Front Page Titles (by Subject) CHAPTER V.: INSTRUCTIONS CONCERNING THE PROBATIVE FORCE OF EXTRAJUDICIALLY WRITTEN AND HEARSAY EVIDENCE. * - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER V.: INSTRUCTIONS CONCERNING THE PROBATIVE FORCE OF EXTRAJUDICIALLY WRITTEN AND HEARSAY EVIDENCE. * - 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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INSTRUCTIONS CONCERNING THE PROBATIVE FORCE OF EXTRAJUDICIALLY WRITTEN AND HEARSAY EVIDENCE.*
That which ought in scarce any case to be done, and is most abundantly done (it has already been observed,) is, to put an exclusion upon evidence, on the ground of danger of deception. That which ought throughout to be done, and nowhere has been done, is—if legislation be the work of reflection, and reflection pointed to right ends—to give the benefit of it, in the form of instructions, to the judge.
To bring to view such considerations as, on the occasion in question, present themselves as capable of being, in that character, assistant to the judge, if not in the way of information, in the way of reminiscence,—is the object of the present section.
I. Supposing admission given to both, and on the same conditions,—hearsay evidence is less likely than extrajudicially written evidence to have originated in the characteristic fraud: and (in so far as its incorrectness or incompleteness is regarded as not to be apprehended otherwise than as the result of such plan of fraud) is less untrustworthy—may with propriety be considered as acting with a greater degree of probative force.
The only case in which, from either species of makeshift and thence uninterrogable evidence, any advantage would be to be hoped for, is that of a posthumous advantage—an advantage not looked to as capable of accruing during the lifetime of the contriver, to be reaped by the contriver himself, but, after his death, to his family, or some other person whose interests are dear to him. For as to the man himself, if he be in esse, a reasonable condition to require of him (wheresoever he be, at home or abroad) is, that he submit to counter-interrogation; which if he do, his doing so makes, in both cases, an end of the makeshift evidence.
In this case, to make a species of evidence which shall be exempt from counter-interrogation as well as eventual punishment, he has his choice between casually written evidence and hearsay evidence.
Suppose him to choose casually written evidence. This (it being by the supposition admissible) is that one of the two that will afford him the best chance.
If he writes it himself, in the name of another person not privy, this will be an act of forgery; a punishable offence, committed, in the first instance, in prospect of a benefit expected to accrue to others, and at a time when he will not be able to enjoy it.
If for the writing it he engages an assistant, who is privy to the fraud, and who writes it in his own character,—here, indeed, is no forgery, but here is a fraud with an accomplice, in whose power the contriver puts himself.
If he writes it himself in his own person,—here is no forgery, nor is there any person in whose power he puts himself. This, supposing both species of makeshift evidence receivable (viz. casually written and hearsay,) is, in both points of view (probability of success, and security against punishment,) the most eligible.
Thus stands the plan of fabrication by means of makeshift evidence, on the supposition that casually written evidence is to be the instrument employed in it.
In this way, a man may use his endeavours to render an undue service to persons dear to him, even without subjecting the evidence to the discreditive observation of its being self-serving evidence. If it be a case in which their title cannot be derived but through himself, they taking in quality of his representatives, no: but the right which he thus fraudulently conveys may be drawn by him from another source. A father, for example, may, by a fraud thus shaped, convey to his son an estate derived, not from the father’s side, but from the mother’s.
Suppose revenge, or gratification of causeless enmity, the posthumous benefit—the sole benefit—in view. Here the testimony stands not exposed to any such discreditive observation as the above.
In this may be seen by far the most promising, in other words the most deceptitious, shape, which the characteristic fraud can assume. If in this it be not too deceptitious to be admitted, in no other can it be.
Hearsay evidence renders an assistant necesary. The contriver of the fraud utters the statement or narration in the hearing of the assistant: so long as the contriver lives, the assistant is silent; for such silence is what (as above) the nature of the fraud requires: the contriver dead, then, for the purpose of giving effect to the benefit which (though to him a posthumous one) the contriver had in view, comes the assistant forward with his hearsay evidence.
The inferiority of this species of makeshift evidence, in comparison with the other, may be seen in more points of view than one. If the assistant dies before the contriver, or (though not till afterwards) before his hearsay evidence has been judicially derived,—the plan is defeated: so if he expatriates, or forgets his lesson, or quarrels with the contriver. So much as to comparative probability of success. Meantime the contriver exposes himself to loss of character, and (if the law has done its duty) to punishment, through the infidelity of his assistant.
The assistant, it is true (so it may easily be managed,) need not be privy to the fraud: to the intended assistant the false story is narrated as if it were true. In this way, danger of punishment through infidelity is avoided; but danger of ill success, by reason of death and expatriation, remain the same; danger of ill success through quarrel, not much less. But the danger from forgetfulness is much greater, the cause of remembrance being wanting. Taking a memorandum might, it is true, be recommended by the contriver to the intended innocent assistant, or a memorandum put into his hand. But this circumstance would be still more likely to be remembered than any other; and in the mind of the judge, if not in that of the innocent assistant, in his character of deposing witness, it would cast a shade of suspicion upon the scheme.
The number of innocent persons thus taken for intended assistants, might be multiplied to any amount; but by no such multiplication could hearsay evidence, in the character of an instrument of this fraud, be raised to an equality with a letter or memorandum in writing, framed with a view to its officiating in the character of an article of extrajudicially written evidence.
Of the authenticity of a script, framed for any such express purpose, proof cannot, in the nature of the case, be wanting. Where adequate cause of rememberance is wanting, a story told is liable to be lost, whatsoever be the number of the hearers. In point of probability of remembrance, the difference between the seeing of a fact, and hearing a relation of it, is plainly infinite.
II. Setting aside, in both instances, the characteristic fraud, and purposed mendacity, to whatever purpose directed, hearsay evidence seems in general more likely to be fainted, and moreover in a higher degree, with material incorrectness and incompleteness, than extrajudicially written evidence is.
Extrajudicially written evidence presents but one witness in whose person the causes of untrustworthiness, intellectual and moral (sinisteraction of interest included,) are liable to have place. It requires, indeed, to be authenticated; a distinct purpose, for which evidence is necessary: but, in general, authentication is a matter little exposed to doubt; and, moreover, proveable by witnesses in abundance, none of whom are exposed to the action of any of the causes of untrustworthiness.
Hearsay evidence presents always two witnesses, viz. the deposing witness, and (unless when the deposition is a mere fiction) the supposed extrajudicially stating or narrating witness: two witnesses, and the causes of untrustworthiness repeatable upon each.
In case of mendacity on the part of the deposing witness, the evidence is exposed to a cause of falsehood, against which the extrajudicially written evidence is comparatively secure. The fact, that, by such or such a person, such or such words, or words to such or such an effect, were spoken, is a fact of the evanescent kind,—not of a nature to leave behind it, in any case, any physical traces, capable of operating (if it be true) in confirmation of it, in the character of circumstantial evidence.
Even in case of veracity on the part of the deposing witness, the evidence is exposed to a cause of error to which extrajudicially written evidence is not exposed. In the case of extrajudicially written evidence, the discourse being in written or other permanent characters, the tenor of it is fixed: whereas, in the case of hearsay evidence (especially if the discourse run into length,) it is frequently impossible for the deposing witness to speak to the very words; and then comes the uncertainty whether, of the words really spoken, the purport attributed to them by the deposing witness be a faithful representation—whether, and how far, the interpretation put upon them by the deposing witness is correct.*
To multiply in this way the number of hearers, not under any engagement of secrecy, will be to multiply the number of persons by whose conversation the story may be conveyed to some who will know it to be a lie, viewing at the same time in the person of the contriver the author of that lie. Thus, of a story which can be of no use to his purpose till after his death, the credit will have been destroyed in his lifetime.
Upon the whole, it appears that, so long as the supposed extrajudicial witness is not exempted from cross-examination, mischief in the way of misdecision would often ensue from the exclusion either of casually written or of hearsay evidence, and no adequate danger is to be apprehended from the admission of it.
If, indeed, the extrajudicial witness were exempted from cross-examination, and his unsanctioned and unscrutinized statement (or, in the case of hearsay evidence, his supposed statement) were received during his lifetime in the place of his judicial testimony, much danger of misdecision would be the result:—for, in this case, as any sort of man, the most untrustworthy, might, for the purpose of any suit whatsoever, without any the smallest danger to himself, make evidence, either for his own purpose, or for the purpose of any one who suborned him,—such evidence, being on every occasion at the command of any person, would, in point of trustworthiness, in the eye of reason, be worth nothing. If, then, on this consideration, it were never to receive credence in any case, justice would be deprived of the benefit of it in all such cases in which, had it been adduced, it would have been true, and (as such) conducive to the ends of justice. If, on the other hand, it were in general to be admitted, and receive credence, it would be but too apt to be received in cases in which it would be false and deceptitious; the known security with which it might be manufactured and exhibited, would occasion its being manufactured in a multitude of instances without stint. False claims, in a number altogether unlimited, would be set up on the mere ground of the support to be given to them by this evidence: and, since the nature of the evidence admits scarce any means or chance of distinguishing false from true, the number might be so great, that, in every instance in which credence were given to this sort of evidence, deception and consequent misdecision on the part of the judge would be a result more probable than the contrary.
Here, then, would be a double mischief: the two opposite mischiefs of undue credence and undue discredence, running on at the same time. Out of twenty false claims, set up on the ground of this evidence, suppose it to obtain credence in one only, and to be discredited in the nineteen others. The amount of the injustice thus done in the one case out of twenty, would itself be an enormous evil: this evil would be the result of undue credence. But the nineteen instances in which it were discredited, would be sufficient to throw a general, and to a considerable degree indiscriminating, discredit upon this species of evidence: the consequence would be, its being discredited in a number of instances in which, it being true, the discredit thus cast upon it would be productive of misdecision and injustice.
True it is, that—on the supposition that it were generally known to be admissible, when, from death or other causes, the extrajudicial witnesses were no longer exposed to cross-examination—motives for the fabrication of it, in the hopes of its serving a man’s purpose after his death, would not be altogether wanting. But as, in such case, the inducement for the fabrication of it would, in comparison, be extremely feeble: the quantity of it fabricated, if any, would be proportionably inconsiderable. The instances, if any, in which it were thus fabricated, and false, would scarcely be equal in number to the instances in which it would be true, and conducive, or even necessary, to the fulfilment of the ends of justice. But in the instances in which it were false, it would not follow by any means, that because admitted it must obtain credence and be regarded as conclusive. The possibility of its having originated in the characteristic fraud, would be an obvious objection—a species of psychological circumstantial evidence, that could never fail to be opposed to it: and, being by the supposition false, it would find itself counter-evidenced and opposed at the same time by as many true facts as happened to be brought forward by whatever true evidence the cause happened to afford. Under these circumstances, there seems little danger of its being taken for more in each given case, than in that same case it were really worth: no more in the case of this transmitted evidence, than in the case of immediate evidence.
[* ]As a general principle of English law, hearsay evidence and statements in writing are inadmissible in evidence. There are various exceptions to this exclusionary rule: for example, the testimony given on oath by a deceased witness on a former trial may be proved by a person who heard him give his evidence. It has been, however, laid down, that the witness must not be allowed to swear to the effect of what was said, but must recollect the very words. R. v. Carpenter, 2 Show. 47; Ennis v. Donisthorne, Cornw. Sum. Ass. 1789, MS.—Statements made to medical men in answer to questions, are received in evidence. Aveson v. Lord Kinnaird, 6 East, 195, 198.—Letters written by the payee of a promissory-note, to the maker, at the time of the making of the note, are admissible in evidence. Kent v. Lowen, 1 Campb. 177, 180.—Declarations of the deceased, in cases of homicide, after the mortal blow has been given, are received in evidence. 1 East, P. C. c. 5. s. 124; Woodcock’s case, 1 Leach, 502.—Ed.
[* ]In this particular, however, what ought not to escape observation, is, that the meaning of words spoken on an extrajudicial occasion, in the way of statement or narration, concerning a fact to which it may happen to form the subject of an article of evidence, is not more liable to be misconceived, than the meaning of any set of words to which it happens to be considered as constituting the matter of an offence: words, for instance, in respect of which the utterer is charged with defamation; or words by means of which the utterer is considered as having instigated to, or, by instruction, assisted any other person in, the commission of that or any other offence whatever.