Encyclopaedia Britannica, 11th Edition, "Evangelical Church Conference" to "Fairbairn, Sir William" / Volume 10, Slice 1

by Various

II. Classes of Evidence

Evidence is often described as being either oral or documentary. To these two classes should be added a third, called by Bentham real evidence, and consisting of things presented immediately to the senses of the judge or the jury. Thus the judge or jury may go to view any place the sight of which may help to an understanding of the evidence, and may inspect anything sufficiently identified and produced in court as material to the decision. Weapons, clothes and things alleged to have been stolen or damaged are often brought into court for this purpose. Oral evidence consists of the statements of witnesses. Documentary evidence consists of documents submitted to the judge or jury by way of proof. The distinction between primary and secondary evidence relates only to documentary evidence, and will be noticed in the section under that head. A division of evidence from another point of view is that into direct and indirect, or, as it is sometimes called, circumstantial evidence. By direct evidence is meant the statement of a person who saw, or otherwise observed with his senses, the fact in question. By indirect or circumstantial evidence is meant evidence of facts from which the fact in question may be inferred. The difference between direct and indirect evidence is a difference of kind, not of degree, and therefore the rule or maxim as to “best evidence” has no application to it. Juries naturally attach more weight to direct evidence, and in some legal systems it is only this class of evidence which is allowed to have full probative force. In some respects indirect evidence is superior to direct evidence, because, as Paley puts it, “facts cannot lie,” whilst witnesses can and do. On the other hand facts often deceive; that is to say, the inferences drawn from them are often erroneous. The circumstances in which crimes are ordinarily committed are such that direct evidence of their commission is usually not obtainable, and when criminality depends on a state of mind, such as intention, that state must necessarily be inferred by means of indirect evidence.

III. Rules of Exclusion

It seems desirable to state the leading rules of exclusion in their crude form instead of obscuring their historical origin by attempting to force them into the shape of precise technical propositions forming parts of a logically connected system. The judges who laid the foundations of our modern law of evidence, like those who first discoursed on the duties of trustees, little dreamt of the elaborate and artificial system which was to be based upon their remarks. The rules will be found, as might be expected, to be vague, to overlap each other, to require much explanation, and to be subject to many exceptions. They may be stated as follows:—(1) Facts not relevant to the issue cannot be admitted as evidence. (2) The evidence produced must be the best obtainable under the circumstances. (3) Hearsay is not evidence. (4) Opinion is not evidence.

1. Rule of Relevancy.—The so-called rule of relevancy is sometimes stated by text-writers in the form in which it was laid down by Baron Parke in 1837 (Wright v. Doe and Tatham, 7 A. and E. 384), when he described “one great principle” in the law of evidence as being that “all facts which are relevant to the issue may be proved.” Stated in different forms, the rule has been made by FitzJames Stephen the central point of his theory of evidence. But relevancy, in the proper and natural sense, as we have said, is a matter not of law, but of logic. If Baron Parke’s dictum relates to relevancy in its natural sense it is not true; if it relates to relevancy in a narrow and artificial sense, as equivalent to admissible, it is tautological. Such practical importance as the rule of relevancy possesses consists, not in what it includes, but in what it excludes, and for that reason it seems better to state the rule in a negative or exclusive form. But whether the rule is stated in a positive or in a negative form its vagueness is apparent. No precise line can be drawn between “relevant” and “irrelevant” facts. The two classes shade into each other by imperceptible degrees. The broad truth is that the courts have excluded from consideration certain matters which have some bearing on the question to be decided, and which, in that sense, are relevant, and that they have done so on grounds of policy and convenience. Among the matters so excluded are matters which are likely to mislead the jury, or to complicate the case unnecessarily, or which are of slight, remote, or merely conjectural importance. Instances of the classes of matters so excluded can be given, but it seems difficult to refer their exclusion to any more general principle than this. Rules as to evidence of character and conduct appear to fall under this principle. Evidence is not admissible to show that the person who is alleged to have done a thing was of a disposition or character which makes it probable that he would or would not have done it. This rule excludes the biographical accounts of the prisoner which are so familiar in French trials, and is an important principle in English trials. It is subject to three exceptions: first, that evidence of good character is admissible in favour of the prisoner in all criminal cases; secondly, that a prisoner indicted for rape is entitled to call evidence as to the immoral character of the prosecutrix; and thirdly, that a witness may be called to say that he would not believe a previous witness on his oath. The exception allowing the good character of a prisoner to influence the verdict, as distinguished from the sentence, is more humane than logical, and seems to have been at first admitted in capital cases only. The exception in rape cases does not allow evidence to be given of specific acts of immorality with persons other than the prisoner, doubtless on the ground that such evidence would affect the reputations of third parties. Where the character of a person is expressly in issue, as in actions of libel and slander, the rule of exclusion, as stated above, does not apply. Nor does it prevent evidence of bad character from being given in mitigation of damages, where the amount of damages virtually depends on character, as in cases of defamation and seduction. As to conduct there is a similar general rule, that evidence of the conduct of a person on other occasions is not to be used merely for the purpose of showing the likelihood of his having acted in a similar way on a particular occasion. Thus, on a charge of murder, the prosecutor cannot give evidence of the prisoner’s conduct to other persons for the purpose of proving a bloodthirsty and murderous disposition. And in a civil case a defendant was not allowed to show that the plaintiff had sold goods on particular terms to other persons for the purpose of proving that he had sold similar goods on the same terms to the defendant. But this general rule must be carefully construed. Where several offences are so connected with each other as to form parts of an entire transaction, evidence of one is admissible as proof of another. Thus, where a prisoner is charged with stealing particular goods from a particular place, evidence may be given that other goods, taken from the same place at the same time, were found in his possession. And where it is proved or admitted that a person did a particular act, and the question is as to his state of mind, that is to say, whether he did the act knowingly, intentionally, fraudulently, or the like, evidence may be given of the commission by him of similar acts on other occasions for the purpose of proving his state of mind on the occasion. This principle is most commonly applied in charges for uttering false documents or base coin, and not uncommonly in charges for false pretences, embezzlement or murder. In proceedings for the receipt or possession of stolen property, the legislature has expressly authorized evidence to be given of the possession by the prisoner of other stolen property, or of his previous conviction of an offence involving fraud or dishonesty (Prevention of Crimes Act 1871). Again, where there is a question whether a person committed an offence, evidence may be given of any fact supplying a motive or constituting preparation for the offence, of any subsequent conduct of the person accused, which is apparently influenced by the commission of the offence, and of any act done by him, or by his authority, in consequence of the offence. Thus, evidence may be given that, after the commission of the alleged offence, the prisoner absconded, or was in possession of the property, or the proceeds of the property, acquired by the offence, or that he attempted to conceal things which were or might have been used in committing the offence, or as to the manner in which he conducted himself when statements were made in his presence and hearing. Statements made to or in the presence of a person charged with an offence are admitted as evidence, not of the facts stated, but of the conduct or demeanour of the person to whom or in whose presence they are made, or of the general character of the transaction of which they form part (under the res gestae rule mentioned below).

2. Best Evidence Rule.—Statements to the effect of the best evidence rule were often made by Chief Justice Holt about the beginning of the 18th century, and became familiar in the courts. Chief Baron Gilbert, in his book on evidence, which must have been written before 1726, says that “the first and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of.” And in the great case of Omichund v. Barker (1744), Lord Hardwicke went so far as to say, “The judges and sages of the law have laid down that there is but one general rule of evidence, the best that the nature of the case will admit” (1 Atkyns 49). It is no wonder that a rule thus solemnly stated should have found a prominent place in text-books on the law of evidence. But, apart from its application to documentary evidence, it does not seem to be more than a useful guiding principle which underlies, or may be used in support of, several rules.

It is to documentary evidence that the principle is usually applied, in the form of the narrower rule excluding, subject to exceptions, secondary evidence of the contents of a document where primary evidence is obtainable. In this form the rule is a rule of exclusion, but may be most conveniently dealt with in connexion with the special subject of documentary evidence. As noticed above, the general rule does not apply to the difference between direct and indirect evidence. And, doubtless on account of its vague character, it finds no place in Stephen’s Digest.

3. Hearsay.—The term “hearsay” primarily applies to what a witness has heard another person say in respect to a fact in dispute. But it is extended to any statement, whether reduced to writing or not, which is brought before the court, not by the author of the statement, but by a person to whose knowledge the statement has been brought. Thus the hearsay rule excludes statements, oral or written, made in the first instance by a person who is not called as a witness in the case. Historically this rule may be traced to the time when the functions of the witnesses were first distinguished from the functions of the jury, and when the witnesses were required by their formula to testify de visu suo et auditu, to state what they knew about facts from the direct evidence of their senses, not from the information of others. The rule excludes statements the effect of which is liable to be altered by the narrator, and which purport to have been made by persons who did not necessarily speak under the sanction of an oath, and whose accuracy or veracity is not tested by cross-examination. It is therefore of practical utility in shutting out many loose statements and much irresponsible gossip. On the other hand, it excludes statements which are of some value as evidence, and may indeed be the only available evidence. Thus, a statement has been excluded as hearsay, even though it can be proved that the author of the statement made it on oath, or that it was against his interest when he made it, or that he is prevented by insanity or other illness from giving evidence himself, or that he has left the country and disappeared, or that he is dead.

Owing to the inconveniences which would be caused by a strict application of the rule, it has been so much eaten into by exceptions that some persons doubt whether the rule and the exceptions ought not to change places. Among the exceptions the following may be noticed: (a) Certain sworn statements.—In many cases statements made by a person whose evidence is material, but who cannot come before the court, or could not come before it without serious difficulty, delay or expense, may be admitted as evidence under proper safeguards. Under the Indictable Offences Act 1848, where a person has made a deposition before a justice at a preliminary inquiry into an offence, his deposition may be read in evidence on proof that the deponent is dead, or too ill to travel, that the deposition was taken in the presence of the accused person, and that the accused then had a full opportunity of cross-examining the deponent. The deposition must appear to be signed by the justice before whom it purports to have been taken. Depositions taken before a coroner are admissible under the same principle. And the principle probably extends to cases where the deponent is insane, or kept away by the person accused. There are other statutory provisions for the admission of depositions, as in the Criminal Law Amendment Act 1867; the Foreign Jurisdiction Act 1890; and the Children Act 1908, incorporating an act of 1894. In civil cases the rule excluding statements not made in court at the trial is much less strictly applied. Frequent use is made of evidence taken before an examiner, or under a commission. Affidavits are freely used for subordinate issues or under an arrangement between the parties, and leave may be given to use evidence taken in other proceedings. The old chancery practice, under which evidence, both at the trial and at other stages of a proceeding, was normally taken by affidavit, irrespectively of consent, was altered by the Judicature Acts. Under the existing rules of the supreme court evidence may be given by affidavit upon any motion, petition or summons, but the court or a judge may, on the application of either party, order the attendance for cross-examination of the person making the affidavit. (b) Dying declarations.—In a trial for murder or manslaughter a declaration by the person killed as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is admissible as evidence. But this exception is very strictly construed. It must be proved that the declarant, at the time of making the declaration, was in actual danger of death, and had given up all hope of recovery. (c) Statements in pedigree cases.—On a question of pedigree the statement of a deceased person, whether based on his own personal knowledge or on family tradition, is admissible as evidence, if it is proved that the person who made the statement was related to the person about whose family relations the statement was made, and that the statement was made before the question with respect to which the evidence is required had arisen. (d) Statements as to matters of public or general interest.—Statements by deceased persons are admissible as evidence of reputation or general belief in questions relating to the existence of any public or general right or custom, or matter of public and general interest. Statements of this kind are constantly admitted in questions relating to right of way, or rights of common, or manorial or other local customs. Maps, copies of court rolls, leases and other deeds, and verdicts, judgments, and orders of court fall within the exception in cases of this kind. (e) Statements in course of duty or business.—A statement with respect to a particular fact made by a deceased person in pursuance of his duty in connexion with any office, employment or business, whether public or private, is admissible as evidence of that fact, if the statement appears to have been made from personal knowledge, and at or about the time when the fact occurred. This exception covers entries by clerks and other employees. (f) Statements against interest.—A statement made by a deceased person against his pecuniary or proprietary interest is admissible as evidence, without reference to the time at which it was made. Where such a statement is admissible the whole of it becomes admissible, though it may contain matters not against the interest of the person who made it, and though the total effect may be in his favour. Thus, where there was a question whether a particular sum was a gift or a loan, entries in an account book of receipt of interest on the sum were admitted, and a statement in the book that the alleged debtor had on a particular date acknowledged the loan was also admitted. (g) Public documents.—Under this head may be placed recitals in public acts of parliament, notices in the London, Edinburgh, or Dublin Gazette (which are made evidence by statute in a large number of cases), and entries made in the performance of duty in official registers or records, such as registers of births, deaths or marriages, registers of companies, records in judicial proceedings, and the like. An entry in a public document may be treated as a statement made in the course of duty, but it is admissible whether the person who made the statement is alive or dead, and without any evidence as to personal knowledge, or the time at which the statement is made. (h) Admissions.—By the term “admission,” as here used, is meant a statement made out of the witness-box by a party to the proceedings, whether civil or criminal, or by some person whose statements are binding on that party, against the interest of that party. The term includes admissions made in answer to interrogatories, or to a notice to admit facts, but not admissions made on the pleadings. Admissions, in this sense of the term, are admissible as evidence against the person by whom they are made, or on whom they are binding, without reference to the life or death of the person who made them. A person is bound by the statements of his agent, acting within the scope of his authority, and barristers and solicitors are agents for their clients in the conduct of legal proceedings. Conversely, a person suing or defending on behalf of another, e.g. as agent or trustee, is bound by the statements of the person whom he represents. Statements respecting property made by a predecessor in title bind the successor. Where a statement is put in evidence as an admission by, or binding on, any person, that person is entitled to have the whole statement given in evidence. The principle of this rule is obviously sound, because it would be unfair to pick out from a man’s statement what tells against him, and to suppress what is in his favour. But the application of the rule is sometimes attended with difficulty. An admission will not be allowed to be used as evidence if it was made under a stipulation, express or implied, that it should not be so used. Such admissions are said to be made “without prejudice.” (i) Confessions.—A confession is an admission by a person accused of an offence that he has committed the offence of which he is accused. But the rules about admitting as evidence confessions in criminal proceedings are much more strict than the rules about admissions in civil proceedings. The general rule is, that a confession is not admissible as evidence against any person except the person who makes it. But a confession made by one accomplice in the presence of another is admissible against the latter to this extent, that, if it implicates him, his silence under the charge may be used against him, whilst on the other hand his prompt repudiation of the charge might tell in his favour. In other words, the confession may be used as evidence of the conduct of the person in whose presence it was made. A confession cannot be admitted as evidence unless proved to be voluntary. A confession is not treated as being voluntary if it appears to the court to have been caused by any inducement, threat or promise which proceeded from a magistrate or other person in authority concerned in the charge, and which, in the opinion of the court, gave the accused person reasonable ground for supposing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. This applies to any inducement, threat or promise having reference to the charge, whether it is addressed directly to the accused person or is brought to his knowledge indirectly. But a confession is not involuntary merely because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceedings, or by an inducement held out by a person having nothing to do with the apprehension, prosecution or examination of the prisoner. Thus, a confession made to a gaol chaplain in consequence of religious exhortation has been admitted as evidence. So also has a confession made by a prisoner to a gaoler in consequence of a promise by the gaoler, that if the prisoner confessed he should be allowed to see his wife. To make a confession involuntary, the inducement must have reference to the prisoner’s escape from the charge against him, and must be made by some person having power to relieve him, wholly or partially, from the consequences of the charge. A confession is treated as voluntary if, in the opinion of the court, it was made after the complete removal of the impression produced by any inducement, threat or promise which would have made it involuntary. Where a confession was made under an inducement which makes the confession involuntary, evidence may be given of facts discovered in consequence of the confession, and of so much of the confession as distinctly relates to those facts. Thus, A. under circumstances which make the confession involuntary, tells a policeman that he, A., had thrown a lantern into the pond. Evidence may be given that the lantern was found in the pond, and that A. said he had thrown it there. It is of course improper to try to extort a confession by fraud or under the promise of secrecy. But if a confession is otherwise admissible as evidence, it does not become inadmissible merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions, whether put by a magistrate or by a private person, or because he was not warned that he was not bound to make the confession, and that it might be used against him. If a confession is given in evidence, the whole of it must be given, and not merely the parts disadvantageous to the accused person. Evidence amounting to a confession may be used as such against the person who gave it, though it was given on oath, and though the proceeding in which it was given had reference to the same subject-matter as the proceeding in which it is to be used, and though the witness might have refused to answer the questions put to him. But if, after refusing to answer such questions, the witness is improperly compelled to answer, his answers are not a voluntary confession. The grave jealousy and suspicion with which the English law regards confessions offer a marked contrast to the importance attached to this form of evidence in other systems of procedure, such as the inquisitorial system which long prevailed, and still to some extent prevails, on the continent. (j) Res gestae.—Statements are often admitted as evidence on the ground that they form part of what is called the “transaction,” or res gestae, the occurrence or nature of which is in question. For instance, where an act may be proved, statements accompanying and explaining the act made by or to the person doing it, may be given in evidence. There is no difficulty in understanding the principle on which this exception from the hearsay rule rests, but there is often practical difficulty in applying it, and the practice has varied. How long is the “transaction” to be treated as lasting? What ought to be treated as “the immediate and natural effect of continuing action,” and, for that reason, as part of the res gestae? When an act of violence is committed, to what extent are the terms of the complaint made by the sufferer, as distinguished from the fact of a complaint having been made, admissible as evidence? These are some of the questions raised. The cases in which statements by a person as to his bodily or mental condition may be put in evidence may perhaps be treated as falling under the same principle. In the Rugeley poisoning case, statements by the deceased person before his illness as to his state of health, and as to his symptoms during illness, were admitted as evidence for the prosecution. Under the same principle may also be brought the rule as to statements in conspiracy cases. In charges of conspiracy, after evidence has been given of the existence of the plot, and of the connexion of the accused with it, the charge against one conspirator may be supported by evidence of anything done, written, or said, not only by him, but by any other of the conspirators, in furtherance of the common purpose. On the other hand, a statement made by one conspirator, not in execution of the common purpose, but in narration of some event forming part of the conspiracy, would be treated, not as part of the “transaction,” but as a statement excluded by the hearsay rule. Thus the admissibility of writings in conspiracy cases may depend on the time when they can be shown to have been in the possession of a fellow-conspirator, whether before or after the prisoner’s apprehension. (k) Complaints in rape cases, &c. —In trials for rape and similar offences, the fact that shortly after the commission of the alleged offence a complaint was made by the person against whom the offence was committed, and also the terms of the complaint, have been admitted as evidence, not of the facts complained of, but of the consistency of the complainant’s conduct with the story told by her in the witness-box, and as negativing consent on her part.

4. Opinion.—The rule excluding expressions of opinion also dates from the first distinction between the functions of witnesses and jury. It was for the witnesses to state facts, for the jury to form conclusions. Of course every statement of fact involves inference, and implies a judgment on phenomena observed by the senses. And the inference is often erroneous, as in the answer to the question, “Was he drunk?” A prudent witness will often guard himself, and is allowed to guard himself, by answering to the best of his belief. But, for practical purposes, it is possible to draw a distinction between a statement of facts observed and an expression of opinion as to the inference to be drawn from these facts, and the rule telling witnesses to state facts and not express opinions is of great value in keeping their statements out of the region of argument and conjecture. The evidence of “experts,” that is to say, of persons having a special knowledge of some particular subject, is generally described as constituting the chief exception to the rule. But perhaps it would be more accurate to say that experts are allowed a much wider range than ordinary witnesses in the expression of their opinions, and in the statement of facts on which their opinions are based. Thus, in a poisoning case, a doctor may be asked as an expert whether, in his opinion, a particular poison produces particular symptoms. And, where lunacy is set up as a defence, an expert may be asked whether, in his opinion, the symptoms exhibited by the alleged lunatic commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of their acts, or of knowing that what they do is either wrong or contrary to the law. Similar principles are applied to the evidence of engineers, and in numerous other cases. In cases of disputed handwriting the evidence of experts in handwriting is expressly recognized by statute (Evidence and Practice on Criminal Trials 1865).