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CHAPTER V.: OF NON-RESPONSION, AND FALSE, OR EVASIVE RESPONSION, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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OF NON-RESPONSION, AND FALSE, OR EVASIVE RESPONSION, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.
I. First article of that class of circumstantial evidence, the nature of which is to present itself at a period of time subsequent to that of the principal fact,—non-responsion judicial: silence on the part of an individual (being a party to the cause) at the time of his being subjected to examination in due form of law: wilful forbearance to make answer, in the character of a deposing witness, to any relevant question put to him in the course of a judicial examination. In this case is involved the supposition of the establishment of the practice in question, in the instance of both parties, plaintiff and defendant, in both sorts of causes, penal and non-penal: and, in the supposition of the establishment of that practice, is again involved the supposition of the propriety of it—of the propriety of it, in the utmost latitude of which it is susceptible, as above. Is it then proper, and to an extent thus unlimited? Yes: and that for two sorts of reason. In the first place, because the notions by which, in one of the four cases (viz. that of the defendant in a cause of a penal nature,) it stands condemned, are mere prejudices—groundless and utterly indefensible prejudices—conceits, founded not on the principle of utility, but solely on the principle of caprice. In the next place, because, in this case, as in the three others, the practice in question is the most powerful as well as the safest of all instruments that can be employed for the discovery of truth. The reasons in favour of the former of these positions will be exhibited under other heads:* the reasons which the latter has for its ground will now appear as we advance.
The fact of which this sort of behaviour operates as evidence—the conclusion to which it tends, the inference which it appears to warrant—varies in its description, as already intimated, according to the quality of the cause, penal or non-penal, and the relation which the party, plaintiff or defendant, bears to it.
Case 1.—Let the cause be a penal one, and the person examined in the character of a witness, the defendant. In this case the conclusion will naturally be, that he is guilty of the offence of which he stands charged. Thus stands the proposition: the proof will be exhibited further on.
Case 2.—Let the cause be a non-penal one, and the party examined be the defendant, as before. The conclusion is of the same kind, varying only with the nature of the cause. The predicament he stands in is of the number of those in which a man stands bound by law to take upon him the obligation sought to be imposed upon him by the plaintiff’s claim.
Case 3.—Let the cause be a penal one, as before, but the party the plaintiff. In this case, if it be a cause purely penal,—the demand made by the plaintiff being purely the infliction of punishment, and that a punishment not including any effect of a nature to afford personal satisfaction to himself; as is the case where the plaintiff prosecutes for the public merely, in which case he is a public officer, acting without personal interest; in this case it cannot fall to the share of the plaintiff to be examined. If by accident (and it could happen only by accident) it did fall to his lot to be examined, wilful forbearance to answer is a result that can scarcely be supposed, it being difficult to suppose a motive that should engage him to it: and supposing it to take place, no conclusion can in the nature of the case be drawn from it. If the cause be of the mixed kind, in which a non-penal demand is combined with the penal one—a demand of satisfaction for the benefit of the individual, with the demand for punishment to be inflicted for the benefit of the public,—in this case, so far as concerns the non-penal part of the demand, the case coincides with the case next following. The conclusion turns to the prejudice of the plaintiff, in the same way as we saw it turn to the prejudice of the defendant in the preceding non-penal case.
Case 4.—Cause, non-penal; party, the plaintiff, as before. Conclusion, the plaintiff’s claim ill-founded: the defendant not in fact in that situation which it is necessary he should be in, to give legality to the demand made upon him by the plaintiff—the demand that he shall be compelled to submit to the obligation sought to be imposed upon him at the instance of the plaintiff, the obligation correlative to the plaintiff’s pretended right.
Now then as to the proof—the grounds, of the conclusion, that the party refusing to make answer to questions put to him by authority of justice, was in the wrong, in respect of the point in controversy in the cause. And, first, where the party in question is the defendant, and the cause a penal one.
1. Supposing him not guilty, such silence cannot but be detrimental to him: supposing him guilty, it cannot but be advantageous to him; that is to say, supposing the judge were to abstain from drawing the inference which no individual viewing the matter in the same point of view ever fails to draw, on the ground of the known principles of human nature and common sense.
To answer one way or other, cannot but be in his power. No question whatever to which a man, any man whatsoever, is not able to make an intelligible answer of some sort. Quest. What do you know about this business? Ans. So and so: or, I know nothing about the matter. Whatever be the question, whosoever be the individual to whom it is propounded, an answer to one effect or the other may in every case be given by him. The answer may be true or false: if false, the case belongs to the head next considered.
The party is exposed to suspicion—to a strong and serious suspicion, of having been really guilty of the offence of which he stands accused. Followed or not followed by punishment,—the persuasion entertained respecting the truth of the accusation—entertained by every man to whose cognizance the particulars of the examination present themselves, will be the same. The part that will be in general acted on such occasion by a man who feels himself guilty, being made known to all mankind by reason grounded on experience,—so sure as that part is acted by any man, so sure will he be looked upon as guilty by all who know of it: and, being so looked upon, the disrepute attendant upon the offence—the punishment attached to it by the popular, or say the moral sanction—the forfeiture of a correspondent portion of esteem, and consequent good-will, attaches upon him of course.
Supposing him not guilty, every fact and circumstance that he knows, will contribute (if known) to manifest his innocence: for, that he has not done the act charged upon him, is certain by the supposition. Between facts that are all true, there cannot be any incompatibility, any inconsistency: if, therefore, there be a single true fact with which the fact charged upon him is inconsistent, that fact cannot but be false. Speaking, therefore, from memory, and not from invention,—by every fact he discloses he gives himself an additional chance of manifesting the falsity of the imputation cast upon him. Forbearing to put in for this advantage, he makes manifest by as plain a token as it is possible for a man to display—as plain as he could by any the most direct confession that were to confine itself to general terms,—that the situation he is in, is of that sort that does not suffer a man to put in for that advantage: the situation of him whose memory holds up to him the picture of his own guilt.
Such are the grounds of the inference, spread out at full length. But where is the individual, male or female, high or low, rich or poor, who, being of ripe years and of a sound mind, is not in the habit of drawing the same inference with equal correctness and security, though by a shorter process, and without the trouble of clothing it in words? Where is the master or mistress of a family, who seeing reason to suspect a child or servant of any forbidden act, does not, for the confirmation or removal of such suspicion, employ this species of evidence, and with more confidence than any other?—Silence is tantamount to confession, is accordingly an observation, which, whether it may happen or not to have been yet received in any collection of proverbs, is repeated and acted upon with not less confidence and certainty, with not less safety, than the most familiar of the sayings which have been thus distinguished.
Could the existence of a set of human beings have been conceived, endowed with any particle of the attribute of rationality, in whom a conceit of any kind should to such a degree have extinguished the lights of reason and common sense, as to have disposed them to shut the door of justice against this surest, safest, and most satisfactory species of evidence? Yes: two have already been indicated:—English lawyers,—and a people whose boast it is, with eyes hermetically closed, to be led by a hook put into their noses by the interested hands of English lawyers.
In the character, or at any rate the guise, of an objection or exception, one consideration has here a claim to notice. A case (it may be said) there is, in which, in the instance of a defendant under examination, the inference from muteness to delinquency will not be just;—understand, the individual act of delinquency of which he stands suspected: for it is relatively to that, and that alone, that decision pronouncing delinquency can be pertinent and just. His conduct will be just the same, if, instead of the motives furnished (as above) by appropriate delinquency, there be any others to which it can happen to bind him to silence with equal force. And, without having been guilty in respect of the individual act of delinquency imputed to him, may it not happen to a man to be bound to silence by the pressure of other equally coercive, or even more than equally coercive, motives?
Yes, certainly it may: but of what nature can be these hypothetical and just possible motives? Motives derived from delinquency; motives not derived from delinquency. Under one or other of these divisions they cannot but be comprised.
Say, in the first place, motives derived from delinquency. The delinquency from which they are derived will then be of an order inferior, equal, or superior (understand, as indicated and measured by the degree of punishment,) with reference to the act of delinquency upon the carpet. To motives derived from delinquency of an inferior order, it cannot happen to have produced this supposed equal pressure: sooner than expose himself to the superior punishment, as he would by silence, a man will make answer, though such answer be confession, and though the effect of such confession be to expose him to punishment,—such punishment being, by the supposition, inferior to that to which he would expose himself by silence.
Put the case of equal delinquency and punishment, the silence will be quite natural: put the case of superior delinquency and punishment, it will be still more so. But what follows to the prejudice of the conclusion, at least in respect of the utility of the practical conduct proposed to be grounded on it?—Absolutely nothing.
1. In the first place, a coincidence of this sort, though possible, is much too rare and too improbable to constitute a valid objection to the practical conduct to which the inference leads. If valid as an objection to conviction and execution in this case, it would be an objection at least equally valid to conviction and execution in every case: it would be an objection more than equally valid to every other species of circumstantial evidence; in a word, to every other species of evidence. False testimony—even false criminative testimony—at least, false testimony amounting to mere incorrectness, and not accompanied with criminal consciousness,—is more common than the sort of coincidence here supposed. False testimony in cases non-penal is abundantly more so: in penal causes, false testimony on the exculpative side still more so. Cases of this rare sort have now and then appeared; but as often as they have appeared, they have been cited, not for their probability, but for their extraordinariness.
A story I have often heard or read of (no matter which) may serve for illustration. An entertainment was given by some great personage to a numerous and mixed company: in the course of it a trinket was displayed, the value of which had, by I know not what operation of the principle of association, been raised in his imagination and affections above all ordinary estimation. On a sudden, an alarm was given that the precious article was missing. “Let every man of us be searched,” said one of the company. “Yes; let every man of us be searched,” said all the rest. One man alone refused: the eyes of all were instantly upon him: his dress betrayed symptoms of penury: no doubt remained about the thief. He entreated and obtained of the master of the house a moment’s audience in a private room. His pockets were turned inside out, when in one of them was found—not the lost thinket, but something eatable. He had a wife who for such or such a time had gone without food.
The story may be true or not true: but supposing it ever so true, would it afford any valid objection against the universally-prevailing law which authorizes the making search about the persons, abodes, and other receptacles, in the occupation of suspected persons, for stolen goods? It would afford a better argument in such case against such search, than the possibility of the coincidence in question can afford against the examination of a defendant.
2. Another consideration is, that—supposing the coincidence realized, the inference drawn (and that by the supposition an erroneous one,) and the decision followed by the practical measures which are the proper consequences,—still there is no harm done.* A man suffers for an offence indeed of which he is not suspected or accused, but not for an offence of which he is not guilty. The consequence is good in all its shapes:—prevention by example—prevention by incapacitation—reformation—compensation, if the case calls for it, and furnishes matter for it:—the good, in all its shapes, that is looked for in penal justice; none of the alarm that reverberates from injustice.
Remains the case of the absence of all delinquency. But if the former case is so rare, how much rarer is this latter case! To a suffering, equal or superior to that which is fastened upon a man by the given delinquency with the punishment annexed to it, he would expose himself, were he to make his conduct known:—expose himself, without being justly chargeable with any act of delinquency—without having done any of those acts in virtue of which the punishment would be just. This, indeed, is possible, but still more improbable.
Innocent himself, a man chooses to be treated as if he were guilty, rather than to expose the secrets of a mistress or a friend:* an act of martyrdom perfectly heroical, and the more heroical, the fitter a subject for a play or a romance. But the more heroical, the more rare; and therefore the less fit a subject to constitute a ground for the steps of the legislator.
The secret protected at this price, the secret of the mistress or the friend,—was there any spice of delinquency mixed with it? The muteness, heroical or otherwise, is at any rate criminal: it is the common case of an unwilling witness, unwilling to expose a friend to the punishment which his delinquency has incurred: that sort of contumacy which, wheresoever it exists, it is incumbent on the law to get the better of at any price.
Without any the least guilt on any part—on the part of the examinant himself, on the part of his mistress or his friend,—of a true and full account of his own proceeding, out of his own mouth, will the effect be to subject them or him to punishment? Of a conduct which, not being tainted with delinquency, exposes a man to suffer as for delinquency, are any examples to be found? Not impossibly: but, once more, the case is too extraordinary to afford any tolerable ground for the rejection of so instructive a species of evidence—a species by far less exceptionable, less liable to give birth to undue decision, than any other that can be named.
Appearances are against him (to borrow a phrase from the title to a play:) appearances are against him; and, by the disclosure of these appearances, he subjects himself to punishment for an offence of which he was innocent. Appearances are against him? Yes, some of the appearances: but are there none that are for him? The same examination which calls upon him to disclose the one, calls upon him to disclose the other: of those which are against him he is called upon to give an explanation: the explanation, if favourable to himself, will, by the supposition, be conformable to truth: being conformable to truth, is the conclusion to be that it will be disbelieved? That by possibility it may be so, is not to be denied; but, once more, probabilities, and not improbabilities, constitute the true ground for legislative practice.
II. Non-responsion extra-judicial: in a penal case, the act (the negative act) of him who, understanding himself to be suspected of an offence, and being interrogated concerning it, forbears to make answer to such judicial questions as are put to him in relation to it.
The tendency of this case is evidently to afford an inference of the same nature as is afforded in the case just mentioned. In degree, however, the inference will most commonly be weaker, and is capable of existing in all degrees down to 0. The strength of it depends principally upon two circumstances: the strength of the appearances (understand, the strength they may naturally be supposed to possess, in the point of view in which they present themselves to the party interrogated)—the strength of the appearances, and the quality of the interrogator. Suppose him a person of ripe years, armed by the law with the authority of justice, authorized (as in offences of a certain magnitude persons in general commonly are, under every system of law) to take immediate measures for rendering the supposed delinquent forthcoming for the purposes of justice.† —authorized to take such measures, and to appearance having it in contemplation so to do;—in such case, silence instead of answer to a question put to the party by such a person, may afford an inference little (if at all) weaker than that which would be afforded by the like deportment in case of judicial interrogation before a magistrate. Suppose (on the other hand) a question put in relation to the subject, at a time distant from that in which the cause of suspicion has first manifested itself,—put at a time when no fresh incident leads to it,—put, therefore, without reflection, or in sport, by a child, from whom no such interposition can be apprehended, and to whose opinion no attention can be looked upon as due: in a case like this, the strength of the inference may vanish altogether.
In the three remaining cases (that of the plaintiff in a penal cause, that of the plaintiff and that of the defendant in a non-penal cause)—from what has been said it will be easy to deduce the nature and strength of the inference afforded by this same modification of circumstantial evidence. In all these cases, the evidentiary fact being non-responsion, the fact evidenced will be want of right,—unfoundedness of the pretensions advanced by them in their respective situations. In all these cases, the relation—the connexion—between fact and fact, on which the presumption grounds itself, is the same: the cases in which the presumption is liable to fail, are also much the same: but the injury liable to result to the individual from a decision to his prejudice, in the case where such decision, in respect of its being grounded on such presumption, is undue, being by possibility not so great,—the inference will be drawn with so much the greater freedom in any of these three latter cases then in the case first mentioned.
III. False responsion. The inference is of the same nature; and in point of strength, whenever in this respect there is any difference between this case and that of non-responsion, it is in this case that the inference (the probability of guilt will be the strongest.
In the case of judicial interrogation, the particular inference applying to the particular case will be strengthened by the general unfavourable inference, the shade thrown upon a man’s character by the additional circumstance of falsehood: supposing it always to have acquired the tinge of mendacity by the infusion of criminal consciousness.
In the case of non-judicial interrogation, whatever counter-inference may be deduced from the topic of incompetency on the part of the interrogator, will, by the additament here in question, generally speaking, be repelled.—A question, an idle question, put to me by a child? A question from such a quarter,—could I have conceived that it would be thought to have any claim to notice? In justification of simple silence, the defence might be pertinent, and even convincing: to false responsion, the application of it could scarce extend. Of the claim it had to notice, you yourself have borne sufficient testimony: so far from grudging the trouble of a true answer, you bestowed upon it the greater trouble of a lie.
False answers are, naturally enough, interspersed more or less with self-contradictory ones. The case is no otherwise varied by the intermixture than by this, viz. that in the case of self-contradiction the falsehood is more palpable and incontestable. Of any two contradictory propositions, the one or the other will of necessity be false. Take away this internal and irrefragable proof, the detection of the falsehood must rest upon the basis—the more or less precarious basis, of other evidence.
IV. Evasive responsion, is responsion in words and appearances, non-responsion in effect: it may be termed virtual non-responsion. Under this head may be comprised all answers, in so far as they are irrelevant to the interrogatories: all answers in which nothing is contained that has in any respect the effect of a compliance with the requisition (or say command) which every interrogatory, as such, involves in its very nature.*
Responsion is either relevant or irrelevant. If irrelevant, and after admonition persisted in, it is evasive: if evasive, it is tantamount to silence; or rather, in the case of evasion (if there be any difference) the inference is stronger. Silence may be ascribed to stupidity: evasion is the work of art—the natural resource of self-condemning consciousness.
But evasion,—to what circumstance, when successful, does it owe its capacity of having the effect of silence; that is, the desired effect without the undesired? To indistinctness: everything is referable to this cause.
In some instances it will now and then happen that indistinctness, designed or undesigned, shall have the effect of false statement, affirmative or negative. In that case, upon a first view, and for the advantage of his design, he is taken to have said something;—while, upon a second view, and to the disadvantage of his design, he is not found to have said anything: as against punishment or other burdensome infliction, he is secure; when, perhaps, by means of some false and fallacious conceptions conveyed by these same words to the mind of the judge, he has produced the same desired effect that would not have been produced if any assertion had been hazarded by him in express words.
But the most common deceptitious effect and use of indistinct language (understand, to the deceitful deponent,) is to operate as a succedaneum to silence: to prevent the judge, or whoever on this occasion stands in the situation of the judge, from observing, among the several points to which a man could not have spoken truly without speaking in the way of confession, what there may be, to which he has forborne to speak.
Evasion is a sort of middle course between non-responsion, false exculpative responsion, and confessorial responsion. Compelled to say something, on pain of the consequence which cannot fail to attach upon his virtual refusal to say anything, a man keeps saying what amounts to nothing; partly in the hope that the imposition may pass undetected, and the insignificant discourse be accepted as if it were significant; partly to give himself time to consider into which of the two other paths—confessorial truth or exculpative falsehood—he shall betake himself.
The effect of indistinct language, in the character of an advantageous substitute to false statement or silence, depends greatly upon the magnitude of the mass—the voluminousness of it, in the case of written language. Take a single short proposition,—be the language of it ever so indistinct, it will commonly be seen to be so: the insignificance of it, and (in case of mala fides) the evasiveness, will be seen through. But, in psychological as in physical objects, as the mass increases, the transparency diminishes: and since, along with the indistinctness of the object, the exertion of the mind in its endeavour to see through it increases, it will not unfrequently happen that the sinister purpose of the manufacturer of the chaos shall be effected, by the mere lassitude of the eye which has the misfortune to stand engaged to look into it.
Order—method—is among the instruments which intellectual vigour has to construct for the assistance of intellectual weakness, and which, when made, intellectual weakness assists itself by, in its endeavours to surmount the difficulties it has to contend with. But as, on one hand, the labour and difficulty of producing order, so, on the other hand, the demand for it, increases with the magnitude of the mass—with the multitude of the elementary particles which compose it. Order—meaning good order—order the best adapted to the purpose—consists in the selecting, out of the whole number of changes capable of being rung upon the number of elementary parts in question, that one of the whole number that will place the aggregate mass in the most intelligible point of view. The number of changes capable of being rung upon an assemblage of elementary parts, increases with the number of those parts:—increases with that rapidity of increase which is so familiarly and precisely known to mathematicians, and which is matter of so much astonishment to persons altogether unconversant with the first rudiments of that science. But, with the number of changes capable of being rung upon the elementary parts of the mass in question, increases the chance in favour of disorder and confusion,—the difficulty of producing order,—the difficulty of detecting the want of it,—the difficulty of pointing out the remedy for the want of it, for the purpose of insisting on the application of the remedy,—the facility of producing that sort and degree of disorder which shall weary out the energies of the inspecting eye, and force it to withdraw from the subject altogether, to save itself from the labour (perhaps the fruitless labour) of persevering in the endeavour to discover what has and what has not been said and done.
It is in written language alone that the art of evasion finds a favourable field for its operations. Let the deposition be delivered vivâ voce, any attempt of this sort is soon rendered abortive. Though accepted in such abundant instances in the ready-written form, in masses of any magnitude,—testimony is never accepted in the spontaneous mode, in the form of vivâ voce testimony, in a mass of any considerable magnitude. Delivered in the vivâ voce form, and thence in the presence of the judge; if indistinct, and by law not capable of being subjected to interrogation (for to this pitch of opposition to common sense has legal usage soared,)—no better purpose—none more favourable to the design of the malâ fide deponent—will be answered by it, than would have been answered by silence. But, if subject to interrogation, by interrogation it would immediately be clarified, and reduced either to false statement or to verbal silence. Delivered in the shape of written language, a mass of indistinct matter runs on to any number of pages or volumes: delivered vivâ voce, in the presence of a person having power to interpose at any time by interrogation, it is stopped at the first indistinct word.
[* ]Vide Book IX. Exclusion.
[* ]I say, for shortness, there is no harm done; for correctness, the expression will not serve. A harm there is done: the harm which consists of insufficient punishment—the harm which takes place when a man, having incurred a greater punishment, is, instead of it, subjected to a less.
[* ]Not many years ago, at a special commission in the south of England, a respectable farmer suffered himself to be found guilty of arson, in order to screen his son. As soon as the son was out of danger, the father’s innocence was made manifest, and he was pardoned.—Ed.
[† ]To conduct the party, for example, to a magistrate, or, at any rate, to give information to a magistrate, for the purpose of the party’s being so conducted before him.
[* ]Where were you at such a time? is as much as to say—My will is, that you name to me the place at which you were at such a time.