Effect of Evidence

EFFECT OF EVIDENCE Weight of Evidence. Presumptions and Estoppels.—The probative weight of evidence, unlike its admissibility, is deter mined not by arbitrary rules, but by the natural acumen, good sense and experience of the tribunal. Independently of this, however, valuable aid in deciding cases is provided by the rules as to burden of proof, e.g., where the scales are even, the plaintiff or prosecutor, and not the defendant, must lose, since the former will, if the case be a civil one, have failed to establish his case by a preponderance of probability, or, if it be a criminal one, by proof of guilt beyond a reasonable doubt. So, where either party has a rebuttable presumption of law in his favour, he must win, unless his opponent can specifically rebut it.

An estoppel is a rule whereby a party is precluded from denying some state of facts which he has previously asserted. It is usually said to be a rule of evidence, since an action cannot be founded thereon; but as a defence can, and as estoppels must be pleaded and evidence must not, this statement is not wholly satisfactory. Estoppels have been variously treated as conclusive presump tions of law, as solemn admissions, and as conclusive evidence. They are, however, distinguishable from the first in that an estoppel may be waived; from the second as well as from the first, in that it cannot in general be taken advantage of by strangers ; and from the third, in that the conclusiveness of evi dence may result from mere logical cogency, while, when it results from some rule of law, it operates against strangers as well as parties. Estoppels of all kinds, however, are subject to one general rule, they cannot over-ride the law. Thus, where writing is required by statute, no estoppel will cure the defect; an infant is not estopped by his fraudulent statement that he is of full age; nor is a corporation estopped by acts which are ultra vires. Estoppels may arise (I) by record: e.g., judgments or letters-patent; (2) by deed: thus where a party has by deed agreed upon certain facts, neither he, nor those in privity with him, are permitted to deny them. This, however, applies only to actions on the deed, and to recitals or descriptions which are material and intended to bind; (3) by agreement: e.g., a land lord is estopped from denying his title to the premises let, and a tenant from denying the title of his landlord, or the latter's heirs; a bailee is estopped from denying his bailor's authority to make the bailment ; and the licensee of a patent from deny ing the validity of the patent; (4) by representation: the rule here is that when a party has, by his words or conduct, wilfully induced another to believe in certain facts and to alter his posi tion in consequence of such belief, the former is estopped from denying their existence.

the history of the English law of evidence, see H. Brunner, Entstehung der Schwurgerichte (1871) ; M. M. Bigelow, History of Procedure in England (188o) ; F. Pollock and F. W. Mait land, History of English Law, Bk. ii., ch. ix. (2nd ed., 1898) J. B. Thayer, Preliminary Treatise on Evidence at the Common Law (1898) ; J. H. Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law (5 vols., 2nd ed., 1923) ; J. F. Stephen, Digest of the Criminal Law of England (7th ed., 1926) ; W. S. Holdsworth, History of English Law, vol. ix., ch. vii. (3rd ed., 1923 26). Textbooks: J. P. Taylor, Treatise on the Law of Evidence (11th ed., 192o) ; H. Roscoe, Digest of the Law of Evidence in Criminal Cases (15th ed., 1928) and Digest of the Law of Evidence on the Trial of Actions at Nisi Prius (19th ed., 1922) ; J. H. Best, Principles of the Law of Evidence (12th ed., 1922) ; J. F. Stephen, Digest of the Law of Evidence (loth ed., 192 2) ; J. F. Archbold, Criminal Pleading, Evidence and Practice (27th ed., 192 7) ; S. L. Phipson, Law of Evidence (7th ed., 1929) . For general works on estoppel, see M. Cababe, Principles of Estoppel (i888) ; J. S. Ewart, Exposition of the Principle of Estoppel (Toronto, 'goo) ; L. F. Everest and E. Strode, Law of Estoppel (3rd ed., 1923) ; for estoppel by representation, G. Spencer Bower, The Law relating to Estoppel by Representation (1923), and by judgments, id. The Doctrine of Res Judicata (1924). (S. L. Ps.; C. P. I.) The law of evidence in the United States, even where legisla tively codified, is mainly derived from the corresponding branch of English common law. Importations from other legal systems, such as presumptions with respect to survivorship in common disasters, are rare and not of great significance. But the American nation contains some so jurisdictional units, State and Federal, each presenting much evidence which is a plain departure from the English system. A late United States treatise on evidence cites about 8o,000 decisions, of which only a minority come from England. In recent English digests few cases are listed at the points where evidence is discussed ; in corresponding American digests many cases are so listed. Mere numerical comparison is somewhat misleading, because in the United States digesting is highly detailed and more cases are reported than in the older country. Even after full allowance on these points, the multi plicity of American evidential decisions, both absolutely and in comparison with those on other legal topics, indicates that forces tending to complexity may be found in the law itself, or in the manner of administration, or in both.

Functions of Judge and Jury.

The law of most States largely or completely prevents trial judges from commenting to juries upon the relative weight or credibility of testimony pre sented by contending parties. While the avowed purpose of the restriction is to keep judges from subduing jurors' independent judgment, an incidental effect is to deprive inexperienced jury men of guidance by trained minds. It is warmly debated whether the benefits of the rule can outweigh its detriments. This restric tive doctrine has effect among cautious judges, even beyond the jurisdictions which have adopted it. Many cases are reported in which trial judges are charged with having overstepped the dead line; in others, not always reported, judges who lacked original power to hold juries within reasonable bounds have felt com pelled to set verdicts aside as against the weight of the evidence, and grant new trials. Another allied peculiarity, while scarcely so wide-spread, deserves mention. The conventional common law view has long been that the trial judge, and not the jury, should determine disputes of fact upon which admissibility of evidence depends. So, where a culprit objects to the admission of his con fession, claiming it to have been involuntary, the judge normally decides whether or not the statement has been improperly ex torted. But under a common American view the judge who ad mits a confession as voluntary may or must submit over again to the jurors the same preliminary question, instructing them to discard the confession unless they too find it to have been volun tarily made. A similar attitude has been taken with respect to the determinations of fact necessarily preliminary to admission of alleged dying declarations. These illustrations relate to the use of evidence against criminal defendants, and certainly this de parture from common law conventions is most frequently en countered in that connection. The resulting complication in the handling of evidence gives rise to considerable controversy before both trial and appellate courts.

Questions of Competency and Privilege as to Witnesses. —The United States, like England, has legislated out of existence many old rules respecting incompetency of witnesses which stood upon outworn historical bases partially obscured by subsequent invention of feeble logical justifications for the rules. But the legislation has not been uniform, and some startling vestiges of ancient disabilities remain. There are courts where one spouse is incompetent to testify in the other's favour. In Federal criminal prosecutions Congress has left the principles of competency so obscure that judges are puzzled, and fundamentally inconsistent lines of cases flourish. Many State legislatures have deliberately preserved a fragment of the old incompetency affecting parties and interested persons. The reference here is to the so-called "dead man" statutes, which seek to protect the estates of dece dents from trumped-up claims by survivors. As an illustration, the Nebraska statute says "No person having a direct legal in terest in the result of any civil action or proceeding, when the ad verse party is the representative of the deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness." Sometimes simi lar protection is extended to insane persons ; sometimes there are express or implied provisions for waiver by the legal representa tives of the person protected. If the topics touched upon under the functions of judge and jury indicate a distrust of judges, the present topic indicates a distrust of the jurors' power wisely to discount evidence given against the interests of those whose lips are sealed by death. A few States do not exclude the testimony of survivors, but require this testimony to be corroborated or relax the hearsay rule with respect to declarations by decedents. The "dead man" statutes figure extensively in litigation.

English law recognizes certain classes of privileged communica tions, as, for example, between husband and wife and between lawyer and client. More than half the jurisdictions in the United States by statute give privilege to penitential confessions made to a priest, clergyman, or minister. This legislation seems sound. Very often privilege has been extended to communications be tween physician and patient. Many qualified persons vigorously challenge the wisdom of this last privilege, denying that it makes medical consultation more frequent or frank. The ramifications of the physician-patient privilege have distinctly complicated legal proceedings. Occasionally it has harmed the person it was meant to protect ; for instance, where an executor lost favourable testimony from the testator's own physician in an action on a life insurance policy, the court holding that the patient alone could remove the seal of privilege.

The privilege against self-incrimination is enforced in the United States, always or almost always under constitutional provisions. There have been elaborate controversies whether the privilege is violated if a prisoner be required to stand up or speak in court for purposes of identification, to put on a coat, cap, or other gar ment found at the scene of the crime, or to put his foot or shoe in a track left on the ground. Decisions on such points vary and some refined distinctions have been taken. Generally it is not permissible for either the prosecutor or the trial judge to com ment adversely upon a culprit's failure to take the stand in his own behalf. The prosecutor often yields to the temptation to break this prohibition. Numbers of cases involving the point are carried to upper courts after convictions. In certain offences, notably those involving many actors, it is desirable to have means for compelling selected offenders to turn State's evidence. With this end in view, statutes frequently provide that a person may be required to testify respecting such offences, but thereafter either his testimony may not be used against him or he shall be immune from prosecution for the acts he is forced to disclose. Conflicts of authority exist as to the constitutionality of such legislation.

Evidence Illegally Obtained by Government Officers.— Authoritative early American decisions held documents and other tangible evidential material none the less admissible because the offering party had obtained them by illegal means. He might be subject to an action for conversion or a prosecution for larceny, but the possibility of such independent proceedings had no bearing upon the immediate problem of admissibility. This rule was gen erally taken for granted until after the close of the 19th century. As early as 1886, however, the U.S. Supreme Court made a deci sion destined to cause wide-spread change. In a Federal informa tion for an alleged revenue fraud the U.S. attorney under statutory provisions compelled the defendant to produce a certain material document. A majority of the Supreme Court held the statute unconstitutional as purporting to authorize an unreasonable search and seizure, and also as violating the privilege against self-incrimi nation; a minority of two justices differed on the search and sei zure point, but concurred as to the self-incrimination. The possi bilities of this decision were not much developed for nearly 3o years. Then in a criminal prosecution the same court unanimously held that the trial judge had erred by denying before trial the defendant's petition for return of papers seized in his home by a U.S. marshal without a search warrant or other legal justifica tion, and by admitting these papers at the trial. Further develop ments marched swiftly and steadily. Case after case before the U.S. Supreme Court suggested multitudinous variants of the orig inal situations. In 1928 an important decision held that evidence of a conspiracy which Federal officials obtained by illegally tap ping telephone wires was not inadmissible ; four of nine jus tices dissented. The Federal adjudications led to reconsideration of the old rule by the highest courts of practically all the States. Some of these tribunals embraced the new doctrine under the pro visions of local Constitutions applicable to the acts of local offi cials. The output of cases involving illegally seized evidence has been enormous. Public interest has become excited, particularly because enforcement of the acts prohibiting intoxicating liquor is deeply involved. This episode in the struggle between old time individualism and growing government regulation is the most spectacular recent development of the American law of evidence.

Confessions.

For years claims have been made that police and prosecutors were wringing confessions from prisoners by promises, threats and actual torture. It is difficult to evaluate properly these claims. On the one hand, accused men trying to escape criminal penalties are unreliable witnesses; on the other, the captors have incentive and power to keep more acceptable adverse witnesses from gaining first-hand knowledge of any such illegal actions. But from judicial decision and from admission by some police officers it is indubitable that these improper activities do largely occur. In 1924 the U.S. Supreme Court reversed a murder con viction for admission of an extorted confession. By way of ex tenuation, police authorities urge that criminals' interests have been so safeguarded as to make convictions almost unobtainable without use of the so-called "third degree." High quarters have suggested that the situation would be bettered by abolishing or modifying the privilege against self-incrimination.

Opinion Evidence.

Many American cases deal with the fundamentally simple rule excluding certain types of opinion evi dence. The situation with respect to expert witnesses is not alto gether satisfactory. While the English exceptions to the rule barring hearsay evidence are mainly identical with those recog nized by U.S. courts, the younger country has forced one inter esting development which has common sense merits, although it adds to the difficulties of administration. The most frequently cited pioneer case comes from the U.S. Supreme Court. In an action on insurance policies covering the life of A., the under writers claimed that A. was still living, and that a body produced as A. was really B., whom A. had enticed away and killed to carry out the fraud. The underwriters offered evidence that B. had dis appeared and that about the time of his disappearance he had de clared in letters an intention to go on a long trip with A. The Supreme Court held that the trial judge had erroneously excluded evidence of the contents of these letters. Under what is now in America a recognized exception to the hearsay rule, the usual expressions of mental condition are competent evidence wherever such condition is material to be proved. The opinion says : "The letters in question were competent . . . as evidence that, shortly before the time when other evidence tended to show that he (B.) went away, he had the intention of going, and of going with Hill mon (A.), which made it more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention." In the foregoing case the inference was forward from a declaration of present state of mind (intention) to the doing of a future act. Why not infer backward from a declaration of an other present state of mind (memory) to the doing of a past act or the existence of a past fact? But if the latter inference be allowed, the hearsay rule is practically erased. Some American courts have carried the doctrine of this case to extremes, but the majority are still within reasonably conventional bounds. It has been necessary, however, in making saving differentiations to em ploy arguments of a complicated psychological nature, scarcely fitted to the rapid progress of court trials.

General Considerations Affecting Evidence in the United States.—To the foregoing brief survey should be added some general considerations. (I) As the American legal profession is undivided into barristers and solicitors, many cases are tried by lawyers comparatively inexpert in the handling of evidence. (2) In America there is too little spontaneous manifestation of the English doctrine allowing relaxation of the rules of proof by mutual consent or court order. (3) The American trial judge usually does not, and perhaps cannot, drive on so tight a rein as the English trial judge. (4) The United States' scale of fees and costs is pitched so low that litigants can afford to take chances with points not worth while in England. (5) Not all American appellate courts insist upon substantial error as a basis of re versal ; occasionally dry technicalities are accepted. These factors have caused the habit of arguing and carrying up cases on evi dential points.

As a result, there is general distrust of the rules of judicial proof. The lay public is not sufficiently informed about defects and debatable points to express more than blanket condemnation. Many in the legal profession display a perfectly comprehensible complacency; familiarity with the mysteries of a great profession breeds tolerance far more often than contempt. But a consider able amount of constructive criticism emanates from both bar and bench. Another significant group for initiating reforms is com posed of law teachers. These are critical because they keep up with comparative law. Between 1842 and 1853 Prof. Simon Green leaf, of the Harvard law school, published the first great Ameri can work on evidence. It has gone through 16 editions, has had vast influence, and is constantly cited. Incidentally, it is the basis of Taylor's English treatise. In 1898 Prof. J. B. Thayer, also of Harvard, published his Preliminary Treatise on Evidence at the Common Law. This showed that many rules were outworn or misconceived, carefully discriminated between evidence and other branches of the law, and offered recommendations for the former's improvement. Thayer's was a lonely voice, but as a teacher he influenced hundreds of nascent lawyers. After the death of Thayer one of his students, now Dean J. H. Wigmore of the North western university law school, published a comprehensive scien tific study in 1904-05. Prof. J. C. Gray said that it was "the greatest law book since Benjamin on Sales." Its effect on Ameri can law has been profound. By sharp, thorough analysis and pun gent comment, Wigmore has forced even his opponents to ref rame their arguments. He has attracted fresh and powerful minds to the field of evidence, and lifted the dead hand of subservience to history merely because it is history.

Some definite seeds of improvement in the American law of evi dence arc to be found in some already accepted modifications, in the growth of special tribunals, and in the influence of logical experimentation.

Judicial Notice.

No fewer than 13 States have simplified the problem of proving foreign law as a fact by providing that their courts may or shall take judicial notice of the law of some or all foreign jurisdictions. Commentators have praised the Massa chusetts act on the point, which was recommended by that State's judicial council: "The courts shall take judicial notice of the law of the United States or of any state, territory or dependency thereof or of a foreign country whenever the same shall be material." Res Gestae.—The indeterminate doctrine of res gestae degen erated into a formless welter at the hands of American courts. Mr. Justice Holmes, faced with the phrase as a ground for admit ting certain evidence, is reported to have said: "I prefer to give articulate reasons for my decisions." Commentators have dissected the tangled mass of cases, enlisted the practical aid of judges, and begun to produce at least partial order and comprehensibility. Wigmore extracted a distinct hearsay exception for spontaneous declarations under emotional pressure which is being widely accepted.

Exceptions to the Hearsay Rule.

English law recognizes a group of hearsay exceptions for declarations by deceased persons under conditions of special credibility. A helpful tendency in the United States is expanding these exceptions to cover similar declarations by persons who, although still living, are insane, out of the jurisdiction, or otherwise unavailable as witnesses. Largely through Wigmore's influence, the judges are liberalizing the doc trine of business entries, admitting records covered by this description without demanding meticulous verification. Only key men who can describe the general process of recording are required to be called. This is a boon as it shortens trials and prevents ex pensive interruption of work in industry. In 1896 Prof. Thayer made a suggestion which caused the Massachusetts legislature to pass the following act : "No declaration of a deceased person shall be excluded as evidence on the ground of its being hearsay if it appears to the satisfaction of the judge to have been made in good faith before the beginning of the suit and upon the per sonal knowledge of the declarant." Interestingly enough, Thayer derived his idea from a remark by Mellish, L.J., in the famous English will case of Sugden v. Lord St. Leonards. Massachusetts judges and lawyers have tested this simplification of hearsay ex ceptions, and are generally satisfied with it. The neighbouring State of Rhode Island adopted the act with slight verbal revision in 1927.

Parol Evidence Rule and Interpretation.

The doctrines forbidding variation of diapositive documents by prior or con temporaneous agreements excluded therefrom, and limiting em ployment of extrinsic evidence to aid interpretation, are not, strictly speaking, part of the law of evidence. But they are usually treated in connection therewith, and it is proper to note that Prof. Samuel Williston's restatement of the law of contracts for the American Law Institute will cover both these doctrines.

Special Tribunals.

Before such tribunals as workmen's com pensation boards, juvenile courts, etc., there is a tendency to relax rules of evidence.

Psychological Studies.—For years psychologists have tried to find surer methods of getting at legally contested facts; the response reaction tests of Prof. Hugo Miinsterberg and Dr. W. M. Marston's blood pressure tests for perjury are among their better known proposals. In the United States a marked amount of experiment along such lines is now being conducted. This seems to bear more directly upon the weight to be accorded evidence than upon admissibility of evidence under technical legal rules. Yet many of these rules seek justification in the idea that the evidence or witnesses excluded by them fall into classes of low general credibility ; and supposed conditions of special credibility are invoked to justify exceptions to such rules. Hence law teachers and psychologists are working in teams at Yale and Columbia universities to ascertain whether these fundamental classifications and sub-classifications should be accepted as sound. This work has barely begun, but such application of scientific method may ultimately lead to important results.

The topic just touched upon indicates a very real difficulty in bettering rules of evidence. Psychology sounds academic and unlawyer-like. Practical criticism by Wigmore, a law teacher, broke down Munsterberg's early proposals. The law teacher in turn is deemed an unworldly adviser by the active American lawyer. Justification for such distrust must be removed, and the feeling itself allayed, if harmonious progress is to be made. The American Law Institute shrewdly provides for participation by every branch of the profession in the composition of its restate ments. When the Legal Research Committee of the Common wealth Fund put a special committee under the chairmanship of Prof. E. M. Morgan to work on problems of evidence, this special committee spent nearly five years upon detailed enquiry into opinions held by hundreds of lawyers and judges. In the end it unanimously recommended five important revisions of evidential rules. Significantly and encouragingly, the States of New York and Rhode Island have already adopted one of the recommenda tions. On the whole, there is reason to hope that wise persistence will cause steady, if slow, rationalization and improvement of judicial proof in the United States.

BIBLIOGRAPHY.

Text-books: Simon Greenleaf, Treatise on the Law Bibliography.—Text-books: Simon Greenleaf, Treatise on the Law of Evidence (16th ed. by J. H. Wigmore and others, 1899) ; J. B. Thayer, Preliminary Treatise on Evidence at the Common Law (1898) ; J. H. Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law (2d ed., 1923) ; C. F. Chamber layne, Treatise on the Modern Law of Evidence (1911-16) ; Jones' Commentaries on the Law of Evidence in Civil Cases (based upon the work of B. W. Jones, 2d ed.. by J. M. Henderson, 1926) ; H. C. Underhill, Treatise on the Law of Criminal Evidence (3rd ed., 1923) . Essays, etc.: J. B. Thayer, Legal Essays, pp. 207 et seq. on "Beding field's Case," "Law and Logic," and "A Chapter of Legal History in Massachusetts" (1908) ; Z. Chafee, Jr., "Progress of the Law, 1919-1922: Evidence," 35 Harv. L. Rev., pp• 428, 673 (1922) ; V. H. Lane, "Right of the Jury to Pass upon the Admissibility of Dying Declarations," 1 Mich. L. Rev. 624 (1903); J. M. Maguire and C. S. S. Epstein, "Preliminary Questions of Fact in Determining the Admissibility of Evidence," 4o Harv. L. Rev. 392 (1927) ; Eustace Seligman, "An Exception to the Hearsay Rule," 26 Harv. L. Rev. 546 (1912) ; J. M. Maguire, "The Hillmon Case—Thirty-three Years After," 38 Harv. L. Rev. 709 (1925) ; E. M. Morgan, "A Suggested Classification of Utterances Admissible as Res Gestae," 31 Yale L. J. 229 (1922) ; F. A. Ross, "Applicability of Common Law Rules of Evi dence in Proceedings before Workmen's Compensation Commissions," 36 Harv. L. Rev. 263 (1923) ; E. M. Morgan and others, "The Law of Evidence—Some Proposals for its Reform" (report for Legal Research Committee of Commonwealth Fund, 1927) . Psychological studies: C. T. McCormick, "Deception-Tests and the Law of Evidence," 15 Calif. L. Rev. 484 (1927) ; Robert M. Hutchins and Donald Slesinger, "Some Observations on the Law of Evidence," Col. L. Rev. 432 (1928) ; second article, 41 Harv. L. Rev. 86o (1928) ; and see J. H. Wigmore, Principles of Judicial Proof 09'3), a valuable collection of actual problems in weighing evidence. (J. M. MAG.)