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CHAPTER IV.: INCONSISTENCIES OF ENGLISH LAW IN REGARD TO SELF-DISSERVING 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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INCONSISTENCIES OF ENGLISH LAW IN REGARD TO SELF-DISSERVING EVIDENCE.
This rule, this exclusionary rule, which grounds itself on the evil of vexation, would not be a rule of jurisprudential law (more particularly of English jurisprudential law,) if it had not its exceptions: and these exceptions (no intimation being given of them in the rule) forming so many contradictions; and the reasons of them (not being good but on the supposition that there are no reasons, or none but bad ones, for the rule) forming so many inconsistencies.
In a former place there was occasion to mention, in the character of so many uses to justice attending the admission of self-prejudicing testimony (that is, of questions leading to the extraction of it,) that thereby the receipt of two other species of evidence from the same source—evidences equal at least in vexation, inferior in instructiveness, safety, and trustworthiness—would in general be saved. These were—1. Papers (such as letters or memorandums) containing a discourse supposed to be that of the party; and 2. The supposed extrajudicial conversation supposed to be held by the party, on any occasion not being a judicial one, and reported by another person in the character of a judicial witness.*
Useful, in case of necessity, for the purpose of strengthening or weakening the opinion of the trustworthiness of the immediate evidence from the same source,—useful, though less safe, in the character of succedanea to it when it is not to be had,—who does not see how bad a substitute these unsanctioned and uncross-examinable evidences make, for the mass of immediate testimony from the same source? when it is to be had, and under the same securities for its correctness and completeness (viz. oath or what is equivalent, and counter-interrogation) as in the case of an extraneous witness.
These secondary and inferior species of evidence are accordingly admitted: but upon what terms? Upon the terms of their not receiving the confirmation, infirmation, explanation, or completion, that could have been applied to them by the immediate evidence from the same original source. Upon condition of their being freed from that check—of the judge’s refusing to himself the benefit of that security against deception and misdecision; and no otherwise.
1. First contradiction to the exclusionary rule:—admission of the supposed casually and extrajudicially written discourse of the person excluded; to whom, for fear of vexing him (he standing or not standing there,) no questions are permitted to be put.
2. Second contradiction to the exclusionary rule:—admission of hearsay evidence, purporting to contain the casually and extrajudicially spoken discourse of the person to whom, for fear of vexing him (he standing or not standing there,) no questions are permitted to be put.
Of the vexation, for the avoidance of which such sacrifices have been made.—sacrifices not to, but of, the interests of truth and justice,—an estimate may now be made. It is the difference between that which a man feels when the testimony, in consequence of which he sees himself exposed to suffer, whatever it be, issues on the occasion in hand immediately out of his own lips or from his own pen,—and that which he feels, when—testimony to the same effect, exposing him to the same suffering, neither more nor less, having happened on some preceding occasion to escape from his own lips or his own pen,—he hears or sees it brought out against him on the occasion in hand, from the lips or the pen of some other person;—the difference between what he feels at hearing brought out against him information which dropped from him at a time when he was off his guard, and knew not the use that would be made of it,—and that which he feels at the yielding the same information at a time when he is completely upon his guard. Now then, what is the real value of the mischief, in contemplation of which an amendment has been made on the maxim, fiat justitia, ruat calum—justitia being erased, and injustitia substituted?
But it is a weight added to a man’s affliction (it may be said) to have the proof that is to subject him to punishment drawn out of his own mouth. A weight? No, not of a feather. What is this burthen, compared with the burthen imposed without remorse upon individuals completely innocent—upon the individuals convened as witnesses? The suffering—the real suffering—is that which is inflicted by the punishment itself: a suffering, the infliction of which is by the supposition (speaking with reference to the aggregate interests of the community) a desirable event. In that, and that alone, consists the real affliction. As to the supposed addition—a mere metaphorical quantity—except in the mind of the rhetorician it has no existence.
You are sure of being convicted: by what sort of evidence would you choose rather to be convicted? By the evidence of other people without any of your own, or by evidence of other people’s and your own together?—Were a question of this sort put to a malefactor, would it not be matter of perplexity to him to choose? Would not a pot of beer or a glass of gin, on whichever side placed, be sufficient to turn the scale?
But allowing, for the sake of argument, that there is a difference between the pain in the one case and the pain in the other—for my own part, I can see none—but if there be, can it be assumed as a competent and sufficiently broad and solid ground for the establishment of a rule of law? Is there anything here capable of being set against the mischiefs of impunity? the mischiefs of the offence (be it what it may) which the law in question—the law which the rule of exclusion in question seeks to debilitate—is employed to combat?
Justice out of the question (which certainly has nothing to do in it,) refer the matter to mercy—whatever he meant by mercy—and ask, whether a malefactor be the less deserving of mercy, because it so happens, that, without putting any questions to himself, evidence sufficient for conviction happens to come in from other sources?
In England, society exists; therefore English law must have given admission, either to the makeshift or to the regular evidence from that same source. It excludes the regular—it admits the makeshift. Observe, then, the result of this prodigious scrupulosity, of this sentimental tenderness:—a preference, and that an exclusive one, given to inferior evidence.
Lawyer. Inferior? Ay, in your estimation.
Non-Lawyer. Yes: But I speak not of my own estimation only, nor of the estimation of men in general only, but of your own. Suppose it the case of an extraneous witness—a person whose testimony it is proposed to call in, he having no share or interest in the cause. Do you in that case accept of a letter or memorandum of his, or a supposed extrajudicial discourse of his, in lieu of the judicially delivered testimony of his own hand, or the immediate evidence of his own lips? Do you in this instance exclude the regular, open the door to the makeshift evidence, from the same source? Not you, indeed, far from excluding the regular evidence, you do not admit the makeshift: far from giving an exclusive admission to the makeshift, you do not (unless incidentally, for infirmation or confirmation) give it any admission at all.
3. In the short and disastrous reign of Philip and Mary, came out the statute* so often mentioned, in virtue of which, in cases treated as criminal, and where the punishment rises to that of felony, justices of the peace, acting singly, are empowered to resort to the mouth of the defendant (the supposed transgressor) for information on the subject of the offence.
Not a syllable can he utter that may not have—that was not designed at least to have in case of his having been guilty—the effect of self-criminative evidence. Not a minute after any such question put to him can he remain silent, but his silence (at least if the use were made of it that might, and ought, and was intended to be made of it) would, in like manner, have the effect of self-criminating evidence.
Contradictory, however, as this statute is, when compared with the jurisprudential rule, the charge of inconsistency (it must be confessed) extends not to this case. The rule was the work of the man of law seeking his own ends: the exception—a sprig of common sense, imported from the continent of Europe, and planted in a bed of nonsense and hypocrisy, by which it has been nearly choked—was the work of the sovereign, seeking the welfare of his people through the ends of justice. Happy the nation, had no worse importation taken place under the auspices of Spanish influence!
Third contradiction to the exclusionary rule:—preparatory examination of suspected felons, under the statute of Philip and Mary.
Thus far we have seen the contradictions given to the rule, when the punishment, to which the man exposes himself by his self-criminative evidence, is ultra-pecuniary; rising, in its lowest degree, above the highest level to which pecuniary punishment is capable of extending itself.
Observe, now, the contradictions which it has received in the case where the punishment is not ultra-pecuniary,—does not, in its highest degree, rise, in point of afflictiveness, above the level of pecuniary punishment.
But in the case where, in how heavy a degree soever onerous, the heaviest obligation to which the party stands exposed does not wear the name of punishment,—self-onerative, self-onerative simply, is the name that has been given to the evidence. The cases embraced by self-criminative evidence exposing the party to punishment not beyond pecuniary, and the cases embraced by evidence simply self-onerative, are therefore, to this purpose at least, the same cases: the rules and practices, therefore, that operate in contradiction to the rule excluding self-onerative evidence, are so many contradictions to the rule by which self-criminative evidence, to the effect of punishment not ultra-pecuniary, stands excluded.
4. A motion for an information (a criminal information) is a suit instituted to know whether a suit shall be instituted: a suit carried on upon the worst evidence that can be found, to know whether a suit for the same cause shall be carried on upon good, or less bad, evidence: a suit carried on upon premeditated, preconcerted, uncross-examinable evidence, to know whether the same suit shall be carried on upon unpremeditable, unconcertable, cross-examined evidence.
When the prosecution is in this mode (and there are few crimes short of capital, the prosecution for which may not be carried on in this mode,) the principal piece is never suffered to be performed before a single judge, for the benefit of justice, till in this style a prelude to it has been rehearsed at his majesty’s theatre in Westminster Hall, for the benefit of the lawyers.
Lawyer. Nay, but what is this to the purpose? Here no questions are asked: the defendant says what he pleases.
Non-Lawyer. True, sir; no questions are put in the form of questions: but allegations have been made—allegations, which, to the purpose here in hand, howsoever imperfectly calculated for the complete and correct discovery of truth, have the effect of questions. By the affidavits of those willing witnesses whom he has procured to join with him, the prosecutor has made his charge. The defendant delivers in his affidavit or not, as he thinks fit: but (the rule having been made upon him to show cause) so sure as he omits to deliver in an affidavit, so surely, in this preliminary suit, is he cast. If he pleases, he may be silent, taking the consequences; and so he may be, though the exclusionary rule were abolished.
Of a complete abolition of the exclusionary rule, what (at least in the case of a party) would be the effect? Not compulsion, the exaction of an answer; but simple permission—permission to put questions: he to whom the question is put, answering or not answering, at pleasure.
Are you an equity draughtsman? You are not to learn, then, that in equity, an allegation, a charge, is everything—a question, nothing. Is the fact made up into a charge? Question or no question, interrogatory or no interrogatory, an answer is compelled, and compelled by means far more rigorously coercive. Is an interrogatory put without a charge for its support? It is as if nothing had been said.
Lawyer. But can you say the obligation upon him to answer is equally coercive in this case, as before a jury at the assizes, the Old Bailey, or Guildhall?
Non-Lawyer. Oh yes; that I can. The obligation to speak true, no: on the contrary, if he be guilty, he has every encouragement that can be given to him to engage him to speak false, and upon his oath—to engage him to commit perjury: 1. Time for premeditation: 2. Attorneys and counsel to instruct and assist him in the arts of evasion; 3. Time for concerting a story with co-affidavit men and co-perjurers, if he can get any; 4. No questions asked; 5. The assurance that if he swears hard enough, his own testimony, though with the testimony of the prosecutor in the teeth of it, will be conclusive, and save him from all further trouble. Truth, therefore, if guilty, he has every encouragement not to speak: but something he is bound to say, or condemnation ensues. If the charge be strong enough, to one or other obligation he stands bound continually—either to criminate himself, or to perjure himself.
Lawyer. Condemnation! why talk of condemnation? Is not the trial, the inquiry by the result of which he may be either convicted or acquitted, yet to come?
Non-Lawyer. Yes; in the case of an information. But be pleased to go on to the next article.
5. There are a class of suits which, though not much less frequent than the denominated ones, have never yet received a name; let us call them Motion Causes. The demand,—instead of being stated by the pen of one sort of lawyer, in the form of a written instrument, an indictment, an information, a declaration lodged in an office,—is stated by the tongue of another sort of lawyer, in a harangue made in open court, called a motion. Instead of being tried on vivâ voce evidence, the question in this case is tried solely upon affidavit evidence.
On an information, after having had the advantage of being condemned once on bad evidence, a man may have the privilege of being condemned again upon better evidence. But in a motion cause, condemned once, he is condemned for good and all: if condemned at all, he is condemned upon the bad evidence.
Of these motion causes, some are considered as criminal causes, some as civil causes. Criminal causes: for example, motions for attachment; motions that the defendant may answer the matters of the affidavit. Civil causes: for example, motion to set aside proceedings for irregularity; motion to set aside an award that has been made a rule of court.
Under the head of motion causes may be ranked (to this purpose at least) petition causes: the causes by which masses of property are disposed of to any amount, in the case where the possessor has been aggregated to that class of insolvent debtors who have been styled bankrupts. In these cases, whatever motion the ears of the judge are entertained with, is preceded by a written instrument called a petition, which gives him little trouble. In these cases, the evidence by which the cause is decided being purely affidavit evidence, they present, in this respect, no difference to distinguish them from the aggregate mass of motion causes.
6. Another occasion on which self-disserving evidence, and that self-criminating, is not only allowed to be called for, but compelled, is that on which the evidence is extracted from a defendant by the subordinate judge called the master, by means of ready written questions, called on this occasion interrogatories.
So seldom does the occasion for this operation present itself, that it would not have been worth mentioning, except that it may be seen that it has not been overlooked.
In the case of an information, the second inquiry before a jury comes on of course, if,—on motion for leave to file the information, and the first inquiry—affidavit inquiry (if an inquiry it can be called, on which no questions are asked) in consequence,—the rule to show cause is followed by an absolute rule, leave granted, and information filed. If the second inquiry comes of course, the cause cannot, to the disadvantage of the defendant’s side, be determined without it.
In the case of an attachment, unless it be in one out of several hundred (not to say thousand) causes, the first inquiry is the only one; the fate of the defendant is determined by it.
But in a case that has been known now and then to happen, after the fate of the defendant has been determined on the ground of the affidavit evidence, with or without extraneous witnesses on both sides, the defendant alone is subjected to a second inquiry, performed by the ready written questions as above mentioned.
On an occasion of this sort, no more reserve is used than would have been used had the rule nemo tenetur seipsum prodere never been heard of. If time is given him to study his answer, and a copy of the interrogatories given him for that purpose, he is thereby examined in the way a defendant is examined in the civil suits called equity suits. If answers are required of him on the spot, he is thereby examined as extraneous witnesses are examined, on the occasion of these same equity suits.
7. Must it be mentioned? Yes, it must; how frequent soever may be the need of mentioning it on other occasions:—or the catalogue of the inconsistent infringements of this rule will not yet be complete. In cases of indictment and information, if the defendant has been convicted by his own default, or by a jury upon the good evidence, the appetite of the partnership is not yet satisfied: the chain of inquiries is not yet regarded as complete, without a third inquiry, in which the cause is tried over again upon the bad, the affidavit, evidence. I speak of the supplemental inquiry, carried on antecedently to, or upon, his being brought up for judgment.
By the same evidence by which the same cause is thus tried over again for the third time, another cause (it frequently happens) is tried for the first and last time,—another cause, of which no jury has had cognizance. I speak of the charges so frequently brought against the same defendant, for misbehaviour alleged to have taken place at a time subsequent to that of his conviction by the jury for the former cause.
Such is the respect really paid to that most useful of all stalking-horses, an English jury: the gorgeous idol, under whose convenient mantle so many abuses lodge themselves. Such is the respect really paid, even in criminal causes, to the accommodating maxim—to the flexible, the truly Lesbian rule, nemo tenetur scipsum prodere.
On every man, obligation to betray himself: to every man, encouragement at the same time to perjure himself. Such is the state of things, as often as, in regard to a disputed question, affidavit evidence is received.
8. Coeval, or not much short of coeval, with the practice on jury trials which admits not of the putting a question to either party in the cause, is the practice of the equity courts, by which, to so great an extent, the proceedings in the causes in which juries are employed are obstructed or overruled:—not to speak of the wide-extending class of demands of which equity alone takes cognizance, the all-sufficient power of common law not affording to these rights so much as the semblance of a remedy.
But in no one instance whatever was any cause heard in equity, but—in and by the very instrument (the bill) in and by which the demands of the plaintiff are signified—the defendant is called upon to betray himself, as truly as it is possible for a man to be called upon to betray himself. The questions being put in writing, time is indeed given him to meditate and concert safe perjury, as in the case of affidavit evidence. Answer he must, or, when he has been plagued and squeezed sufficiently in other ways, his silence is taken for an answer in the affirmative; the bill is taken pro confesso; and that which to his prejudice the plaintiff prays may be done, is done.
Lawyer. But equity causes are but civil causes. Admitting this to be the practice in equity, it is not, for this instance at least, the less true, that no man is bound to criminate himself.
Non-Lawyer. True, equity causes are but civil causes: so that, by the effect of the question put to him, a man is not exposed to lose more than his whole estate. But of that estate the value may amount to any number of hundreds of thousands of pounds, seens which now-a-days are running on to millions. In a cause denominated a criminal cause, did you ever, in the whole course of your practice, know an instance of a man’s suffering a loss to the amount of two thousand pounds? Were the option your own, to which of two losses would you give the preference: to a loss of £2,000, to be taken from you in a cause called a criminal cause, or to a loss of £200,000, to be taken from you in a cause called a civil cause?
Contradictions in substance are not to be reconciled by words. The jurisdiction of the courts of equity is civil merely: be it so; for civil is but a word. But if vexation or no vexation is the issue—if feelings themselves, not the words employed in speaking of them, are to be regarded,—the quantity of vexation to which a man may thus be made to subject himself by his testimony, when extracted from him by this court of purely civil jurisdiction, surpasses by a great deal the utmost quantity of vexation of the same kind, to which he could be subjected were his testimony extracted from him with a view to punishment, to be inflicted upon him under the name of punishment, in a court of criminal jurisdiction, where either attachment or information, and in perhaps the greater part of the cases in which indictment, is the name given to the suit.
Taking the ends of justice for the standard, here we see a tissue of inconsistencies. Viewing as the sole ends in pursuit the established ends of judicature, all inconsistency vanishes.
The parties examining one another vivâ voce, and at the outset, in the presence of the judge, as in a court of conscience,—so far, no pretence for fees, no more than in a court of conscience, no delay, no pretence for delay, no motives for producing delay, no more than in a court of conscience. Set them to fight with affidavits manufactured by attorneys, fees spring up in plenty. Affidavits the seed, perjuries and fees, like ryegrass and clover, spring up together.
Set them to examine one another in the epistolary style, as in and by a bill in equity (that is to say, a pair of bills, a bill and a cross bill,) the examination takes up twice or three times as many months, as in a court of conscience it would have taken minutes. The prolific examination, crawling on for ten, fifteen, or twenty months, fees pullulating from it all the time. A suit in equity, perhaps, to do nothing but get the evidence: and then a suit at common law, six, twelve, or eighteen months, to give employment to the evidence.
[* ]Vide supra, p. 447.
[* ]2 & 3 Philip and Mary, c. 10.