Front Page Titles (by Subject) CHAPTER III.: OF UNORIGINAL EVIDENCE IN GENERAL. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
Return to Title Page for The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER III.: OF UNORIGINAL EVIDENCE IN GENERAL. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF UNORIGINAL EVIDENCE IN GENERAL.
The quality of unoriginality seems applicable to an article of evidence in either of two cases: 1. Where it is so with relation to persons,—to persons considered as sources of the evidence; 2. When it is so in respect of signs.
It is so as to persons, wherever the perceptions stated by the person whose evidence is rendered present to the senses of the judge, are stated by him as being not his own perceptions or opinions, but perceptions or opinions communicated to him by some other person, as and for the perceptions of that other. Had the perceptions or opinions been stated by him as his own, they might have been termed original: not being stated by him as his own, they cannot with propriety be termed original—they are termed not original, but unoriginal. In himself, if he says truly, they did not originate; but in the other person so spoken of.
The evidence is unoriginal in respect of signs, when the signs (i. e. the collection of visible and permanent signs, viz. written characters) presented to the senses of the judge, are not the same collection of signs by which the discourse in question stood expressed, when consigned to writing for the first time: not these, but some others: which,—having been transcribed from those, in the design of rendering (so far as both go) the signification of the copy thus made exactly the same as that of the original,—may accordingly be termed transcriptitious.
The evidence orally delivered, and of the nature of what is called hearsay evidence;—the evidence delivered in writing, and of the nature of a transcript:—in both these cases, it may alike be termed unoriginal.
In both instances it is understood at once, that, in point of probative force, the unoriginal evidence will be in a greater or less degree inferior to the original. But, in the two cases, the defalcation made by the circumstance of non-originality from the probative force of the evidence, will immediately be seen to be, generally speaking, widely different.
Such as our conceptions are, such ever must language be. In vain, on any subject, will that man seek to add anything material either to the correctness or to the amplitude of the current stock of conceptions, who fears the reproach of the endeavour to make additions to the language. A subject must have a name, before anything can be predicated of it: and of the subject, be it what it may, till something is predicated, nothing will be understood.
Among non-lawyers, as well as among lawyers, the word hearsay is already in use. Among lawyers, the word original, and the word copy, are in use. With so slender a stock of the instruments of discourse, has the business of argumentation and thence the business of judicial decision, been hitherto carried on in this part of the field of law.
Even of so slender a stock—a stock comprised of three words, and no more—there exists one which is not fit for use. By reason of its ambiguity, the word copy is not fit for use. Does it mean transcript, in contradistinction to the original script? or does it mean exemplar? as in the case when, in a mass of letter-press, all may be equally originals, or all equally transcripts.
Such as yet is the supply: here follows a part at least of the demand.
In the case of want of originality (it has already been observed) the seat of the defect may be in the person by whom the evidence is delivered, or (in the case when at the time of delivery it wears the form of writing) in the collection of signs of which the writing is composed.
When the seat of the defect is in the person—when, upon his own showing, the deposing witness is a different person from him by whom the matters of fact in question were observed,—in this case there are, at least, two persons, upon whose trustworthiness the probative force of the testimony depends—two persons so connected, that, by the reduplication, the probative force, far from being increased, is lessened.
Of the deposing witness the existence is, by the supposition, certain: of the alleged percipient witness—of any percipient witness, the existence is necessarily and constantly a matter of doubt. On this account it is, that, without some such prefix as the word supposed, he ought never to be mentioned.
Instead of supposed percipient witness, the occasion may sometimes require us to say, the supposed extrajudicially stating or narrating witness: for neither are the terms synonymous, nor the persons in every case the same.
In the character of a percipient witness, a man will not, generally speaking, have made himself known to the deposing witness, unless by having made himself an extrajudicially narrating, reporting, or stating witness. But, in the character of an extrajudicially narrating, reporting, or stating witness, a man may easily have certified himself to the deposing witness, without having been a percipient or observant witness.
Notions other than such as can, strictly speaking, be termed perceptions, may moreover be not altogether without their use in evidence: and, useful or useless, they may serve to constitute the matter of which evidence is composed.
Of the persons through whose mouths the supposed statement of the supposed percipient or originally extrajudicially narrating witness may, from one to the other, have passed, or be supposed to have passed, the number may, to any amount, be great. Under French judicature, in the famous case of Calas, between the supposed precipient and the deposing witness there were no fewer than five.
So many of these supposed successive narrators (including the deposing witness,) so many media through which the supposed perception has been transmitted, in its way to the ear or the eye of the judge; so many media; of which one alone is judicial, the others extrajudicial.
By every extrajudicial medium, the evidence is removed—removed by one remove—from that degree of proximity which it were desirable it should possess, and which in the case of ordinary evidence it does possess, with reference to the eye or the ear of the judge.
Equal to the number of media, as above, may be said to be the number of degrees: equal to the number of media and degrees minus one, may be said to be the number of removes.
Media, degrees, removes: with equal propriety, and in the same sense, though with very different effect, and with much less force, does this nomenclature apply to the case of transcriptitious evidence.
And thus it is, that, in either case, constitutive of so many modifications or species of unoriginal evidence, we have unimedial, bimedial, trimedial, and so forth; in a word, multimedial evidence.
The two sources or causes of inferiority, the two modes of unoriginality, may be combined in the same lot or article of evidence.
Thus, for species or modifications of multimedial evidence, we have simple (composed either of multi-personal alone, consisting of person supposed to have spoken after person, or of transcriptural alone) and complex, composed of both those modes of unoriginality put together.
Not of personal evidence alone, but of real also, may originality and unoriginality be both predicated.
Real evidence is original—is originally delivered—when the thing which is the source of it is itself presented to the senses of the judge: unoriginal, when all the conception he can entertain concerning it is that which is conveyed to his mind through the medium of the testimony of a witness—commonly a deposing witness.
The shape in which the testimony of the deposing witness is conveyed to the senses of the judge, may be either the oral or the written shape. Hence it is that, when there has been no transcription, scriptitious may stand exactly upon a footing with hearsay, as well as with original evidence.
When the testimony, being unoriginal, is composed of that of two persons, one as it were behind the other,—the form in which the respective testimonies have been delivered, viz. oral or scriptitious, is a circumstance by which differences, which require to be noted, may be produced in the probative force of the compound testimony.
In the case where the supposed original evidence is of the real kind; in that case, the species of inferiority which, in the case of personal evidence, requires two persons, two witnesses, to the production of it, is produced by the testimony of a single witness, interposed between the thing which is the source of the evidence and the senses of the judge.
After these explanations, the following modifications of unoriginal evidence may, it is supposed, be rendered sufficiently intelligible by the denominations here employed for giving expression to them.
1. Supposed oral through oral: supposed orally delivered evidence of a supposed extrajudicially narrating witness, judicially delivered vivâ voce by the judicially deposing witness.
This is the only species of unoriginal evidence which the term hearsay evidence is, strictly speaking, competent to the expression of.
2. Supposed oral through scriptitious.
3. Supposed scriptitious through oral.
4. Supposed scriptitious through scriptitious: in other words, transcriptitious evidence.
In all four cases, the supposed original testimony must, in whichever shape delivered, be supposed to have been extrajudicially delivered.
In all these four cases, an interval of considerable length must, moreover, be supposed to have intervened between the supposed extrajudicial statement and the judicial one. Suppose no such interval, and the evidence stands, to every practical effect, undistinguishable from original evidence.
1. Thus, in the case of supposed oral through oral. A percipient witness, being in or near the judicatory, delivers his testimony in a low tone: and this evidence, not being sufficiently audible, is, by some other person (suppose an officer of the court,) repeated in a more audible tone, for the convenience of the judge.
2. So again in the case of supposed oral through scriptitious. This would be the common case of note-taking. Deposition of a percipient witness, extracted vivâ voce before a judicatory; notes or minutes thereof taken by a clerk, and the minutes delivered in to another. In this case, the word supposed would (it is evident) be regarded as superfluous or ill-placed. The note-taker, unless specially interrogated, would not be considered in the character of a distinct deposing witness.
3. So again in the case of supposed scriptitious through oral. This would be no more than the common case of written evidence read in court: for example, an affidavit. Here, too, the use for the adjunct supposed vanishes.
4. Lastly, in the case of supposed scriptitious through scriptitious. The witness having read to himself on one day a document capable of being adduced in evidence, parts with it immediately out of his hands. On the next day, from memory, he, in a judicial form, interrogated or not, writes an account of what, according to him, are the contents. This is supposed scriptitious through scriptitious; and he, the writer, is a witness. But while he is thus writing his account of the contents, suppose the paper to be lying before him. This is no longer the case of a reporting witness, simply reporting (if extrajudicially,) or deposing (if judicially,) to the contents of a statement made by another person, who is considered in the character of a percipient and extrajudicially narrating witness: it is the case of a scribe; and according as in his script words the same as those employed in the original, or words more or less different, are employed, his script is a transcript, an extract, or an abridgment.
Thus various and thus faint are the shades of difference by which one modification of unoriginal evidence is distinguished from another.
All modifications of unoriginal evidence that are of the nature of, or bear similitude to, hearsay evidence, as above, have this in common,—that for every remove (mendacity and fraud out of the question) they afford an additional chance of incorrectness and incompleteness.
But besides this,—supposing admission to be secured to them, and known to be so,—they afford, all of them, invitation to one and the same plan of fraud; which fraud is moreover equally applicable to casually-written and ex parte preappointed evidence. Secure, not only against punishment, but against adverse interrogation, the extrajudicial narrator and supposed percipient witness delivers his statement vivâ voce, or in writing, as the case may be; that statement being tinctured with mendacity, in the shape that seems best adapted to the sinister purpose, whatever that may be. The extrajudicially narrating witness has contrived, for the purpose, to place himself (if he be not so already) out of the reach of punishment. The judicially deposing witness, so long as he reports nothing but what has, to his knowledge, been expressed by the extrajudicially narrating witness, is not punishable; since, by the supposition, he says nothing that is not true.