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7 Panel 1 (1929)

handle is hein.journals/panelmbu7 and id is 1 raw text is: To increase the efficiency of the Grand Jury System

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PANL

A Publication Devoted to the Exchange of Views of Public Officials and Citizens in the Effort to Prevent Crime
and Secure the True Administration of Justice
PUBLISHED MONTHLY BY THE
ASSOCIATION OF GRAND JURORS OF NEW YORK COUNTY
The contributions and letters in The Panel are either credited to their authors or signed with the names or initials of their
writers and the Editor assumes no responsibility for the opinions contained therein beyond expressing the view that the
subjects they treat of are worthy of the attention of Grand Jurors.
VOL. 7                                       JANUARY-FEBRUARY, 1929                                                   NO. 1

DISCLOSURE BEFORE TRIAL SPEEDS JUSTICE IN ENGLAND*

The parties to cases which must regu-
larly be tried should be provided with all
the information which is necessary to en-
able them to prepare for trial.
Instead of conniving at the instinctive
desire of counsel to keep his adversary as
far as possible in the dark, lest by obtain-
ing information he should become more
formidable, the English rules provide for
the most thorough disclosure and discov-
ery. (of the truth).
Discovery is one of the primary titles
in the books on English procedure. From
a minor doctrine in the chancery practice
it has grown into a controlling principle
embracing all litigation in the High
Court. Practically every case commenced
in the ordinary way is sent at once to a
master, on a summons for directions, who
makes an order mapping out the course
which it is to follow, and the main pur-
pose of this order is to specify and direct
the discovery which must be made forth-
with.
If there are facts which either party
believes will not be actually disputed, al-
though formally in issue, and which he
wishes to avoid the expense of proving,
he may have an order calling upon his
adversary to admit them. Unreasonable
refusal to make such admission will load
the cost of proof, after it has been suc-
cessfully produced, upon the party who
refused to admit. The practice is admira-
ble, for such admission not only saves
expense to the parties but saves the time
of the courts in hearing proofs. If there
are matters regarding which either party
wishes to obtain information from the
other he may have an order allowing him
to put interrogatories which must be an-
swered under oath.
English Examination of Documents
Before Trial
And most important of all, each party
is entitled, almost as a matter of course,
to an order requiring the other party to
furnish a sworn list of all the documents
-whether admissible in evidence .or not
.(Excerpts from an Appraisal of English Pro-
cedure by Edson S. Sunderland, Professor of
Law, University of Michigan, printed in The
American Bar Association Jourmal of December,
1925.)

-which he now has, or ever has had, in
his possession, relating to the matter in-
volved in the suit.
This list must embrace everything in
writing or printing capable of being read.
It must be set forth in two schedules.
The first must contain all the documents
that are in the possession or power of the
deponent, and must be subdivided into
those which he is willing to produce and
those which he is not willing to produce;
the second must contain all the docu-
ments no longer in the deponent's pos-
session, with a statement as to what be-
came of them and in whose possession
they now are. Upon receipt of this list
the party usually gives notice in writing
to produce such documents as he wishes
to inspect and within a few days, subject
to the possibility of an agreement regard-
ing the documents not willingly produced,
by this simple and effective means, each
party is supplied with copies of all the
documents which he is entitled to in-
spect and which are known to be in ex-
istence, bearing upon the case.
There is nothing in the English court
system which proceeds under such speed
and pressure as the hearing before a mas-
ter on a summons for directions. The
solicitors are not allowed the luxury of a
seat, but stand at a sort of high desk be-
fore the master and are hardly given time
to gather up their papers before the next
group of solicitors has crowded forward
to take their place. Each of the masters
has a docket of sixteen or eighteen cases
per hour and he usually finishes the list on
PUBLIC MEETING
Mr. Paul Moss, Chairman of the
Public Meetings Committee, an-
nounces that at our next public
meeting at the Hotel Astor on
Thursday, March 21st, at 4 o'clock,
the speakers will be U. S. Attorney
Charles H. Tuttle and Police Com-
missioner Grover A. Whalen.
This will be another joint meet-
ing of Grand Jurors' Associations.

time. The summons for directions, by
which the vast scheme of discovery is
largely administered, is thus a tremend-
ously efficient instrument.
It is, of course, impossible to deter-
mine how much time is saved by these
preliminary admissions, answers to in-
terrogatories, and disclosures of docu-
ments, but an observer who compares the
time used in an English trial with that
ordinarily consumed by a similar trial
in the United States, and notes the points
at which speed is secured by reason of
prior discovery, might perhaps estimate
a fifty per cent saving. With the facts
on each side mutually understood by both
parties when the trial opens, leading ques-
tions no longer become objectionable on
many features of the case, and the witness
is brought at once to the point in contro-
versy with no waste of time over formal
preliminaries; the necessity for cross-ex-
amination is greatly reduced, and it is
frequently omitted altogether; the formal
introduction of evidence is largely dis-
pensed with, for complete typewritten
sets of copies of the documents previously
inspected are already in the hands of the
judge and of counsel on each side when
the trial begins, and they are usually in-
troduced by consent; formal admissions
of facts and answers to interrogatories,
eliminate entirely many features of the
case which with us would call for exten-
sive proof. With the element of surprise
largely out of the case at the opening of
the trial, there is no occasion for that
manoeuvering for advantage, that vigilant
and tireless eagerness to insist upon every
objection, with which we are so familiar,
and which not only prolongs and compli-
cates the trial but helps to make the out-
come of an American law-suit turn as
much upon the skill of counsel as upon
the merits of the case.
Our bar has always been inclined to
fear and distrust disclosure before trial.
They have thought it would tend to pro-
duce framed-up cases and perjured testi-
mony. But it must not be forgotten that
want of disclosure causes great delay, in-
convenience and expense in the prepara-
tion for trial, seriously prolongs the trial

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