CRIMINAL PRACTICE--CLOSING ARGUMENT.
The SPEAKER announced the consid eration on the third reading of Mr. Johnson's bill [H. R. 137] to amend section of the criminal practice and procedure of June 17, 1852.
Mr. JOHNSON. I have said almost nll that I care to on this bill. It is simply a verbatim copy of the provision in regard to the opening and closing arguments in civil cases. It has long been a cardinal rule in the discussion of all questions, both in legislative bodies and before the courts, that the side of the question upon whom rests the burden of the issue shall have the opening and the closing of the argument, It has always been so at common law. It is so in criminal as well as in civil practice at common law, It is so in every civilized country in the worldit is so in every State of the Union except the State of Indiana. Indiana is the only State in the Union where the negative side is compelled to close the argument; and I think this rule in our practice has been recently denounced by one of the Judges as a barbarous rule. Now, the defendant has safeguards enough around him. In the first place he is presumed to be innocent till the contrary is proved. In the next place, the jury must be convinced beyond a reasonable doubt of his guilt. Now, not ten minutes since, the House has voted for a bill giving the defendant the right to testify in his own behalf. And with all these things in the defendant's favor, shall we continue to make this State an exception to the civilized world? In the United States Courts the government has the opening and closing argument--and in every State in the Union except Indiana. I might say that this rule in our State was gotten up originally by the criminal lawvers in behalf of what they know gjves them a successful practice. We have just given the right to testify to the defendant; that cuts off all probability of the penitentiary for an innocent man. Now, let us pass this bill, and close the way of escape for the guilty.
Mr. BUSKIRK. I desire to say a word before this bill passes. I was in favor of the last bill we passed; but I am earnestly page: 183[View Page 183]opposed to this; and I do not admit the argument in favor of this bill, because the other has or may become the law. The only view that has been taken of this important innovation on our system of practice is this: that the party closing the argument has the advantage. Now, the question is, where ought the advantage to be given? Ought it to be with the State or with the person accused? I believe that the theory of our criminal law accords the principle that all presumptions are to be in favor of the criminal. This is sound in theory and safe in practice. I believe that it is safer that ninety-nine of the guilty should escape than that one innocent person should be punished. The gentleman says that in Indiana alone the defendant has the closing argument. I believe that our Constitutional Convention of 1850-51, did a great many things of which they may be justly proud, and I believe that this provision is one of the wisest things which they recordeed to their honor. By the common law the State has the closing argument. But we may find many other unjust things in the common law of England; as that the defendant is not entitled to counsel. These things are eminently unjust. I believe that if we look over the criminal annals of Indiana, and compare them with those of other States, we will not find anything in which she will appear to any disadvantage. The right of the defendant to testify is not in point here. This is simply a question as to who shall have the closing argument; and if there is any advantage in this, I believe in giving it to the criminal.
Mr. WOOLLEN. I am only going to say a few words. It is time as the gentleman says, that the common law has grown up in this country, and we have taken what we favored--sometimes at the expense of the many. But we know that laws are made slowly and singly, for the purpose of curing some evil. But the intention of the bill is this: It is intended for the more effectual enforcement of the criminal laws of the State. They have hardly ever been rigorously enforced. We have been for sometime going back from the enforcement of the criminal laws. Now, the evil to be remedied is to prevent the escape of the criminal not to prevent the conviction of the innocent man. This Legislature has not been called upon to legislate for the purpose of saving the innocent from the penitentiary, but to bring the guilty to punishment. And, if gentlemen here will go home and inquire what has been most talked about by the people, they will find that it is this very thing--that our criminal laws have not been sufficiently enforced. Now the eulogy which the gentleman passed upon the Constitutional Convention of 1851 might be well enough deserved by that body; but I conceive that his mention of it is but moonshine, because prior to 1850 there was no complaint about the criminal laws: but the evil complained of has grown up since the law we are now seeking to repeal was placed on the statute books. Again, if the gentleman will go back prior to the Convention of 1850, he will find no beech trees ornamented with criminals. The beech tree came into favor as a part of the law we are seeking to repeal. It was since the State stepped back from the right to the closing argument that it has come to pass that justice must be enforced by vigilance committees. I say this law stands in the way of the administration of justice. Sympathy always goes out in favor of the criminal. And hence, if you permit the defendants' counsel to close--especially since we have such prosecuting attorneys as are commonly elected--the State stands but little chance in the case, and unless we prevent the stronger counsel from closing the argument on the part of the accused, no jury can convict. Now, let us make the law logical. Let us give the close of pleadings to the party that has the burden of proof, for he must make out the case beyond a doubt. Let us reserve to the State the right of the sovereign to close and say through her attorney the last word in the case.
Mr. WALKER. I think the law as it now stands is obviously indefensible by any gentleman in the State of Indiana, and that it will be attempted by none outside of the General Assembly, except, it may be, by some of our able criminal lawyers. I believe that it is the united voice of the people of Indiana that the defendant should be denied the closing argument in criminal cases. I believe that nothing can make that just which is unjust. I invite every gentleman to vote against the lawyers. I concur wdth the gentleman [Mr. Woollen] that nothing has contributed so much to encourage mob law in the State as this rule which we are seeking to repeal. Our criminal laws are loosely made--made at the bidding of a maudling liberality. The salaries paid to the prosecutors are so low that the able lawyer will not accept the office, and the result is that we have young men for prosecutors. Now comes to the assistance of the defendant his counsel--the ablest lawyers of the State--and do not lose sight of the fact that the defendant must page: 184[View Page 184]be proved guilty beyond a reasonable doubt--that no doubt must linger in the minds of the jury, and the jury must judge of the law and the facts, and still the able counsel have the closing word. We must not forget the ability of the defendant's counsel--men who have looked into the faces of hundreds of jurymen--they have proficiency in determining the faces of men, and the last argument of counsel has acquitted three-fourths of the criminals on trial in Indiana for the last ten years. It is so. There is no doubt of the fact, that more depends on the closing argument than on everything else for the criminal's acquittal. Now I can set up no claim for the wisdom of Indiana legislation above that of the civilized world. And I will repeat that this act for a rule in pleadings had its birth in the mendacity of criminal lawyers, and in an un guarded moment it was crystalized into law. This is not an aggressive step. It invites the dust of the old shelves of the law to settle down again on our statute books. I believe that this act will pass without a dissenting voice; and that it will receive the sanction of the law-abiding people of Indiana.
Mr. ANDERSON. If it is to be set down as a fact that juries are almost universally influenced by the last argument, I can't see how a just act should award the last argument to the criminal. I am not aware of the fact that the State of Indiana has gained any notoriety for looseness in her criminal trials; neither do I think she lingers behind other States in regard to a fair enforcement of the administration of justice. And although the last argument may have more influence on the jury, still I think justice should accord the close to the criminal. If the reasoning of gentlemen is good, then to give the last argument to the criminal is an important advantage; and therefore I shall certainly feel it to be my duty to vote against this bill.
Mr. WALKER. I have always been in favor of giving the criminal a fair trial; but, while I believe this, I believe that we should also be just to the people of the State. This innovation of 1850 has proved to be unwise; and I trust we will pass this bill. We have given the defendant the right to testify in his own case: and now if we should defeat this bill, we will leave the matter in an awkward position.
Mr. BUSKIRK. It was said by the gentleman last on the floor, that the mendacious propose opposition to this bill. My opposition to the bill is not so founded; but it is founded in what I conceive to be unjust in the bill itself. I have in my mind a criminal case now pending in the Circuit Court of my own county. A man by the name of Davis is charged murder. I am employed to assist in the prosecution of the case. There is also employed a certain lawyer in Evansville, who ranks, perhaps, foremost amongst the lawyers of that part of the State, and in that case I believe, if the State have the closing argument, it being a case made up on circumstantial evidence, and where the legal skill will be balanced about equally, the defendant will stand a chance to be found guilty, whether in fact he is guilty or not. I understand that the gentleman from Wayne predicates his argument on the fact that in our criminal cases the State is always represented by poor lawyers, and the defendant by able ones. Now I say that argument does not lie in the mouth of the State. But that is the main argument of the gentleman, together with this: that upon the closing argument depends, for the most part, the verdict in tihe case. Now, I agree with the gentleman from Cass (Mr. Anderson), if that proposition is true, that upon the closing argument depends the result, then the closing argument ought to be with the defendant. If there is any difference, any advantage in the case, it should be in favor of the defendant. The gentleman from Johnson (Mr. Woollen) says if the bill pass we shall have no more mob law. That is a rash assertion, to say the least; because mob law has existed as long as the civil law.
Mr. JOHNSON. I have the affirmative and ought to have the close. I have a word in answer to the gentleman from Gibson (Mr Buskirk). If my friend from Gibson is afraid that the defendant he spoke of will be convicted if the State has the close, he certainly ought to resign his employment in the case. [Laughter.] But, if he is convinced that the defendant is innocent, I will venture the assertion that, with all his eloquence, his closing speech will not convict him. But then, after the argument is all closed the court instructs the jury; and in almost every criminal case, the law is so favorable to the defendant, that the instructions of the court amount to an argument for the criminal. The law is so lenient, and the judge is so careful and merciful, that if injustice has been done by the counsel for the State, it will be corrected in the instructions of any upright court. The criminal will be in no danger; because the law makes the charge of the page: 185[View Page 185]court almost an argument for the criminal. While the gentleman from Gibson stands here in favor of the criminal, I stand up in favor of nobler clients. I stand in favor of the protection of the State and of society. Society is now in more jeopardy than any man can be. And now, in the present stage of our public morals--since the gibbet and lynching post has come into office to take the place of justice--I am inclined to take the side of society, and erect a barrier against crime; and I am prepared to say that it may, after all, be better for society that one innocent man should suffer, than that ninety-nine guilty should escape.
The bill was finally passed the House of Representatives; yeas, 75; nays, 15.
