The American Judiciary by Baldwin, Simeon E., LLD, 1840-1927

The tendency of American legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. The common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a God, or any witness having a pecuniary interest, in the event of the cause. An atheist or an agnostic could not testify. The plaintiff and the defendant could not. These restrictions have been almost everywhere repealed.

The trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repetition, and on the other to get out the truth and nothing but the truth. He has similar authority to restrain the arguments of counsel within reasonable limits.

A trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. If so, he may have an opportunity to correct it at a later stage of the proceeding. He has admitted evidence which should have been excluded. In his charge to the jury he may instruct them to disregard it, and his error will thus be cured. He has excluded evidence which should have been admitted. Before the case is closed he can change his ruling and allow it to come in. But so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. Counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. Their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court.

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Trial courts generally sit during a greater number of hours in the day than appellate courts. This is particularly true when they are held for short terms in a country shire town. In the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. Formerly nine o'clock was a more common hour for opening court. In New York in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs of William Wirt," II, 231.]

The modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed.

The clerk keeps a docket-book in which each case returned to court is entered and numbered. The entry reads thus: