Front Page Titles (by Subject) CHAPTER IX.: OF REPORTED REAL EVIDENCE: i. e. SUPPOSED REAL EVIDENCE, TRANSMITTED THROUGH ORAL JUDICIAL TESTIMONY, OR THROUGH CASUALLY-WRITTEN EVIDENCE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER IX.: OF REPORTED REAL EVIDENCE: i. e. SUPPOSED REAL EVIDENCE, TRANSMITTED THROUGH ORAL JUDICIAL TESTIMONY, OR THROUGH CASUALLY-WRITTEN 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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OF REPORTED REAL EVIDENCE: i. e. SUPPOSED REAL EVIDENCE, TRANSMITTED THROUGH ORAL JUDICIAL TESTIMONY, OR THROUGH CASUALLY-WRITTEN EVIDENCE.
The inferiority of transmitted evidence, as compared with immediate evidence from the same source, is as manifest in the instance of this, as of any other, species of transmitted evidence. This species of evidence cannot therefore but be ranged under the head of makeshift evidence. At the same time, the cases are numerous, and the description of them extensive, in which the correspondent immediate evidence is not to be had, yet in which evidence from that source is so material, that, in a general view, the admissibility of it, even in the secondary and reported form, is altogether out of dispute.
Of the instructiveness and importance of real evidence, a general view has already been given under the head circumstantial evidence, of which it constitutes a species. On the present occasion, what remains to be brought to view is the specific description of the characteristic fraud, and the modifications which this species of transmitted evidence is susceptible of, according to the nature and trustworthiness of the medium through which it may happen to be transmitted to the conception of the judge.
The species of fraud to which this species of makeshift evidence stands exposed, may be thus described:—A person (suppose the defendant, or any other person on his behalf, in an expected criminal cause)—applying himself to the thing which, with relation to the principal fact in question, is already become, or which he proposes to convert into, a source of real evidence—either obliterates or alters the evidentiary appearances presented by it in the state in which he found it, or superinduces upon it fresh appearances of his own production, such as appear to him conducive to his purpose (viz. in the present case, that of exculpating him from the charge.)
This, it is evident, is neither more nor less than the sort of fraud which there has already been occasion to bring to view (to wit, in the Book on Circumstantial Evidence,) under the denomination of forgery of real evidence: alterative or fabricative, as the case may be.
One circumstance is remarkable, as being peculiar in relation to this modification of transmitted evidence. Exposed, as it has been seen to be, to a characteristic fraud, it is so no otherwise than as the corresponding immediate evidence is: the real evidence afforded by the same physical object,—issuing from the same source.
The cause of the difference is, that, in the case of the other modification of transmitted evidence, there are at least two persons concerned, or supposed to be concerned, in the character of witnesses or sources of evidence, two persons, the one of which (viz. the extrajudicial witness) may, under favour of his exemption from the sanction of an oath, and from cross-examination, put a deceit upon the other (viz. upon the intended judicial witness;) such a deceit, from which the judge, armed as he is with those instruments for the extraction of truth, is proportionably defended.
But, to the fraud liable to be practised upon, or in relation to, real evidence, the situation of one cause stands no less exposed than that of another—that of the judge, no less than that of any reporting percipient witness, on whose report, through choice or necessity, he rests his conception of the fact,—instead of the testimony of his own senses, with his own judgment for their assistance.
For this same reason, everything that relates to the examinability of the supposed extrajudicial witness has no place here. Here there is no extrajudicial witness in the case; in the room of the interrogable or uninterrogable person, we have the uninterrogable thing.
The personal evidence, by which the supposed real evidence in question is transmitted to the conception of the judge, may wear any of the forms which have already been brought to view:—1. Oral evidence, judicial testimony, delivered or extracted in the judicial, that is (by the supposition) the most trustworthy, mode; 2. Casually-written evidence; minutes taken, descriptive of the appearances exhibited by the thing—by the source of the real evidence; taken by a private individual, in the situation of an extrajudicial, and not an official, witness,—taken consequently at the time when the evidentiary appearances are freshest and most instructive, or at any late period (if any,) when, by the agency of time, they have been rendered less correctly instructive: taken, again, either at the very moment of inspection, or at any succeeding period, and at the end of any longer interval of time. 3. Written evidence taken by a preappointed, and, quoad hoc at least, an official, witness: not by the judge himself, but by some person of chosen trustworthiness, appointed for the purpose either by general and permanent designation of the law, or by special appointment from the judge. 4. Judicial testimony, delivered and extracted in the judicial mode, but grounded and supported by written minutes, containing the result of the inspection: the view itself taken, and the result committed to writing, at a period earlier than that at which the business could have been performed by a judicial presentation, or examination in the first instance.
Comparing with each other the two species of evidence, the original and reported (hearing in mind the several causes of inferiority observable in makeshift evidence, with relation to the correspondent species of regular evidence,) we shall find the difference much less in this, than in any other, instance.
1. The person by whom the reported real evidence is reported, may always be a preappointed witness—and that witness preappointed even by the judge. Here then vanishes all danger of fraud. Of all the several species of makeshift evidence, this is the only one which is not exposed to any variety of what we have called the characteristic fraud.
2. The person appointed thus to act in the character of reporting witness, may be, and naturally will be, a person possessed of that appropriate stock of information, which, with relation to the subject-matter of the deposition, will place him in the predicament of a scientific witness. The danger of deception on the part of the judge, without fraud on the part of the deposing witness—without any symptom of weakness in his rational faculties—without any other than such of which his intellectual faculties may be the seat,—is thus reduced to its minimum.
To the moral trustworthiness of official evidence (viz. of judicial, the most trustworthy species of official, evidence,) he may, and naturally will, add the intellectual trustworthiness of scientific evidence. If no appropriate modification of physical science be requisite, the person selected for this purpose will naturally be appointed by the judge; a person known to him through the medium of official relation and intercourse: in the opposite case, some person recommended by the general reputation of appropriate science.
It follows, then, that if, between the immediate and the thus reported real evidence, there be in any case any practically material difference in point of trustworthiness, it can only be in so far as there is something in the particular nature of the real evidence in question, that disqualifies it from being transmitted with accuracy through the medium of personal report: the perceptions which it affords to a percipient witness being such as cannot, without material alteration, be transmitted through the medium of language.
But, even in this case, the difference in point of trustworthiness will not be so great, as, upon the face of the above statement, it might at first sight appear to be. The judge—the official permanent judge—is not, upon the footing of this arrangement, so correctly and fully informed, as in the case where the information is presented to him in the shape of immediate real evidence. True: but (though he is not) his nominee, his deputy,—the person selected by him on the ground of his appropriate trustworthiness, as qualified, for the purpose in question, to officiate in his place,—receives and contemplates the information in its character of immediate real evidence. The decision of the case does not in effect lose the benefit of immediate real evidence: the result of the arrangement is no more than this, viz. that the decision in effect is transferred from the judge in ordinary, to another judge, who, though but an occasional one, may, on the particular occasion in question, for anything that appears, be regarded as equally fit and competent.
Upon this footing stands the disadvantage which reported real evidence lies under, when compared with immediate real evidence. Considered in another point of view, it may (at least in certain circumstances) appear possessed of an advantage. For the judicial trustworthiness of the official judge—for the probity, attention, and intelligence, brought into action by him on the occasion,—the public possesses in this case a sort of security, which it possesses not in the other. Suppose in the place of the judge an all-perfect human being, and at the same time, on the part of the proposed occasional judge-depute ad hoc, a character considerably inferior in these respects to his principal; the difference and the disadvantage on the side of the reported real evidence, in its comparison with the immediate, may be very considerable. On the other hand, suppose any considerable degree, though it be no more than the ordinary degree, of deficiency in point of trustworthiness on the part of the ordinary judge; or (what is at once an equally natural and less invidious supposition) suppose but, on the part of the public, a degree (though it be no more than the ordinary degree) of suspicion of a deficiency of trustworthiness in any of these points on the part of the judge; the advantage capable of being possessed by the information when in the shape of reported evidence, may be not inconsiderable. The judge (supposing him to repair to the spot alone) sees as much of the evidence as he pleases, and no more than he pleases: pays what attention to it he pleases, and no more than he pleases: contemplates it, if he pleases, on one side only, and with no other intention than that of discovering what pretences can be found, what excuses can be made to the public and his own conscience, for deducing from it inferences favourable to that side of the cause which his affections induce him to espouse. With these eyes it is that he views it: and it is after thus viewing it, in his character of a witness, that he reports it—to whom? To himself, in the character of a judge. It is the judge himself who is the witness; and that witness examined in secreto judicis, in the recesses of the judge’s own conscience: examined, and without cross-examination, by the judge.
Turn now to the opposite case, and see upon what footing stands the case of information from the same source, when reported to the judge through the medium of some other official (or at any rate a preappointed) witness. His report is delivered,—it may at least be, and therefore (at the instance of either party) ought to be, delivered,—upon the same footing, in every respect, as that of any ordinary witness—in public, and subject to cross-examination, with the several attendant securities. It is from this completely scrutinized evidence, delivered under the eye of the public, that the judge, himself speaking and acting under the eye of the public, draws his inferences.
In the one case, the judge decides upon data not before the public, and the public in consequence has no controul over him: in the other case, the judge decides, as in ordinary cases, from data which are as completely before the public as before himself.
With respect to the option, the question therefore seems to be brought to this point:—In the case where the information presents itself to the judge in the shape of immediate real evidence (the judge conveying himself to the spot for the purpose of contemplating it in that shape,) can he, or can he not, take the public, a sufficient portion of the public, with him? If he can, and does,—in such case the immediate evidence preserves its superiority over transmitted evidence: if he does not,—in that case, the transmitted evidence, instead of being inferior, is in fact, in a practical view, superior, to the immediate evidence; the transmitted evidence (though in itself it possesses the characteristic property of makeshift and irregular evidence) to the regular.*
[* ]The justice, that is, of immediate and intrinsic importance—the justice upon which the sense of security on the part of the public depends, is not abstract real justice, but apparent justice. Real justice is no otherwise of importance, than in as far as apparent justice (as is the case in the ordinary state of things) depends upon it. The supposition is a strained and odious one; nor is it without great exertion and reluctance, that the mind of man, especially the mind of an ardent lover of justice, can bring itself to frame it: but, for the moment, and in the character of a supposition, it may be an instructive one. Better by far that injustice should be really done in all cases, so justice be universally thought to be done in the same cases, than that justice should be done in all cases, at the same time that in half, or though it were but a quarter, or say a tenth, or even a twentieth part of those cases (we know not where to draw the line,) injustice, and not justice, were with equal universality thought to be done. In the former case, in respect of the mischief of the second order (see Dumont, and Introduction,) no alarm, no sense of insecurity, by the supposition: in the other case, a violent alarm—a strong sense of insecurity, and that a universal one.