Hon. Tom D. McKeown, Member of Congress from Oklahoma. Hon. Gordon Browning, Member of Congress from Tennessee_. Hon. Robert Y. Thomas, jr., Member of Congress from Kentucky---- COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, The committee met at 10 o'clock a. m., Hon. George S. Graham (chairman) presiding. The CHAIRMAN. There is a quorum present. We are met this morning to consider four bills, one introduced by Mr. Thomas, H. R. 2910; one introduced by Mr. Oldfield, H. R. 4509; one introduced by Mr. McKeown, H. R. 3260; and one introduced by Mr. Browning, H. R. 4821. Mr. Oldfield sends word that he has a committee meeting and therefore can not be present to speak on his bill. (The four bills, read by the clerk, are printed below.) [H. R. 2910, Sixty-eighth Congress, first session.] A BILL To limit and define the powers of the judges of the district courts of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be error for any or either of the judges of the district courts of the United States in any case, whether civil or criminal, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused; and should any judge of such court violate the provisions of this section such violation shall be held by the circuit court of appeals or by the supreme court having jurisdiction to be error, and the decision in such case shall be reversed and a new trial granted in the court below, with such directions as the said appellate court may lawfully give. SEC. 2. That all laws and parts of laws in conflict with this act be, and the Same are hereby, repealed. [H. R. 3200, Sixty-eighth Congress, first session.] A BILL To amend the practice and procedure in Federal courts, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter in any cause pending in any United States court, triable by jury, in which the jury has been impaneled to try the issue of facts, it shall be reversible error for the judge presiding in said court to express his personal opinion as to the credibility of witnesses or the weight of testimony involved in said issue: Provided, That nothing herein contained shall prevent the court directing a verdict when the same may be required or permitted as a matter of law. SEC. 2. That the judge of the court on the issue of law involved in said cause shall be required to deliver his charge to the jury after the introduction of testimony and before the argument of counsel on either side, and where requested by either party said charge shall be reduced to writing: Provided, however, That in United States courts sitting in States in which the law permits the trial judge to deliver his charge after argument of counsel, such procedure and practice may be followed by the trial judges in United States courts sitting in such States. [H. R. 4509, Sixty-eighth Congress, first session.] A BILL To amend the practice and procedure in Federal courts, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter in any cause pending in any United States court, triable by jury, in which the jury has been impaneled to try the issue of facts, it shall be reversible error for the judge presiding in said court to express his personal opinion as to the credibility of witnessess or the weight of testimony involved in said issue: Provided, That nothing herein contained shall prevent the court directing a verdict when the same may be required or permitted as a matter of law. SEC. 2. That the judge of the court on the issue of law involved in said cause shall be required to deliver his charge to the jury after the introduction of testimony and before the argument of counsel on either side, and where requested by either party said charge shall be reduced to writing: Provided, however, That in United States courts sitting in States in which the law permits the trial judge to deliver his charge after argument of counsel, such procedure and practice may be followed by the trial judges in United States courts sitting in such States. [H. R. 4821, Sixty-eighth Congress, first session.] A BILL To amend the practice and procedure in Federal courts, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter it shall be and constitute reversible error for the trial judge in any of the district courts of the United States of America in the trial of any civil or criminal case in said courts before the court and a jury for the trial judge in giving his charge to the jury, or at any time during the progress of the trial, to give, express, or intimate to the jury his own opinion of the facts of the case on trial, except in civil cases wherein the court, upon motion therefor, is directing the jury to return its verdict in favor of the plantiff or the defendant, as the case may be; and except also in criminal cases wherein the court, upon motion of the defendant or his counsel, is directing the jury to return its verdict in favor of the defendant; or is granting the defendant a new trial upon the facts of the case. SEC. 2. That hereafter in the trial of either civil or criminal cases in any of the district courts of the United States of America it shall be and constitute reversible error for the trial judge to give, express, or intimate to the jury trying the case at any time during the progress of the said trial his opinion of the truthfulness or untruthfulness of the testimony of any witness who may testify in the case, except in instances in civil causes wherein the court is directing the jury to return its verdict for the plaintiff or the defendant, as the case may be, upon moton therefor; and except, also, in criminal cases wherein the court is directing the jury to return its verdict in favor of the defendant, or is granting the defendant a new trial upon the facts of the case. The CHAIRMAN. Will you address the committee on your bill, Mr. McKeown? STATEMENT OF HON. TOM D. MCKEOWN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA. Mr. MCKEOWN. Mr. Chairman, and gentlemen of the committee, I have introduced for your consideration a bill, H. R. 3260, formerly reported out by this committee and which passed the House in the Sixty-sixth Congress, first session. Mr. MONTAGUE. The pending bill? Mr. MCKEOWN. Yes, sir. It was reported out favorably by this committee and passed by the House in the first session of the Sixty-sixth Congress; and this bill has also been introduced in the Senate by Senator Caraway, a former member of this committee. The necessity for this bill arises out of the fact that procedure in the Federal courts in our country has not been at all progressive; the method of instructing juries and permitting the trial judges to comment upon the evidence and the credibility of witnesses being old and coming down to us from the English courts. So far as I know, very few American States now have the practice in their courts of permitting the trial judges to comment upon the evidence or to give their opinion upon the credibility of the witnesses. The necessity for this legislation arises out of the fact that the judges in the trial courts, sometimes in the heat of the trial, will make remarks that are very detrimental to the proper trial of the case, and those remarks, however strong they may be, have been held by our highest court not to be error. I want to direct the committee's attention to a line of decisions touching remarks that have been made in the trial of cases and held by the courts not to be error. I do not want to trespass too much on the time of the committee and will try to be brief. Mr. HERSEY. Those are all Federal decisions? Mr. MCKEOWN. Yes; and with one exception from the Supreme Court of the United States. I want to call attention first to the case reported in 124 Federal Reporter, at page 17. The title of the case is Sebeck v. Plattdeutsche Volksfest Verein. Here are some of the quotations: You will recall the testimony of the plaintiff that where the bomb was discharged was about 100 feet from where the plaintiff stood, and that there was an open space, according to the testimony of one of the Gerhardts, about 150 or 175 feet across, and, according to the testimony of some of the other witnesses, about 300 feet across. I leave the question with you as a question of fact whether the space in which they were set off, in view of the precautions which were taken to keep the witness a proper distance away, was reasonably safe. No exception was taken to that. I do not doubt your good faith in the least, but it strikes me you are setting up a false issue in the case. There is enough in the case without injecting into it a false issue. It is perfectly apparent, from the young man's testimony, what the transaction really was. That part of his remarks was objected to. The CHAIRMAN. That is a remark to counsel. Mr. MCKEOWN. Now, here is what the court said Mr. MONTAGUE (interposing). Was the jury present when the judge made that remark to the counsel? Mr. MCKEOWN. Yes. Now, the judge later made this statement in his charge with respect to the remarks I have just read: What are the facts? I made a remark during the examination of a witness, which perhaps I ought not to have made, that the plaintiff was injecting a false issue into this case. Now, some further remarks from the judge's charge: I leave it to you to say whether the defendant employed a responsible and skillful person, or whether it employed an irresponible and unskillful person. If the committee employed a couple of Italians about whom they knew nothing, they did not exercise the prudence which an intelligent man should have exercised. For myself, I do not believe for a moment that they did any such thing; but that is a question of fact for you to determine, and not for me. That was held not to be a reversible error because under the practice it is permissible in the Federal courts of our country for the trial judge to comment upon the testimony of witnesses and to express opinions as to the credibility of witnesses. Mr. HERSEY. Is that under a statute, or because of a custom in the Federal courts? Mr. MCKEOWN. That has been held to be the law as brought to this country from England. Mr. HERSEY. The common law? Mr. MCKEOWN. Yes, sir. Mr. MONTAGUE. I do not think that is true. The common law did not allow it. Mr. HERSEY. It is simply a custom, is it? Mr. MCKEOWN. Now, I will read to you from the case of Lovejoy v. United States, reported in volume 128, United States Reports, at page 172. I will confine my reading to the issue. [Reading:] Evidence having been introduced by both parties upon the question whether the signature of Means was genuine or forged, the court, of its own motion, instructed the jury as follows: "As to the signature of Thomas W. Means, I think you may have some difficulty in finding that it was a forgery. Of course, it is not my place to express an opinion or say whether or not I think it is genuine. All I say is that you must examine the matter carefully and fully, and weigh all the testimony that bears upon the subject, and if you can say that his signature is a forgery it is for you to do so. It seems to me, after you take these signatures and compare them fully, and examine all the testimony that seems to have any bearing on that question, that you can not have much difficulty in coming to a correct conclusion." That was held not to be reversible error. Mr. HERSEY. That was in favor of the respondent? Mr. O'SULLIVAN. What do you criticize in that? Mr. MCKEOWN. The question was whether the signature on a bond was a forgery, whether or not the defendant had signed it, and here we have the judge virtually telling the jury that the defendant had no defense. Mr. HICKEY. Do you think that the judge really did tell the jury that? Mr. MONTAGUE. The judge said in opening that the jury may have some difficulty in finding that it was a forgery. |