A French or Italian criminal trial, therefore, must be approached with the full understanding that it is a governmental investigation, free from many of the rules of evidence which Bentham said made the English procedure “admirably adapted to the exclusion of the truth.” The judge is charged with the duty of _conducting_ the case. He does all the questioning. There is no such thing as cross-examination at all in our sense, that is to say, a partisan examination to show that the witness is a liar. The judge is there for the purpose of determining that question so far as he can, and the jury are not compelled to listen to days of monotonous interrogation during which the witness is obliged to repeat the same evidence over and over again, and testify as to the most minute details, under the dawdling of lawyers paid by the day, who not only “take time, but trespass upon eternity.”
Such a trial is conducted very much as if the judge were a private individual who had discovered that one of his employees had been guilty of a theft and was trying to ascertain the identity of the guilty party. Practically anything tending to shed light upon the matter is acceptable as evidence, and the suspected person is regarded as the most important witness that can be procured. Finally, and in natural course, comes the confronting of accuser and accused.
Then fellow-servant on the one hand, or formal accuser upon the other, steps forward, and they go at it “hammer and tongs,” revealing to their master, the public, or the jury, the very bottom of their souls; for no man, least of all an Italian, can engage an antagonist in debate over the question of his own guilt without disclosing exactly what manner of man he is.
With these preliminary considerations upon the fundamental distinction between the Latin and the Anglo-Saxon criminal procedure, and without discussing which theory, on general principles, is best calculated to arrive at a definite and effective conclusion as to the guilt of an accused, let us enter the ancient Church of San Francesco at Viterbo, and listen for a moment to the trial of the thirty-six members of the Neapolitan Camorra.
It is a cool spring morning, and the small crowd which daily gathers to watch the arrival of the prisoners in their black-covered wagons has dispersed; the guard of infantry has marched back to the Rocca, once the castle of the popes and now a barracks; and only a couple of carabinieri stand before the door, their white-gloved hands clasped before their belts. Inside, in the extreme rear of the church, you find yourself in a small inclosure seating a couple of hundred people, and a foot or so lower than the level of the rest of the building. This is full of visitors from Rome, wives of lawyers, townspeople, and a scattering of English and American motorists. A rail separates this—the only provision for spectators—from the real court. (At the Thaw and Patterson trials the guests of the participants and officials swarmed all over the court-room, around and beside the jury-box, inside the rail at which the prisoners were seated, and occasionally even shared the dais with the judge.)