Front Page Titles (by Subject) CHAPTER XIX.: EXCLUSION OF EVIDENCE.—GENERAL CONSIDERATIONS. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XIX.: EXCLUSION OF EVIDENCE.—GENERAL CONSIDERATIONS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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EXCLUSION OF EVIDENCE.—GENERAL CONSIDERATIONS.
Modes of Exclusion, positive and negative.
Shall it be admitted?—shall it be excluded? Be the supposed article of evidence what it may, these more especially under the practice at present established, will naturally be the first questions that will present themselves in relation to it.
If admitted, then come those other questions which have formed the subjects of consideration in the preceding parts of this work.
If excluded, then come two other questions—two all-comprehensive questions—viz. In what cases?—and, in the several cases, for what causes?
Modes of exclusion—what are the different modes or means, in or by which the effect thus denominated is capable of being produced? Answer: Two: and, from each other they may stand distinguished by the adjuncts, positive and negative:—
1. In the positive mode, the exclusion may be said to be produced when, though it were proffered, the evidence would not be suffered to be delivered.
2. In the negative mode, the effect of exclusion may be said to be produced, in so far as the means necessary to the obtainment of it are, either purposely or by negligence, omitted to be employed.
As to the cases in which, whether by or without design, the negative mode of exclusion has place, these may, if not all of them, at any rate the most prominent among them, be comprehended under the term non-compulsion.
The case being such, that in the character of a deposing witness, the services of the individual in question, if rendered, would or might have been conducive to the proof or disproof of some matter of fact which is in question, and thereby to the forming, in relation to such matter of fact, a right persuasion and consequent decision on the part of the judge, and that, in and by the application of compulsory means, those services would or might have been rendered, but for want of them have not been rendered,—the employment of such means has by the judge been, or if applied for would have been purposely forborne.
Of this description is that which forms at least the most prominent case of negative exclusion; and which, at any rate, under the head of exclusion, there will in the course of this work be the most frequent occasion to bring to view.
Mischiefs liable to result from Exclusion put on Evidence.
In every case that can be imagined—on every supposition that can be framed, whether the exclusion be or be not upon the whole conducive to the ends of justice, a distinct view of the mischiefs of which it is liable to be productive, cannot be without its use.
That by exclusion put upon evidence, mischief is not incapable of being produced, will not to any person be matter of doubt: the exclusion of all evidence would be the exclusion of all justice.
An article of evidence being given, the nature of the mischief resulting from the exclusion of it will be found to depend upon and be varied by the following circumstances:—
1. In relation to the matter of fact in question, the cause or suit, does it or does it not furnish other evidence of a nature to operate in favour of the same side?
2. The side from which the support, that would have been given to it by the evidence thus taken away—is it the plaintiff’s side of the cause, or the defendant’s?
3. The cause, is it of a penal or a non-penal nature?
By the changes of which these three causes of variation are susceptible, the variations of which the nature of the mischief is susceptible will stand expressed in the eight following cases:—
Case first:—1. The excluded evidence the only evidence on that side.
2. Side deprived of the support, the plaintiff’s or prosecutor’s.
3. Nature of the suit penal. Mischievous result, a virtual licence to commit crimes and transgressions of all sorts, in the presence, as well as upon the persons, of all such individuals to whom the cause of exclusion applies.*
Case second:—1. Excluded evidence, as before, the only evidence on that side.
2. Side deprived of the support, the plaintiff’s as before. Nature of the suit, now non-penal. Mischievous result, a virtual licence to every man to frustrate every other of all rights, for the giving effect to which the aid of the judge is necessary:—a licence granted in violation of the general engagement taken by the sovereign, in virtue and by means of the several articles or rules of substantive law, by which those rights were respectively created and conferred.
Case third:—1. Excluded evidence, as before, the only evidence on that side.
2. Side deprived of the support, now the defendant’s.
3. Nature of the suit, now again penal. Mischievous result, a power,—though, when exercised, not quite so sure in its operation as in the two former cases,—a power to every one who, to the purpose in question, is disposed to act, or willing and able to engage any other person to act for him in the character of a mendacious and falsely criminative or inculpative witness, to cause innocent persons in any number to be convicted of, and be punished as for crimes or other transgressions, of any sort and in any number, at his pleasure.
The mischievous power not quite so sure in its operation in this case as in the two former. Why? Because, whereas in those cases, for the production of the mischievous effect, a mere negative state of things suffices, viz. the non-appearance of a witness; in this case a positive cause, viz. the operation of some person in the character of a witness is necessary;—in which case, by means of counter interrogation, with the benefit of such other of the securities against deceptious incorrectness and incompleteness as operate in conjunction with it, detection will always be more or less liable to be produced, and thus the intended mischievous effect of the mendacity, and of the exclusion put upon the evidence that would have been opposed to it, destroyed.
Case fourth:—1. Excluded evidence, as before, the only evidence on that side.
2. Side deprived of the support, now again the defendant’s.
3. Nature of the suit, now non-penal. Mischievous result, a power, though under the same limitation as in the former case, to subject persons in any number to be unexpectedly loaded with undue and burthensome, so they be not penal obligations, to any amount and extent, including, in the case of each such person, the loss of everything he has; and this, so far as concerns such things as are in their nature transferable, to the profit pro tanto of any person by whom this mischievous power is exercised.
Cases 5, 6, 7, and 8:—The same as cases 1, 2, 3, and 4 respectively, except that the excluded evidence is not the only evidence on that side.
In all these several cases, the probability of the mischief which the exclusion tends to produce is of course less than in the corresponding former cases, diminishing in proportion to the number of witnesses whose testimony, not being comprehended in any principle of exclusion, is accordingly admitted.
On the other hand, in all these several cases, in whatever proportion the probability and danger of mischief, in any of those its forms, is diminished, in that same proportion, on the supposition that, from the admission of the excluded evidence, preponderant danger of deception, and thence of misdecision, would have been produced, is the amount of such danger, and thence the utility of any such exclusion, diminished likewise.
Upon the whole, the result is—that the effect, or tendency at least, of exclusion put upon evidence, is—to give encouragement and increased probability to criminality, and delinquency, and transgression, and wrong, in every imaginable shape: and thereby, except in so far as any specific and adequate countervailing benefit can be seen to be produced by it, to give increase as well as birth to human suffering, in almost every imaginable shape.
On this subject, that which, in the course of the succeeding pages, will, it is supposed, be made sufficiently apparent, is—1. That, in the shape of delay, vexation, and expense, cases may have place, in which, by means of exclusion of evidence, mischief to a greater amount than what is produced by exclusion put upon that same evidence, may be saved.
2. But that, in the shape of mischief producible by misdecision through the medium of deceptious evidence, no saving in the way of mischief can in any case be reasonably expected to be made by exclusion put upon evidence: for that, in every case by exclusion, misdecision for want of evidence is more likely to be produced, than by admission, misdecision through deception and by means of evidence.*
Principles respecting the Exclusion of Evidence.
The mischiefs liable to be produced by the exclusion of evidence have been brought to view. These notwithstanding, cases will be brought to view, for which exclusion, it is believed, will in some instances be found to be proper; viz. as being subservient, upon the whole, to the proper ends of justice, on the occasion of judicature. But if in these cases proper it be, it is because the exclusion, it will be found, is a necessary result of certain measures which will be seen to be indispensably prescribed by a regard for certain of those ends, viz. those collateral ends, which are so unfortunately liable to be found acting in the character of antagonists to the direct ends.
Not that in these, any more than in any other cases,—taken by itself, the exclusion of material evidence is a desirable result,—a result in itself subservient to any of the ends of justice; but that, in the cases here in question, it is an effect of which, though in itself evil, the production is necessary to the exclusion of some evil of still superior magnitude.
In itself, and abstraction made of its consequences, exclusion of evidence is as far from being proper as infliction of punishment is: but forasmuch as for the exclusion of still greater evil, evils under the name of punishment, to so unhappily ample an extent, not only may be, but must be produced, so for the like cause, though to a much narrower extent, evil by exclusion of evidence not only may be, but in some cases ought to be.
On the occasion of the receipt of evidence, as on any other occasion, the following rules will, it is hoped, be found neither altogether devoid of practical use, nor in any respect open to dispute:—
1. Produce not a greater evil in pursuit of the means of excluding a lesser evil.
2. Exclude not a greater good in pursuit of the means of obtaining a lesser good.
3. Produce not any preponderant evil in pursuit of the means of obtaining any good.
4. Exclude not a preponderant good in pursuit of the means of excluding any evil.
These rules being taken for a standard and a guide—for a standard of reference, and for a guide to practice—are any cases to be found (it may be asked,) in which exclusion put upon this or that article of evidence would be conducive upon the whole to the ends of justice? Answer: Yes; beyond doubt there are. Question: What are these cases? Answer: All such cases in which, in a quantity preponderant over that which would be produced by such exclusion, a mass of evil, composed of any of the evils in the avoidance of which the ends of justice respectively consist, would be produced by admission given to that same article of evidence.
Of which soever of these evils, viz. misdecision on the one hand,—delay, vexation, and expense on the other—in the whole, or in part,—the apprehended disease consists;—in either case, in so far as admission given to evidence is the cause of the disease, exclusion put upon that same evidence operates, of course, in the character of a remedy; and in so far as delay, vexation, and expense, is the disease, it is the only remedy.
But in relation to those two different species of disease, its efficacy exhibits a difference, which in respect of its practical importance will be seen to have the highest claim to notice.
Misdecision is an evil, for the prevention of which, in favour of either side of the cause, by the application of the exclusion in question in the character of a remedy, no chance (it will be seen) can ever be obtained without producing in all cases a greater chance, in some cases a certainty, of producing that same disease, to the prejudice of the opposite side of that same case.
On the other hand, against delay, vexation, and expense, in so far as produced by the exhibition of evidence, exclusion put upon that same evidence is a complete and sovereign remedy. Against misdecision to the prejudice of one side, exclusion of evidence cannot be employed without producing a greater probability of it to the prejudice of the other side:—against delay, vexation, and expense, to the prejudice of either side, it may be employed—not indeed always without producing a greater or less probability of misdecision, but always, unless by some extraordinary accident, without producing any chance at all of preponderant, or so much as any additional evil in the shape of delay, vexation, and expense, to the prejudice of either side.
To the distinction that is thus pointed out, the circumstance that gives importance is this. In the pharmacy of the man of law, especially under English law, it is in the character of a remedy against misdecision that this species of purge has been almost exclusively employed;—and in this character prodigious is the extent in which it will be seen to have been employed:—against delay, vexation, and expense—diseases to which, in so much superior, not to say in an exclusive degree, it will be seen to be applicable with advantage—in this character, scarcely any application, it will be seen, has been made of it.
Causes for which Exclusion is always proper.
This being premised, for the purpose of the question,—in what cases and for what causes is or may the exclusion of evidence be proper—in what cases and for what causes improper,—a primary distinction that will require to be made, is—that between such evidence as is either irrelevant or superfluous on the one hand, and such as is neither irrelevant nor superfluous on the other.
As to irrelevancy:—Of a portion of discourse tendered in the character of evidence, to say that it is irrelevant, is as much as to say that, with relation to the fact in question, it is not evidence;—it does not possess the character and qualities of evidence. But inasmuch as it not only is, by the party who tenders it, brought forward in that character (for this it is by the supposition,) but until it have been more or less examined into, may, upon the face of it, be not altogether unapt to wear in appearance that same character,—an appellation of some sort or other will still be necessary to distinguish it from any such matter as has no pretension at all to the character of evidence: and to this purpose, the word evidence itself is rendered competent, when the adjunct irrelevant is added to it.
As to superfluity:—Of a portion of discourse tendered in the character of evidence, to say that it is superfluous, is as much as to say (supposing it admitted,) not indeed that it is not evidence, but (what comes to the same thing) that, if added to that mass of other evidence with relation to which it is considered as superfluous, so it is that, under the existing circumstances, it would not be itself capable of producing, or contributing anything to the production of, the effect of evidence. Thus, though evidence may be superfluous without being irrelevant, it cannot be irrelevant without being superfluous: and thus, under the more extensive denomination of superfluous, irrelevant evidence may occasionally be included.
In respect of the nature of the mischief to which it is their tendency to give birth, the two qualities, irrelevancy and superfluity, stand in some respects upon the same—in other respects, upon a somewhat different, footing. Of the several evils correspondent and opposite to the several ends of justice, there is not one to which irrelevancy is not capable of giving existence. On the mind of the judge, in the first place, perplexity and hesitation: thence, to the parties, but more particularly to the party in the right, delay, vexation, and expense:—delay, vexation, and expense, after the production of the superfluous evidence, viz. while the time of the judge is occupied by the consideration of it.
Of this mass of evil, though the maximum may be very considerable, the minimum may be next to nothing:—but a mass, the quantity of which will be always more or less considerable, is that which has been generated by and during the production of the irrelevant evidence. Thus much as to delay, vexation, and expense. But in the mind of the judge, by irrelevancy in the evidence, not only perplexity and hesitation, but deception, and thence misdecision, are capable of being produced.
When, without being irrelevant, the evidence is but superfluous, in this case, so far as concerns the delay, vexation, and expense, incident to the task of production, quantity for quantity, it stands upon the same footing as so much irrelevant evidence: and so, perhaps, as to what concerns vexation on the part of the judge. But as to delay resulting from perplexity, and danger of misdecision through deception,—of the evils liable to be produced by irrelevant, these seem scarcely liable to be produced by merely superfluous evidence.
By accident there is scarcely any sort of evidence to which it may not happen to be superfluous: but a species of evidence, of which, except in particular circumstances, it is of the essence so to be, is that particular modification of unoriginal make-shift evidence which has above been brought to view under the name of hearsay evidence.
The following are the particular circumstances just spoken of, by which that species of information, which, generally speaking, will be superfluous and useless, is capable of being rendered serviceable. One is—the non-existence, or non-obtainability, physical or prudential, of all evidence of a more trustworthy complexion from the same source: viz. in case of hearsay evidence in general, the non-existence of that original evidence in which it had its source:—in the case of hearsay evidence of a more distant remove from the original, the non-existence of non-original evidence of a less distant remove.
The other accidental circumstance by which hearsay evidence is capable of being taken out of that state of superfluousness and uselessness which is most natural to it, is where evidence supposed to be derived from the same original source, and from a station nearer to that source, having been delivered, the supposed derivative evidence is called forth, and made to serve in the character of a test of correctness and completeness, and thereby as a security against deceptions incorrectness and incompleteness, on the part of that same anterior, or supposed anterior, evidence.
The account given of the transaction in question, by him who now in relation to it appears in the character of a deposing witness, and who, in relation to this same transaction, was at the time, if this his account be true, a percipient witness,—is it consistent with all such other accounts as it has happened to him to give of that same transaction at any other times? On the one hand, the pertinency of this sort of question—on the other hand, the needfulness of hearsay evidence, as presenting the only sort of information by which an answer can be given to it,—are points not only manifest to reason, but recognised in judicial practice.
The other distinct modification of unoriginal or derivative evidence, is transcriptious evidence. Exists there a case in which, to the purpose of a question concerning the genuineness of a supposed original written instrument, it is in the nature of a supposed or acknowledged transcript to be capable of being rendered serviceable? Answer: Yes;—for example, where, in relation to the supposed original, a suspicion has place, that, subsequently to the making of the transcript, it has been falsified. But, in comparison of the number of instances in which the demand for hearsay evidence on this ground is wont to present itself, that of the instances in which the demand for transcriptious evidence on this same ground can be expected to present itself, will of course be extremely rare.
Note, that in the case of hearsay evidence, the supposition of two different narrators, two different memories,—two distinct but sinister sources of deceptious incorrectness and incompleteness,—is necessarily involved:—not so in the case of transcriptious evidence.
[* ]It is thus that, in the West India colonies, a freeman, on condition of concealing the enormity from other freemen—a concealment to which in general nothing more than common discretion was necessary—could enjoy the benefit, such as it was, of committing at pleasure all manner of enormities, short of murder, on the bodies of all persons in a state of slavery; that is, of all those of whom the great majority of the whole population is composed. In some places, by the substitution of a small fine to all other punishment, the licence to add or substitute murder to every other injury is completed.
[* ]N. B. Another cause, by which mischief in all these varieties is produced, is composed of the mass of factitious delay, vexation, and expense, and in particular the expense by means of which, under judge-made law, for the sake of the profit extractible out of the expense, justice has, to all who are not able to bear the expense, been denied, while to all others it has been sold. The difference is—that of the injustice of which exclusion put upon evidence is the instrument, the burthen falls upon all without distinction, rich and poor alike:—whereas, from the burthen the injustice of which factitious expense is the instrument, the rich, to the amount of a comparatively small part of the whole population, stand in part exempted, viz. to the amount of the difference between what is produced by the absolute denial, and what is produced by the sale of justice.