N.J. Constitutional Convention: Vol. 4, Page 424

Thursday, July 10, 1947 (Morning session)

power to promulgate the rules finally; it had to wait to see whether there were any objections.

And Congress has just done the same thing with criminal procedure as on the civil rules, and those went into effect about a year ago and it is too early yet to tell much about it. The others have been in force, my recollection is, since September, 1938, and we think they are very good.

Evidence - no. Congress has never suggested that; that has been a very contentious subject.

I have been on the American Law Institute for a great many years and we did get a Model Code of Evidence under the leadership of Professor Edward Morgan. Perhaps we went too far, but we pretty well eliminated the rules of evidence. We didn't get very far with it. My name is on it, and I am very much for it, but a Texas judge suggested that my cousin and I being guilty of such a thing, we should be impeached. It didn't get any farther in Congress - they haven't done it yet.

MR. DIXON: But they still reserve that right; they could do it if they wish, couldn't they? They have that right?

JUDGE HAND: Oh, yes. I have, myself, quite radical notions about the thing.

MR. BROGAN: Judge, would you care to say whether or not you think that equity, if administered separately and by judges who do nothing else, would be better administered than if administered indiscriminately by the judges, as it is in the New York Supreme Court?

JUDGE HAND: My answer would be no, but again every man is probably partial to what he has grown up with. No. I think that is very largely delusion - who can tell?

MR. PETERSON: Judge Hand, I want to come back to the trial by jury. I understand that nobody has proposed the elimination of trial by jury but -

JUDGE HAND: It wouldn't do any good, you couldn't.

MR. PETERSON: No, but in your federal criminal practice the federal authorities are not prone to make an arrest as expeditiously as we do in local police courts. They do a great deal of investigation, leave the suspect much on the loose until they pretty nearly have an airtight case against a person. I don't mean by that remark that everyone accused of a federal crime is guilty before he comes in, but usually, because of the investigation, of the fact-finding more to establish the certainty of the evidence against him and, in a way, of those things that may be in his favor, there is no question of it. But in ordinary criminal practice I would say, in most states a suspect is arrested and indicted by his neighbors. The evidence has been before the grand jury, which is the common people. He pleads not guilty; he isn't guilty. When he pleads

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