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DELEGATE MOSER: There was a
memorandum prepared by Delegate Bothe,
Macdonald and myself that was distributed
to you last Friday, I think, and it gives
the historical background of the juries as
judges of the law provision which is in our
present Constitution and which section 10
would continue. It sets forth the reasons
why we suggest this is an anachronistic
arrangement and should not be continued
in the new constitution.
I am hopeful that by providing the
setting the memorandum may serve to
avoid spending unnecessary time debating
and explaining this provision which it does.
I also refer to a memorandum which
Delegate Churchill Murray distributed and
in which are set forth his views for the
opposing position.
By deleting section 10, "Criminal Jury,
Judge of Law and Fact," this Convention
will permit the same type of procedure to
apply in civil cases as apply in criminal
cases with respect to instructions of judges
and agreements of counsel. This difference
in porcedure which exists by reason of
section 10 has been a source of confusion
to jurors for years. We submit that the
time has now come to remove this confusion
and to bring Maryland into line with vir-
tually all the other fifty states and the
federal courts. As we point out in the
memorandum in paragraph 1, every emi-
nent authority that has reviewed this pro-
vision has recommended its deletion. It has
been called — I keep having something
placed in front of me here.
DELEGATE JAMES (presiding): This
must be a diversionary tactic.
DELEGATE MOSER: Since all of you
have copies, I will not read it. Delegate
Rybczynski may want to.
(Laughter.)
DELEGATE MOSER: In any case, it
has been called, as I mentioned before,
anachronistic in one Court of Appeals
case, an anomalous situation which should
not be permitted to remain as a blight
upon the administration of justice in the
State of Maryland, archaic, outmoded, and
atrocious, and a thorn in the flesh of
Maryland's body of criminal law by au-
thorities such as Chief Judge Prescott of
the Court of Appeals, Judge Henderson,
Chief Judge Dennis of the supreme bench
of Baltimore City.
As Delegate Hargrove told you yester-
day, I think a commission on which he
served and which is headed by former
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Chief Judge Frederick Brune recently is
recommending the abolishment of this pro-
vision. Judge Sobeloff, as I point out on
page 1 of the memorandum, writing for the
Fourth Circuit Court of Appeals, notes
that we are meeting in convention and that
we will consider it and by implication sug-
gests that this be removed.
The major reasons for removing it are
set forth and there are five in number. In
the first place, the 1851 Convention, when
it was first adopted, adopted it under a
misconception of what the common law of
England was. They adopted it because
there was a multitude of different pro-
cedures with respect to rulings on ques-
tions of law among the various courts of
Maryland and they thought that they were
providing the type of consistency which
England sought to provide. I will not go
into technicalities, but there was an act
known as Fox's libel law which changed
the law in England in criminal libel cases
and they thought this was enunciative of
the law of England. But in any case, what-
ever the reasons, they no longer exist.
The second reason for abandoning this
provision is that some fifty years ago there
were ten other jurisdictions at least that
had it. All of them have abandoned it one
way or the other except for Indiana, and
Indiana, as is pointed out I think in the
Committee Report, has rendered it virtually
useless because the judge is not required
to charge the criminal jury that they can
disregard the instructions. This is a re-
quirement under Maryland law.
The main present effect, and this the
bad reason, is that it tends to confuse
criminal juries and subverts justice. What
happens is that prosecutors and defense
counsel get up and argue different proposi-
tions of law to the jury and each of these
may differ from the judge's instructions.
I have done this myself as a prosecutor
and at least on one occasion when it was
clone I think that an injustice occurred,
that is to say that someone was convicted
of an offense for which he probably should
not have been convicted and the reason for
it was that I was permitted, in fact ex-
pected, to argue the law to the jury.
It puts a undue emphasis on clever
advocacy and persuasiveness and I suggest
that there is sufficient realm in arguing
facts to a jury for this without confusing
juries by arguing law as well.
In fact, the jury is handcuffed. They
cannot take the lawbook that the prosecutor
and defense counsel use in the jury room
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