III

Criminal Juries

Criminal juries⁠—General characteristics of juries⁠—statistics show that their decisions are independent of their composition⁠—The manner in which an impression may be made on juries⁠—The style and influence of argument⁠—The methods of persuasion of celebrated counsel⁠—The nature of those crimes for which juries are respectively indulgent or severe⁠—The utility of the jury as an institution, and the danger that would result from its place being taken by magistrates.

Being unable to study here every category of jury, I shall only examine the most important⁠—that of the juries of the Court of Assize. These juries afford an excellent example of the heterogeneous crowd that is not anonymous. We shall find them display suggestibility and but slight capacity for reasoning, while they are open to the influence of the leaders of crowds, and they are guided in the main by unconscious sentiments. In the course of this investigation we shall have occasion to observe some interesting examples of the errors that may be made by persons not versed in the psychology of crowds.

Juries, in the first place, furnish us a good example of the slight importance of the mental level of the different elements composing a crowd, so far as the decisions it comes to are concerned. We have seen that when a deliberative assembly is called upon to give its opinion on a question of a character not entirely technical, intelligence stands for nothing. For instance, a gathering of scientific men or of artists, owing to the mere fact that they form an assemblage, will not deliver judgments on general subjects sensibly different from those rendered by a gathering of masons or grocers. At various periods, and in particular previous to 1848, the French administration instituted a careful choice among the persons summoned to form a jury, picking the jurors from among the enlightened classes; choosing professors, functionaries, men of letters, etc. At the present day jurors are recruited for the most part from among small tradesmen, petty capitalists, and employees. Yet, to the great astonishment of specialist writers, whatever the composition of the jury has been, its decisions have been identical. Even the magistrates, hostile as they are to the institution of the jury, have had to recognise the exactness of the assertion. M. Berard des Glajeux, a former President of the Court of Assizes, expresses himself on the subject in his Memoirs in the following terms:⁠—

“The selection of jurymen is today in reality in the hands of the municipal councillors, who put people down on the list or eliminate them from it in accordance with the political and electoral preoccupations inherent in their situation.⁠ ⁠… The majority of the jurors chosen are persons engaged in trade, but persons of less importance than formerly, and employees belonging to certain branches of the administration.⁠ ⁠… Both opinions and professions counting for nothing once the role of judge assumed, many of the jurymen having the ardour of neophytes, and men of the best intentions being similarly disposed in humble situations, the spirit of the jury has not changed: its verdicts have remained the same.

Of the passage just cited the conclusions, which are just, are to be borne in mind and not the explanations, which are weak. Too much astonishment should not be felt at this weakness, for, as a rule, counsel equally with magistrates seem to be ignorant of the psychology of crowds and, in consequence, of juries. I find a proof of this statement in a fact related by the author just quoted. He remarks that Lachaud, one of the most illustrious barristers practising in the Court of Assize, made systematic use of his right to object to a juror in the case of all individuals of intelligence on the list. Yet experience⁠—and experience alone⁠—has ended by acquainting us with the utter uselessness of these objections. This is proved by the fact that at the present day public prosecutors and barristers, at any rate those belonging to the Parisian bar, have entirely renounced their right to object to a juror; still, as M. des Glajeux remarks, the verdicts have not changed, “they are neither better nor worse.”

Like all crowds, juries are very strongly impressed by sentimental considerations, and very slightly by argument. “They cannot resist the sight,” writes a barrister, “of a mother giving its child the breast, or of orphans.” “It is sufficient that a woman should be of agreeable appearance,” says M. des Glajeux, “to win the benevolence of the jury.”

Without pity for crimes of which it appears possible they might themselves be the victims⁠—such crimes, moreover, are the most dangerous for society⁠—juries, on the contrary, are very indulgent in the case of breaches of the law whose motive is passion. They are rarely severe on infanticide by girl-mothers, or hard on the young woman who throws vitriol at the man who has seduced and deserted her, for the reason that they feel instinctively that society runs but slight danger from such crimes,24 and that in a country in which the law does not protect deserted girls the crime of the girl who avenges herself is rather useful than harmful, inasmuch as it frightens future seducers in advance.

Juries, like all crowds, are profoundly impressed by prestige, and President des Glajeux very properly remarks that, very democratic as juries are in their composition, they are very aristocratic in their likes and dislikes: “Name, birth, great wealth, celebrity, the assistance of an illustrious counsel, everything in the nature of distinction or that lends brilliancy to the accused, stands him in extremely good stead.”

The chief concern of a good counsel should be to work upon the feelings of the jury, and, as with all crowds, to argue but little, or only to employ rudimentary modes of reasoning. An English barrister, famous for his successes in the assize courts, has well set forth the line of action to be followed:⁠—

“While pleading he would attentively observe the jury. The most favourable opportunity has been reached. By dint of insight and experience the counsel reads the effect of each phrase on the faces of the jurymen, and draws his conclusions in consequence. His first step is to be sure which members of the jury are already favourable to his cause. It is short work to definitely gain their adhesion, and having done so he turns his attention to the members who seem, on the contrary, ill-disposed, and endeavours to discover why they are hostile to the accused. This is the delicate part of his task, for there may be an infinity of reasons for condemning a man, apart from the sentiment of justice.”

These few lines resume the entire mechanism of the art of oratory, and we see why the speech prepared in advance has so slight an effect, it being necessary to be able to modify the terms employed from moment to moment in accordance with the impression produced.

The orator does not require to convert to his views all the members of a jury, but only the leading spirits among it who will determine the general opinion. As in all crowds, so in juries there are a small number of individuals who serve as guides to the rest. “I have found by experience,” says the counsel cited above, “that one or two energetic men suffice to carry the rest of the jury with them.” It is those two or three whom it is necessary to convince by skilful suggestions. First of all, and above all, it is necessary to please them. The man forming part of a crowd whom one has succeeded in pleasing is on the point of being convinced, and is quite disposed to accept as excellent any arguments that may be offered him. I detach the following anecdote from an interesting account of M. Lachaud, alluded to above:⁠—

“It is well known that during all the speeches he would deliver in the course of an assize sessions, Lachaud never lost sight of the two or three jurymen whom he knew or felt to be influential but obstinate. As a rule he was successful in winning over these refractory jurors. On one occasion, however, in the provinces, he had to deal with a juryman whom he plied in vain for three-quarters of an hour with his most cunning arguments; the man was the seventh juryman, the first on the second bench. The case was desperate. Suddenly, in the middle of a passionate demonstration, Lachaud stopped short, and addressing the President of the court said: ‘Would you give instructions for the curtain there in front to be drawn? The seventh juryman is blinded by the sun.’ The juryman in question reddened, smiled, and expressed his thanks. He was won over for the defence.”

Many writers, some of them most distinguished, have started of late a strong campaign against the institution of the jury, although it is the only protection we have against the errors, really very frequent, of a caste that is under no control.25 A portion of these writers advocate a jury recruited solely from the ranks of the enlightened classes; but we have already proved that even in this case the verdicts would be identical with those returned under the present system. Other writers, taking their stand on the errors committed by juries, would abolish the jury and replace it by judges. It is difficult to see how these would-be reformers can forget that the errors for which the jury is blamed were committed in the first instance by judges, and that when the accused person comes before a jury he has already been held to be guilty by several magistrates, by the juge d’instruction, the public prosecutor, and the Court of Arraignment. It should thus be clear that were the accused to be definitely judged by magistrates instead of by jurymen, he would lose his only chance of being admitted innocent. The errors of juries have always been first of all the errors of magistrates. It is solely the magistrates, then, who should be blamed when particularly monstrous judicial errors crop up, such, for instance, as the quite recent condemnation of Dr. L⁠⸺ who, prosecuted by a juge d’instruction, of excessive stupidity, on the strength of the denunciation of a half-idiot girl, who accused the doctor of having performed an illegal operation upon her for thirty francs, would have been sent to penal servitude but for an explosion of public indignation, which had for result that he was immediately set at liberty by the Chief of the State. The honourable character given the condemned man by all his fellow-citizens made the grossness of the blunder self-evident. The magistrates themselves admitted it, and yet out of caste considerations they did all they could to prevent the pardon being signed. In all similar affairs the jury, confronted with technical details it is unable to understand, naturally hearkens to the public prosecutor, arguing that, after all, the affair has been investigated by magistrates trained to unravel the most intricate situations. Who, then, are the real authors of the error⁠—the jurymen or the magistrates? We should cling vigorously to the jury. It constitutes, perhaps, the only category of crowd that cannot be replaced by any individuality. It alone can temper the severity of the law, which, equal for all, ought in principle to be blind and to take no cognisance of particular cases. Inaccessible to pity, and heeding nothing but the text of the law, the judge in his professional severity would visit with the same penalty the burglar guilty of murder and the wretched girl whom poverty and her abandonment by her seducer have driven to infanticide. The jury, on the other hand, instinctively feels that the seduced girl is much less guilty than the seducer, who, however, is not touched by the law, and that she deserves every indulgence.

Being well acquainted with the psychology of castes, and also with the psychology of other categories of crowds, I do not perceive a single case in which, wrongly accused of a crime, I should not prefer to have to deal with a jury rather than with magistrates. I should have some chance that my innocence would be recognised by the former and not the slightest chance that it would be admitted by the latter. The power of crowds is to be dreaded, but the power of certain castes is to be dreaded yet more. Crowds are open to conviction; castes never are.