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necessary that you should have a full scale
jury in those cases.
At the present time, we know that there
is a great waste of manpower and time be-
cause in the appeal of the case from the
magistrate's level, the jurisdiction can be
ousted, even before the case is heard by the
prayer of the jury trial. T.his means that it
goes, although everyone is ready to try it,
to a higher court for trial. Also, if it is
tried before the magistrate without a jury?
by the mere election of a jury after the
case is heard, and by the entry of an appeal,
there can be a trial de novo. The whole
thing is tried over again.
I think it would be most unfortunate if
that condition was continued after we have
set up on a full professional full-time basis
the new district courts. I think they should
be given the right to dispose of the cases
right there instead of having them trans-
ferred in great numbers to the higher
courts. To do that, it is necessary to have a
jury. I might point out that twenty-nine
states have authorized the use of six-man
juries with great success and great con-
venience. That is particularly true in the
states that have adopted the newest con-
stitutions, for example, Alaska, and New
Jersey. They both allow these courts at the
lower level.
I think it is a highly desirable experi-
ment. I do not think we should freeze this
business of the conventional jury into the
constitution, but allow this moderate leeway
to the legislature.
I would like to say one other thing about
the unanimous jury. It has been said that
this is not a very large problem, that the
number of cases where you have a hung
jury is not very consequential. It may be
only one or two per cent, but that is not
the point. To my point, the fact that you
require unanimity almost guarantees that
you must have a compromise verdict, and
you must satisfy everyone present. Now
that may work both ways. You may have a
man who is holding out for a small verdict
against a majority. You may have a man
who is holding out for a large one. You
may have a man who wants an aquittal or
one who wants a reversal. It simply violates
all precepts of democracy.
You can imagine what kind of a constitu-
tion we would produce here if we require
absolute unanimity in every decision, or
what kind of a Supreme Court we would
have if unanimity was required there in
every decision. They simply would not be
able to function, and it is surprising to me
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that the jury system has functioned as
well as it has.
There is no magic in the number twelve.
I believe that in the beginning, it goes back
to the early days when, if you could get
twelve jurors to swear for you, you were
released. It had nothing to do with a fact-
finding jury. When you limit it to not less
than six and not less than the five-sixths
verdict, it seems to me that you remove
some of the difficulties and meet all the
objections to this form of relief.
I urge its adoption.
THE CHAIRMAN: Are there any ques-
tions of the sponsor of the amendment?
Delegate Bamberger.
DELEGATE BAMBERGER: Delegate
Henderson, if this amendment is adopted,
do you propose a similar amendment for
section 7 with respect to juries in civil
cases?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I have such
an amendment prepared which would ac-
complish the same result by providing for
five-sixths verdict as prescribed by law.
T.he Commission, I might add, in section 7
has provided for a six-man jury, but limited
to civil cases only. I think if you are going
to have it in civil cases in the district court
for example, there is no reason why you
should not have it for criminal offenses as
well.
THE CHAIRMAN: Delegate Bamberger.
DELEGATE BAMBERGER: Mr. Chair-
man, I would move to divide this question.
THE CHAIRMAN: Let's have the ques-
tions of the sponsor first. I will recognize
you in time.
Delegate Gleason, do you have a question
of the sponsor?
DELEGATE GLEASON: Yes.
Delegate Henderson, would you recom-
mend that a capital case with a jury of
six be permitted by the General Assembly?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: No, I would
not recommend it and I do not think the
legislature would ever provide for it. In
the cases where the constitutions of other
states have been amended, it has usually
been limited to cases of less than felony.
That is rather a flexible test, because some
of our misdemeanor cases are more serious
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