Front Page Titles (by Subject) CHAPTER V.: OF THE PROBATIVE FORCE OF EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER V.: OF THE PROBATIVE FORCE OF 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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OF THE PROBATIVE FORCE OF EVIDENCE.
Ordinary degree of probative force,—what.
Of the several objects that come within the present design, the first being the prevention of deception, I proceed to take a concise view of what may be proper to be done for the production of a result so essential to justice.
Deception is a relative term: judgment, regarded as false, is so regarded with relation to some other judgment taken as a standard; which standard, by the unalterable constitution of the human mind, and of the language by which its perceptions are undertaken to be expressed, can never be other than the judgment of the individual by whom the term deception is employed.
A mass of evidence being produced on the plaintiff’s side of the cause; and on the defendant’s, no matter whether a mass of counter-evidence or none (say, to simplify the matter, none;) the judge, grounding on this evidence his decision, so far as the question of fact is concerned, decides in favour of the plaintiff’s side.
Taking note of this decision, and of the evidence on which it was grounded, the judgment or opinion delivered by me on the subject is, that, in this instance, deception, with the misdecision that has followed upon it of course, has had place.
Developed, my opinion, as expressed above, will be found to amount to this: of the body of evidence collected by the judge, the probative force is not, in my opinion, great enough to warrant the conclusion he has drawn from it; to wit, a conclusion, expressing his belief of the existence of the matter of fact undertaken on the plaintiff’s side to be proved, viz. by the delivery of this body of evidence.
In this opinion of mine, thus declared, it is assumed and implied, as a notorious matter of fact—that the quality by which testimony or other evidence delivered by an individual in relation to a matter of fact, produces, on the part of another individual, a belief of the existence of that matter of fact, is susceptible of degrees in point of quantity: that in my own mind the quantity of this quality was not sufficient to produce that effect which it produced on the mind of the judge: and this being the case, it is impossible for me not to regard the judge as having, in respect of such his opinion, been deceived.*
The quantity of probative force incident to a body of evidence, is manifestly, as above explained, susceptible of degrees: and what is equally manifest is, that, to warrant a decision conformable to the tendency of the evidence, it is not necessary that the probative force of it should in every instance be at the highest degree.
To form, for the purpose of discourse, a nominal standard of comparison; let us take a mass or lot of evidence, of such a description, as, in the judgment of the ordinary run of mankind, is found sufficient (if not contradicted or otherwise counter-evidenced,) to produce a belief of the existence of the matter of fact which it asserts: and this mass of evidence, let it be the deposition of an individual taken by lot, and unknown to the judge; the witness who thus deposes asserting, that, in the situation of percipient witness, the matter of fact presented itself, under the circumstances stated by him, to the cognizance of his senses.
Let us call the probative force possessed by an article of evidence of this description, the ordinary degree of probative force.
What is manifest to every man is, that, by evidence of this description, belief is frequently, indeed most commonly, produced; and that, in the greatest number of cases, of the belief so produced, right judgment, and not deception, is the consequence.
Unfortunately, what is equally notorious, is, that, of belief thus produced, deception is but too frequently the consequence.
In another case, in which the quantity of probative force has been, to a certain degree, greater than it was in the one first mentioned, deception has not been so frequently the consequence.
Here, then, we have an assumed nominal standard of comparison for the probative force of evidence. A lot that comes up to this standard, but does not rise above it, is what is meant by an ordinary mass or lot of evidence: a mass or lot that is considered as rising above it, may be termed a mass or lot of superordinary or superior evidence: any mass or lot that is considered as falling short of it, may, in like manner, be termed a mass or lot of infra-ordinary or inferior evidence.
The greater the quantity of probative force in the mass of evidence produced on one side, deduction made of that which is produced on the other side, the more certain in the eyes of a bystander will be its effect on the mind of the judge, and the greater in the mind of the judge will be the ease and satisfaction with which the judgment of belief pronounced on the strength of it will be accompanied.
As it is the business of the legislator so to order matters, that, on each occasion, the obtainable quantity of probative force shall be as great as possible; so it is the business of the judge to be aware of all the several circumstances by which that quantity is capable either of being augmented or diminished.
Probative force, by what circumstances increased.
A quantity of probative force being thus marked out for a standard, let us proceed to observe by what circumstances that quantity is capable of receiving increase and decrease.
1. One source of increase is derived from the quality of the supposed percipient or observing witness, thus standing forth in the character of a narrating or deposing witness. In the case of that witness, the probative force of whose testimony was assumed above as the standard quantity, the deponent was taken from the middle rank or level, in respect of the qualities, moral and intellectual, the union of which is necessary to trustworthiness. But, suppose that this or that visible situation or station in life (whether constituted by opulence, rank, power, or official function, or any combination of these circumstances) is by general experience found to render a man less apt, on the sort of occasion in question, to deliver a statement in any respect incorrect or incomplete, than a man of a different condition, inferior or even superior, it is not at present necessary to determine which,—here, viz. in the quality or condition in life of the person (the narrating or deposing witness,) we see one source from which the probative force of an article or mass of evidence may receive increase.
To this head belongs, and on this ground stands, whatever superior degree of credence has in practice been, or may with propriety be, given to official evidence in general, or to the testimony of persons invested with judicial offices in particular.*
2. Another, and a much more distinct and unquestionable source of increase, is that which is derived from the number of the witnesses. Here the mode of the increase being of the utmost possible simplicity, the degree of it is susceptible of mensuration, with that exactness which is the exclusive property of mathematical operations. To the testimony of what number of ordinary witnesses, the testimony of what lesser number of superordinary witnesses shall, in respect of probative force, be equivalent, it may not be easy, or indeed possible, to determine. But take the witnesses from either, or from any other level (it being the same for all of them,) the increase which the aggregate probative force of the whole mass will receive from the increase of the number will be always determinable with mathematical exactness.
Suppose that—instead of operating all on one and the same side, viz. in proof of the fact in question—the respective testimonies of a number of witnesses, all of the same level, are divided, some operating in proof of the fact, others in disproof of it: in this case, the mode of measuring the probative force will be nearly as simple, and altogether as certain, as in the former. In the former, it was the sum of the testimonies that was taken; in this, the difference.
3. Number of the witnesses, and a more than ordinary degree of presumable trustworthiness on the part of those witnesses respectively, are not the only sources of increase to the probative force of a mass of evidence. Another quarter from whence it is capable of receiving increase, and to an indefinite amount, is evidence of that sort which may be termed real evidence—evidence of which some object or objects belonging to the class of things is the source.†
Probative force, by what circumstances diminished.
Circumstances, the tendency of which is to diminish the probative force of testimony, may be distinguished, in the first place, into such as regard the source of the testimony—such as regard the shape in which it is delivered—and such as regard the remoteness of the testimony, as delivered, from the supposed seat of perception.
I. Circumstances regarding the source of the evidence:—
The trustworthiness of a person, considered at once in the character of a supposed percipient, and, as such, in that of an actually deposing witness—in other words, the probability of correctness and completeness in his testimony, and thence its probative force—is liable to be diminished by an imperfection in the intellectual, or by an imperfection in the moral or volitional part of his frame. Imperfections in the intellectual part may be comprised under the head of imbecility, or intellectual weakness: and these apply to him in both the above characters; viz. that of a supposed percipient, and that of a narrating or deposing witness.
Of the circumstances tending, as above, to diminish the probative force of a man’s testimony, those which regard the volitional or moral part of his frame operate by their tendency to produce, on the part of his testimony in the character of a narrating witness, a disposition to incorrectness or incompleteness.
Of these, such as tend to operate in that direction upon his will in the character of motives, are referable to the head of interest, viz. sinister interest:* such as tend to dispose him to yield to the force of interest acting in that sinister direction, are referable to the head of improbity.
When, the deposition of the witness being considered as either incorrect, or as to material circumstances, incomplete, he is considered as being, at the time of his delivering it, conscious of such its incorrectness or incompleteness—such incorrectness or incompleteness is said to be the result of, or accompanied by, mendacity; which, according as the ceremony of an oath happens to have been applied or not, is or is not converted into perjury. Where, though produced by the action of sinister interest, he is considered as not being conscious of it, the imperfection is said to have bias for its cause.
II. Circumstances regarding the shape of the evidence:—
By the shape of the evidence or testimony, I understand the form or mode in which it is delivered on the part of the witness, received or extracted on the part of the judge.
On looking over the practice of nations and judicatories (not to speak of families) in this view, a variety of operations may be observed as having been employed in the character of securities or tests, applied to the testimony so delivered on the one part, so received or extracted on the other; securities, for the purpose of increasing the probability of correctness and completeness on the part of the testimony, before or during the delivery of it; tests, as assisting the judge in forming his judgment concerning the correctness and completeness of it, during and after the delivery of it.
Of these securities or tests, the assortment employed on each occasion constitutes the shape, the form, the mode, in which on that occasion the testimony is delivered, received, extracted.
In the list of them, some little difference is liable to be made by a corresponding difference in the nature of the case. This noted, any case being given, the union of the several securities, as above, applicable with advantage to that case, will constitute the shape most proper to be given to the evidence in that case: and, so far as shape is concerned, the non-application of any one of them, yet more of any greater number, or the whole number, of them, will have the effect of denominating the evidence an inferior sort of evidence—a sort of evidence, the probative force of which has, by the operation of that deficiency, suffered a decrease.
So far as the nature of the case (meaning in each instance the individual case) is such as to render the application of the several securities practicable,—so far the degree of probative force given to it depends upon the will, and is at the option of the legislator—or, under unwritten law, of the judge, in his disguised, but not the less real, character of legislator.
The person who is the source of the evidence in question, being forthcoming, or in some other way accessible and justiciable, it depends upon the legislator, and upon the judge as legislator, whether to receive or call for his testimony under the securities afforded by oath and examination together (as before a jury,) or without either (as in case of common-law pleadings,) or under oath without examination (as in case of affidavit evidence,) or under examination without oath; and the examination performed either in the oral mode, as in jury-trial, or in the epistolary mode, as in the case of a bill in equity.
III. Remoteness of the testimony, as delivered, from the supposed seat of perception:
In the case of the above-supposed standard lot of evidence, the testimony or statement of the fact was delivered to the ear or the eye of the judge in an immediate way, from the mouth or the pen of the deponent by whom, in the character of a percipient witness, the fact was supposed to have been observed. But, between the mouth of the percipient witness and the ear of the judge, any number of mouths may have intervened; of which that one, by which the statement was conveyed, without the intervention of any other, to the ear of the judge, is the mouth of the deposing witness. For every one of these intervening mouths, the evidence, it is manifest, cannot but lose a proportionate share of its probative force. In like manner, between the pen of a percipient witness and the eye of the judge, may intervene any intermediate number of pens: like loss of force for every intervening pen as for every intervening mouth; though not in equal degree from the intervention of pens as from the intervention of mouths.
As mouths may succeed mouths, and pens pens, so may mouths and pens succeed one another in every variety of alternation. To these varieties correspond so many specific modifications of the genus of transmitted or transmissive evidence—modifications, some of which, being noticed in practice, require distinctive names.
A circumstance that contributes in a principal degree to the diminution of the probative force that takes place in the case of transmitted evidence, is, that the factitious securities applicable to the testimony of the deposing witness, do not reach nor apply to the station of the percipient witness.
It often happens, that the very fact in question has not fallen within the reach of human perception or observation. In this case, the judge is left to infer the existence or non-existence of it, from the ascertained or supposed ascertained existence or non-existence of some other fact or facts, so connected with the existence or non-existence of the principal fact as to be considered evidentiary with relation to it; i. e. as serving to prove to us the existence of it—to persuade, to satisfy us of the existence of it, with an indefinitely variable degree of force. Evidentiary facts, thus connected with the principal fact, constitute what, in the language of jurisprudence, is called circumstantial evidence.
In this denomination may be seen an appellation familiar, in the language of England, to lawyers, and even to non-lawyers, but not so in the language of any of the nations trained up under Roman law.
The species of evidence designated by this appellative, agrees in one respect with the above-mentioned modifications of unoriginal evidence, viz. in respect of remoteness from the source. In every instance, the image presented by it is the image—not of the fact itself which is in question,—but of some other fact, the tendency of which is to produce, or contribute to produce, a belief of the existence of such principal fact.
With few or no exceptions, all real evidence will be found to come under the head of circumstantial: but there is a species of evidence, which, though not properly testimonial, may yet, inasmuch as it has a person for its source, be called personal.*
To this head may be referred deportment, and in some cases even discourse.†
[* ]On an occasion of this sort, the ultimate standard of rectitude can no more be exterior to the mind in which the opinion declared is formed, in the case of the most diffident, than in the case of the most confident, of mankind. Instead of taking my own view of the matter for the ground of the opinion so declared by me, suppose me to take that of Hypercrito, the judge of appeal, superordinate to the judge first spoken of: the opinion of Hypercrito is the standard of rectitude, so far as assumed by me for that purpose: but, in pronouncing that the opinion, whatever it may have been, pronounced by Hypercrito, is right, my judgment has not assumed any standard of rectitude exterior to itself.
[* ]Unless it be a superior presumption of non-exposure to the seductive influence of sinister interest.
[† ]Of this, particular mention will principally be made, under the head of Circumstantial Evidence. As to written Evidence, it is nothing but personal, delivered through the medium of real evidence.
[* ]Interest should to this purpose be understood in its largest and most comprehensive sense; viz. as including not only self-regarding interest, but the interest constituted by sympathy or antipathy, as towards any other persons, taken individually or in classes.
[* ]Any sort of circumstantial evidence, which, though it have for its source a person, serves not to convey any indication of his mind, may with more propriety be ranked under the head of real than of personal evidence: as, for instance, the appearance produced on the body of a man already dead, or still alive, by a wound, and considered as affording circumstantial evidence, indicative of the instrument or hand by which the wound was inflicted.
[† ]A person being accused of a crime of any sort, suppose him, for argument’s sake, guilty. On an occasion judicial or extrajudicial, he has joined with others in discourse, bearing in some way or other relation to the fact, the principal fact, in question. So far as what he says is regarded as true, it is of the nature of direct evidence, and comes under the denomination of confessorial evidence: so far as it is regarded as false, evasive, or in any other way tending to deception, it is of the nature of circumstantial evidence; falsehood, evasion, deception, or the endeavour to deceive, being so many evidences, presumptive evidences, of guilt, i. e. of the commission of the criminal act in question, whatever it be.—See Book V. Circumstantial.