Chapter XVI — Juries
IThink it was Canning who said, "The House of Commons is more moral than any member of it." If it wasn't Canning, it was someone else with a turn for epigram. At any rate, I venture to adapt it, and to say, "A British jury of twelve is more intelligent than any member of it." From this it will be gathered that my original faith in juries, confirmed when I was a verdict-getter at the Bar, has not yet at any rate been shaken by my experience on the Bench, When those twelve men, after retiring to consider their verdict, settle into their seats in the jury-room, when they have got their pipes or their cigarettes going—there are usually eleven smokers among them—and the foreman has rapped on the table and said, "Well, gentlemen, what about it?" they get down to a common-sense, plain-speaking discussion which I believe in nine cases out of ten results in their arriving at a close approximation to truth. It is true that in a criminal case they do lean towards mercy. It is true also that there are several classes of criminals whom they are reluctant, to the point of obstinacy, to convict. Bookmakers under our Gaming Acts are a case in point; but that is merely because their consciences are uneasy—too many of them have page 225had bets with bookmakers, and so broken the law themselves.
It is equally true that in certain classes of civil cases they show bias. They will persist in giving more damages than they ought to give to a widow with seven children, if they learn in the course of the trial that the defendant is indemnified by an insurance corporation. But that, after all, is a very human foible.
Naturally the intelligence of juries collectively and that of jurymen individually differ. In New Zealand, for example, it is very unusual to find a juryman who is not a reasonably educated man; but again education is not a criterion of common sense.
I remember a criminal trial in Christchurch where Counsel for the accused, a criminal advocate of great experience, intense earnestness, and truly magnificent pertinacity, delivered an impressive and eloquent address on behalf of a prisoner so manifestly guilty that none of us expected the jury to leave the box. In the robing-room the Crown Prosecutor said to defending Counsel:
"You surely don't expect to get an acquittal, do you?"
"Well," said the indomitable one, "I wouldn't despair of that; but I feel pretty confident of a disagreement. I don't know whether you noticed a middle-aged chap, number six in the front row— a man with a shaggy grey beard and the look of a moth-eaten goat. I concentrated on him. He never took his eyes off my face. He followed every point I made with rapt attention. I feel certain I've got him." Half an hour later the jury returned page 226to Court, not with a verdict, but with a request for directions. They had only just discovered that one of their number was stone deaf and had not heard a single word of the case. And so the jury had to be discharged, and a new trial ordered.
Need I say? But of course not.
The average intelligence of a jury depends to some extent upon the guidance it receives from its foreman. Sir John Denniston used to tell this story of the "supremely sensible foreman."
A criminal who had a long list of previous convictions was charged with breaking and entering. The case for the Crown was unanswerable, and indeed no serious attempt was made to answer it. The jury were scarcely seated round the table in the jury-room when it appeared that eleven of them were in favour of a conviction; so the foreman turned his attention to the twelfth, but could make no impression on him. At last number twelve got impatient and said, "Look here, boss, you can talk all you know, but it won't make no difference to m[gap — reason: illegible] The accused is a cobber of mine, and if I have to sit here all night I won't agree to a verdict of guilty." "Gentlemen," said the foreman, "we will now return to Court and I will inform the Registrar that we are unanimously agreed upon a verdict of guilty. And," he continued, turning to number twelve, "if you dare to open your mouth I'll tell the Judge what you've just said in this room." The jury returned to the Court and the foreman, in answer to the usual question, pronounced the verdict of guilty—and number twelve stood meekly silent.
When at the Bar I always made it my business page 227through my clerk or someone else to find out after a trial was over what were the features of the case which had most influenced the jury, or what were the grounds of their verdict. It is only by knowing the minds of jurors that you can hope to acquire the art of getting verdicts, and all my life at the Bar I made a hobby of what Americans, I suppose, would call "jury psychology."
Of the earnestness and sincerity of a jury the following is the most striking illustration that came within my personal experience. I was retained to defend a middle-aged working man who was charged with a sexual crime of a very abominable character. Had he been convicted, he would have been imprisoned for fifteen to twenty years. I told the jury in the course of my address that if they were satisfied of his guilt, there was not one word I could or would say in mitigation of any sentence the Court might pass upon him.
But I was myself firmly persuaded of his innocence. I had him under cross-examination in my office for several hours before I consented to defend him. He left me feeling that not only could I not refuse to defend him, but that it was my solemn duty to defend him and that to the utmost of my vigour and ability. It was a hard fight—the Crown case appeared to be overpoweringly strong; but as it was his own demeanour in conversation with me that had won me over, so I must trust to his own demeanour to convince the jury. I therefore called him as a witness in his own defence. The Crown Prosecutor replied to my address in a vigorous speech, and the Judge's summing-up was a scarcely less vigorous address for the prosecution. But the page 228jury had judged my man, and, as it afterwards appeared, judged him rightly. Addresses are really of very little importance in a case where the accused must stand or fall by his own story and the way he tells it.
The foreman of the jury was a man I had known for many years, and meeting him in the street some days after the trial he told me what had occurred in the jury-room. The jury approached the case with a due appreciation of its grave importance, both to the accused and to the public, and after half an hour's deliberation eleven of them were in favour of an acquittal, but the twelfth could not see his way to agree. He could not understand, he explained, how a girl of thirteen could possibly have concocted the elaborate story she had told in the witness-box. He appeared to be a perfectly fair and honest juror, but no argument could change his mind.
After an hour or so's earnest discussion a member of the jury, who had hitherto been silent, rose and walked over to where the dissentient sat. It had been noticed that this man wore the badge of the Salvation Army in the lapel of his coat. To the astonishment of everyone else in the room, he suddenly knelt upon the floor and offered up a prayer to God that He would lighten the darkness in the mind of their doubting brother, that He would lead him to see the truth as the other eleven believed they saw it, and that He would in any event incline their brother to mercy.
Those twelve men, as far as I could gather, were of diverse religions and sects—some of them of none; but it never occurred to any one of them to page 229smile or look sceptical while the Salvationist offered up his simple little prayer. When he had finished, he rose from his knees, and placing his hand on the shoulder of the doubting one, said:
"Brother, has God answered my prayer?"
"Yes, but in part only—my mind is still not convinced; but if I give in to the other eleven I shall err, if I do err, on the side of mercy. I agree to a verdict of not guilty."
Within three months of that trial certain facts came to light which completely established the innocence of the accused man.
Advocates and Judges alike are fond of reminding juries of the sanctity of their oaths, of impressing upon them that they have sworn that they will "a true verdict give according to the evidence." If they can see their way to a "true verdict" apart from the evidence, or even contrary to the evidence, I am afraid they will sometimes arrive at it, and forget all about their oaths. I had an interesting experience of this in an insurance case. The Public Trustee was suing the—— Mutual Insurance Company on behalf of the next-of-kin of a man who had died, the holder of a policy for £800 with the company, on which he had been paying premiums for some fifteen years. He had met his death through taking prussic acid, and the Coroner had found a verdict of "death by suicide," without the usual humane but frequently euphemistic addition "while in a state of unsound mind." Upon this ground the Company refused to pay, sheltering itself behind some clause in the policy. I had no hesitation in advising that the action would succeed, and was retained as Counsel by the Public Trustee.page 230
The deceased was a pharmaceutical chemist. He had gone downstairs during the night into his shop and evidently helped himself to prussic acid from a phial on the shelf. It was so utterly improbable that a dispensing chemist should fail to detect the smell of prussic acid and take that poison in mistake for some harmless medicine, that the theory of accident seemed to be out of the question. I concentrated my attention therefore upon unsoundness of mind. There was some little evidence of past insomnia and of moods of depression observed by neighbours, and—well, it doesn't usually require much evidence to induce a jury to believe that a man who commits suicide is out of his mind when he does it. Indeed, juries are apt to think that suicide in itself is evidence of insanity. In my reply, just before concluding, I adverted very briefly to the third possibility. The whole case, I reminded them, had seemed to turn about the alternative of sane or insane, but there was the possibility that the unfortunate man had not committed suicide at all, but had swallowed the prussic acid in mistake for a soporific or some other drug.
When the jury retired they were not long in coming to a unanimous conclusion that the deceased had taken a dose of prussic acid while of unsound mind, and that the Public Trustee was entitled to judgment against the Insurance Company. And then that jury did this very perverse but very kind thing. Two sisters of the deceased, young women with young families, had given evidence in the case about their brother's occasional moody fits. The jury were about to return to Court with their verdict in the form stated when the foreman page 231detained them. "Look here," he said, "it doesn't matter in the least to the Insurance Company whether we find that the deceased committed suicide while of unsound mind or that he died by accident. The Company loses either way, and it won't cost them a shilling more whether we find accident or insanity." "But what about the evidence?" said one. "We're sworn to give a verdict according to the evidence, and we are all satisfied that he committed suicide." "Hang the evidence," said the foreman; "think of those two sisters of his. They won't like a verdict of insanity against their brother, especially as they've got children of their own. Why not let's be kind?—it won't hurt anybody." And kind they were. They returned a verdict that the death of the deceased man was due to accident and gave judgment against the Insurance Company, in flagrant disregard of the evidence and of their oaths; which of course was a very wrong thing to do, but juries are like that—sometimes!
This case reminds me of the principles on which I acted when at the Bar in challenging. Many advocates challenge from distrust; my system of challenging was based upon trust of juries. I never challenged a man, for example, because I happened to know he was a client of the firm of solicitors who were opposed to me, or because he was a member of a rival trading company to the one I was acting for; still less because—and this might easily happen with a special jury—I happened to know that a particular juryman was an acquaintance or even a personal friend of my opponent. I did my challenging more or less on class lines. If I was Counsel for plaintiff in a damages case, I page 232challenged everybody connected with insurance, because the whole training of an insurance man is to keep damages down. I always challenged accountants —I can't really say why, unless it was from a vague idea that they are apt to think life's problems can be solved by a proportion sum, and the answers worked out to three places of decimals.
In this particular case, when the jury had retired, my opponent twitted me with having been caught napping in my challenging. The jury was a special jury, most of them well-to-do business men.
"The General Manager," said my opponent, "has just told me with great glee that no less than five of the twelve are policy-holders in the defendant company and carry on their lives in the aggregate £16,000."
"Just the men I want," said I; "pity there aren't ten of them. They're men who have given practical evidence of their belief in life insurance, and they'll be keen to give a lesson even to their own company not to quibble when their policy-holders die, but pay out and be quick about it." As a matter of fact, I learned afterwards that the foreman of the jury was not only a large policy-holder, but was even a local director, and was exceedingly angry with the head office in Sydney for persisting in the defence of the action.
My method of challenging was sometimes puzzling to the solicitors who retained me. This was well illustrated in a libel action in which I was retained to "go special" to Palmerston North, an inland town in the centre of a sporting district in the North Island. I remember the case for another reason also—because I won it, or virtually won it, page 233on the shortest speech I ever made to a jury. The plaintiff was a well-known and highly respected horse-trainer. He trained for some of the largest owners in the Manawatu district, where Palmerston North is situated. By an unfortunate mistake a newspaper included his name in the Official Forfeit List published from time to time by authority of the New Zealand Racing Conference. So long as the plaintiff's name was on the list he was personally disqualified under the Rules of Racing, and so were all horses trained by him. Before the error could be rectified a horse from his stables won an important race at Wanganui on Boxing Day. On New Year's Day another won a big stake in Hawke's Bay. In each case, of course, there were protests; but such was the plaintiff's reputation and such his means that it was incredible that he should have incurred a forfeit. The Stewards of both Clubs therefore accepted his statement, verified by solemn declaration before a Justice, that his name had been included in the Official Forfeit List in error. So the protests were dismissed, the stakes paid over, and no real harm done. The error was, of course, corrected in the next issue of the newspaper, an ample apology tendered, and most people probably thought this was enough. But the trainer's solicitor thought otherwise, and he launched an action claiming £1,000 damages for libel. We offered further publication of the apology and a considerable sum to cover costs, but to no purpose. So we paid a sum of money into Court, tendered an apology again in our pleadings, and went to trial.
I arrived at Palmerston North the evening before the case came on for hearing, and the local solicitor page 234in charge of the matter met me with a long face. It was a dreadful panel that had been summoned, he said; three-fourths of them were racing men and sportsmen. It would be impossible to get twelve men out of that panel who were not half of them racing men and acquaintances if not friends of the plaintiff. And he then proceeded to figure out a small list of men, nonconformist tradesmen and people with anti-gambling proclivities, who he thought with luck might be drawn on the jury. "But," I said, "it's racing men I want. Challenge all these nonconformists and anti-gamblers, and get me a jury if you can consisting entirely of men interested in sport." The solicitor was obviously dismayed at this extraordinary method of picking a jury, and no doubt thought how much wiser the defendant would have been had he trusted to local Counsel to conduct the defence. Readers who are interested in racing will know that betting in New Zealand is done on a machine called the totalisator, familiar at home under the name "pari-mutuel." The public, by their investments on the machine, themselves fix the odds, the dividend paid on the winning horse being proportionate to the number of people who have backed it. The odds vary from minute to minute, and it is very exciting for the crowd to watch the numbers of investors on each horse alter on the electric indicators. A horse may be a rank outsider a quarter of an hour before the race, and yet, when the machine is just about to close, suddenly jump into place among the favourites, which usually means, of course, that the "stable money" has been put on at the last moment in a lump sum.page 235
I fear this is a very long digression, not fully justified perhaps by the point of my story.
The plaintiff went into the witness-box, of course, but my cross-examination was brief and flattering. He actually blushed at the laudatory suggestions I made; I had heard him spoken of as the most highly respected trainer in the district. The plaintiff deprecated, but humbly hoped he might deserve the reputation. The stewards at the Wanganui and Hawke's Bay meetings had accepted his word that it was all a mistake his name being on the Forfeit List, and dismissed the protests. Did he not consider this a great tribute to his reputation? Might I not, in fine, take it that there was no trainer in New Zealand whose name stood higher in the racing community? It was here that he blushed, and I sat down. I called no evidence, and had therefore the precious "last word" with the jury. My address occupied less than three minutes. I had only arrived for the first time in their beautiful city the night before, I told them, but I had been there long enough to learn how highly the plaintiff was thought of in the community. He had entered for the "Defamation Stakes," the defendant had paid money into Court and had apologised. The plaintiff, therefore, could not lose; all he had to do was to walk over the course. "You, gentlemen, are the public: it is for you to fix the odds and to declare the dividend on the totalisator—if that be not too flippant a way to describe the judicial process of estimating damages. If you declare a big dividend on the plaintiff you treat him as a rank outsider. He is, as you know, nothing of the kind. From all I have been able to learn during my short page 236stay in this district, he is a favourite, and a general favourite at that. Prove your confidence in the favourite then—show your belief that his reputation is much too good to be injured by a mere clerical blunder in the newspaper, and treat him as the public treat favourites on the course, by declaring a strictly moderate dividend."
When I resumed my seat, the jury were all smiles; even the Judge's rather ponderous summing-up did not disturb their good-humour, and they fixed "the dividend" at £25—the amount paid into Court!
It is useful to remember that most jurymen, at any rate in this country, are good sportsmen, and an appeal to their sporting instinct seldom fails.
I am only able to speak from personal experience of juries as we find them in New Zealand. I think the standard of education among them is distinctly higher in this country than elsewhere, and I fancy they are more independent. It is very seldom you find a jury that is merely a reflex of the mind of the Judge. Indeed, jurymen are apt to resent overmuch direction and advice from the Bench. They expect a summing-up to be "true to label"—a balanced summary of the evidence for the purpose of recalling it to their memories, not a series of instructions as to what inferences they ought to draw from it. In this country of "All Blacks" there is never a jury that hasn't one or more footballers on it, and as sure as a Judge's summing-up shows a strong leaning in one direction or the other, one of them will ask in the jury-room, "What's the referee doing kickin' the ball?" And if the manner of "kicking the ball" has been too vigorous, someone else is page 237sure to observe, "Never mind the referee; we'll do this on our own."
It is this spirit of independence in juries that makes re-trials dangerous in a small community. Every juryman reads his morning paper, and it is odds that some of the twelve at the new trial will remember the result of the previous one. I had an amusing illustration of this with a special jury some years ago. I was Counsel for plaintiff in an action against the Minister of Railways in a claim for damages for nuisance done to the plaintiff's premises by drainage from the adjacent railway station. The plaintiff claimed £1,000, a sum which I soon found, on going into the evidence, to be exorbitant, and I was much relieved when the special jury which tried the case returned a verdict for £100. Decision was reserved on some questions of law involved in the case, but Counsel for the Railway Department made no move to attack the verdict on any other grounds than those reserved, and on these I succeeded. To my astonishment and indignation, the Judge on his own motion set the verdict aside on the ground that the damages were excessive, and expressed the view that had the question of damages been left to him, he would have awarded £20 at the most. The matter might have been left there, and the unfortunate plaintiff been forced to accept the beggarly £20, which the Railway Department promptly offered to pay him, for he had no money left wherewith to pay jury fees and witnesses' expenses of a second trial. But fortunately for him I was angry, very angry indeed, and so were his solicitors and some of his friends. So a little fund was scraped together somehow— page 238enough to enable him to proceed to a new trial. The evidence of damage was exactly the same at the second trial as at the first—it was impossible to obtain any other—but the second special jury knew, or at least some of them knew, that they were wasting a day on trying over again a case to which one special jury of Christchurch citizens had already given their attention. They remembered the earlier trial, having read about it in the papers, and they very soon decided that they would teach the Judge a lesson not to interfere with jury verdicts by awarding exactly the same damages as the jury in the first trial had awarded. Upon that they were unanimously determined, but not one of them could remember the amount of the earlier verdict. All they did recollect was that it was something quite small compared with the amount of the claim. After some discussion they felt that all they could do was to guess at it, and guess they did; they "guessed "£200—just double the amount of the original verdict. When the foreman announced the verdict, I watched the Judge's face with, I fear, malicious satisfaction, but remained seated.
"Don't you move for judgment?" asked the Judge.
"No; if your Honour pleases, I am waiting."
"What for, pray?"
"In the hope that your Honour may set aside the verdict again, so that I may double it once more."
That, I admit, was insolent on my part, and what was worse, it was meant to be insolent: for I was frankly very angry," 1page 239
In New Zealand the Code of Civil Procedure provides for juries of four in cases where the amount claimed by the plaintiff does not exceed £500. A jury of four is an abomination. The instinct of the English people in deciding upon twelve as the number of triers was as sound in that as in most other things. Four samples are not enough from which to deduce with safety the average Englishman. Most lawyers distrust juries of four, and that is why in so many actions the plaintiff claims "£501," not because he expects to get half that sum, but because his Counsel prefers a jury of twelve to a jury of four.
The most stupid jury in my experience—I'm not sure that it was not the only utterly stupid jury in my experience—was a jury of four. The plaintiff claimed £250 from a police officer by way of damages for assault. The constable, he said, had struck him a blow with his baton which fractured the jaw on both sides of the mouth. The incident was said to have occurred in the course of a street affray, and it was proved that the plaintiff in running away from the officer had pitched forward and fallen flat on the road surface, which had a smooth coating of asphalt. My theory for the defence was that the plaintiff had sustained the double fracture of his jaw by striking the hard road surface with the point of his chin; but I could not get a single medical man in town to support my "theory." Counsel for the plaintiff asked his chief medical witness whether the theory for the defence was feasible. "Impossible," was the curt answer; "there would have been signs of gravel rash on the chin." I left it at that and did not cross-examine page 240this witness. But I elaborated my theory in my address, and asked the jury to consider how the plaintiff had attempted to answer it. "Impossible," says the plaintiff's medical expert; "there would have been signs of gravel rash." "You, gentlemen, know Stafford Street as well as I do—evidently a great deal better than the doctor does. I ask you, did any one of you ever see gravel in Stafford Street?" And there, with a gesture of scorn, I left the medical evidence. It is almost incredible, but I got a verdict on that gravel rash. The Judge fortunately did not expose my absurd fallacy in his summing-up—he passed over it, I suppose, in sheer contempt for its futility. But the foreman told my clerk that it had turned the scale, and that they all thought that doctor a singularly stupid man for thinking there was gravel in the main street of the town!
A jury will be influenced by a striking situation or a dramatic contrast in a case much more than by the most closely reasoned logic or the most perfervid eloquence of Counsel. If a dramatic situation lurked in a case, I never failed to exploit it. On one occasion I did so, as I thought, to excellent purpose, so far as damages were concerned. It was a breach of promise case. The parties were to have been married on a Wednesday in the bride's parish some fifty miles up country, where the banns had already been called twice. The young couple spent the previous Saturday in town together, when he bought her some handsome presents, and on the platform of the railway station, as he was seeing her off, he gave her an affectionate kiss, and drawing her to him, said, "This will be our last page 241parting for years—after Wednesday we shall always be together." Next morning, the Sunday on which the banns were called in that village church for the third time, he embarked upon a steamship direct for London, and on the Monday the bride-to-be received a curt telegram from his brother to say that he was gone. In those days a journey from New Zealand ports to English ports occupied between six and seven weeks, but there was a much quicker mail service via San Francisco or via Suez. At any rate, when the "bridegroom" arrived in London and took up his quarters at a fashionable hotel he found a process-server waiting for him with a writ claiming £3,000 for breach of promise. So he doubled back to New Zealand to defend the action. He had, of course, to go into the witness-box to make some attempt to explain his conduct. I had ascertained from the shipping office that he had booked his passage and bought his steamer ticket at noon on the Saturday morning before he sailed. I elicited from him that he wore the same suit all that day and that he carried his steamer ticket in a pocket-book in his breast pocket. Then I got from him the details of the last embrace, how he kissed her and what he said to her, and how with his manly arm he drew her up against his bosom. The Judge meantime was fuming with impatience at my "irrelevant questions," as he called them. Even the jury must have thought I was trifling with them. But I stuck to my point. When I had elicited all the details I wanted, I turned on him and thundered at him, "When you hugged your sweetheart and kissed her good-bye, when you said to her' After Wednesday we'll page 242never be parted again,' did you squeeze her up against your pocket-book and that steamer ticket for London?"
He had not a word to say. I gave one swift look at the faces of the jury, was satisfied, and sat down. I am sure that that "hug" against that steamer ticket was responsible for at least half of the swingeing damages they awarded against him.
1 Shadbolt v. The King, 1909 New Zealand Law Reports, p. 1026.