The attitude of the
jury in such cases seems to be that the defendant has not had
a "fair show" and so should be acquitted anyway. Of course,
this appeals to the juryman's sympathies and he overlooks the
fact that by his action the prosecution is given no "show" at
all.
Generally speaking, the advice credited to Mr. Lincoln, as
being given by him to a young attorney who was about to defend
a presumably guilty client, is religiously followed by all
criminal practitioners:
"Well, my boy, if you've got a good case, stick to the
evidence; if you've got a weak one, go for the People's
witnesses; but--if you've got no case at all, hammer the
district attorney!"
As a rule, however, criminal lawyers are not in a position to
"hammer" the prosecuting officer, but endeavor instead to
suggest by innuendo or even open declaration his bias and
unfairness.
"Be fair, Mr.--!" is the continual cry. "Try to be fair!"
The defendant, whether he be an ex-convict or thirty-year-old
professional thief, is always "this poor boy," and, as he is
not compelled by law to testify, and as his failure to do so
must not be weighed against him by the jury, he frequently
walks out of court a free man, because the jury believe from
the lawyer's remarks that he is in fact a mere youthful
offender of hitherto good reputation and deserves another
chance.
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