And the predominance of sentiment over the intelligence of the jury is revealed in the now incurable aspect of judicial discussions. There is no need and no use for legal and sociological studies and for technical knowledge; the only need is for oratorical persuasiveness and sentimental declamations. Thus we have heard an advocate telling a jury that, ``in trials into which passion enters, we must decide with passion.'' Hence, also, the deterioration of science in the Assize Courts, and its faulty application, and its completely erroneous consequences.
Moreover, the verdict of the jury cannot represent the sum of spontaneous and individual convictions--not only in countries where juries are exposed to all kinds of influences during the adjournments of the discussion, but even in England, where unanimity is required, and where all communication of the jury with the outer world is forbidden until the end of the trial. For in every case the influence of the most intriguing or most respected jurymen in the jury's room is always inevitable. So that we have even had irresponsible suggestions of public deliberation on the part of the jury.
Against these defects of the jury its advocates have set an objection in regard to the trained judge, namely that the habit of judging crimes and offences irresistibly inclines the judge to look upon every prisoner as guilty, and to extinguish the presumption of innocence even in cases where it would be most justified.
This objection has really a psychological basis; for the conversion of the conscious into the unconscious, and the polarisation of the intellectual faculties and dispositions, are facts of daily observation, determined by the biological law of the economy of force. But it is not sufficient to make us prefer juries to judges.
In addition to the fact that this mental habit of judges may be counteracted by a better selection of magistrates under the reforms which I have indicated, it is to be observed that this presumption of innocence, as we have seen, is not so absolute as some would have us believe, especially in case of a trial which follows upon a series of inquiries and proofs in; the preliminary hearing.
Again, this tendency of judges is restrained and corrected by the publicity of the discussions. And all, or nearly all, the famous and oft-repeated instances of judicial errors go back to the time of the inquisitorial and secret trial--in regard to which an interesting historical problem presents itself; that is to say the co-existence of the inquisitorial trial, which impairs every individual guarantee, with the political liberties of the mediaeval Italian republics.
This is why the number of acquittals, and of the admission of extenuating circumstances, is always very remarkable, even in the Correctional Tribunals, which in Italy show proportions not greatly differing from those of the Assize Courts.
We must remember that, under our modern penal procedure, it is not the individual guarantees that are lacking, such as the assigning of reasons for the sentence, the almost total abolition of punishments which cannot be reconsidered, appeals, reversals, revision, which would be still more efficacious under the positive system which we propose.