Caldwell, Charles W.

English

The Research Repository @ WVU (West Virginia University)

Volume 39 Issue 2 Article 10 February 1933 Should Comment by the Trial Judge be Authorized in West Virginia? Charles W. Caldwell West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Courts Commons, and the Judges Commons Recommended Citation Charles W. Caldwell, Should Comment by the Trial Judge be Authorized in West Virginia?, 39 W. Va. L. Rev. (1933). Available at: https://researchrepository.wvu.edu/wvlr/vol39/iss2/10 This Legislation is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW QUARTERLYStatutes for the admission of evidence of persons deceased orinsane might be extended by analogy to the business entries ruleto the admission of all evidence of persons actually unavailablein court. ' It is thought, however, that there is greater reasonfor, and would be less opposition to the admission of the evidenceof only those dead or insane.' Consequently the adoption of thefollowing uniform statute is urged:"A declaration, whether written or oral, of a deceased orinsane person shall not be excluded from evidence as hearsayif the court finds that it was made and that it was made ingood faith before the commencement of the action and uponthe personal knowledge of the declarant. ' 'The adoption of these proposals would make available muchrelevant evidence; but it would give no advantage to any groupor interest - it would merely permit the jury to know that whichit must now only surmise. These provisions have been foundworkable in other states. May West Virginia gain the same ad-vantages.-TRXY M. PETERS.SHOULD COMIVIENT BY THE TRIAL JUDGE BEAUTHORIZED IN WEST VIRGINIA?Whatever else familiarity may breed, with lawyers it hasbred opposition to all change in the customs and practices of theirprofession. But some (and perhaps often, much) opposition tochange is inevitable in a profession founded on tradition. Thusthe return of the common law power of judicial comment has beenlong delayed. Only a few leading lawyers' and jurists have spon-sored its return.20THE LAw or EVIDENCE, supra n. 16, at 49.aSo long as a witness is competent and living there is at least a possi-bility of getting a deposition.2 TnE LAw oF EVIDENCE, .supra n. 16."Judge Ritz, in speaking of judicial comment said, "I think it is truein this state, that we have a system that does not allow our judges in thestate courts to intelligently try a case," (1928) PRoc. W. VA. BA ASS'N70. Judge McOlintic, at the same meeting said that in 1921 when he wasa member of the legislature, he introduced a bill permitting the circuitjudge to comment if'both parties agreed. Of the twenty-three lawyers inthe House of Delegafes, twenty-one opposed the bill. Three circuit judgeslobbied against it because, as they stated, it would make them pay too closeattention during the trial, (1928) PROc. W. VA. BAR Ass'N 162."'The . .. . rule (which obtains by Constitution or statute in almost1Caldwell: Should Comment by the Trial Judge be Authorized in West Virginia?Disseminated by The Research Repository @ WVU, 1933LEGISLATIONJudicial comment was a part of the jury system at commonlaw.' It still exists in the English courts,' in several states,' and,in spite of criticism,' in the federal system.'. It has never beensatisfactorily explained why the majority of states have deprivedjudges of this power.8 Like Virginia,' West Virginia, has ex-pressly denied the trial judge the privilege of comment."0The dangers inhering in the common law system are allegedto be: the injustice of autocratic power, the destruction of layexperience which a judge is said not to possess, undue judicial in-fluence upon the verdict, and excessive power in a politicallyelected judiciary. But the trial judge was not intended to be anevery State, but not in the Federal Courts) is an unfortunate departurefrom the orthodox common law rule. It has done more than any other onething to impair the general efficiency of jury trial as an instrument ofjustice." 5 WIGMORE, EVENCE (2d ed. 1928) § 2551."It is not too much to say of any period, in all English History, that itis impossible to conceive of trial by jury as existing there in a form whichwould withhold from the jury the assistance of the court in dealing withfacts." THAYEit, PRELImINARY TREATISE oN EVIDENCE (1898) 188, note.8 Vicksburg & Elec. By. Co. v. Putnam, 118 U. S. 545, 7 S. Ct. 1 (1886).'Darby v. Ousley, 1 H. & W. 1, 156 Eng. Rep. 1093 (1856).5 State v. Main, 69 Conn. 131, 37 Atl. 80 (1897); State v. Means, 95 Me.364, 50 Atl. 30 (1901); State v. Minneapolis Milk Co., 124 Minn. 34, 144N. W. 417 (1913); Hamilton v. Pitt. R. R. Co., 190 Pa. 59, 42 At. 369(1 8 99 )-, State v. Quigley, 26 R. I. 263, 58 AtI. 905 (1904).'1The Caraway Bill (H. B. 9354), introduced in the House of Representa-tives in 1918 provided: (a) that a federal judge could not comment on%veight of evidence, (b) must not express opinion on credibility of witness,and (c) must give instructions before arguments of attorneys. But see,Note (1918) 31 HAAv. L. REv. 1011.7 Vicksburg & Elec. By. Co. v. Putnam, supra n. 3.8North Carolina in 1793 was the first state to adopt such a statute. Itis said that North Carolina passed the law to satisfy the personal desiresof three or four criminal lawyers, who had political influence in the legis-lature, and who disliked certain circuit judges. See THE LAw or EVIDENCE,(1927) Yale University Press, pages 9-21. The American spirit of inde-pendence and fear-of power, no doubt facilitated the statute's adoption inother states.9 Whitelaw's Ex'r. v. Whitelaw, 83 Va. 40, 1 S. E. 407 (1887).10State v. Hurst, 11 W. Va. 54 (1877). The court summarizing in thesyllabus said: "It is error for a court in the trial of a criminal cause, tomake a remark to, or in the presence of the jury, in reference to mattersof fact, which might in any degree influence them in their verdict."As to weight of evidence see Harmon and Crocket v. Maddy Bros. 57 W. Va.66, 49 S. E. 1009 (1905) ; White v. Sohn, 63 W. Va. 80, 59 S. E. 890 (1907) ;State v. Long, 88 W. Va. 669, 108 S. E. 279 (1921); State v. Winans, 100W. Va. 421, 130 S. E. 607 (1925); State v. Waters, 104 W. Va. 217, 139S. E. 704 (1927); State v. Ison, 104 W. Va. 433, 140 S. E. 139 (1927). Asto credibility of a witness, State v. Ringer, 84 W. Va. 546, 100 S. E. 413(1919) ; State v. Staley, 45 W. Va. 792, 32 S. E. 198 (1899). But courtscan classify witnesses in respect to weight and value of their testimony in aninstruction to the jury, if the instruction is based on a well defined dis-tinction as to the opportunity of the witness to know the truth, see State v.Croston, 103 W. Va. 380, 137 S. E. 536 (1927); Ward v. Brown, 53 W. Va.227, 44 S. E. 488 (1903).2West Virginia Law Review, Vol. 39, Iss. 2 [1933], Art. 10https://researchrepository.wvu.edu/wvlr/vol39/iss2/10WEST VIRGINIA LAW QUARTERLYautomaton to rule on motions and give long instruction which nojuror can understand.' The judge should take an active part inthe conduct of the trial to the end that its course may be directedby an impartial expert rather than by the conflicting interestsof partisans. It is true the opinion of the judge may on occasioninfluence the verdict of the jury. This will not of itself cause amiscarriage of justice. Cases from the federal reports refute thecharge.' There has been no criticism of undue influence in Penn-sylvania or Connecticut.' Are not West Virginia judges worthyof a similar trust?West Virginia should enact the following statute:"The trial judge may express to the jury, after theclose of the evidence and arguments, his opinion as to theweight and credibility of the evidence or any part of it.""The adoption of this statute would (if the experience of otherstate is a guide) speed the examination of jurors, reduce the trialtime and speed verdicts, give the judge a real part in the trial,and afford the jury valuable aid in clarifying complicated evidenceand complex instructions.' The merits of the old common lawwould be revived - there were few dangers - many benefits.-CHARLES W. CALDWELL.Some West Virginia trial judges question the witnesses, but without theexpression of opinion.'3The judge's comment to the jury---"I regard the testimony as con-vincing," Simmons v. United States, 142 U. S. 148, 12 S. Ct. 171 (1891),where the court commented: "It (the court) is of the opinion that youshould find for the plaintiff," United States v. Phil. & Reading Ry. Co., 123U. S. 113, 8 S. Ct. 77 (3887); and where the judge declared that the jurycould find for the plaintiff, but, "If you should do so, I would be muchsurprised at your verdict, and would not be surprised if I should set itaside," Cal. Ins. Co. v. Union Compress Co., 133 U. S. 387, 10 S. Ct. 365(1899) - did not unduly influence their decision. In no jurisdiction is thejudge permitted to instruct the jury on certain facts; but this is quiteanother thing from commenting on the evidence or the witnesses.'3See THE LAW Or EVIDENCE, supra n. 8, at Appendix A pp. 69-87."See THE LAw Or EVIDENCE, supra n. 8, at p. 9.See THE LAW Or EVIDENCE, sup-ra n. 8, at pp. 20-21.3Caldwell: Should Comment by the Trial Judge be Authorized in West Virginia?Disseminated by The Research Repository @ WVU, 1933

Should Comment by the Trial Judge be Authorized in West Virginia?

https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=5187&context=wvlr

Should Comment by the Trial Judge be Authorized in West Virginia?

Abstract

Similar works

Full text

Available Versions

The Research Repository @ WVU (West Virginia University)