Some Heretical Views

The Judiciary Committee hearing was routine, Floor discussion was for the most part amiable, taking only a scant three hours last week before the Senate voted 74 to 3 to approve the nomination of Warren Earl Burger as Chief Justice of the United States. He will be sworn in when the Supreme Court concludes its current term.

The speed and ease of the confirmation process made it seem as if Burger were the blandest of judges. That is hardly the case. In his 13 years as a federal appeals judge in Washington, Burger compiled a record of judicially unfashionable toughness in the criminal field (TIME Cover, May 30). Just how far his somewhat heretical positions go has become clear with the publication of a symposium held a year ago by the Center for the Study of Democratic Institutions in Santa Barbara, Calif.

Offered Suqaestions. Burger questioned the principle of trial by jury, the shield offered by the Fifth Amendment and the presumption of innocence until a defendant is proved guilty. He called the American adversary system of criminal justice "inefficient and wasteful." He offered a number of suggestions and comments:

> "If we could eliminate the jury, we would save a lot of time. You can try a case without a jury in one day that would take you a week or two weeks with a jury." In the civil law system in Europe, he said, "they never let one judge do anything. So if one judge in three is defective, which is probably about par for the American system, there are in Denmark or Holland or Sweden two other judges to offset him." -- "I am no longer sure that the Fifth Amendment concept, in its present form and as presently applied and interpreted, has all the validity attributed to it. I am talking about requiring a defendant to testify."

>The presumption of innocence, in criminal cases, Burger suggested, may be inconsistent with American civil procedure: "Certainly you have heard--and judges have said--that one should not convict a man out of his own mouth, The fact is that we establish responsibility and liability and we convict in all the areas of civil litigation out of the mouth of the defendant "

Burger also questioned the practice of barring from court evidence obtained in violation of a law or a constitutional right (such as that gained by illegal wiretap). And he accused defense lawyers of "clogging the system by an excess of zeal" when they use every available legal means to clear their client.

How much of Burger's philosophy will emerge in the form of specific decisions is uncertain. He will have just one vote in nine. Still, the view from the Chief Justice's chair will be markedly different from what it has been during the 16 years that Earl Warren has occupied it.

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