Front Page Titles (by Subject) CHAPTER VI.: MAKESHIFT EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER VI.: MAKESHIFT EVIDENCE. - 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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Casually written Evidence.
1. Where, by a party standing in the same situation in point of interest, as the deceased* author of a casually written discourse—a letter or memorandum, a statement supposed to be applicable to the question of fact upon the carpet,—any such letter or memorandum is produced, the first care of the judge ought to be, to put himself upon his guard against the characteristic fraud to which this species of evidence is exposed. He will inquire and consider whether it be or be not likely, that under the individual circumstances of the case, in the view of compassing an object which could not be compassed till after his death—such as the advantage of an individual or class of persons dear to him, or the detriment of an individual or class of persons odious to him, the author of the paper should have set himself to fabricate false evidence—evidence of the falsity of which he himself was conscious—in consideration of the security which the hand of death would by that time have afforded him against shame and reproach, as well as against legal punishment.
2. If, under the individual circumstances of the case, mendacity does not appear probable, the next point for the consideration of the judge is—how far it may be probable that, under the same circumstances, incorrectness and so far falsity on the part of the statement, might be produced by the effect of bias.
3. If the correctness of the statement do not appear to have been impaired either in the way of mendacity or by bias, another point for his consideration will be—whether the amplitude of the statement may not have been narrowed to the prejudice of either party by omissions, designed or undesigned.
4. To assist his judgment on the above points, the judge will take into consideration the relation of the writer in question to the cause upon the carpet; viz. whether, had he been alive, he would have been a party to it, sole or in conjunction with other parties: and if not, whether, with reference to him or them who at that time could have been parties, or with reference to those who at the time of the cause upon the carpet are now parties, he would have been in any of the situations, as above enumerated, to which different interests liable to act in the character of sinister interests are naturally attached.
5. He will moreover consider, not who was the writer, but who was the author,—not whose hand the writing is, but whose discourse it is,—of whose mind the statement it contains is the expression. A written discourse may be the discourse of a person other than he by whose hand it was written,—either as being a transcript, a discourse transcribed mediately or immediately from an original writing—from a writing of which the writer was the author,—or as having been written from dictation, i. e. from the words as spoken, or from memory.
6. If the plea assigned for the exhibition of the written casual evidence in question—the letter or memorandum—be, not death of the author, but peregrination, the danger of the characteristic fraud will here likewise require to be considered: whether the memorandum or letter obtained from the individual in question were not obtained from him, either in the expectation of his quitting the country of his own accord, or in consequence of a plan for engaging him to quit it after the furnishing of this evidence, or even in pursuance of an agreement already entered into with him for that purpose.
7. The case may be, that the letter or memorandum in question was not penned till after the commencement of the suit in the course of which the question arises, whether such letter or memorandum shall be received in the character of evidence. In this case, the judge may require the party by whom it is tendered to join with the adverse party in taking measures for the subjecting the testimony in question to the truth-insuring process, in its several features of oral examination—judicial scrutiny by the judge, cross-examination by the adverse party or his agent—or such of them as the system of procedure established in the foreign country in question will admit of. And as a means of engaging him to this concurrence, will be the rendering the accomplishment of the process in question a condition sine qua non of the admission of this lot of evidence.
8. In the same way, provision may be made by the judge for giving trustworthiness to a lot of written casual evidence, already in existence before the commencement of the suit. In both cases, the lot of evidence in question, whether the substance of it be or be not admitted in conclusion into the mass of ultimate evidence, serves in the character of indicative evidence.
9. If through poverty, the party by whom the written casual evidence is adduced be unable to join in the measures requisite for subjecting it in the foreign country to the proper examination, it will rest with the judge whether to exclude it, or to receive it into the mass of ultimate evidence. But if the party by whom it is opposed offer to defray the costs of such examination at his own expense, such offer ought to be accepted, subject to the measures necessary to be taken to prevent the other party from being definitively a sufferer by the delay, especially if it appear that the desire of the undue advantage to be gained by delay is the motive, or among the motives, by which such offer has been produced.
10. Supposing the law on this behalf to be as above, and to be generally known and understood,—the less the expense of examination in partibus externis, the less the probable expense of such examination, the less the probability of the characteristic fraud, in so far as concerns the party being at the expense of making it worth the witness’ while to quit his country for the purpose of fabricating such evidence. For, supposing that expense incurred, the design which on this supposition gave birth to the fraud is frustrated. There remains the possible case—that, knowing the witness to be about to go abroad on another account, the party may, without the need of any such expense as above, have engaged him to furnish the makeshift evidence in question, taking his chance for the effect to be produced by it.
Hearsay evidence, i. e. oral evidence of oral evidence:—oral evidence sanctioned, scrutinized, and cross-examined, of oral evidence not sanctioned, not scrutinized, nor cross-examined.
1. In the case of hearsay evidence, against the characteristic fraud, the same vigilant precautions will be requisite on the part of the judge as in the case of written casual evidence. To this danger is moreover added that of unintentional incorrectness in the statement given by the deposing witness of the discourse supposed to have been uttered in his presence by the supposed percipient witness.
2. In the case of hearsay evidence of more than one remove, the judge will of course resort at once to the supposed percipient witness;—the attention of the judge, and through him of the parties, will of course be directed at once to the supposed percipient witness. Should he be at home and forthcoming, the occasion for applying to any intermediately reporting witness or witnesses will of course cease: should he be in foreign parts, everything that relates to the provisional admission of his evidence, and to the purification of it, applies to this case, in the same manner as to that, where, between the deposing witness and the supposed percipient witness, there is no supposition of any intermediate pen or tongue.
Evidence extracted in a mode other than the most advantageous.
In this head of instruction, an apparent inconsistency will be apt to present itself at first view. It represents the legislator as surveying his own work, acknowledging its imperfections, and suffering them to continue unamended. Such and such are the different modes of extracting evidence that have been in use: of these, one only is properly adapted to what ought to be its purpose: as for the others, they are more and more unfit, in proportion as they recede from this only proper one. All these unfit ones I continue, notwithstanding their unfitness; and so doing, I now, instead of correcting the evil, proceed to apprise you of it, and put you upon your guard against their respective unfitness, and of the several degrees and causes of it.
Upon a closer inspection, the inconsistency would be found partly real and partly only apparent:—
1. In the first place, to abolish a few ill-grounded rules on the subject of evidence, is one thing: to reform the whole system of procedure, is another thing. The former task would be comparatively short and easy; the other, at best long and difficult. The former task might be accomplished long before the other, or though the other were never to be accomplished.
2. In the next place, although a thorough reform were to be accomplished, and the imperfect modes of extracting evidence were all, as far even as the nature of things permitted, all of them to give way to the only perfect one, still the reform would operate no otherwise than in futuro;—the masses of evidence that had been collected in the several imperfect modes would nevertheless remain such as they were: they could not be regenerated and collected anew according to the perfect mode.
3. In the third place, there are several cases in which, after everything that has been done in the way of reform, after the powers of reformation have been exhausted, the judge is obliged to take up with evidence extracted in a comparatively imperfect and disadvantageous mode:—in which the evidence, such as it is, must continue to be employed by the judge, it not lying within the power of the legislator to cause it to be extracted in any less disadvantageous mode. For example, evidence extracted causâ aliâ, and the witness dead.
1. First case of suspicious evidence,* —the suspicion arising from its having been extracted in the course of another cause, between other parties.
The ground of infirmity here arises from this circumstance, viz. that the party against whom the testimony is produced had no opportunity of encountering it by other evidence.
This ground will be stronger or weaker according to several circumstances:—
It may be that the party, against whom the evidence was produced in the prior cause had exactly the same interest, or what comes to the same thing, an interest equally strong, to do what was in his power to encounter it, as the party against whom it is produced in the case upon the carpet. And though the stakes should not be so great, yet if in the prior cause the interest were adequate and the means adequate, i. e. if in the joint considerations of delay, vexation, and expense, there were nothing that was of a nature capable of deterring or disabling the party from encountering the evidence,—from producing the counter-evidence,—the witnesses whether to the same fact or to the ulterior fact, necessary to the purpose in this,—though the interest itself were less strong, the effect of it upon the conduct of the party in question, and thence upon the fate of the cause, would not in general be naturally different.
In this case, the only infirmity attending the extraneous evidence with reference to the purpose of the principal suit, is what results from this circumstance, viz. that a man cannot in general have the same confidence in the exertions of another as he has in his own. To the party it will accordingly be apt to appear, that if in the prior cause the encountering of the evidence had fallen to his share, instead of that of the actual party in that cause—viz. the party against whom it was produced in that cause—his exertions might have been attended with more success. At any rate, such is the observation which he will naturally be disposed to bring forward as an argument against the competency of the credit of the extraneous evidence. But what weight is due to the observation will rest with the judge of fact to determine, consideration had of the individual circumstances of the principal case.
In this case, the supposition is, that in the principal case the means of encountering the extraneous evidence had been carried off by death, or what is tantamount to death: for if not, the case affords no reason why the evidence should not be permitted to be encountered: just as it might have been encountered, if exhibited in the principal cause in the first instance, without having ever been exhibited in any prior cause.
The present case, being the case in which the objection against the lot of evidence in question is confined to the want of opportunity for its being encountered by other evidence, by the party against whom it is now produced, supposes it free from every other objection—from every other infirmity—and therefore extracted in the best manner, with the benefit of opportunity of cross-examination consequently included.
In this case, the circumstance which principally requires the attention of the judge is the danger of collusion. A case that may happen, and that has sometimes happened, is—that by procurement or otherwise, by collusion with one of the parties to the principal cause, a prior cause has been exhibited for the express purpose of establishing as true, a statement which in reality was not true, and which would have been proved not to be true, had the evidence which the case afforded been adduced. Take, for example, the case of a marriage, a will, or any other contract. Validating facts really took place, and these are accordingly proved by testimony which has nothing of untruth in it. But by other testimony, invalidating facts* would also have been proved:—by which invalidating facts, the testimony in favour of the validating facts might have been encountered, and the effect of it destroyed. This counter-testimony being kept back, and kept back on purpose, the consequence is, that unless an opportunity be afforded of letting in the counter-evidence—the invalidating evidence—the marriage, the will, the contract, which was really invalid, must be deemed valid, and in that respect injustice be done.
Such collusion will not be very apt to take place, unless it be in contemplation of an act of unwariness, real or supposed, on the part of the law, in rendering evidence thus exhibited in a prior cause between one set of parties absolutely conclusive in a posterior cause between other parties, the faculty of encountering it not being allowed. Since in this case, so long as the percipient witness by whose testimony the fallacious testimony may be encountered and corrected, is neither dead nor tantamount to dead, such collusion would not attain its end. It is not, however, impossible, inasmuch as if the only witness or witnesses by whose testimony the fallacy could be dispelled appear likely to be short-lived, the fallacy may in that event be incapable of being dispelled, and success may crown the collusive and dishonest enterprise.
In the case of a plan of fraud of this description, it is but natural that the party to whose prejudice it would redound, should himself be aware of it: but be this as it may, it is the duty of the judge to be upon his guard against it, and act accordingly.
[* ]Deceased.] For so long as he is living, the fraud cannot, upon the principles of this work, take place: the success of it being rendered hopeless by the examination of the person in question vivâ voce upon oath.
[* ]No other cause is discussed in the MSS.
[* ]For example—force, intoxication, or permanent insanity.