Hence
the English mistrust of a prisoner's confession of guilt, which in
the inquisitorial trial, on the other hand, is a mainstay of the
evidence. Yet I believe that in these cases the Scottish system
is preferable to the English. In England the judge begins by
asking the prisoner if he is Guilty or Not Guilty, and in case of
a confession he passes sentence without a verdict from the jury.
In Scotland, on the contrary, the prosecutor can furnish his
proof, in spite of the confession of the prisoner, and demand a
verdict from the jury. In this way it is possible to avoid not
only a scandalous acquittal of prisoners who have confessed their
guilt (as happens in Italy, France, and elsewhere), but also the
danger that the confession may not be true, and that an innocent
man may be condemned.
Juries ought, moreover, as proposed by M. Ellero, to specify
attenuating circumstances, on each of which a special question
ought to be put to them.
The jury ought also to have the right of spontaneously finding in
a sense less serious than that of the charge, even when no
corresponding question has been put to them.
But at the same time it cannot be denied that these would only be
palliatives, more or less efficacious.
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