The Making of Arguments

by J. H. Gardiner

But in a case of circumstantial evidence where no witness can testify directly to the fact to be proved, you arrive at it by a series of other facts, which by experience we have found so associated with the fact in question, as in the relation of cause and effect, that they lead to a satisfactory and certain conclusion; as when footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of the footprints, it can be determined with equal certainty, whether it was a man, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the fact sought to be proved.[¹⁵][!--Note--]

Under the head of direct evidence, as I shall use the term, would fall the evidence of material objects: in an accident case, for example, the scar of a wound may be shown to the jury; or where the making of a park is urged on a city government, the city council may be taken out to see the land which it is proposed to take. Though such evidence is not testimony, it is direct evidence, for it is not based on reasoning and inference.

29. Direct Evidence. Direct evidence is the testimony of persons who know about the fact from their own observation: such is the testimony of the witnesses to a will that they saw the testator sign it, the testimony of an explorer that there are tribes of pygmies in Africa, the testimony of a chemist to the constituents of a given alloy, or of a doctor to the success of a new treatment. Every day of our lives we are giving and receiving direct evidence; and of this evidence there is great variety in value.

In the first place, no one should place too much reliance on his own casual observations. It is notorious that we see what we expect to see; and no one who has not deliberately set himself to observe the fact can realize how much of what he thinks is observation is really inference from a small part of the facts before him. I feel a slight tremor run through the house with a little rattling of the windows, and assume that a train has gone by on the railroad below the hill a hundred yards away: as a matter of fact it may have been one of the slight earthquake shocks which come every few years in most parts of the world. The mistakes that most of its make in recognizing people are of the same sort: from some single feature we reason to an identity that does not exist.

Of recent years psychologists have set themselves to getting some accurate facts as to this inaccuracy of human observation, and various experiments have been tried. Here is an account of one:

There was, for instance, two years ago in Göttingen a meeting of a scientific association, made up of jurists, psychologists, and physicians, all, therefore, men trained in careful observation. Somewhere in the same street there was that evening a public festivity of the carnival. Suddenly, in the midst of the scholarly meeting, the doors open, a clown in highly colored costume rushes in in mad excitement, and a negro with a revolver in hand follows him. In the middle of the hall first the one, then the other, shouts wild phrases; then the one falls to the ground, the other jumps on him; then a shot, and suddenly both are out of the room. The whole affair took less than twenty seconds. All were completely taken by surprise, and no one, with the exception of the president, had the slightest idea that every word and action had been rehearsed beforehand, or that, photographs had been taken of the scene. It seemed most natural that the president should beg the members to write down individually an exact report, inasmuch as he felt sure that the matter would come before the courts. Of the forty reports handed in, there was only one whose omissions were calculated as amounting to less than twenty per cent of the characteristic acts; fourteen had twenty to forty per cent of the facts omitted; twelve omitted forty to fifty per cent, and thirteen still more than fifty per cent. But besides the omissions there were only six among the forty which did not contain positively wrong statements; in twenty-four papers up to ten per cent of the statements were free inventions, and in ten answers—that is, in one fourth of the papers—more than ten per cent of the statements were absolutely false, in spite of the fact that they all came from scientifically trained observers. Only four persons, for instance, among forty noticed that the negro had nothing on his head; the others gave him a derby, or a high hat, and so on. In addition to this, a red suit, a brown one, a striped one, a coffee-colored jacket, shirt sleeves, and similar costume were invented for him. He wore in reality white trousers and a black jacket with a large red neck-tie. The scientific commission which reported the details of the inquiry came to the general statement that the majority of the observers omitted or falsified about half of the processes which occurred completely in their field of vision. As was to be expected, the judgment as to the time duration of the act varied between a few seconds and several minutes.[¹⁶][!--Note--]

Another type of cases in which our direct testimony would be valueless is legerdemain: we think that we actually see rabbits taken out of our neighbor's hat, or his watch pounded in a mortar and presently shaken whole and sound out of an empty silk handkerchief; and it is only by reasoning that we know our eyes have been deceived.

It is obvious, therefore, that to question a man's evidence is not always to call him a liar; in most cases it is rather to question the accuracy of his inferences from such part of the facts as he actually grasped. In science no important observation is accepted until the experiments have been repeated and checked by other observers. Indeed, most of the progress of science is due to the repetition of experiments by observers who notice some critical phenomena which their predecessors have missed.

With this qualification, that human observation is always fallible, good direct evidence is on the whole the most convincing evidence that you can use. If you can establish a fact by the mouths of trustworthy witnesses, making your readers recognize that these witnesses had good opportunities of observation and a competent knowledge of the subject, you will generally establish your point. In case of an accident in a street car it is the custom of many companies to require their conductors to take down immediately the names of a few of the most respectable-looking of the passengers, who may be called as witnesses in case of a lawsuit. All the observations of science, and most of the facts brought before juries in courts of law, as well as the multitude of lesser and greater facts which we accept in everyday life, get their authority from this principle.

In the arguments of school and college you may not make much use of direct evidence, for they do not often turn on single, simple facts. Even here, however, cases arise where you must call in the direct testimony of witnesses. If you were arguing that secret societies should be abolished in a certain school, and wished to show that such societies had led to late hours, playing cards for money, and drinking, you would need direct evidence. If you were arguing that the street railroad company of your city should be obliged to double track a certain part of its line, you would need direct evidence of the delays and crowding of cars with a single track.