Online Encyclopedia
Search over 40,000 articles from the original, classic Encyclopedia Britannica, 11th Edition.
EVIDENCE (Lat. evidentia, evideri, to...
Online EncyclopediaEncyclopedia Home :: EUD-FAT
del.icio.us it!
|
See also:EVIDENCE (See also:Lat. evidentia, evideri, to appear clearly) , a See also:term which may be defined briefly as denoting the facts presented to the mind of a See also:person for the purpose of enabling him to decide a disputed question . See also:Evidence in the widest sense includes all such facts, and reference may be made to the See also:article See also:LOGIC for the See also:science or See also:art of dealing with the proper way of See also:drawing correct conclusions and the nature of See also:proof . In a narrower sense, however, evidence includes in See also:English See also:law only such facts as are allowed to be so presented in the course of judicial proceedings . Thus we say that a fact is not evidence, meaning thereby that it is not admissible as evidence in accordance with the rules of English law . The law of legal evidence is See also:part of the law of See also:procedure . It determines the kinds of evidence which may be produced in judicial proceedings, and regulates the mode in which, and the conditions under which, evidence may be produced and tested, The English law of evidence is of comparatively See also:modern growth . It enshrines certain See also:maxims, some derived from See also:Roman law, See also:History, some invented by See also:Coke, who, as J . B . See also:Thayer says, " spawned Latin maxims freely." But for the most part it was built up by English See also:judges in the course of the 18th See also:century, and consists of this See also:judge-made law, as modified by statutory enactments of the 19th century . See also:Early See also:Teutonic procedure knew nothing of evidence in the modern sense, just as it knew nothing of trials in the modern sense . What it knew was " proofs." There were two modes of proof, ordeals and oaths . Both were appeals to the supernatural . The judicial combat was a bilateral See also:ordeal . Proof followed, instead of pre-ceding, See also:judgment . A judgment of the See also:court, called by See also:German writers the Beweisurteil, and by M . M . See also:Bigelow the " medial judgment," awarded that one of the two litigants must prove his See also:case, by his See also:body in See also:battle, or by a one-sided ordeal, or by an See also:oath with oath-helpers, or by the oaths of witnesses . The court had no See also:desire to hear or weigh conflicting testimony . To do so would have been to exercise See also:critical faculties, which the court did not possess, and the exercise of which would have been See also:foreign to the whole spirit of the See also:age . The litigant upon whom the See also:burden of furnishing proof was imposed had a certain task to perform . If he performed it, he won; if he failed, he lost . The number of oath-helpers varied in different cases, and was determined by the law or by the court . They were probably, at the outset, kinsmen, who would have had to take up the See also:blood-See also:feud . At a later See also:stage they became witnesses to See also:character .
In the cases, comparatively rare, where the oaths of witnesses were admitted as proof, their oaths differed materially from the sworn testimony of modern courts
.
As a See also:rule no one could testify to a fact unless, when the fact happened, he was solemnly " taken to See also:witness." Then, when the witness was adduced, he came merely to swear to a set See also:formula
.
He did not make a promissory oath to See also:answer questions truly
.
He merely made an assertory oath in a prescribed See also:form
.
In the course of the 12th and 13th centuries the old formal accusatory procedure began to break down, and to be superseded by another form of procedure known as inquisitio, See also:inquest, or enqueete
.
Its decay was hastened by the See also:decree of the See also:fourth Lateran See also:Council in 1215, which forbade ecclesiastics to take part in ordeals
.
The See also:Norman administrative See also:system introduced into See also:England by the See also:Conquest was See also:familiar with a method of ascertaining and determining facts by means of a See also:verdict, return or finding made on oath by a body of men See also:drawn from the locality
.
The system may be traced to Carolingian, and even earlier, See also:sources
.
See also: Fortunately English criminal procedure took a different course . The spirit of the old accusatory procedure was applied to the new procedure by inquest . In serious cases the words of the jurors, the accusing jurors, were treated not as testimony, but as See also:accusation, the new See also:indictment was treated as corresponding to the old See also:appeal, and the preliminary finding by the accusing See also:jury had to be supplemented by the verdict of another jury . In course of See also:time the second jury were required to See also:base their findings not on their own knowledge, but on evidence submitted to them . Thus the modern system of inquiry by grand jury and trial by petty jury was gradually See also:developed . A few words may here be said about the parallel development of criminal procedure on the See also:continent of See also:Europe . The tendency in the 12th and 13th centuries to abolish the old formal methods of procedure, and to give the new procedure the name of inquisition or inquest, was not See also:peculiar to England . Elsewhere the old procedure was breaking down at the same time, and for similar reasons . It was the See also:great See also:pope See also:Innocent III., the pope of the fourth Lateran Council, who introduced the new inquisitorial procedure into the See also:canon law . The procedure was applied to cases of See also:heresy, and, as so applied, especially by the See also:Dominicans, speedily assumed the features which made it infamous . " Every safeguard of innocence was abolished or disregarded; See also:torture was freely used . Everything seems to have been done to secure a conviction." Yet, in spite of its monstrous defects, the inquisitorial procedure of the ecclesiastical courts, See also:secret in its methods, unfair to the accused, having torture as an integral See also:element, gradually forced its way into the temporal courts, and may almost be said to have been adopted by the See also:common law of western Europe .
In connexion with this inquisitorial procedure continental jurists elaborated a theory of evidence, or judicial proofs, which formed the subject of an extensive literature
.
Under the rules thus evolved full proof (plena perbelie) was essential for conviction, in the See also:absence of See also:confession, and the See also:standard of full proof was fixed so high that it was in most cases unattainable
.
It therefore became material to obtain confession by some means or other
.
The most effective means was torture, and thus torture became an essential feature in criminal procedure
.
The rules of evidence attempted to See also:graduate the See also:weight to be attached to different kinds of testimony and almost to estimate that weight in numerical terms
.
" Le See also:parlement de See also:Toulouse," said See also:Voltaire, " a un usage tres singulier dans See also:les preuves See also:par temoins
.
On admet ailleurs See also:des demi-preuves,
.
. . mais a Toulouse on admet des quarts et des huitiemes de preuves." Modern continental procedure, as em-bodied in the most See also:recent codes, has removed the worst features of inquisitorial procedure, and has shaken itself See also:free from the trammels imposed by the old theory and technical rules of proof
.
But in this, as in other branches of law, See also:France seems to have paid the See also:penalty for having been first in the See also:
The history of criminal procedure in England has been traced by See also:Sir See also:
His great interpreter, See also:Dumont, condensed his views on evidence into the Traite des preuves judiciaires, which was published in 1823
.
The See also:manuscript of the Rationale was edited for English See also:reading, and to a great extent rewritten, by J
.
S
.
See also: He also attacked the system of See also:paper evidence, evidence by means of affidavits instead of by oral testimony in court, which prevailed in the court of See also:chancery, and in ecclesiastical courts . Subsequent legislation has endorsed his criticisms . The Judicature Acts have reduced the use of affidavits in chancery proceedings within reasonable limits . A See also:series of acts of See also:parliament have removed, step by step, almost all the disqualifications which formerly made certain witnesses incompetent to testify . Before Bentham's work appeared, an See also:act of 1814 had removed the incompetency of ratepayers as witnesses in certain cases See also:relating to parishes . The Civil Procedure Act 1833 enacted that a witness should not be objected to as incompetent, solely on the ground that the verdict or judgment would be admissible in evidence for or against him . An act of 184o removed some doubts as to the competency of ratepayers to give evidence in matters relating to their See also:parish . The Evidence Act 1843' enacted broadly, that witnesses should not be excluded from giving evidence by See also:reason of incapacity from See also:crime or interest . The Evidence Act 1851 made parties to legal proceedings admissible witnesses subject to a proviso that " nothing herein contained shall render any person who in any criminal proceeding is charged with the See also:commission of any indictable offence, or any offence punishable on See also:summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any See also:husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband." The Evidence (See also:Scotland) Act 1853 made a similar See also:provision for See also:Scot-See also:land . The Evidence See also:Amendment Act 1853 made the husbands and wives of parties admissible witnesses, except that husbands and wives could not give evidence for or against each other in criminal proceedings or in proceedings for See also:adultery; and could not be compelled to disclose communications made to each other during See also:marriage . Under the Matrimonial Causes Act 1857 the petitioner can be examined and See also:cross-examined on oath at the See also:hearing, but is not See also:bound to answer any question tending to show that he or she has been guilty of adultery . Under the Matrimonial Causes Act 1859, on a wife's See also:petition for See also:dissolution of marriage on the ground of adultery coupled with See also:cruelty or See also:desertion, husband and wife are competent and compellable to give evidence as to the cruelty or desertion . The See also:Crown Suits &c . Act 1865 declared that See also:revenue proceedings were not to be treated as criminal proceedings for the purposes of the acts of 1851 and 1853 . The Evidence Further Amendment Act 186g declared that parties to actions for See also:breach of promise of marriage were competent to give evidence in the See also:action, subject to a proviso that the See also:plaintiff should not recover unless his or her testimony was corroborated by, some other material evidence . It also made the parties to proceedings instituted in consequence of adultery, and their husbands and wives, competent to give evidence, but a witness in any such proceeding, whether a party or not, is not to be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless the witness has already given evidence in the same proceeding in disproof of the alleged adultery . There are similar provisions applying to Scotland in the Conjugal Rights (Scotland) Amendment Act 1861, and the Evidence Further Amendment (Scotland) Act 1874 . The Evidence Act 1877 enacts that " on the trial of any indictment or other proceeding for the non-repair of any public See also:highway or See also:bridge, or for a See also:nuisance to any public highway, See also:river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every See also:defendant to such indictment or proceeding, and the wife or husband of any such defendant shall be admissible witnesses and compellable to give evidence." From 1872 onwards numerous enactments were passed making persons charged with particular offences, and their husbands and wives, competent witnesses . The language and effect of these enactments were not always the same, but the insertion of some provision to this effect in an act creating a new offence, especially if it was punishable by summary proceedings, gradually became almost a common form in legislation . In the See also:year 1874 a See also:bill to generalize these particular provisions, and to make the evidence of persons charged with criminal offences admissible in all cases was introduced by Mr See also:Gladstone's See also:government, and was passed by the See also:standing See also:committee of the See also:House of See also:Commons . During the next fourteen years bills for the same purpose were repeatedly introduced, either by the government of the See also:day, or by See also:Lord See also:Bramwell as an See also:independent member of the House of Lords . Finally the Criminal Evidence Act 1898, introduced by Lord See also:Halsbury, has enacted in general terms that " every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the See also:defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person." But this general enactment is qualified by some See also:special restrictions, the nature of which will be noticed below . The act applies to Scotland but not to See also:Ireland . It was not to apply to proceedings in courts-See also:martial unless so applied by general orders or rules made under statutory authority .
The provisions of the act have been applied by rules to military courts-martial, but have not yet been applied to See also:naval courts-martial
.
The removal of disqualifications for want of religious belief is referred to below under the See also:head of " Witnesses."
The act of 1898 finishes for the See also:present the history of English
legislation on evidence
.
For a view of the legal literature on the
Llterature. subject it is necessary to take a step backwards
.
Early
in the 19th century Chief Baron Gilbert was superseded
as an authority on the English law of evidence by the books of
See also:Phillips (1814) and Starkie (1824), who were followed by See also:Roscoe
(Nisi Prius, 1827; Criminal Cases, 1835), See also:Greenleaf (See also:American,
1842), See also: Pondering the multitude of " exclusionary " rules which had been laid down by the English courts, Stephen thought that he had discovered the general principle on which those rules reposed, and could devise a formula by which the principle could be expressed . " My study of the subject," he says, " both practically and in books has convinced me that the See also:doctrine that all facts in issue and relevant to the issue, and no others, may be proved, is the unexpressed principle which forms the centre of and gives unity to all the See also:express negative rules which form the great mass of the law." The result was the See also:chapter on the relevancy of facts in the Indian Evidence Act, and the See also:definition of relevancy in s . 7 of that act . This definition was based on the view that a distinction could be drawn between things which were and things which were not causally connected with each other, and that relevancy depended on causal connexion . Subsequent See also:criticism convinced Stephen that his definition was in some respects too narrow and in others too wide, and eventually he adopted a definition out of which all reference to causality was dropped . But even in their amended form the provisions about relevancy are open to serious criticism . The doctrine of relevancy, i.e. of the probative effect of facts, is a See also:branch of logic, not of law, and is out of See also:place both in an enactment of the legislature and in a compendium of legal rules . The See also:necessity under which Stephen found himself of extending the range of relevant facts by making it include facts " deemed to be relevant," and then narrowing it by enabling the judge to exclude evidence of facts* which are relevant, illustrates the difference between the rules of logic and the rules of law . Relevancy is one thing; admissibility is another; and the confusion between them, which is much older than Stephen, is to be regretted . Rightly or wrongly English judges have, on practical grounds, declared inadmissible evidence of facts, which are relevant in the ordinary sense of the term, and which are so treated in non-judicial inquiries . Under these circumstances the See also:attempt so to define relevancy as to make it conterminous with admissibility is misleading, and most readers of Stephen's Act and Digest would find them more intelligible and more useful if " admissible " were substituted for " relevant " throughout . Indeed it is hardly too much to say that Stephen's doctrine of relevancy is theoretically unsound and practically useless . The other parts of the work contain terse and vigorous statements of the law, but a Procrustean attempt to make legal rules square with a preconceived theory has often made the language and arrangement artificial, and the work, in spite of its See also:compression, still contains rules which, under a more scientific treatment, would find their appropriate place in other branches of the law . These defects are characteristic of a strong and able See also:man, who saw clearly, and expressed forcibly what he did see, but was apt to ignore or to deny the existence of what he did not see, whose mind was vigorous rather than subtle or accurate, and who, in spite of his learning, was somewhat deficient in the See also:historical sense . But notwithstanding these defects, the conspicuous ability of the author, his learning, and his practical experience, especially in criminal cases, attach greater weight to Fitz James Stephen's statements than to those of any other English writer on the law of evidence . The object of every trial is, or may be, to determine two classes of questions or issues, which are usually distinguished as questions of law, and questions of fact, although Rules. the distinction between them is not so clear as might appear on a superficial view . In a trial by jury these two classes of questions are answered by different persons . The judge See also:lays down the law . The jury, under the guidance of the judge, find the facts . It was with reference to trial by jury that the English rules of evidence were originally framed; it is by the peculiarities of this form of trial that many of them are to be explained; it is to this form of trial alone that some of the most important of them are exclusively applicable . The negative, exclusive, or exclusionary rules which form the characteristic features of the English law of evidence, are the rules in accordance with which the judge guides the jury . There is no difference of principle between the method of inquiry in judicial and in non-judicial proceedings . In either case a person who wishes to find out whether a particular event did or did not happen, tries, in the first place, to obtain information from persons who were present and saw what happened (See also:direct evidence), and, failing this, to obtain information from persons who can tell him about facts from which he can draw an inference as to whether the event did or did not happen (indirect evidence) . But in judicial inquiries the information given must be given on oath, and be liable to be tested by cross-examination . And there are rules of law which exclude from the See also:consideration of the jury certain classes of facts which, in an ordinary inquiry, would, or might, be taken into consideration . Facts so excluded are said to be " not admissible as evidence," or " not evidence," according as the word is used in the wider or in the narrower sense . And the easiest way of determining whether a fact is or is not evidence in the narrower sense, is first to consider whether it has any bearing on the question to be tried, and, if it has, to consider whether it falls within any one or more of the rules of exclusion laid down by English law . These rules of exclusion are peculiar to English law and to systems derived from English law . They have been much criticized, and some of them have been repealed or materially modified by legislation . Most of them may be traced to directions given by a judge in the course of trying a particular case, given with special reference to the circumstances of that case, but expressed in general language, and, partly through the See also:influence of See also:text-writers, eventually hardened into general rules . In some cases their origin is only intelligible by reference to obsolete forms of See also:pleading or practice . But in most cases they were originally rules of convenience laid down by the judge for the assistance of the jury . The judge is a man of trained experience, who has to arrive at a conclusion with the help of twelve untrained men, and who is naturally anxious to keep them straight, and give them every assistance in his See also:power . The exclusion of certain forms of evidence assists the jury by concentrating their See also:attention on the questions immediately before them, and by preventing them from being distracted or bewildered by facts which either have no bearing on the question before them, or have so remote a bearing on those questions as to be practically useless as guides to the truth . It also prevents a jury from being misled by statements the effect of which, through the See also:prejudice they excite, is out of all proportion to their true weight . In this respect the rules of exclusion may be compared to blinkers, which keep a See also:horse's eyes on the road before him . In criminal cases the rules of exclusion secure See also:fair See also:play to the accused, because he comes to the trial prepared to meet a specific See also:charge, and ought not to be suddenly confronted by statements which he had no reason to expect would be made against him . They protect absent persons against statements affecting their character . And lastly they prevent the See also:infinite See also:waste of time which would ensue in the discussion of a question of fact if an inquiry were allowed to branch out into all the subjects with which that fact is more or less connected . The purely practical grounds on which the rules are based, according to the view of a great judge, may be illustrated by some remarks of Mr See also:Justice Willes (1814-1872) . In discussing the question whether evidence of the plaintiff's conduct on other occasions ought to be admitted, he said: " It is not easy in all cases to draw the See also:line and to define with accuracy where probability ceases and See also:speculation begins; but we are bound to See also:lay down the rule to the best of our ability . No doubt the rule as to confining the evidence to that which is relevant and pertinent to the issue is one of great importance, not only as regards the particular case, but also with reference to saving the time of the court, and preventing the minds of the jury from being drawn away from the real point they have to decide . . .. Now it appears to me that the evidence proposed to be given in this case, if admitted, would not have shown that it was more probable that the See also:contract was subject to the See also:condition insisted upon by the defendant . The question may be put thus, Does the fact of a person having once or many times in his See also:life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion ? To admit such speculative evidence would, I think, be fraught with great danger .... If such evidence were held admissible it would be difficult to say that the defendant might not in any case, where the question was whether or not there had been a See also:sale of goods on See also:credit, See also:call witnesses to prove that the plaintiff had dealt with other persons upon a certain credit ; or, in an action for an See also:assault, that the plaintiff might not give evidence of former assaults'committed by the defendant upon other persons, or upon other persons of a particular class, for the purpose of showing that he was a quarrelsome individual, and therefore that it was highly probable that the particular charge of assault was well founded . The extent to which this sort of thing might be carried is inconceivable .... To obviate the prejudices, the injustice, and the waste of time to which the See also:admission of such evidence would See also:lead, and bearing in mind the extent to which it might be carried, and that litigants are mortal, it is necessary not only to adhere to the rule, but to lay it down strictly . I think, therefore, the fact that the plaintiff had entered into contracts of a particular See also:kind with other persons on other occasions could not be properly admitted in evidence where nocustom of See also:trade to make such contracts, and no connexion between such and the one in question, was shown to exist " (Hollingham v . Head, 1858, 4 C.B . N.S . 388) . There is no difference between the principles of evidence in civil and in criminal cases, although there are a few special rules, such as those relating to confessions and to dying declarations, which are only applicable to criminal proceedings . But in civil proceedings the issues are narrowed by mutual admissions of the parties, more use is made of evidence taken out of court, such as affidavits, and, generally, the rules of evidence are less strictly applied . It is often impolitic to object to the admission of evidence, even when' the objection may be sustained by previous rulings . The general tendency of modern procedure is to place a more liberal and less technical construction on rules of evidence, especially in civil cases . In recent volumes of law reports cases turning on the admissibility of evidence are conspicuous by their rarity . Various causes have operated in this direction . One of them has been the See also:change in the system of pleading, under which each party now knows before the actual trial the main facts on which his opponent relies . Another is the interaction of chancery and common-law practice and traditions since the Judicature Acts . In the chancery courts the rules of evidence were always less carefully observed, or, as See also:Westminster would have said, less understood, than in the courts of common law . A judge trying questions of fact alone might naturally think that blinkers, though useful for a jury, are unnecessary for a judge . And the chancery judge was apt to read his affidavits first, and to deter-mine their admissibility afterwards . In the meantime they had affected his mind . The tendency of modern text-writers, among whom See also:Professor J . B . Thayer (1831-1902), of Harvard, was perhaps the most independent, instructive and suggestive, is to restrict materially the field occupied by the law of evidence, and to relegate to other branches of the law topics traditionally treated under the head of evidence . Thus in every way the law of evidence, though still embodying some principles of great importance, is of less See also:comparative importance as a branch of English law than it was See also:half a century ago . Legal rules, like dogmas, have their growth and decay . First comes the judge who gives a ruling in a particular case . Then comes the text-writer who collects the scattered rulings, throws them into the form of general propositions, connects them together by some theory, See also:sound or unsound, and often ignores or obscures their historical origin . After hifn comes the legislator who crystallizes the propositions into enactments, not always to the See also:advantage of mankind . So also with decay . Legal rules fall into the background, are explained away, are ignored, are denied, are overruled . Much of the English law of evidence is in a stage of decay . The subject-matter of the law of evidence may be arranged differently according to the See also:taste or point of view of the writer . It will be arranged here under the following heads:—I . Preliminary Matter; II . Classes of Evidence; III . Rules of Exclusion; IV . Documentary Evidence; V . Witnesses . I . PRELIMINARY MATTER Under this head may be grouped certain principles and considerations which limit the range of matters to which evidence relates . 1 . Law and Fact.—Evidence relates only to facts . It is therefore necessary to See also:touch on the distinction between law and facts . Ad quaestionem facti non See also:respondent judices; ad quaestionem See also:Paris non respondent juratores . Thus Coke, attributing, after his wont, to See also:Bracton a See also: |