N.J. Constitutional Convention: Vol. 4, Page 425

Thursday, July 10, 1947 (Morning session)

that, a jury trial is mandatory; you can't waive a jury trial?


MR. PETERSON: You can waive?

JUDGE HAND: You can.

MR. PETERSON: Then, of course, if he is innocent he should.

JUDGE HAND: That's for him and his lawyer to decide.

MR. DIXON: One of the things that brings that up in my mind - I see quite often in reading the papers that the judge on appeal had reversed the lower court because the statement was made, and this is almost verbatim, that "the finding of fact is against the weight of the evidence." Therefore, although a jury determined a man is guilty, because the judge on appeal finds that the finding of fact is against the weight of evidence the judge apparently is the final arbiter anyway of the value of the evidence. Now, if he is the final arbiter of the value of the evidence, forgetting our historical fact that we want trial by jury, after all wouldn't we have just as good justice, perhaps better, if we didn't have the trial by jury? That was the thing that brought the thing up to my mind.

JUDGE HAND: Well, I tried to tell you, perhaps I haven't been clear about it, I tried to tell you that in civil cases I think you must look at it more as -

MR. DIXON: I mean in criminal cases.

JUDGE HAND: In criminal cases, I think you must look at it in what I might call its political aspect.

Let us assume that trial by jury is by no means the ideal way, or even isn't as good a way as the judge, if you like - a good many people differ with me on that, I mean very sensible people - but let's assume for argument that a judge would be more apt, being trained in what is evidence and what isn't, to make conclusions which are justified. I should say, allowing that - assuming that it isn't as rational a means of deciding an issue as a judge - I should be for it in criminal cases, and I tried to say why before but I don't know whether I made myself clear.


JUDGE HAND: But I call those political considerations. And, after all, when you consider an institution which started in one small island many years ago, spread all over the civilized world, even so far as Czarist Russia - the criminal jury - there must be something in it which makes it desirable in crimes. In Italy, in Germany, and wherever the English language is spoken, it has always been so. So, I should be very strong on criminal juries, regardless of how competent they were to judge evidence.

MR. DIXON: I would like to say that I am not advocating this at all, if the press is taking this down.

JUDGE HAND: I understand perfectly.

VICE-CHAIRMAN: We have been considering the problem of

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