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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER I.

CIRCUMSTANTIAL EVIDENCE, WHAT—HOW DISTINGUISHED FROM DIRECT EVIDENCE.

This book has for its subject, Circumstantial Evidence.

In relation to this, as to all other objects within the compass of this work, its business and aim is to bring to view the course which, it is supposed, ought to be taken by the legislator and the judge.

By the legislator, the result will be, that, under this head, in the way of regulation, very little ought to be done: done, viz. in such sort as to coerce, in the way of obligation (positive or negative,) the will and conduct of the judge.

What remains is, by apposite instructions, to hold up to view such considerations as promise to be of use, in the character of lights, to the understanding of the judge.

To the exercise of this function, power (political power) not being necessary,—it is capable, indeed, of being exercised by the legislator, but so is it of being exercised by anybody else. Addressed more immediately to the legislator, as the fountain of all authority, the judge is the person in whose conduct, if the instructions here endeavoured to be given are destined to have any influence, their influence will be more directly discernible. Instructions to the legislator, they are, at the same time, instructions as from the legislator to the judge.

Under the denomination either of circumstantial or of direct, everything to which the denomination of evidence is applicable stands included.

When all the evidence is of that sort which is termed direct, no part of it of the nature of circumstantial, the case is such as affords not room for any special inference—for any other inference than that general one, by which, from the discourse by which the existence of this or that fact is asserted, the existence of that fact is inferred, and credited.

When evidence of the circumstantial kind presents itself, and either no evidence at all of the direct kind, or none that is of itself sufficient without the aid of the circumstantial evidence; in every such case, inference—special inference—is necessary. Of some one fact at least (call it for this purpose the principal fact) the existence, with or without the aid of direct evidence applying immediately to that same principal fact, is inferred; viz. from the existence, as established by direct evidence, of some other fact; or more commonly from some cluster of other facts: call them, for this purpose, evidentiary facts.

In every case, therefore, of circumstantial evidence, there are always at least two facts to be considered:—1. the factum probandum, or say, the principal fact—the fact the existence of which is supposed or proposed to be proved—the fact evidenced to—the fact which is the subject of proof;—2. The factum probans—the evidentiary fact—the fact from the existence of which that of the factum probandum is inferred.

The principal fact is in its nature susceptible of two main distinctions: it may be—it cannot but be—either of a physical or of a psychological nature. If it be a simple one, it cannot be of both natures at once: if it include both, it must be distinguished by the name of a complex or compound fact; for in practice, its properties will in this case be found to be different from what they are in the other.

This same distinction is alike applicable, in every instance, to the evidentiary fact; and the occasions for applying it to that latter object will occur as frequently as the occasions for applying it to the other.

The same fact which, with relation to one fact, bears the relation of a principal fact, will, with relation to another (or even the same) bear the relation of an evidentiary fact.

In this way, a chain of facts, of any length, may be easily conceived, and chains of different lengths will be frequently exemplified: each such link being, at the same time, with reference to a preceding link, a principal fact, and with reference to a succeeding one, an evidentiary fact.*

In a chain of this sort, it becomes necessary to distinguish the several precedential or introductory facts (principal and evidentiary) from the ultimate principal fact. The ultimate principal fact occuptes that station only: it is the very fact sought: it is not viewed for the purpose of inducing a persuasion of the existence or non-existence of any other fact.

In all criminal cases, this fact is a complex fact; and in such case complex, as to include in its composition divers psychological facts, together with at least one fact of the physical kind, affirmative or negative.

In the case of direct evidence, the distinction between the principal fact and the evidentiary fact is alike applicable, and the union of the two alike indispensable, as in the case of circumstantial evidence. But in the case of direct evidence, the evidentiary fact is throughout of an uniform description. It consists in the existence of a person appearing in the character of a deposing witness, and, in the way of discourse, asserting the existence of the principal fact in question, on the ground of its having, in some way or other, come within the cognizance of his perceptive faculties.†

If, in order to make up a complete collection of the facts, the proof of which is necessary to afford a ground for the decision in question, there is no need of forming any conclusion—of drawing any inference—of deducing the persuasion of the existence of any one fact from the existence of any other fact—in a word, from any other source than the direct assertion of a deposing witness, speaking in the character of a percipient witness;—in that case, the proof consists wholly of direct evidence; and nothing that comes under the notion of circumstantial evidence forms any part of it.

But so long as the body of proof, to make it complete, stands in need of any inference (though it be but a single inference, and that ever so close and necessary a one,) in so far an article of circumstantial evidence forms a necessary part of it.

In a case regarded as criminal, the body of evidence (unless it consist of confessorial evidence) cannot, if complete, be composed solely of direct evidence: how satisfactory soever, it cannot but include a mixture of circumstantial evidence. For, to constitute a criminal act, one or more facts of the psychological kind are indispensably requisite: in most instances, the sentiment of consciousness, with relation to the existence of divers exterior facts; in all cases, intentionality, viz. the intention of bringing about the obnoxious event, or at least of doing the physical act by which it is produced or endeavoured to be produced.‡

To complete the body of evidence necessary to the proof of a criminal act, proof of psychological facts (one or more) is indispensable: but unless by the individual himself whose mind is the scene of them, no fact of the psychological kind can be proved by any direct testimonial evidence. Why?—Because, unless stated by the individual himself in whose mind the fact is considered as having place, the existence of any such psychological fact can only be matter of inference. What passes or has passed in my own mind, I know by my own internal consciousness, and without any inference: concerning what passes or has passed in the mind of Titius, I cannot know but by one or other of two means, viz. either from what he himself declares (so far as I credit what he says,) or from the observations I have had the opportunity of making on the subject of his exterior deportment.

In regard to a complex act of this class (the class of criminal offences,) direct testimony, therefore, consisting of extraneous testimony alone, cannot but be incompetent; or, at any rate, if a body of extraneous evidence be in itself complete, and (in its effects on the mind of the judge) satisfactory and persuasive, it will be so in part only, in the character of direct evidence; as to the other part (viz. in so far as any facts of the psychological class are proved by it,) in the character of circumstantial evidence.

In regard to the existence of facts considered in the character of principal facts, it is no uncommon case for the persuasion to be indicated, and to find credence, and that with reason, on the ground of circumstantial evidence alone, without the aid of any direct evidence. But it is seldom indeed that the body of evidence adduced in proof of any such principal fact, would, upon examination, be found to consist purely of direct evidence, unaccompanied by any admixture of circumstantial evidence.

This is so true, that, of a body of evidence (say the testimonial evidence of an individual deposing in the character of one who was at the time in question a percipient witness of the matter of fact in question)—of a body of evidence, delivered in the character of a body of direct evidence,—it is very rare that, upon examination, the whole would be found to consist of direct, without any admixture of circumstantial, evidence. Simple perception is the operation of sense; inference is the operation of the judgment. But, by the most constantly in exercise of all the senses, viz. sight, it is seldom that any belief of any matter of fact is produced, but that the judgment has been more or less at work in the production of it.*

The evidence afforded by any given mass of testimony is either direct or circumstantial, according to the relation it bears to the fact to which it is considered as applying. It is direct, in respect of any and every fact expressly narrated by it; and, in particular, every fact of which the witness represents himself as having been a percipient witness. It is circumstantial, in respect of any and every fact not thus expressly narrated by it; in particular, every fact of which the witness does not represent himself as having been a percipient witness, and the existence of which, therefore, is matter of inference, being left to be concluded from its supposed connexion with the facts spoken to by the testimony in its character of direct evidence.

The testimony of a witness operates as circumstantial evidence, not only in regard to all facts which, not having been actually perceived by him, are by him inferred from facts which he has perceived,—his testimony (or at least the fact of his giving utterance to such testimony) may operate further in the character of circumstantial evidence, in regard to facts which have neither been perceived nor inferred by him, but which are inferred by the judge, from the fact of his having uttered the testimony. In this case, the evidentiary fact is not the testimony itself, but the delivery of it by the witness.

In the character of direct evidence, the truth of any decision grounded on the testimony, will depend altogether upon the truth—the logical truth, the verity—of the testimony. If the facts are (whether knowingly or not knowingly) misrepresented by it, the decision will, in so far as the question of fact is concerned, be erroneous. In the character of circumstantial evidence, the truth of the decision will not depend upon the truth of the testimony: it will depend upon the truth, the justness, of the interence grounded on it; on the strength, the real strength of the connexion between the fact assumed (viz. the fact of the utterance of a mass of testimony, assertive of the fact purporting to be asserted by it,) and the fact inferred from that same assumed fact. If the inference grounded on the testimony be a just inference, the decision grounded on that inference may be a just decision, although the testimony which it has thus taken for its ground be false. A man suspected of a murder is interrogated on the subject of it by a judge: if, being guilty, he confesses the fact (including the several circumstances necessary to fix it upon himself as the author of it, and in the character of a crime,) there is no demand for inference—the testimony amounts to a full confession, and operates purely in the character of direct evidence:—if, being guilty, he does not confess the fact (he being at the same time pressed with the strings of questions which a man, acting on the occasion with an ordinary degree of zeal, probity, and intelligence, in the character of a judge, will not fail to ply him with,) the testimony thus extracted will almost always, or rather necessarily (in so far as he quits the intrenchments of non-responsion, or its equivalent, evasive responsion) contain a mixture of truth and falsehood. Now it is, that the testimony—not being, in respect of such part of it as is true, full enough to operate of itself with a conclusive force in the character of direct evidence—is consulted (as it were,) and made to operate further, in the character of circumstantial evidence; in which character it may be full enough to operate, and even conclusively; affording full satisfaction—generating a full persuasion,—although, in the character of direct evidence, it was deficient.

But on this occasion, such parts of the testimony as are false, may (in so far as they are understood to be false) contribute in support of the conclusion, just as much as the facts that are true. For, not only when the whole narrative is viewed together, in a general point of view, falsehood is, to the apprehension of every rational mind, a strong indication and symptom of delinquency—of whatever modification of delinquency the defendant on the occasion in question happens to be suspected of,—but, in respect of the details of the transaction, this or that particular falsehood (an assertion representing this or that fact as existing at the time and place in question, which did not exist at that time and place, or representing as not existing at the time and place in question a fact which, at that time and place, did exist) will afford an inference (and that frequently a conclusive and perfectly satisfactory one) establishing this or that particular truth—the existence of this or that fact which then and there did exist, or the non-existence of this or that fact which then and there did not exist.

From the foregoing elucidations, the definition of an article of circumstantial, as distinguished from an article of direct evidence, may be deduced as follows; viz.—

The principal fact being given, and being the same in both cases; the evidentiary fact, constituting the article of evidence—if it be of the nature of direct evidence (having for its source a person, to wit, a single person, and no more)—consists of an averment, statement, assertion, narration (all these mean the same thing,) made by that person, averring that, at a specified time and place, the principal fact in question came within the cognizance of his senses: such assertion being expressed either by words spoken, or by written discourse, or even by gestures (or modifications of deportment,) if such gestures were intended to convey an assertion to the effect in question, instead of its being conveyed by words.

In the same case (as above,) the evidentiary fact in question, if it be of the nature of circumstantial evidence, may consist either of some physical fact, from a real source, or (if from a personal source) a psychological fact;* such psychological fact having necessarily for its index, some physical fact, issuing from the same personal source.

[* ]Just so is it in the case of a chain of causality, a chain of causes and effects. Indeed, every chain of causality is a chain of evidence. Every effect is evidentiary of its causes: every cause, is evidence—is evidentiary—of its effects.

[† ]This is alike true in the case of hearsay evidence (of which hereafter) as in that of the evidence of an immediate witness; only that, in the case of hearsay evidence, the fact, the existence of which is asserted by the so deposing witness, is—not the fact sought, not the ultimate principal fact—but only a fact supposed to be connected with it; the fact of his having heard, or otherwise perceived, a fact evidentiary with relation to it; viz. a statement given by some other person in relation to such principal fact. Here are two or more articles of evidence combined together; the one judicially exhibited, the other extrajudicially: but both of them belong alike to the head of direct evidence.

[‡ ]If the forbidden act be of the negative cast, it comes to the same thing; only—instead of the existence of the intention in question—the psychological fact in question, the psychological fact necessary to the composition of the crime, consists in the non-existence of it.

[* ]See Berkeley’s Essay towards a new Theory of Vision.

[* ]Considered in respect of its source, all evidence flows either from persons or from things;—all evidentiary facts, as well as all principal facts, are afforded either by persons or by things.

Considered in its nature, all psychological evidence cannot come under any other denomination than that of personal evidence.

The description of real evidence—of physical facts, whether considered as principal or as evidentiary—is not alike narrow. Persons, being composed of matter as well as spirit, having their physical properties as well as their psychological properties, belong, in virtue and to the extent of their physical properties, to the class of things. Hence, real physical evidence may flow alike from a personal as from a real source: personal evidence cannot flow from any but a personal source.