Thus, in the
Assize Court, the separation of the judgments is not between fact
and law, but only between the crime and the punishment
Even admitting the possibility of this separation of fact and law,
logic and experience have already belied the assertion of those
who say with Beccaria that, ``for the appreciation of facts,
ordinary intelligence is better than science, common sense better
than the highest mental faculties, and ordinary training better
than scientific.''
On the contrary, a criminal trial is not only concerned with the
direct perception of facts, but also and especially with their
critical reconstruction and psychological appreciation. In civil
law the fact is really accessory, and both sides may be agreed in
its exposition, whilst disputing about the application of the law
to this fact. But in criminal justice the fact is the principal
element, and it is not merely necessary to admit or to decide upon
this or that detail, but we have also to regard its causes and
effects, from the individual and the social point of view, without
speaking of the common difficulty of a critical and evidential
appreciation of a mass of significant circumstances. So that, as
Ellero said, in a criminal trial the decision as to fact is far
more difficult than that as to law.
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