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CHAPTER V.: EXCLUSION OF IRRELEVANT EVIDENCE, PROPER. - 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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EXCLUSION OF IRRELEVANT EVIDENCE, PROPER.
Of the mischief liable to result from the admission of irrelevant evidence, no separate mention need be made, be it what it may, it is resolvable in toto into the mischief producible by vexation, expense, and delay,
The difference between the ground of exclusion in the present case, and in those others, consists in this:—in those three cases (i. e. in every case where the evidence is not irrelevant,) there is an option to make—there is a quantity of mischief, a weight in each scale: there is something to lose by the proposed exclusion,—a chance in favour of justice; there is a disadvantage that must be incurred by the proposed exclusion,—a probability in favour of misdecision, or perhaps a certainty. But in this case, in the case where the information proposed to be delivered in the character of evidence is irrelevant, there is nothing that can be lost by the proposed exclusion: not the least danger of misdecision is incurred by it.
In this case, then, the inquiry is much more simple than in any one of those three others: there, there are two quantities to weigh, two values to find: here, but one. Suppose the proposed evidence irrelevant, exclusion is the indisputable consequence.
Irrelevant evidence is evidence that bears no efficient relation to the fact which it is brought to prove: evidence which proves nothing: as well might one say, no evidence.
Fit, unquestionably fit, to be excluded. But to what purpose speak of it? Who is there to whom it could occur to propose the admission of any discourse coming under this description? Who is there, whose purpose could in any way be served by it?
To a party, plaintiff or defendant, acting in bonâ fide,—believing himself to have right on his side, and seeking nothing but the means of proving it,—there can be but one inducement for the demanding or delivering irrelevant evidence; viz. the belief of its being relevant: add, material and needful, without which the relevancy of it would not help him.
False conceptions on this head are far from being unfrequent: conceptions which, whatever ground there may have been for them in opinion, prove false in the result.
By the force of prejudice, in a weak judgment, in a disorderly imagination, there is no saying what reverie may not be presented in the character of a lot of evidence. If every such supposed or pretended article of information were liable to be obtruded upon the judge, and in any quantity, at the instance and at the pleasure of either party, and of each party, no power of exclusion on this ground being left to the judge,—it is easy to conceive how completely, in any cause, the justice of the case might by this means be overwhelmed.
Prosecution for witchcraft: oral evidence in support of the charge. On the part of the defendant, no direct evidence, but the general proposition, the alleged improbability of the fact, in the character of circumstantial evidence.* In reply, on the part of the plaintiff, to prove the probability, Glanville’s History of Witchcraft, or any other article of the demonological library, proffered in evidence. Upon this invitation, shall it be the duty of the judge to take up the book on the spot, and, previously to his giving his decision in the cause, to read it from beginning to end? and so on with regard to every other article in that same library? If not, and if he should not think fit to read it, his reason for rejecting it would naturally be founded on some such ground as what is expressed by the above-mentioned clause. In a reasonable mind (he would say) it does not appear to me that the contents of this book are of a nature to contribute anything, or at least anything worth regarding, toward the forming a persuasion affirming the existence of the alleged acts of witchcraft, charged by the plaintiff to have been committed by the defendant.
To a party acting in malâ fide, the inducements, constant and casual together, are equally obvious. We have seen the mischiefs liable to result to the party in the right, from excessive loads of matter, relevant or irrelevant, thrown upon the mind of the judge: perplexity, deception, misdecision. We have seen the mischief in the shape of vexation, expense, and delay, capable of being drawn down from the same source upon the party who has right upon his side: so many mischiefs, so many inducements, in the eyes of a malicious and unscrupulous adversary.
The following are natural exemplifications of irrelevant evidence:—
1. Be the suit criminal or non-criminal, evidence against Tertius is relevant or irrelevant as against Reus, according as participation is or is not brought home to him. Will it be so, or not? Sometimes it will not be to be known, till the whole of it has been gone through: sometimes the fact of the participation may be proved or disproved in the first instance. The line of conduct by which a burthen, a legal obligation, criminal or non-criminal, is, or ought to be, imposed upon Tertius, is (we shall say) a chain of acts, the connexion of which with the conduct of Reus may be proved by some act antecedent to the very first link, subsequent to the last, or in concomitancy with any intermediate one. An example of the first-mentioned case, an order; of the next, an act of confirmation; of the last, extrajudicial discourse of a confessorial nature, in the way of conversation, acknowledging participation by any of those modes of behaviour which in a criminal case denominate a man an accessary, whether before the fact or after the fact.
What may have happened is, that, though Reus was in confederacy, all along, with Tertius, and though evidence sufficient for the proof of the confederacy exists, and can be produced, yet the nature of it cannot be understood till after the part acted by Tertius has been brought to view.
In all these cases, prove participation upon Reus, everything that has been done by Tertius is material: all evidence which contributes to proof of it is relevant. If no such participation be proved, all that was done by Tertius is, with regard to Reus, immaterial, all the evidence of it irrelevant.
If (as in case of an order, or formal act of ratification) it be agreed or established that no proof of participation, no other proof, can be given, than what is distinctly separate from the evidence of the principal course of action; if, at the same time, the proof of the act of participation be short, that of the principal course of action long; the proof, or what is given for proof, of the act of participation, should come first. Why? Because, failing this proof, evidence of the principal course of action falls into the category of irrelevant evidence, and the suit should of course be rid of it.
What has been done by English law in relation to irrelevant evidence, distributes itself naturally under two heads: what has been done for the exclusion of irrelevant matter, and what has been done for the accumulation of it.
First, as to the exclusion of it. In this respect, much depends upon the words in which the evidence is collected.
1. Collected vivâ voce, coram judice et partibus, all irrelevant matter everything that appears to wander from the point, is nipped in the bud.
Accordingly, to the extent in which this mode (including its sub-modifications) is employed, irrelevancy, in the character of a source of vexation, expense, and delay, is scarce known: exclusion takes place instanter, and no mischief is produced on either side. None by the exclusion, because what is excluded is of no use: none by the irrelevant evidence, because, before it has time to produce any mischief, the door is shut against it.
In the following modes of collection, accordingly, the plague of irrelevancy is in a manner unknown:—1. In the natural mode, as employed in causes tried in courts of conscience, and before justices of the peace out of sessions; 2. In the jury trial mode; 3. In preliminary examinations taken before a justice of the peace, or before a coroner; 4. In examinations before committees of inquiry, or commissioners of inquiry.
2. Irrelevant evidence is the peculiar growth of equity. In the language of that country, it is called scandal and impertinence. For the designation of matter to which nothing worse can be objected than that it is useless, the word impertinence seems to have been employed: when the irrelevancy is aggravated by injuriousness, the word scandal.
A consequence inseparable from the modes of collection there in use, is, that in this case the peccant matter, before it is turned out, must be let in. This circumstance we may be pretty well assured was not overlooked, when the mode of collection came to be chosen, in, by, and for, those courts. Nothing could be better adapted to the ends of judicature. Business made by the quantity of peccant matter let in; business made by the discussions relative to the exclusion of it: business made by admission in the first place; business made by exclusion in the second place.
The mischief swelled to such a height as to be past endurance the auditory nerves of the judge (of a judge who never heard anything about the matter) were continually wounded by it: it became necessary to apply a preventive remedy. Order that no answer* be given in without having been signed, and thence manufactured and dressed up, by counsel: order that no interrogations be exhibited for the examination of witnesses, without having received the same security against scandal and impertinence. An additional load of vexation, expense, and delay, laid upon all causes, and the chance of misdecision increased by the sophistication of the evidence, for the adding of a sham security against the irrelevant matter that might come to be introduced in here and there a cause! As if the responsibility of the underling sort of lawyer whom the judge punishes every day without scruple, could receive any material addition from the responsibility of another sort of lawyer, whose situation is too near that of the judge to be exposed to punishment.
Business made by letting in the irrelevancy; business made by tossing it about when in, and throwing it out; business made by stationing a set of porters whose constant employment is to keep it out. Should irrelevancy creep in notwithstanding, does the responsibility amount to anything? Oh, no: that would be contrary to all rule. It is the lawyer that transgresses; it is the client that is punished for it.
How irrelevancy is shut out, when it is men’s wish to shut it out, has been seen already. But what could be more adverse to the ends of judicature?
We come now to speak of the arrangements whereby the accumulation of the same valuable matter is compelled, or otherwise encouraged, in subservience to the same ends.
1. Of one of the consequences of the exclusion put upon the most satisfactory kind of evidence, confessorial evidence, a momentary mention has been already made: the time of the judge consumed, his faculties oppressed, by an inundation of inferior, of hearsay and other extraneous, evidence. First sample of virtually irrelevant evidence artificially and habitually accumulated,—extraneous, vice confessorial at large.
2. In this case, and from the rest of the matter belonging to this case, should be distinguished the more particular case where the use of the confessorial evidence is to serve for the authentication of an article of written evidence (contractual, or casual and informal:) a sort of evidence extractable from the party, without any additional vexation, expense, or delay; and not without a boundless mass of vexation, expense, and delay, from extraneous sources. Second sample of virtually irrelevant evidence artificially accumulated,—extraneous evidence vice confessorial for the purpose of authentication.
In a mass of assertive matter, whatsoever is false without conveying instruction by its falsity, is, on that account, whether relevant or irrelevant, at any rate superfluous and useless. The falsehoods of the thief, or other unlicensed malefactor,—such falsehoods, especially when drawn from him by interrogation, in court or out of court, are pregnant with instruction, useful instruction: the fictions and other falsehoods of the lawyer, relevant or irrelevant, always superfluous and useless, barren of instruction, are pregnant with nothing but confusion and misconception, their intended fruit.
3. Of the nature of that sort of discourse which forms the matter of written pleadings, a slight sketch has been already given: of its inutility—of its repugnancy to the ends of justice—of its subserviency to the ends of judicature. Third sample of virtually irrelevant evidence artificially accumulated,—matter of written pleadings, and more especially of that sort of written pleading which is called special.
What! Pleading? the matter so carefully distinguished from evidence? Do you call pleading evidence?
It is, and it is not, evidence. It is not, to any good purpose; it is, to a variety of bad ones. It is not, for the purpose of giving termination, or at least any right termination, to the suit; it is, for the purpose of giving continuance to the suit. It is not, for the purpose of grounding any right decision upon, and in favour of, the merits; it is, for the purpose of grounding wrong decisions on points foreign to the merits. It is not, for the purpose of any decision, subservient to any of the ends of justice, because, being partly irrelevant and partly false, it is known to be unworthy of all regard, and accordingly no regard is ever paid to it: it is, for the purpose of producing, without compensation, that vexation, expense, and delay, for which a compensation is afforded by genuine evidence: it is, for producing that misdecision, the danger of which constitutes the characteristic mischief of false evidence.
In lawyers’ language, it is not evidence; because lawyers have settled with themselves not to give the name of evidence to any assertion, which, in case of mendacity, they are not prepared to punish. It is evidence, because, with the exception of that accidental and adventitious property, viz. that of subjecting the utterer to punishment in case of mendacity, it has all the characters of evidence.
It is not evidence, for the purpose of subjecting to punishment the liar by whom it is delivered; it is evidence, for the purpose of subjecting to pillage the innocent suitor at whose expense it is delivered.
4. Bills in equity may either be included under the last preceding head, or be considered as constituting a separate one.
The matter of them may be considered as part of the matter of written pleading, inasmuch as it takes shelter, along with the rest, under the wing of the mendacity-licence.
It may be considered as a separate article, in virtue of the multifariousness of its contents: in virtue of its containing (over and above the matter of assertion) matter of interrogation, and matter of surplusage,—general matter, which, if the appropriate matter happens to be more or less true, is still irrelevant.
From the rest of the irrelevant matter, which, whatever might be the consequence of omitting it, never is omitted, may be distinguished one never-omitted portion of scandal and impertinence: impertinence, and that of a scandalous nature, regularly put in by the learned person whom the party is forced to pay for keeping out scandal and impertinence.
Another difference. In the sort of matter that is more apt to be presented by the word pleading—in what at common law goes by that name—a man puts in, or does not put in, lies, as he sees convenient: at any rate, the obligation of mendacity does not extend to any of the assertions appropriate to the individual suit. In the matter of a bill, one necessary part is appropriate matter, in respect of which matter the learned draughtsman is forced to tell lies, on pain of loss of cause to his client; this part is distinguished by the name of charging part; a chain of assertions, constituting the indispensable foundation of the corresponding chain of questions. What you do not know, and ask to know (ask of the defendant whom you suppose to know,) you must declare that you know, and pretend to tell the court how it is.
5. To the account of the difference in respect of the mode of collecting the evidence, as between common law and equity, must be set down an unknown mass of irrelevant or otherwise redundant matter, in such of the written instruments as have the name of evidence. The commissioner or examiner, the judge ad hoc, by whom the evidence is extracted in this shape, is paid according to the quantity. That in this state of things a portion of surplusage should in the aggregate mass of causes be generated (not to say in each particular cause,) follows as matter of course. It is equally obvious, that the quantity of it lies not within the reach of calculation; varying with individual circumstances, as well as with the idiosyncracy of the individual in each individual cause.
6. Indistinctness is the parent, not only of confusion, but of surplusage. Confusion generates business: surplusage is business ready generated. In the courts called ecclesiastical, the plaintiff’s story, true or false, possesses at any rate that species and degree of distinctness which is produced by a division into numbered articles. The principle of distinctness thus infused into the charges, with the indirect questions virtually included in them, extends itself to the answers, and so on to any objections (or, as they are called, exceptions) which, on the score of insufficiency, or any other, may come to have been taken to the answer. In equity practice,—after the clouds of confusion that have been raised by an undivided bill, followed by an undivided answer, each with its train of surplusage,—two species of instruments (viz. the list of questions by which, under the name of interrogatories, testimony is extracted from extraneous witnesses, and the list of observations by which, under the name of exceptions, ulterior responses are called for at the hands of a defendant) have somehow or other been suffered to receive the benefit of this principle. To no lawyer by whom any such articulated instrument was ever drawn—to no professional lawyer (not to speak of judges,) could the distinctness and comparative perspicuity of the instrument thus divided, have ever been a secret: by no such lawyer could that confusion, which, in the undivided instruments, results from the non-application of that principle, have been unexperienced, have passed unperceived. It would therefore have long ago been applied to every such instrument, had distinctness been among the ends of judicature.
7. Of affidavit evidence, that worst sort of evidence, on which, and which alone, so many causes are tried—the only sort which a judge of the learned class ever receives for his own use,—mention has been made already. To point out how efficient, in the character of a cause of clearness, the same principle, articulate division, would be in this case, the slightest hint may (after what has been said already) suffice. In the case of a bill in equity, the line that separates question from question forms a sort of indirect principle of division, and thence of distinctness, however inadequate. In an affidavit, even this faint light is wanting. What can be more evident than the utility of affidavit evidence to the ends of judicature?
The confusion that pervades affidavit evidence is still more favourable to evasion; and thence (through the medium of deception) to misdecision; thence to vexation, expense, and delay, through the medium of irrelevancy. But its subserviency to the intermediate ends of technical judicature does not lessen its subserviency to these ultimate ends; nor therefore supersede the mention of it.
When, in a bill in equity, an answer, or a deposition, the adverse party has observed what to him appears to come under the denomination of scandal or impertinence,—he applies to the court, that the obnoxious instrument may be referred to the master (the subordinate judge of the court,) to report whether there be any matter of that description; and if yes, to cause it to be expunged: costs to be paid by the delinquent.
How useful an arrangement, if, in the equity (as the phrase is) of this equity practice, some master were employed, or some other connoisseur in scandal and impertinence, to look over the whole of the current mass of “practical forms” in this view. Ten volumes of this sort of matter lie before me, all in one modern publication, virtual folios, though nominal octavos.
Impertinence (to speak technically) he might find to constitute the ground of all of them; scandal, an appropriate sort of embroidery, in not a few: more particularly in those copious effusions of technical eloquence called indictments and informations: more particularly still where the effusion comes under the denomination of a libel, or (on that or any other score) comes under the denomination of a state or political offence.
On the occasion of a libel more particularly, certain scandal is (or at least used to be) regularly employed to encounter problematical; vicious or virtuous, the defendant’s life, character, and behaviour, is or was aspersed Between the two scandals, observe the difference: that which is certainly scandal, is uttered under a licence, and the author paid for it: that which may either be scandal or useful truth, is uttered without the licence, and the author, guilty or not guilty, together with an indeterminate train of innocent men in the character of printers and venders, is made to pay for it.
In the mean time, and until the master here spoken of shall have received the reference, and made his report, and that report been acted upon, and the expunction effected,—the way might be paved, at any rate, for such a reform, by a constitutional resolve: I mean, among jurymen, but more especially special jurymen, and on the occasion of all those political offences of which the mischievousness is so problematical as it is commonly in the case of state libels:—to lay it down to themselves as an inviolable rule, to pronounce a verdict of not guilty, if, among all these charges so coupled together in the conjunctive, there be a single one, which (whether capable of proof or not capable) is not fully proved. Of what use is that man’s conscience to him, who suffers an attorney-general, or any other lawyer at the bar, with or without the support of an imperious and brow-beating lawyer upon the bench, to force him to commit perjury?
[* ]See Book V. Circumstantial; Chap. XVI. Improbability, &c.
[* ]Ready-written deposition of a defendant, as extracted by ready-written allegations and interrogations delivered on the part of the plaintiff.—See Book II. Securities.