Confronted By Witnesses—Compulsory Process—Aid Of Counsel—Jury In Civil Trial

I am sure that no one until he has studied the Constitution, no one certainly who is not a trained lawyer, will realize the many safeguards necessary to protect persons who may be wrongfully accused of a crime; but the framers of the Constitution knew the dangers from the sad experiences of innocent men and women who had been sacrificed by tyrants who had but little regard for human life or for human liberty.

Of course you now understand that in case an indictment is returned by the grand jury, the person accused comes into court, or is brought in, and enters his plea of “guilty” or of “not guilty”. If he pleads “not guilty” a jury is brought together, “empanelled”, as it is called, and they are sworn to hear the evidence, and decide the case according to the evidence.

But in these grave criminal trials, in order that the truth may prevail, every accused person is given the right to be confronted by the witnesses against him. The Constitution provides:

“In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.”68

What does this mean? It means that the government, the prosecution, cannot prove guilt by witnesses who are not present in court where the defendant can see them, where they may be cross examined by counsel, where the jury may observe them, and study their conduct and demeanor, because this often helps in determining whether a person is telling the truth or a falsehood.

In ordinary trials where property alone is involved, a [pg 123] witness may live in another State or at some great distance from the place of trial. Witnesses cannot be brought a long distance in those cases. In some States they cannot be compelled to attend a distance of more than seventy miles. In other States, not more than one hundred miles; so that to get their testimony, the parties take their depositions. This means that instead of bringing the witness into court, the parties obtain an order by which they can go to the place where the witness is. There he is sworn before a commissioner, or a notary public, examined, and his testimony is taken in writing. The testimony is returned to the court where the trial is to be held, and is then read to the court or the jury upon the trial.

But in the trial of a person accused of a crime, depositions cannot be used against him. Statements of witnesses in writing, or in any other form, cannot be used by the prosecution. The witnesses must be physically in court before the accused, and there orally testify, and the defendant must have the right to cross examine them.

But to give the accused person every possible aid in enabling him to have the truth brought before the court and jury, he may take the depositions of witnesses in his own behalf. That is, the prosecution—the State or the Nation accusing a man of a crime—must prove the truth of the accusation by witnesses personally in court confronting the defendant, but the defendant is given the privilege of taking the testimony of witnesses at a distance, in the form of depositions which are read to the jury.

This provision of the Constitution may be very important to an innocent person sometimes. The importance of it may never appear to us until unfortunately we be wrongfully accused of a crime, and our life or liberty in danger.

Then the Constitution further provides:

“In all criminal prosecutions, the accused shall enjoy the [pg 124] right ... to have compulsory process for obtaining witnesses in his favor.”69

This is also very important. “Compulsory process” means an order of the court, commonly called “subpoena”, which is served upon witnesses by the marshal, or the sheriff, or other authorized person, commanding them to appear in court for examination before the court and jury as to the truth of matters involved in the accusation against a person on trial.

Here I wish you to recall the unfortunate fact that every little while somebody is complaining about our government as “a rich man's government”. It is often claimed that the poor have no chance for justice. The truth is that the rich and the poor stand equal in the courts. In creating the Constitution, it is known of course that someone might be brought before the court who was poor, without money, possibly without friends. He might be innocent, but in order that his innocence might be established it would be necessary for him to have witnesses who might live many miles away, who would not come into court to testify of their own free will. Therefore, there was inserted in the Constitution this provision, that every defendant shall have the right to compulsory process, commanding witnesses to appear, and there is no one so poor that he cannot have this privilege, because the United States—and in most of the States we have a like provision—not only issues subpoenas and compels the officers to serve them, but it pays the expense of serving, and pays the witness fees and mileage, so that the poor man has all of the rights in getting the truth before the court and jury that the richest may have.

Furthermore, in the same American spirit, when persons accused of an offense are too poor to employ counsel, the government will furnish counsel. The Constitution provides:

[pg 125]

“In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.”70

There is no person so poor, or obscure, or friendless, that when he is charged with a crime which might affect his liberty or his life, he shall not have the right to a full, fair trial. Not only are his witnesses produced and paid by the government, but an attorney is appointed by the government to represent him, and help him establish his innocence.

This is a wonderful illustration of the paternal care which is manifested for those who may be unfortunate, and this is all because under our Constitution, liberty is a sacred thing, and it shall not be taken away except in punishment for a crime which has been proven in open court in a public trial before a jury, where the party has been confronted with the witnesses against him, where he has had a chance to furnish witnesses in his behalf and the aid of counsel in his trial.

Then the people who brought the Constitution into being, feeling that so far as practicable they should have control of the enforcement of law not only in criminal cases, but in civil cases, included a guaranty in the Constitution that:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”71

Of course there is often more or less controversy about property of small value, where the expense and delay of jury trials might possibly be oppressive, but in any case involving more than twenty dollars in value, triable under the common law, which includes practically all cases except those peculiar cases triable in Chancery, or in Courts of Equity, the parties are entitled to a trial by jury. That is, instead of introducing their evidence and having the judge decide what the truth is between them, the parties are entitled to have a jury of men from the ordinary occupations of life hear the evidence and say from the evidence what is the truth.

[pg 126]

And furthermore, the people provided in the Constitution that:

“No fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”72

Here again is the right to a jury trial, and the benefit of a jury trial, and to a trial according to the established rules and precedents of the common law courts carefully preserved.

Now my friends, I know that there is much confusion in your minds about trials in court. I do not expect you to know all about trials. We are studying the guaranties of the Constitution so that we shall learn human rights—our rights—under the Constitution. I am talking to you about the safeguards of the Constitution so you shall know your rights, especially so that you will always venerate the Constitution which guards your rights, and defend it against those who may assail it. But I do want you to have a clear idea of what a trial in court is. I want you to know the purpose of the long days of examination of witnesses, the objections of the attorneys to certain questions asked, the rulings of the court, and the arguments of counsel.

The main purpose, aim, and object of every lawsuit, as trials are usually termed by people who are not lawyers, is to find the truth. The proceedings in court in every lawsuit are a continuous search for the truth. If in disputes we could agree to what the truth is, there would be few lawsuits to try.

A lawsuit only arises where there is a dispute to settle. If people agreed about their rights there would be little need of courts. In criminal cases, the government through the grand jury charges by indictment that a man committed a certain crime. The government says the man did it. He denies it by a plea of not guilty. He says he did not. The trial before the petit jury is merely a search for the truth [pg 127] about the charge. What is the truth about the matter in dispute, that is all that is involved in an ordinary lawsuit.

Picture two boys in a dispute about which owns a ball. One positively asserts that it is his, that his father bought it and gave it to him. The other is just as sure that it is his. He says that his brother gave it to him. They quarrel so excitedly that a neighbor coming across the street asks the cause of the trouble. They tell him their claims and ask him to decide. One boy points out a rough spot on the ball which he insists was caused by a blow from his bat while he was playing in his own yard. The other says that his brother gave him a ball with red and white stitches. The neighbor, after hearing these and many other claims, decides the case, giving the ball to the boy whom he finds to be the owner.

In this we have every element of a lawsuit. The dispute, the court (the neighbor), the witnesses (the boys), and the judgment based upon what the neighbor finds to be the truth from the evidence before him. That is all that any court or jury can do, but under the Constitution in cases involving life or liberty every possible safeguard is provided so that the truth may be found, so that justice may be done.

[pg 129]

ELEMENTARY QUESTIONS

1. Why should all witnesses for the prosecution speak in the actual presence of the accused?

2. Why should the accused be allowed to have testimony in his favor submitted in writing?

3. In what cases is written testimony ordinarily admitted?

4. What is compulsory process?

5. In what ways does the Constitution aid the poor man?

6. In what cases may there be a trial without a jury?

7. What is the main purpose of any lawsuit?

8. What is meant by cross-examination of a witness?

ADVANCED QUESTIONS

A. In what way do these provisions sustain the fact that our government is a democracy?

B. Is a person more likely to commit perjury when not actually facing the person accused? Give reasons.

C. What is the provision of the Constitution as to “compulsory process”? Explain the importance of this right.

D. Explain the provision of the Constitution as to the right to have counsel.

E. Show how compulsory process and free counsel help the poor man.

F. Why is jury trial omitted in small controversies?

G. What is a “civil” case?

H. Write a paper on the following:

How Perjury is Detected

Oral and Written Testimony

How the Poor Man is Protected

The Purpose of a Trial in Court

The Story of a Tramp Without Money, Accused of an Offense: How the Constitution Helps Him

[pg 130]