Against these defects of the jury its advocates have set an
objection in regard to the trained judge, namely that the habit of
judging crimes and offences irresistibly inclines the judge to
look upon every prisoner as guilty, and to extinguish the
presumption of innocence even in cases where it would be most
justified.
This objection has really a psychological basis; for the
conversion of the conscious into the unconscious, and the
polarisation of the intellectual faculties and dispositions, are
facts of daily observation, determined by the biological law of
the economy of force. But it is not sufficient to make us prefer
juries to judges.
In addition to the fact that this mental habit of judges may be
counteracted by a better selection of magistrates under the
reforms which I have indicated, it is to be observed that this
presumption of innocence, as we have seen, is not so absolute as
some would have us believe, especially in case of a trial which
follows upon a series of inquiries and proofs in; the preliminary
hearing.
Again, this tendency of judges is restrained and corrected by the
publicity of the discussions. And all, or nearly all, the famous
and oft-repeated instances of judicial errors go back to the time
of the inquisitorial and secret trial--in regard to which an
interesting historical problem presents itself; that is to say the
co-existence of the inquisitorial trial, which impairs every
individual guarantee, with the political liberties of the
mediaeval Italian republics.
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