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cause many witnesses find in an oath, added compulsion toward the truth. Their conscience is impressed by the special commending of their words to the attention of Deity. Yet for the bulk of witnesses, the fear of certain prosecution and imprisonment, sharpened by salutary public examples, would win more converts to the truth than the dread of damnation beyond the grave.
Here, then, is an offense which is most grave in its consequences. It menaces that which is the very life of the social compact, the administration of justice. It spreads anarchy in the very temple of law and order. It saps the confidence which underlies commercial prosperity. It deadens that sense of reverence for justice and of obligation which is the essence of true patriotism and the bulwark of American institutions. It converts the solemnity of the sacred invocation into blasphemy. Why then in practice is it more of a privilege than a crime? Why is it allowed to be fertilized by substantial immunity?
judge-meant that under the law the trial judge is authorized, on detecting a witness in perjury, summarily to put him under bail or in prison to await criminal prosecution. The witness would stick more closely to the truth if he knew that trial judges in this country were in the habit, as they are in England, of committing perjurers on the spot. And the lawyer would hesitate the more about offering perjured testimony if he knew that the trial judge had the courage to ask the Bar Association to investigate his conduct.
Wherever the judiciary or even a single determined judge has made experiment of these summary powers, the atmosphere of the courtroom has been cleansed as by an electric fan, and the calendars have been cleared by the sudden dropping of unworthy causes.
Concerning such an experiment in Brooklyn, Judge Gaynor wrote in the article referred to:
"Some of the trial judges in Kings County in the Supreme Court and in the County Court have in recent years summarily committed perjurers under this statute (Penal Code, sec. 102), and the effect was surprising. Cases on the day-calendar were speedily abandoned after such a commitment-some necessary 'witness' would not come to the scratch, as the saying is-and the length of the day-calendar had to be increased for a week, or even for weeks, thereafter, in order to get ready cases enough to keep the parts of court busy. On the daily call, cases fell by the wayside in unusual numbers."
The detection of perjury, as distinct from securing a conviction after
formal trial, is not difficult. An experienced trial judge should be able to tell perjury almost at a glance, to know it even as it peeks in the court-room door. A seasoned lawyer senses it in the air.
Hence, the failure of the judges to make this experiment continuous and universal is the chief reason for our scandalously congested calendars and for the unworthy delays of the law. Bar associations meet in solemn conclave; committees of judges and lawyers are assembled; and the jurisdiction of courts is reduced, in order to devise ways and means for unlocking the ball-and-chain on the foot of justice. Let it be frankly said that they do not succeed because they do not deal with the central cause. They do not study to exorcise from the temple of justice, the possessing devil of perjury. It is this devil that fills the calendars with blackmailing complaints and sham defenses. It is this devil that stages long and expensive trials which otherwise would not have occurred. It is this devil that spawns dilatory motions; furnishes the tricks for the crooked lawyers; makes the ordinary citizen disgusted with the courts; sends honest men to jail and turns loose on the community, predatory lawbreakers of every kind. It is this devil that is dulling the public conscience in the very place where it should be keenest; that is undermining the confidence on which commercial prosperity depends; and that is poisoning the well-springs of sound government.
That the trial judges thus do not, except in very few instances, deal summarily with the probable perjurer, is justly the subject of wonder.
One of the reasons lies in their fear of the meddlesomeness and the criticism of appellate judges as to matters which ought to rest in the discretion of the judge presiding at the trial. Many of the signs of probable perjury-hesitancies of speech, delays in answering, duplicity of manner, furtiveness of expression are too impalpable to be photographed in a printed record on appeal; and hence that which is in reality righteous indignation in the protection of justice, may in a column of cold type seem suggestive of arbitrary or even of despotic conduct.
Tradition and precedent have stripped our American judges of much of the freedom of action and expression which English judges employ in guiding a jury to just conclusions. The American judge too often feels bound by custom and decision to be a mere moderator, a sort of parliamentary speaker, who keeps the court-room in order, the lawyers in decorum, and the evidence within the rules of law. Under this. cult, the facts speedily become a fetish which only the jury may approach; and, in consequence, falseswearing enjoys an almost unchecked growth. The inexperienced juror may not see a perjury which is plain enough to bench and bar, for "What a goodly outside, falsehood hath." Moreover, the jury as a body has no power to punish or power to punish or to denounce perjury, even if it detects it. But the trial judge, yielding perhaps unconsciously to the American tradition that all matters touching the facts are solely for the jury, too often feels that responsibility for the detection of perjury rests wholly with the triers of fact, and that the
false oath is sufficiently penalized by the hazard of an adverse verdict. He also feels that a commitment on the spot, or even a denunciatory comment, may be interpreted by an appellate court as having unduly prejudiced the free deliberations of the jury, as if it were better to match the wiles of the perjurer and the resourcefulness of his lawyer against the inexperience of the jury than against the trained mind and practised eye of the judge. Moreover, in many cases the judges themselves sit as triers of facts, and hence may summarily deal with perjury without danger of unduly biasing a jury.
Of course, this summary power of the trial judge to arrest a witness in the act of probable perjury, might, like any other power, become the subject of abuse. But it is a feeble and fumbling system of justice that abdicates its powers through lack of confidence in itself. Litigants and lawyers shape their conduct by judicial action, not by judicial theory. The present judicial truce with perjury is having consequences disastrous alike to justice, to public morality and to the nation. The crisis calls for action in accordance with the military slogan: "Treat 'em rough." The possible abuse of power by a trial judge is as nothing in comparison with the present outrageous abuse of judicial timidity and blindness by witnesses and lawyers.
The courts also can aid by increasing the severity of the sentence where a person convicted of some crime has clearly been guilty of perjury in his own defense. It is not rare for courts entirely to overlook this flagrant aggravation of the original delinquency. Thereby they
encourage the making of false defenses; increase the burdens upon the prosecutor's office; and do rank injustice to the more honest offender who prefers a plea of guilty to the iniquity of perjury. In the matter of sentence, the courts have inherent power to give weight to all the circumstances, including the course of the defendant during the trial.
Just criticism also may be made of the careless and perfunctory manner in which the oath is administered in many courts. The solemn language of the oath is designed to direct the thought of the witness to his ultimate accountability to the State and to the Author of all Truth. Actually, however, the oath is frequently administered as if it meant no more than an incantation in a heathen tongue. If courts are indifferent to the manner of the oath, they cannot complain if witnesses are indifferent to its substance. The writer knows of one clerk of court who, conscious of the importance of the duty, always administered the oath with a solemnity of tone and manner and with a personal directness that could not fail to call attention to the essential nature of the ceremony. This clerk has found from experience that, as a result, many a witness on sitting in the chair, lays aside his carefully rehearsed fabrication and to the consternation of the lawyer, shamefacedly avows the truth.
infrequently drafted according to the lawyer's version of the facts, and the client or the witness readily swears thereto without careful study of the language and in the uncorrected belief that responsibility has been assumed by the draftsman. The result is that even honest witnesses are often confronted in court with contradictory statements in their own affidavits, and are driven to the excuse that they signed what the lawyer placed before them. The lawyer in his turn steps behind the shield of his profession; and what was the responsibility of both thus becomes the concern of neither. Thereby the solemnity of the oath is frittered away; and fertile seeds of future carelessness and worse in handling the truth, are sown.
Moreover, it is unfortunately true that there are members of the bar who prefer victory to truth. The excuse that one is not one's brother's keeper makes to lawyers quite as seductive an appeal as it does to other men. Hence it is that the present prevalence of perjury lessens the dignity, as well as menaces the integrity, of the legal profession. When justice becomes a game, it is difficult not to join in with the other players and to play it according to the rules of a mere battle of sharp wits. The temptation "to fight fire with fire" becomes formidable.
justice; and as the expert agent and adviser of the client, he makes the latter's course his own. These truths can be preserved to the profession only by keeping out of it men unequipped in character to observe them, and by proper disciplinary measures by bench and bar. Let the judges show by their manner and comment that it is the lawyer and not the client who is primarily responsible to them; and let our bar associations enforce this homely truth until it becomes a maxim. Thereby the oath will become more of an obligation and less of a formality, and the ethics of the profession will be elevated. As said by an eminent jurist, Judge Sharswood, in a lecture on the Standards of the Bar:
Thus, the profession owes it to itself to check present recklessness in swearing. The lawyer who presents "the facts" to judge or jury has a responsibility for their veraciousness which differs but little from that of the client or witness who furnishes them. The lawyer is an officer of the court and of
"Instead of drawing affidavits, and permitting them to be sworn to as a matter of course, as it is feared is too often the case, counsel should on all occasions take care to treat the oath with great solemnity, as a transaction to be very scrupulously watched, because involving great moral peril as well as liability to public disgrace and infamy. It lies especially in the way of the profession to give a high tone to public sentiment upon this all-important subject, the sacredness of the oath."
And some years ago, a president of the New York State Bar Association in his annual address, declared:
"If the lawyers of this State would positively discourage false swearing on the part of their own clients and honestly endeavor to have it punished when committed by the clients of their adversary, the crime would grow suddenly less. . . . It is the professional duty of every lawyer to do this; he owes it to his fellow-man;
he owes it to his country, and he trade of "ambulance chasers," and owes it to his God." putting a premium on perjury.
One of the most abhorrent features of the contingent fee is that the poor and the ignorant are the chief victims of its malignancy. The very class of persons whom it should be the privilege of the legal profession to protect, is often the most ruthlessly victimized. The medical profession holds its members to be under a high obligation to succor at small or at no cost the impecunious sufferer. Thus, at times, the impecunious victim of an accident that cripples for life, is treated with humane generosity by a member of one profession and simultaneously stripped of half his compensation by a member of another. There are, indeed, lawyers who make a vastly profitable business out of hunting down the most serious accidents, not because the unfortunate sufferer excites their compassionate solicitude, but because his agony may be minted into money for themselves. In such cases the contingent fee is the prolific parent of perjury.
Both of these cancers upon the body of justice can be cut out by the same knife. Since every lawyer is an officer of the court, laws can constitutionally be passed to give the court a dominating voice in every contract for a contingent fee. Under this plan, the court could fix a scale of compensation, whereby definite fees would be allowed for definite services, or else the court could place a fair valuation on the services as a whole and confine thereto the lawyer's compensation. Under such a plan, the injured laborer would not be stripped, as now, of one third or one half of his means in order to line
But in contrast to these portrayals of a professional ideal, the unfortunate truth seems to be that the bar, and, if one may judge by attitude and expression, the bench also, have ceased to be shocked by ordinary false swearing. Sometimes lawyers even laugh at it,-as Jove did "at lovers' perjuries.'
As regards the legal profession, the evil of false swearing is greatly increased by the evil of the contingent fee. The contingent fee leaves too little room for ethical standards. The inducement of one third or one half of the recovery is too frequently an incentive to win at any price. Thereby the lawyer and the client become partners in successful testimony by the latter. No man can serve two masters. When the lawyer is the slave of a contingent fee he seldom can also be a servant of justice. Certainly he will find it the more difficult to censure a little timely false swearing, if he has in it a private pecuniary stake. Indeed, not only as regards honesty under oath but also as regards the public interest generally, the time has come when the legal profession for the sake of its own honor, and the courts for the prevention of congested calendars, must give grave consideration to the abolition, or at least the severe regulation, of the contingent fee. It is precisely this sort of legalized gambling for high stakes that is swamping our courts with suits, breeding a swarm of unjustifiable claims, encouraging dishonest attacks on reputations, bringing disrespect on an ancient and honorable profession, fostering the