verdict lots 35 S.Ct. L.Ed. Fabris v. Corp., Cir., gambling (a Food
General 152 F.2d or other method la Rabel Bridlegoose). Pleva, State, but cf. United ias’ States Cf. Goins Cir., ; 66 F.2d 46 Ohio St. 21 N.E. Trials, Thompson, Ed., 2d §§ must The record deliberations. or whether impossible to tell how it flawless, absolutely but such a result They may have applied law. by exclud they possible only concealing, not way, wholly or wrong applied init great No This is the technical all. mistakes. apply it failed may have It covers general merit3 which made analysis can be the verdict human up shortcomings which frail Since process. any light on will throw from nature is unable eliminate ordinarily go to the case can abysmal possible, trial of case. In abstraction way legally either if a verdict concrete details general of the verdict presumed jury does whatever law, eye up, swallowed and the excludes presumption this right, and anxiously realization searching Cas inquiry themselves. short, logical perfection, is satisfied. verdict shows es arise where law, for what it apply general verdict valued properly a failure its face does, It serves as usually dam what is. the measure relating as * * * great opiate, draws procedural majority of cases ages, in the vast human soothes mystery, throwing a the curtain errors and complete verdict is at us we have with the impenetrable darkness over assurance mantle of the tained the unattainable.15b jury. Whether operations of threw the openly jurors deliberately and enhances, general ver discard, and rendered law into the maximum, bias power appeals to heads, whether or their own dict out of jurors,15c and prejudices es and correctly as instructed they applied the law usually ritual use into a futile converts apply tried to court, whether al phrases dispassionateness stock for lack of under properly but failed always charges.15d judges’ most included respecting questions standing, tactics, Many written books —these nothing. So discloses the verdict lawyers, ad give experienced far, therefore, goes, element as third emotions, juries’ arouse to how to vice as unknown and un verdict is an lawyers a jury tries the point make mystery, lawyers, with the balance case, knowable that the rather come, recognize trials, We probability against it. themselves then, position, engaged stage-managers actors * * performances.16 In a series of confers on theatrical practice, recently pub power pamphlets vast error and do mis on trial commit *8 auspices loading of the American by it with technical burdens lished under chief perform, beyond ability Association, one author writes that con Bar far * * * always rec fusing aggregating segre of “the advocate instead it judging lawyer issues, ognize jury is that the gating shrouding and witnesses, quick take secrecy as the mystery the actual and results of well 15b, reported 15d See, charge g., Special Clementson, in F. e. Verdicts See per- By Findings (1905) R. D. 119: law will not “Nor “The Juries 12: governed by away mystery mit to be senti- can mere cut tile mantle of ment, conjecture, sympathy, passion enveloped, or public opinion public prejudice, principal or feel- facts were de- to see how you ing ap- termined, an<i reach a ver- and whether the law just plied sides, dict that will be to both re- instructions. under consequences gardless may knowl- of what It is a matter of common typical edge be.” Another runs statement that absolutely anything here calm thus: “You are to sit but de- result evidence, any sympa- prejudice weighing liberation, bias or or ex- free from any thy emotion, judicially change impressions opinions, like de- resolu- doubts, intelligent final what the facts are.” con- termine tion produced which, theoretically, Goldstein, Technique 16 See, g., currence e. Trial unexplained Harris, Advocacy (1935); it. into comes court On Hints impenetrable.” Longenecker, ed.); (1943 Hints On The 15c See, g., Chamberlayne, (1927). cit., A Suit Trial of Law loc. 95, 302, §§ was, what I to be presume, rather nature intended protagonists sides because it testimony” is, jury-box, ;17 gets into the opinion and when it than their make duty advocate says jurors’ reaction another that interests fairly can in important than best use of it he “may trial counsel be more laughing mat no client, of his client.” This is the client reaction to called prejudice ter. For been only rela appears during on stand 19b noted juror, lawyer and it has is thirteenth tively period, while brief Sympathy time”; Prejudice Miss that this same “Mr. jury all the before the testi whose are the witnesses suggestions of means names of gives author detailed recorded, must neverthe mony but lawyer never may “ingratiate him which a by jury.”19c less trials jury.18 A has solemn self” with the court reckoned always been ly decided “tears Thayer commented Small wonder arguments before legitimate considered potent cause of “a are trials jury,” “one of that such use tears Mor bar,”20 or that demoralization to- no rights the natural of counsel tactics, review gan, well versed away,”-and take court or constitution could techniques, recent jury trial a book on “indeed, them at com .that if counsel has lawyer could ly only wrote :21 “If mand, seriously questioned may be honestly Mr. Gold- up rise denounce duty professional whether it is not his profession. of his stein as a defamer * * * proper aris cotjld whenever occasion shed them assert only a reviewer If ” * * * 19 Harris, in his well known es. palaces guide not to book is a says, be that advocacy, “It book on red-light districts virtue but easily respect more when But judgment deceived the law. a decent aroused, so, you Gold- passions compels are if truth that Mr. the admission responsible. truly. told lawyers] story Human He has stein has his told [the Negligence Preliminary 17 Gair, Thayer, Trial Ac- A Treatise Osborn, (1898) (1946) 36. Evidence See also tion 535.. Jury Selecting (Students’ Bodin, ed. 50ff. Mind Juror series, 1937) also, Hays, Tac the same Boston, 18ff. Remedies Cross-Examination Practical tics in Some Pleading Existing Bodin, For in the Adminis- and Practice Deficiencies Cf. Justice, tration of Pa.L.Rev. 61 Un. 50-51. pick up Ferguson Moore, a book Tenn. 1: “I never advocacy, art of the the so-called S.W. “Perhaps advocate, am at The two that I not horrified also said: The court pre- frankly unethical attitude the writers same rules counsel observe the jury. jury. senting think that toward cases to the Some One trickery, chicanery wholly logic, argument artful crafti- without deal — only appeal kind. Others use ness elements embellishments fancy jury. flights rhetoric, in- a stalled, the institutions occasional Courts are judg- presumably imagination. employ give Others correct fact, relying upon gesticulation, states ments ascertained noise *9 application dispute, in under instead earnestness vehemence their appeal logic to But' takes law. when one and rhetoric. Others established passions up sympathies advocacy, treatises on he sees that be the —it jurors. practitioner law, he, peculiarities or must Others must —of petty art, or variations and not resort trick of ac- combine all these with trap, complishments fear of fall into this or that of different kinds.” Advocacy, jury. 19a Harris, He must refrain On 1943 its effect Hints prac- asking questions, Ed., certain or 275. ways cap- witnesses, Rhetoric, gave Aristotle, with tice his similar certain in jury. keep great detail, The advice, win or the favor as to how ture in great juries. bug-a-boo, juries, whose child- is the before Greek Those impressionability always told, “judged be law and ish both the we are facts”; truth, so, too, the administration but, with in- do ours reckoned by justice its aid. One never hears render verdicts. when suggestions respect judge 19b Osborn, to a The Mind of the Juror position.” unfitted for his unless he is 92. 21 Review, Morgan, Osborn, (2d 19c Book 49 Harv.L. Problem of Proof The 1387, 1926) 1389. Rev. 112. Ed.
68
**
*22”,
that Mr.
and civil cases
pretense of shame
calmly,
it
without
Jus
Supreme
Cardozo,
speaking
tice
slightest
without
save us!]
[God
Court,
nar
remarked, “Few
would
He
suspicion of
shamefulness.
provincial
as to maintain
row
unperturbed frankness
by his own
shown
system
justice
enlightened
profession,
fair
compliance
with what
by
impossible
trial
without”
of would be
superior
smile
smile
a trial
suggestion
derision at
jury.22a
way
say that, by
con
That
not to
accepts
battle
bodies,
trial
battle of
judges are free
juries,
trial
innocence,
produced
trast
all
with
he has
wits.
In all
appeals,
commentary
susceptibility
emotional
devastating
of all
is a
volume which
be
judges,
although most
trial
aspect
our adminis
important
upon an
that —
skilled
try
experience,
more
lawyers,
cause
are
Not that
justice.”
tration of
better armored
juries and
clients,
fact-finding
be cen
should
protect
ing
22b—
lawyers
de
seductive wiles of
strategems
employing
sured for
should)
off
slough
long
(or
re
can
judge
as we
trial
book —as
scribed
such a
(Lord
But,
predilections.23
ob
Bramwell
jury system.
general-verdict
tain the
served,
is a common
judge
operation,
“One
of a
third
with the
ermine”;
concomitants,
juror
you get
his
if
beneath
strategems as its usual
“the
added
surprising
one
and Mr.
Riddell
should
Justice
far
said,
“I
no
not be
different.”
am
other
two thirds
members
court
of this
that,
con-
trials,
say
where
a)
Nor
it to
at least
23
means enamored
interruptions
22 Hand,
and
they
of Trials
do not
Deficiencies
confuse him as
L.
The
Matter,
likely
ordinary
are
Heart of The
confuse the
to Reach The
juryman.
obviously,
judge
Legal Topics
And
the trial
Lectures
recog
is far better
often elsewhere
able
understand
Hand has
policy
applying
important
re
rules and the
reasons
method of
nized
them
jury.
taining
facts.
criminal
319,
Moreover,
Connecticut,
U.S.
the character
of a
Palko
trial
judge
152,
325,
149,
when
L.Ed.
different
58 S.Ct.
sits.
Says
Green,
rel.
States ex
“If
Adams
is taken
See also
v. United
out
courthouse,
gone.
236,
the drama is
McCann,
S.Ct.
317 U.S.
place.
court-room is not
the same
There
268,
stitutional 25a Yet, trials, highest legal not have the cable often judges do substantive rules. jury to judge trials are con- the rules the obligation to that such state those see many lawyers prin- the jury with basic with such that ducted accordance niceties proceedings.24 ciples govern comprehend them, impos not But, jury the Bok *11 have The for the which Appendix Chapter 16, conclusively pre- Y. remedy, and it is because no higher all and tri- the court sumed Sunderland, facts, says finding with suffi substantive rules pertinent the the “is means faulty instruc much better done particularity. Such cient special Every advantage, which said, tions, greatest “are the it has 25c to have popularly supposed the Judge single error.” reversible source of facts, is re- a trier of is over court says: “The the as Rossman very ad- tained, great additional with the responsible instructions the elaborate for analysis separation necessity and vantage that the given jury. to the court pitfalls the the the facts in case which for instructions creates [these] necessarily effect attorney may which the trap which the trial verdict, materially trials, appeals employing the turn result new 25d easy to instances, It of error. In the chance many reversals.” reduces large with merely trial at make mistakes dealing another reversal means special verdict aggregates un of facts. The intone to another But above compels detailed consideration. comprehending jury a version revised parties public, an legal rules.25e results it enables There those really jurf money. In see what has of time court to enormous waste * * * The morale of deed, prospect prolonged of a new done. cloak of by throwing off the undoubtedly is aided litigant trial often also induces through there accept publicity is secrecy, of modest means to an unfair set responsi- feeling of provides developed proper fact verdict an tlement. far, then, as escape bility public servants. So from these wasteful obvious ef- they can be more consequences go, much of the ver facts unfair conveniently usefully fectively, tried dict. 25c Jury comprehension Green, (1930) Orfield, verdict, while also Criminal Procedure have influenced putside Appeal (1947) 449; frequently are Prom Arrest second to kind. comprehension Appeals jurors’ Orfield, therefore Criminal America In judgment. (1939) affected their not have could 25e 25d Rossman, Judge-Jury persons believe where Relation- Here is teaching ship Courts, the State that much law-school about 3 P.R.D. Juries, Parley, remains deficient. As 109. See Instructions substantive rules Llewellyn, (1932) 194,-208, 215-216; address L.J. noted when Tale Professor Cornelius, ing. our Trial Tactics students in “much appear study up These reversals at war taken with re-examin will be * * (see juries] supra) [to thesis note instructions with the great learning jury system spent upon con- virtue will be ” :S* jury’s power disregard etiquette of an instructions. sists legal nullify substantive Per- rules. Llewellyn, Bush The Bramble haps, ‘however, a defender of that thesis Angels (1942) Prank, Men If Were jury ought to know the believes that ‘law,’ fact, of, 82: “In certain areas them. substantive rules before nullifies legal litera- as ture, in classroom described lawyers nothing painstaking use the in- Since trial more ‘ (in- upper-court about rules structions the substantive studies discussions judges’ unintelligible often structions To law stu- instructions. traps jurors) example, judge, torts, dents, mani- it is field gen- up largely fest substantive rules made of the words which large appellate permitted are in eral-verdict part often courts Prank, procedural say devices. See juries; the extent Lawyer-Schools, Tale Por A Plea these words have connection (1947) 1303, 1317, L.J. juries’ decisions far remained many question professors is a fact curious courts which most attempt to reverse for which refuse so-called ‘law of torts’ have made “procedural” suggest “harm- errors call answer. We do there prompt surely folly re- less” nevertheless will But no connection.. it is charge study errors verse for make the rules charges judges’ substantive rules —al- a be-all and end-all as, legal thinking, ignore though (such first kind errors of all practical improper sig- e.g., issue remarks fundamental of one of charges.” lawyers) nificance well within. matters *12 66 wrong.”26c right
by abandoning ment and general verdict sense * * * writes, mind special “Bearing in substituting Judge Rossman relationship both special the verdict is devised judge-jury fair express purpose escaping sham of entitled to are members of team 26 appearances.” Is ourselves: false treatment, may ask we gen employ require a it fair a to to special verdict, judge using When spe eral verdict? recourse Since any charge give need not —should not — to available, right cial is verdict beyond rules substantive will that he juror demand swear that a reasonably enable necessary what to lawyers (which the obey the instructions ques intelligently the to answer until are sure of frequently say they put As, accordingly, them.26a tions to return transcribed) jury is know whether its less to find able 26d ?” thereto obedience general verdict other, one ings will side or favor special prejudices type appeal jurors’ cruder True, the common-law fre “A country, frequently per will effective. less in this" when utilized returned, complications that may granted quently many verse verdict still be caused so states, appreciate disrepute enough the it fell But in three clever into answers, shape Texas, effect of its them North Carolina, Wisconsin general harmonize with conclusions. special-verdict practice civil wa.s its. ** But much more difficult most of as to avoid modified return, Tex requiring complications.27a The Wisconsin and may expect fairly most effect naked facts procedures, apparently ive,28 sympathy, prejudice escape results model to -have been the seem 26b sanguine passion.” That be too Rules of 49(a) Rule Federal Civil hope; fact Procedure, following verdict section U.S.C.A. sway reduce the more undesirable of emo 723c, which authorizes too, special and, suggested, in tions. dispense general verdict “searches conscience of special stead, require verdict the return juror, general as a individual verdict does 49(b) also author findings. Rule written not,” because “such are the general call for a contradictions izes the interrogatories.29 who accompanied by written a man nature that in human many general large unite in a verdict for a But, judge, the Texas unlike money Rule, has will shrink unwarranted sum judge, federal district under specific finding judg- from a his full, in the matter: discretion uncontrolled 26Sunderland, loc. cit. See states, special Carroll v. verdicts In several Bohan, 218, 221 43 Wis. to the effect used in criminal cases. See Code A.L.I. special “dispel verdicts tend 1000, of Criminal Procedure darkness visible occasional 1002; C.J.S., Law, § Criminal 1399. verdicts.” As to verdicts in actions criminal 26a Green, cit., 358, 369, 370; courts, loc. in the federal see United States 616; Nordbye, Spe- Wilson, 615, Fed.Cas.No.16,730, 64 C.J. Use Fed. Verdicts, 140, 712; 699, page 2 F.R.D. cial Cas. United States v. 141; McCormick, Jury Noble, Cir., 315, Verdicts 317 note 3. Special Green, cit., Cases, Dobie, Questions in Civil F.R. loc. cit., D. 176. 287. loc. Special 26b Clementson, interrogatories, Wicker, Verdicts As to see Findings Special Special Interrogatories 12. Juries Juries in Civil Chamberlayne, Clementson, 26c cit., Cases, Green, loc. 15. See 35 Yale L.J. cit., 95, 100; Mor c. cit., §§ cf. loc. lo County Saline, row Kan. Clementson, Special Verdicts and Find- ings By (1905 ) says: Juries “The 26d Rossman, cit., interrogatories loe. 109. See Cham submission of berlayne, cit., ‘exploratory opening’ § loc. sort into the 27 See, e.g., Dobie, cavity The Federal Rules abdominal Virginia Procedure, Civil L.Rev. court determines (1939). organs whether sound Jury Green, proper place and the treatment to be pursued.”
67 require merely He old- compulsory still to make special either ver- fashioned verdict.30 dicts or interrogatories written in civil Meanwhile, hope cases. we can but Accordingly, hold a dis we cannot that, cases, judges such district when, here, trict errs for as require other, one or on their own whatever, reason or no reason he refuses motion when asked so. to do special verdict, although to demand a we usually preferable deem such a verdict pana- fact verdict will furnish no opaque Perhaps Among verdict.30a cea.31 things, previously other as day noted, that, soon Rule 49 will be amended it will still be true in a rela- 30 Agency Booking 3381) 9, Judge v. Marcus Loew 12. insisted that Otis Pat, 154; Cir., jurors 152, 141 F.2d Princess 7 task pacity for calls who have “ca- Cir., Co., quickly comprehend applic- Cohen v. Travelers Ins. 134 378, 384; apply intelligently F.2d Van Pelt v. United able law and it.” Cir., States, Otis, Selecting S. 134 F.2d S. See Federal Jurors. Court Kresge Cir., Holland, judges suggested jury- v. Co. 158 F.2d Both those Corp. capacities pro- Car & Ins. v. General men with such will be Cheshire, Cir., 985, 988; by providing higher F.2d cured standards for Co., Cir., “hand-picking” Home Ins. Tidal Co. service and in v. eligible for that service. Defendant’s counsel misreads New skeptical One well be of the ef- Banker, York & H. R. R. Co. ficacy Central remedy. such Nor itwill Cir., expressed 2 preference 224 F. the trick to distribute brief handbooks for in cases verdicts jurors judge briefly for or to have the Employers’ Liability Act, U. under panel jurors’ lecture the functions. seq., § S.C.A. et but did not reverse system adopted Superior require failure Angeles County, California, Court of Los request promising. prospective Defendant’s included here is more There questions “negligence” jurors test; as to they receive a written parties. question pass The answer to apti- such a test and this also show their involves, appli theoretically, at least But, in oral interviews. tudes even that legal cation of a substantive rule to the device would seem insufficient. A more facts as thoughtful proposal See Barbarino Stan found. is that we establish hope Co., Cir., 553, 555; S. jurors.” S. 151 F.2d detailed courses in “schools Cir., States, Judge Galston, Jury Kreste 575, 577, v. United 158 F.2d See Civil Trials and might possible, Tribulations, Ass’n, 29 Am.Bar J. negligence put purely case, fact questions which would not call on the juries Nor can near come ascertain- apply a substantive rule. long the actual facts of cases as as fact-finding exclusionary Trial-court is difficult we retain the numerous evi- Wignore says, Judge (loe. art. As it means “solv dence rules. Learned Hand complex cit.) stating mass of evidence conten after that he was “not en- litigation,” requires jury trials, tious the coordi amored of es,” at least civil cas- entirely nation of ing say, evidence heard under distract went on “but it is in- Wigmore, circumstances. Prin reverently consistent to trust them as as ciples do, of Judicial Proof we still surround with re- them which, strictions if have no rational plainly peculiar validity depend whatever, This coordination distrust.” * * * art, Says difficulties for men untrained Boston: “But our law re- placed, jurymen are, quires men as in unaccus- that all jury matters consideration jury-box be, tomed conditions—in the shall were a sort jury-room by predigested invalids; no means conducive to food for mental — calm deliberation. Twelve so it and through strains food easy satisfactory highly developed not find it joint reach most rules evidence, conclusion were treated as we which have been evolved jurors. treat party metaphysi- trained reflections Recognizing operations difficulties, human Knox cians on * * that, accomplish recognize justice,” short, said “to we we mind way imaginable intelligence, every must have “with judgment, courage judici&l sound our that will is the weakest element questions yet ponder system, them enable to decide intricate to it as a sa- ” testimony, of fact institution. June cred We treat a as a institution, regard 12 and it, before House Committee sacred and we Judiciary (on ways regard on the H.R. 3380 and in which our can be
G8
tively case, simple will still be clusions.34 there suggestion Back of this ques- able to foresee to the gestalt what answers something of lurks notions like the produce tions will a for the judgment side psychology:35 judge’s A to the reaction this, too, it There consider: favors. apparently evidence at a trial considered persons oppose requirement Some “pattern”) (a “gestalt” a “whole” which non-jury in file shall Separa analyzed. adequately cannot be 32 special findings of As find- fact. “fact” tion into “law” and of decision ings' closely jury’s special ver- resemble asserted, be components, it seems to dict,33 pertinent it therefore here in sense that ex logical,” be “too effect, opponents suggest, some of in experience which “intuition of cludes the unique that a trial decision is a many un analysis up sums and outruns testimony, composite oral to the reaction impres impressions, tangled named and or, rather, ought composite which not — beneath consciousness may lie sions which broken artificiality cannot without —be 36 sup- losing worth.” Some without legal con- findings down into of fact and economists; incompetent and those who measured, of wholly tional” for approach” to the purpose “the functional advocate judicial process. See, which establish if.” Bos- we Benedict, g., Pat- e. ton, Exist- For Some Practical Remedies 1946); (Penguin ed., of ing terns Culture of Defects In The Administration (1931) Rice, (1912) Methods Social Science Justice, 61 of 1. Un. Penn.L.Rev.. Psy- 553-554; 549, Ogden, 55, 32 Structural Sunderland, Findings Faet and of Psychology Gestalt, chology of Law, and the 4 Chica Conclusions of Un. of Lynd, volume, 109, 113-117; go (1937) 218; in the same Boston L.Rev. Davis v. VIII; (1945) Knowledge 494, Ry. 482, What? Ch. Co., For Mass. Elevated 235 Beyond Supply Gambs, 841, Demand 842, 843; Guiseppi and v. 126 N.E. of. Cohen, (1946) 74-75, 81; 25, 622, Transcen- 608, Walling, Cir., 2 144 F.2d 155 Ap- Functional Nonsense The dental proach, and A.L.R. 761. (1935) 33 Sunderland, Findings 809. Col.L.Rev. 35 of Faet gestalts supra. in trial courts Law, With reference Conclusions of Timberg, discussing agencies, 34 Judge McClellan, see administrative Thus Findings Fact, 23(c), 27 Administrative new criminal Rule federal (1941) 62, 65; non-jury judge dissent requires Wash.Univ.L.Q. in a criminal Bondholders, ing Colony opinion special findings Old of fact to make ease Cir., Co., York, know, requested, H. & H. R. New when so said: “We all N. 413, 449; Fried, 431, we, In re F.2d 161 Cir., don’t we hear criminal when Malone, 453, 28; tried, get guilt 463 note 161 F.2d we of the case convinced Contributory Neg don’t; The Formative Era and isn’t defendant or we 151, 170,179; (1946) say guilty ligence, enough guilty, if Ill.L.Rev. or not going through Remarks mak- and Music: Some Words without form Interpretation, Statutory special findings designed on 47 Col.L.Rev. of facts 76; (1947) 1259, Frank, A judge unconsciously, note of course—to — Lawyer-Schools, support Yale L.J. Plea for ar- conclusions he 1304, (1947) note Pro- rived?” Federal Rules Criminal Ry. 36 Holmes, Proceedings J., Chicago, Q. B. & With *15 pressive knowledge,” by which “wordless of findings of fact Supremacy Bell, (1937) of Law trative Justice and The Men of Mathematics 547— (1927) 52-55, 168-170, 313-319; 552; Montmassari, Invention and Dis Fact, covery Morris, (1942); Benjamin, Law and Harv.L.Rev. Introduction (1942) 1303; Philosophy (1937) 176ff; Cook, ‘Facts' and ‘State of Science Fact,’ Porterfield, Univ. ments of Chi.L.Rev. Creative Factors in Scientific (1937) 233; Green, (1941) 97ff; Cairns, Theory Mixed Questions Research (1901) Legal Fact, (1941) 57-60; Cannon, Law and Harv.L.Rev. Science The Findings 271; Way Stone, Investigator (1945) Chapter Clark and Review of of An Fact, (1937) Univ. Chi.L.Rev. Y. Pound, Ap Compare 211 note 93. push However, wifi not do to too far pellate (1941) Cases Procedure in Civil analogy thinking between scientific and Pound, According Law, 28 with Justice process judge the decisional of a trial (1914) 103, 14 Col.L.Rev. reacting testimony. conflicting oral “logic,” course, 36a The word stems For the trial reactions to wit- unavoidably large from the Greek for “word.” word nesses involve emo- respect tional reactions, See, element. With g., Langer, to those Philosophy In e. following may pertinent: Key (1943) be (1942), Pelican ed.
A New
Langer,
cit., 18,
loe.
19: The “basic
(1927)
passim; Sullivan,
32-
Beethoven
concepts
physical
35;
Ortega,
Liberty
have
science
and
cf.
Concord
physical
delivered all
61-63;
nature into
(1946)
MacMillan,
our
Law and Oth
strangely enough,
Things
hands. But
255;
Too,
the so-
(1937)
Bok, I,
er
Nic
gained very
called
319-330;
Science,
‘mental sciences’
(1947)
Huxley,
odemus
great
Liberty
little from the
35-39;
(1946)
adventure. One at-
and
For
Peace
tempt
apply
ster,
Harp
after another has
Arts,
failed to
Criticism
On
of The
concept
causality
logic
July
Magazine,
1947, p.
Pascal,
ers’
aesthetics,
sociology
psychol-
even
(1670)
1-4,
253, 276,
Pensees
Nos.
ogy.
found,
282, 283,
Causes
effects could be
course,
correlated,
could be
tabu-
Cir.,
Forness,
United
States v.
studied;
psychology,
lated
but even
F.2d
study
where the
stimulus
reaction
thoroughly
objection
“It
not a
sound
lengths,
has been
carried
elaborate
e., analyses
to such
[i.
articulations
prospects
true science has resulted. No
that,
terms of
conclusions]
facts and
really great
opened
achievement have
they attempt
analyze
in so far as
laboratory.
before us in the
If we follow
they
‘wholes,’
are ‘rationalizations.’ For
psy-
the methods
chology
natural science our
analyses
logical
are,
almost all
sense,
in that
physiology,
tends
run into
his-
Logic serves,
‘rationalizations.’
tology,
genetics;
we move further and
among
validity
things,
other
to test
away
problems
further
from those
which
by non-logical
of conclusions
reached
ought
approaching.
signifies
to
generative
That
be
processes.”
Colony
Old
Bondholders v.
gave
idea
rise
York,
Co., Cir.,
New
N. & H. R.
H.
physics
chemistry
and all their
opin-
(dissenting
F.2d
450 note 82
progeny technology, medicine, biology-
—
ion).
Fried,
Cir.,
See also In
re
any vivifying concept
does not contain
note 28.
physi-
for the humanistic sciences. The
Scientists,
too,
rely
intuition
scheme,
faithfully
by
cist’s
emulated
they
(“hunches”) which
then articulate as
generations
psychologists, epistemolo-
premises
logically
from which
reason
gists,
probably
and aesthetieians is
block-
(i. e., mathematically). As to the “hunch”
defeating possible
progress,
in-
thinking, including
element
all sorts of
sights by
prejudicial
mathematicians,
force.
see,
that of
scientists
perfectly
g., Wallas,
scheme is not false—it
Thought
rea-
ofArt
study
80ff;
it is
Wallas,
Society
sonable—but
bootless for the
The Great
phenomena.”
180-182;
of mental
Poincare,
Method
Science and
(1914) 75; Lenba, Psychology
Religi-
Pascal,
(1670);
Pensees
“Those who
Mysticism (1925) 240ff; Lewis,
judge
feeling
ous
accustomed
Anatomy
process
90ff; Frank,
reasoning,
of Science
understand
sight,
Law and
Modern Mind
understand at first
special verdicts
might perhaps
applied
be
would be desirable
take
with somewhat
expose
True,
greater
it would
fact verdicts more often.
effectiveness
by showing
by juries:
to defeat
might
said
one the
that some
operation of
person
body,
a trial
or a how irrational
either
had
However,
my
jury,
juror’s
like
each case with the
minds.
should
entrusted
who
reaching
composite
among
I
reaction
the evi- brother
am
dence,
just because
appear
system
division of
to esteem
therefore
element of
explicit
passional
fact-finding
gives
functions
a it
into
rein to
inevitably that
nature,
“law-finding”
our
however
I
like to
yield
artificiality.
an
Non-
should
undesirable
enter
our
conclusions.
narrowly
as was
theless,
assuming
argument
subject
even
seem,
cogency,
make
verdicts
clear-
practical,
fact
review
should
*16
elaborately pre-
ly
fact,
very
better
verdicts.38
it in
what we
be;
decision based
tend that
it should
Affirmed.
prosecutions
there
upon law.
criminal
are,
be,
my judgment
there
HAND,
L.
Judge (concurring).
Circuit
intervene
considerations
other
holding
I concur
there
attempt undesirable.
make such an
support
was evidence to
it was
an error
refuse
take
SWAN,
Judge (concurring).
Circuit
along
judgment.
I concur in affirmance of
thinking
I
also concur
thing
principles.
that he
fortunate
who would act
are not
to seek for
used
angel
others,
contrary,
ac-
acts the brute.”
on the
who are
And
principles,
and Freedom
Fate
324:
reason
customed
feeling,
“We
ask whether”
one “can
not at all understand matters
description of,
being
seeking principles,
write a
or re-
unable to
scientific
* * *
equation,
glance
to mathematical
kiss
duce
of his
For
see
water,
beloved,
belongs,
judgment
perception
the taste of
cool
cry
tang
child,
belongs
of a
his sick
intellect.
Intuition
science
day,
physical
judgment,
part
in-
brisk autumn
pain,
the torture of
mathematics
the
tellect
* *
*
anguish at
death
a dear
Two
to ex-
extremes:
*
* *
reason, to admit reason
friend.”
clude
expressions
spe-
approval
reasons,
For
rea-
its
heart has
Tlie
* * *
courts,
cial verdicts
derer v.
federal
see Zau-
not know
We know
son does
Casualty Co., Cir.,
truth,
only by
reason,
Continental
but also
211, 213;
by.the
F.2d
New York Central
And reason
heart
*
Banker,
*
*
Cir.,
& H. R. R.
v.
Co.
intuitions of the heart
trust these
354;
Phillips
F.
Petroleum
v.
Co.
order;
the in-
heart
its own
has
Bynum, Cir.,
196, 199;
F.2d
Pacific
by principle
own,
which is
tellect has
Zane,
Greyhound
Cir.,
Lines v.
160 F.2d
an-
The heart has
and demonstration.
note
cf.
Walker
New
* *
of rea-
The internal war
other
Co.,
Mexico &
R.
Southern Pac.
16o U.S.
passions
made
son
41 L.Ed.
17 S.Ct.
peace
those who
division of
Ry.
Grand Trunk Western
say,
Lind-
v.Co.
re-
first would
into two sects. The
Cir.,
201 F.
by advisory juries may
gods;
passions and
become
Fact-verdicts
nounce
reason,
certain kinds
others would renounce
of considerable value
Porter, Cir.,
brute beasts
Man
Arnstein
cases. See
become
angel
brute,
nor
and the un-
neither
modifications
notes
as reasonable
sible that
the
can.
jury system
thereby precluded,25
disadvantage
a that
have the
“juries
are not
adjunct
while
vigorous
traditional
children
the
being
revival
treated like
verdict,
i.e.,
on,
system,
being
the
then
testimony
going
that
ob-
represents
judicial
no deviation
the
during
with a kettleful
law
doused
ligations.
third-year
law-
charge that would make a
25b Nevertheless,
pat
blanch.”
the
Perhaps
student
feature of
least desirable
the
ently
assumption
jurors
the
general
the
a feature which the
fictitious
that
third-year
theory
legal
wipes out,
have more
wisdom
fact verdict
this: The
requires
upper
assump
the
court
involves
law-students
verdict
the
fully comprehends
judge
when a
fails-
state
jury
tion that
the
reverse
the
you
judge
that
have acted in accordance
same
and before
bunals
case before
you
jury,
judge
instructions
been
same
the
with these
as
the
witb a
with
startling
lawyers,
do.”
reflects the most
sworn to
Notes
cedure
Notes
Babcock,
585, 598,
University
Co. v.
204 U.S.
Institute
the New York
(1946)
Cf. Perkins
S.Ct.