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CHAPTER I.: IMPROPRIETY OF EXCLUDING THE TESTIMONY OF A PARTY TO THE CAUSE, FOR OR AGAINST HIMSELF. - 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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IMPROPRIETY OF EXCLUDING THE TESTIMONY OF A PARTY TO THE CAUSE, FOR OR AGAINST HIMSELF.
Of the case in which the exclusion appears to have rested on a double ground—that which respects deception, and that which respects vexation—one exemplification is constituted by the case in which the testimony in question is that of a party to the cause.
Receive his testimony at his own instance, the testimony will be false, and you will be deceived by it: call for it at the instance of his adversary, it will be hardship to him to be obliged to give it. Such (it may be presumed) are the reasons, by which the exclusions put upon the evidence of a person bearing this relation to the suit, have been suggested. But, in each instance, the insufficiency of the reason has been already brought to view: nor, though they are applicable to the same person, does the force of either make any addition to that of the other; for whereever the one applies, the other does not. The consequence is, that there is not an imaginable case in which the testimony of a party, be he plaintiff or be he defendant, ought to be excluded.
At his own instance,—the reason which forbids the admission of the testimony is weaker in this case than in the case of an interested extraneous witness. The real magnitude of the interest being the same in both cases,—in the case of a party the interest is more palpable: the objection created by it is likely to act with greater force upon the judicial faculties of the magistrate: his mind is more surely open to it: the danger of deception is therefore less.*
If, in so far as it operates in his own favour, the testimony of the party is liable to be drawn aside from the line of truth by the action of this force, which is so obvious even to the most unobservant eye,—in so far as it operates in his disfavour, it possesses, in a degree superior to all other testimony, a claim to confidence. That, in this case, the error, if any there be in the testimony, is not a wilful one—is not accompanied, at the same time, with a knowledge of the falsity of the information, and of the tendency it has to operate to the deponent’s prejudice—is a proposition, the truth of which is far more certain in this instance, than it can be in any other.
Accordingly, as often as the testimony of a party is received—so sure as it enters into the mind of any one who has to judge of it—so sure is it to be analyzed, and, as it were, divided into two parts. To the part which is regarded as operating in the deponent’s own favour, the incredulous, the diffident part of the judge’s mind, applies itself of course: while the part regarded as operating in his disfavour, commands, on the part of the judge, an almost unlimited share of confidence: in a word, what portion of the mass is understood as belonging to this division, is, by the common sense and consent of mankind, universally regarded as the best evidence.
Such is the evidence, of which, on the ideal supposition of extraordinary vexation, the rashness of a certain class of jurists has not hesitated to rob the treasury of justice.†
A party is not suffered to be examined on his own behalf. Observe the consequence: he is delivered without mercy into the hands of a mendacious witness on the other side. Your adversary, to make evidence for a suit he means to bring against you, sends an emissary to you to engage you in a conversation, that, when called upon as a witness, he may impute confessions to you such as you never made. When the evidence comes to be given at the trial, the witness tells what story he pleases: as for you, you must not open your mouth to contradict him, although, were you admitted to state what passed, it might be in your power to satisfy the judge, that the account given of the conversation by the witness could not possibly have been true.
If, instead of sending his agent, the plaintiff had gone with him, his testimony, it is true, would have been excluded as well as yours. In words, here is a sort of reciprocity; but in effect, no such thing. The plaintiff has no need to tell his own story: he has his witness, by the supposition a partial, and even corrupt one, to tell it for him. The plaintiff, instead of being a sufferer by the exclusion put upon himself, is a gainer by it: understand, where his plan of defence is dishonest, as it is here supposed to be. In his spontaneous examination, he would have had the advantage, it is true, of joining his witness in the concerted lie; but in their cross-examination (being kept out of each other’s hearing for that purpose,) they might have been brought to contradict one another, and thus the lie might have been discovered.
On this occasion, as on so many others, mutato nomine the law departs from its own principles: the same evidence which it refuses to hear at one time, in a cause called by one name, it admits at another time, in a cause called by another name: but the repentance comes too late for justice. In the original cause, the corrupt witness (things being as in the case above supposed) stands up uncontradicted, and carries his point. In another cause, if the injured plaintiff has courage and money to venture upon it,—in a derivative cause, growing out of the original one,—in an indictment brought against the perjured witness for the perjury,—the mouth of the corrupt witness (now converted into a defendant) is stopped, while that of the quondum plaintiff, now called a prosecutor, and under that name a witness in his own cause without difficulty, is opened.*
Here there are two causes, one after another, in each of which the judge hears but on one side; instead of a single cause, in which he might have heard on both sides. Not even by this second cause,—supposing the truth to come out, and the judge to be satisfied about it,—is it in his power to do justice: for in this second cause nothing more can be done than the convicting the perjured witness of the perjury: to do justice to the party injured by the perjury, there must be a third cause, of the same denomination as the first. And this is what justice gets, by the care taken to defend the wisdom of the judge from deception, and the feelings of the parties from vexation, by a rampart of excluding rules. The man of law is satisfied, because suits are multiplied: but where is the satisfaction to the injured suitor and to justice?
Another circumstance concurs in rendering the remedy still more inadequate. In the prosecution for the perjury, conviction ought not to take place, and naturally, will not take place, without the degree of persuasion commencement to the punishment attached to so high a crime: whereas, in the original non-penal suit, any the slightest degree of preponderant probability would have been sufficient to turn the scale.
On this head, correspond with English law, Roman law (with all its faults) distinguishes itself to great advantage. In simplicity, though absolutely imperfect, it is relatively transcendant.
In his own favour,—that is, at his own instance,—it suffers not the testimony of any party, of any person at least whom it recognises in that character, to be received: and thus far it does wrong.
But in his own disfavour, that is, at the instance of his adversary (or of the judge, in the case of inquisitorial procedure,) the testimony of the party is in every case received, and allowed to be called for: and thus far it does right.
As to admissibility, there is no such irrelevant and indefinable distinction as that between civil and criminal. The only difference is, that in a case recognised as a criminal case, the testimony of the defendant is called for of course, and in the first instance;—whereas, in a case recognised as a civil (that is, a non-criminal) case,—though the testimony of each party may be called for by the other,—unless called for by the opposite party, it is not called for, or received, by the judge.
It is to English law that we must look for modification upon modification; and that confusion and inconsistency, with the delectable and ever-cherished intricacy which, where there is but one straight course, is the necessary consequence.
Courts upon courts; each, in this part of the field, proceeding and judging by a different set of rules: as if the suitors were human creatures in some one of them, and beings of a different composition in the other. Harmonious disagreement! all tending to one common end.
Which shall we take for the general rule? For elucidation’s sake, let it be the rule of exclusion: the rather, as being consigned to one of those Latin maxims, which, though in universal currency, express with equal infidelity, both what is the practice, and what ought to be:—Nemo debet esse testis in propriâ causâ.
Taking this for the general rule, we shall find it cut into by exceptions upon exceptions; and that in each of the two parts into which we have seen it dividing itself.
This, for the rule with regard to the admission of the party’s testimony, in his own behalf. Next, with regard to the compulsory extraction of it, in behalf and at the instance of the other party, comes another Latin maxim, the absurdity of which has already been fully exposed:—Nemo tenetur scipsum accusare.
[* ]On the other hand, what must not pass unnoticed is, that, supposing the probability of mischief from this quarter were really preponderant, the mischief would in this case be more frequently realized than in the other. Why? Because to gain an undue advantage by the party’s single testimony, requires no more than the operation of that one person: whereas, to gain the same advantage by the false testimony of an extraneous witness, requires the co-operation of two persons—the party, and the extraneous witness his accomplice: each of them conscious of guilt—each of them liable to be betrayed by the unfaithfulness or imprudence of the other.
[† ]The Edinburgh Review, in an article which has been several times referred to, makes a long attack upon “the French method of interrogating persons under a charge,” with a view to the extraction of their self-criminative testimony.—It is not necessary to enter particularly into the objections advanced by the reviewer against this practice. They may all be summed up in two propositions, neither of which seems very likely to be disputed:—1. That an innocent man may very possibly be unable to furnish, all at once, those explanations which are necessary to make his innocence appear; and, 2. That, such inability on the part of a prisoner not being conclusive evidence of his guilt, it would be very wrong to treat it as if it were so.
[* ]In the supposition of a prosecution grounded on such evidence, there is nothing at all unnatural. On your single testimony, the jury (suppose) would not convict: but, though nobody but yourself and the perjurer was present, it may happen to your testimony to receive support from circumstantial evidence; or from extrajudicial confessorial evidence of the perjurer’s, coming from another witness in the shape of hearsay evidence.