Due Process in Trials
| Published date | 01 July 1955 |
| DOI | 10.1177/000271625530000118 |
| Date | 01 July 1955 |
| Author | Thurman Arnold |
| Subject Matter | Articles |
123
Due
Process
in
Trials
By
THURMAN
ARNOLD
MY
subject
is
the
role
of
an
Ameri-
can
fair
trial
by
due
process
in
providing
stability
and
a
sense
of
se-
curity
in
our
society.
I
am
first
going
to
explain
what
the
ideal
means
to
us,
how
it is
a
necessary
part
of
the
emo-
tional
background
of
a
proper
relation
between
an
individual
and
his
govern-
ment
even
for
those
who
have
never
been
inside
a
courtroom,
how
it
gives
sanctity
and
dignity
to
civilized
gov-
ernment.
I
am
then
going
to
speak
about
the
tendency,
particularly
strong
in
times
when
men
fear
and
distrust
dissenting
ideas,
to
degrade
the
process
of
fair
trial
by
maintaining
its trappings
and
fa~ade
while
at
the
same
time
aban-
doning
its
fundamental
requirements.
And
finally,
I
am
going
to
talk
about
what
has
happened
to
that
ideal
in
re-
cent
years,
how
it
is
being
used
as
a
cloak
for
the
prosecution
of
heresy,
and
what
the
social
results
of
this
degrada-
tion
are.
EFFICIENCY
AND
THE
PHILOSOPHY
OF
JUSTICE
A
trial
by
due
process
is
a
cumber-
some
and
inefficient
way
of
investigat-
ing
facts.
It
is
not
and
cannot
be
ob-
jective.
No
scientist
would
attempt
to
discover the
truth
by
confining
his
re-
search
to
the
advocacy
of
two
partisans
each
presenting
an
extreme
view.
A
re-
alistic
investigation
has
no
exclusionary
rules.
It
does
not
limit
itself
to
any
single
written
record.
It
carefully
avoids
pomp
and
ceremony
aimed
at
impress-
ing
the
public
with
the
dignity
and
im-
portance
of
the
participants.
It
escapes
from
the
tyranny
of
precedents
instead
of
eagerly
embracing
them
as
judicial
procedure
does.
Real
investigation
of
facts
refuses
to
give
finality
to
any
con-
clusion.
There
are,
therefore,
those
who
claim
that
the
American
trial
is
based
on
a
sporting
theory
of
justice
and
who
insist
on
realistic
short
cuts
in
our
cum-
bersome
trial
procedure.
Little
do
such
people
realize
that
this
is
the
first
step
on
the
road
to
a
police
state.
Too
much
efficiency
in
government,
too
much
disregard
of
ceremony,
eat
out
the
cement
which
binds
human
institu-
tions
together.
Government
cannot
be
the
product
of
any
consistent
theory.
Like
the
human
personality
it
must
con-
tain
in
balance
all
sorts
of
conflicting
ideals.
And
over
them
all,
keeping
each
contradictory
social
attitude
in
its
proper
place,
there
must
be
spread
the
philosophy
of
justice.
That
philosophy
can
never
be
defined.
To
put
it
in
words
only
creates
the
confusion
which
is
always
found
in
learned
treatises
on
jurisprudence.
The
only
way
that
it
can
become
real
and
make
itself
felt
is
by
the
ceremony
of
a
trial
by
due
proc-
ess
of
law.
Justice
Holmes
once
said
that
law
was
not
a
brooding
omnipres-
ence
in
the
sky.
He
was
wrong.
It
is
and
must
be
a
brooding
omnipresence
in
the
sky.
The
ideal
that
every
man
is
entitled
to
a
fair
and
impartial
trial
is
the
cor-
nerstone
of
civilized
government.
Be-
fore
this
ideal
every
consideration
of
efficiency
in
government
administration
must
give
way.
This
is
because
the
sig-
nificance
of
the
ideal
of
a
fair
public
trial
in
our
culture
is
tremendous.
It
includes
the
humanitarian
conviction
that
the
underdog
is
always
entitled
to
a
chance.
The
American
trial
is
our
only
public
ceremony
which
symbolizes
the
idea
that
the
rights
of
the
individual
To continue reading
Request your trial