Evidence

EVIDENCE, a term which may be defined briefly as denoting the facts presented to the mind of a person for the purpose of enabling him to decide a disputed question. Evidence in the widest sense includes all such facts. In the narrower sense em ployed in English law, however, it includes only such facts, testi mony and documents as may be received in legal proceedings in proof or disproof of the facts under enquiry. Taylor applies the word to "all the legal means, exclusive of mere argument," used for such purpose ; but this is too wide, since it would embrace judicial notice, presumptions of law, and inspection, which are not usually included under the term. On the other hand Stephen restricts the word to testimony and documents, exclusive of facts, which is too narrow.

History.

The English law of evidence as at present admin istered is of comparatively modern growth, having for the most part been built up by the judges in the last two centuries, with special reference to trials by jury, and it consists of this judge made law as modified by various statutory enactments. Although, however, it was with a view to trial by untrained jurors that these rules were originally formed, and that their peculiarities are main ly to be explained, yet the sources of many of them reach back to very early times. In pre-Norman days, neither trials nor evi dence in the modern sense existed. The primitive trials, or proofs, were mainly by ordeal, battle, or compurgation, which were ap peals to the supernatural; while the judgments of the court respecting them, instead of following the trial, preceded it, the tribunal merely deciding by a medial judgment the preliminary questions of which litigant should have the burden of proof, and what mode of this should be adopted. The trial or "proof" then took place. If the litigant upon whom the above burden was im posed performed the task, he won; if not, he lost. But the court had no desire to hear or weigh conflicting testimony, since this would have been foreign to the whole spirit and traditions of the age. In the case of compurgation, the party himself swore, sup ported by a fixed number of oath-helpers who might know nothing of the facts, but merely guaranteed their principal's veracity. In a few cases, also, e.g., sales and the execution of charters, pre appointed witnesses of the transaction were employed, but these swore only in a set form and were not cross-examined. Neither compurgators, nor transaction-viewers, therefore, were witnesses in the modern sense. By the i3th century the above modes of trial had been largely superseded, both in civil and criminal pro ceedings, by the inquest, a Norman introduction whereby facts were determined by the sworn verdict of jurors drawn from the particular locality and personally cognizant of the matters in question. Later, this finding had, in criminal cases, to be followed by the verdict of a second jury, the former finding being treated not as testimony, but as accusation, or indictment ; and it was from this embryo that the existing system of enquiry by grand jury and trial by petty jury developed. Later still, about the i 5th century, the practice arose of supplementing the jury's own knowl edge by information, both sworn and unsworn, from outside sources; and finally, soon after the year 1700, verdicts began in all cases, civil or criminal, to be based on the sworn testimony of witnesses given and tested in the modern way, and personal knowledge by the jurors might only be considered if delivered to the court on oath.

Judge and Jury. Law and Fact.

In a trial by jury two classes of questions arise, questions of law and questions of fact, but they are answered by different persons. The judge lays down the law; the jury, under his guidance, find the facts. Questions as to the production and admissibility of evidence belong to the former class; questions as to its credibility and weight to the lat ter. Whether there is any evidence, therefore, is for the judge; whether there is sufficient evidence is for the jury. Thus, in actions for negligence, it is for the judge to say whether from the facts proved negligence can be imputed, and for the jury to find whether it ought to be ; in libels it is for the former to rule whether the words used were capable of the meaning alleged, and for the latter whether they bore it. The following matters of fact, how ever, are by exception determined by the judge : (I) what is reasonable in certain cases, e.g., reasonable and probable cause in an action for malicious prosecution, or the reasonableness of a covenant in restraint of trade ; (2) the existence of facts on which the admissibility of evidence depends, e.g., those which show a confession to be voluntary, or a communication privileged; and (3) foreign law, which includes Scotch, Irish (when differ ing from English), and colonial law, and which, unlike English law, is treated by the courts as a question of fact to be proved by experts.

Facts Proved Otherwise Than by Evidence.

Proof in legal proceedings may be effected not only by evidence, but by Judicial Notice, Presumptions and Inspection. (a) Judicial No tice is the cognizance taken by the court itself of matters which are so notorious, or clearly established, that evidence of their existence is unnecessary. The matters judicially noticed by the court include the statute and other law; the procedure of parlia ment and the superior courts; the names of the chief officers of State and judges; the official gazettes of London, Edinburgh and Belfast; the Royal and Duchy Seals, and those of the superior courts, central office and district registries. (b) Presumptions are either of law or fact. Presumptions of law are arbitrary results attached by law to particular facts, and may be conclusive, as that a child under seven is incapable of committing a felony, or rebut table, as that a person not heard of for seven years is dead, or that a bill of exchange has been given for value. Presumptions of fact are inferences which the mind naturally and logically draws from particular facts. (c) Inspection by the court, which is a further and valuable means of proof is, in general, allowed whenever it is reasonably practicable, and will assist the tribunal in arriving at a decision. Familiar instances thereof occur with respect to the demeanour of witnesses, the age of individuals and the com parison of handwriting or trade-marks.

Burden of Proof.

The general rule is that he who asserts a fact must prove it, and not he who denies; and this applies whether the fact is alleged in an affirmative form, as the making of a contract or the commission of a criminal act, or a negative one, as in an action for the non-repair of premises or for the un soundness of a warranted article. In law, however, the phrase "burden of proof" has two distinct and often confused meanings, the burden of proof as a matter of law and pleading, and the bur den of adducing evidence. The burden of proof in the former sense ordinarily rests upon the plaintiff or prosecutor, though in all but the simplest cases the defendant has also one or more of the issues cast upon him. Thus, in actions of contract, the plain tiff has the onus of proving the contract, conditions precedent, breach and damages ; while the defendant has the onus of facts pleaded in confession and avoidance, e.g., infancy, rescission, fraud, etc. But there are two cases in which the burden of adducing evidence does not rest upon the parties above indicated : (I) when there exists a rebuttable presumption of law in favour of either party, it rests upon his opponent to rebut it, e.g., a party suing on a bill of exchange need not allege, nor at the outset prove, that he gave value for the bill, or that the defendant is of full age, or sane, for the law presumes such conditions; (2) when the fact alleged is peculiarly within the knowledge of his opponent, it lies upon the latter to rebut the allegation. Indeed, many statutes expressly direct that the proof of lawful excuse or authority, or the absence of fraudulent intent, shall lie on the accused and not on the prosecution. And the Summary Jurisdiction Acts 1848 and 1879 provide that if the information or complaint in summary proceedings negatives any exemption, exception, proviso or condi tion in the statute on which it is founded, the prosecutor or com plainant need not prove the negative, but the defendant may prove the affirmative in his defence.

Proof in Civil and Criminal Cases.

The rules of proof, though generally the same in civil and criminal proceedings, are subject to the following differences :—(1) In civil cases the rules of proof may be relaxed by consent of the parties, or order of the court ; thus, the parties may elect to try their case on affidavits, may interrogate each other before the trial about the facts in dispute, and may, in some cases, obtain leave to prove facts at the trial by hearsay, or documents by secondary evidence. (2) The provisions relating to complaints, character, confessions, dying declarations and the competency of witnesses are wholly or par tially peculiar to the criminal law; moreover, in criminal trials, the accused may make unsworn statements in place of, or in addition to, his sworn testimony. (3) Civil cases may be proved by a pre ponderance of evidence; criminal issues when arising in criminal, but not generally in civil, proceedings, must be proved beyond a reasonable doubt.

Classification of Evidence.

Bentham gives in all nine heads of evidence, but the following, which are commonly observed in practice, are all that are important. (I) Direct, Circumstantial and Real Evidence. By direct evidence is meant that a given fact is proved either by its actual production, or by the testimony or admissible declaration of someone who has himself perceived it. By indirect, circumstantial or presumptive evidence is meant that other facts are thus proved from which the existence of the given fact may be logically inferred. The two forms are equally admis sible, and the testimony, whether to the factum probandum, or the facta probantia, is equally direct. Material objects, other than documents, produced for the inspection of the court are often called real evidence. (2) Original and Hearsay Evidence. The term original evidence as distinct from hearsay is used in two senses, (a) to mean the proof of facts by testimony, as opposed to their proof by statements made out of court; and (b) to mean statements made out of court which are used circumstantially, i.e., as relevant irrespective of their truth or falsity, as opposed to those used testimonially, i.e., to prove the truth of the facts asserted. Thus, the information on which a party has acted is often material to explain his conduct, and when tendered merely for that purpose and without reference to its truth, it is admissible as original evidence; while, if the same statement be used to prove the truth of its contents, it is hearsay and only admissible in certain clearly defined and exceptional cases. The test of whether a declaration belongs to one class or the other is, therefore, the purpose for which it is tendered. (3) Primary and Secondary Evidence. These terms apply to the kinds of proof that may be given of the contents of a document irrespective of the purpose for which the contents, when proved, may be used. Primary evi dence may be given by production of the document, or an admis sion of its contents. Secondary evidence may be given by copies of various kinds (e.g., Government printers' or gazette copies, office copies of judicial documents and certified copies of non judicial ones) ; oral testimony by one who has read the document; and entries respecting it by deceased persons against interest, or in discharge of their duty. Copies of copies, however, are only admissible if the second has been examined with the first, and the first with the original.

The Best Evidence Rule.

The maxim that the "best evidence must be given of which the nature of the case permits," first ap peared in a case decided in 1700, and for more than a century it largely regulated the subject. Thus, on the strength of this prin ciple, circumstantial evidence used to be excluded if direct could be obtained, extrinsic proof of a party's handwriting or consent rejected if his own testimony were available, and various other forms shut out when better might be had. The rule was adopted for the prevention of fraud, it being presumed that when the best evidence was withheld, some sinister motive actuated. About the beginning of the 19th century, however, a reaction set in, and perhaps the most conspicuous feature of the modern law has been its persistent recession from this once famous principle. It began to be recognized that a prudent relaxation of strict rules tended not to encourage fraud, but to promote economy, convenience and despatch, while the risk of losing cases supplied an ample induce ment to procure the best evidence available. Further inroads in the rule were made by statutes extending the competency of wit nesses, or permitting secondary evidence of documents in various cases. On the other hand, strict proof is still, in certain cases, exacted, e.g., of marriage in cases of bigamy and divorce, of age on a plea of infancy, and generally of the contents of a private document by its production.

Facts in Issue. Relevancy and Admissibility.

The facts which may be proved in a judicial enquiry are facts in issue, facts relevant to the issue, and any facts, whether relevant to the issue or not, which affect the legal reception or weight of the evidence tendered. Facts in issue are those necessary by law to establish the claim, liability or defence involved in the proceedings, and which, either by the pleadings or implication, are in dispute be tween the parties. Facts relevant to the issue are those which render probable the existence or non-existence of a fact in issue, or some relevant fact. Although legal admissibility is for the most part based on logical relevancy, the two classes do not wholly coincide. Thus, certain facts, e.g., similar occurrences, or the known character of the parties, which in ordinary life are relied on in proof of facts, the law, with certain exceptions, rejects for reasons of policy and fairness. On the other hand, numerous facts, e.g., the fact that, at the date of the trial, a document was 3o years old and so proved itself, or if lost had, or had not, been searched for sufficiently to admit a copy; or that, on a charge of receiving stolen property, seven days' notice had been given to the accused so as to admit evidence of other frauds by him within the pre ceding five years, are legally admissible, though they may have no logical bearing on the issue. It has been suggested that the word "relevant" should be eliminated altogether, and "admis sible" substituted for it throughout ; but this would exchange a word which expresses the leading principle of the law of evi dence, for one expressing no principle at all, but merely a collection of arbitrary rules. Both terms should, therefore, be retained, the former as indicating the guiding principle, and the latter its limits.

It is not possible satisfactorily to classify relevant facts since their variety may be infinite. But in legal trials they tend to group themselves under three principal heads or issues, dealing respec tively with the existence of the main fact or transaction, the iden tity of the parties and the states of mind (e.g., knowledge, intent, fraud or malice) of the latter with reference to the main fact.

Existence of the Main Fact. Res Gesta.—In civil cases, e.g., contract or tort, the main fact is generally provable by direct testimony, or production of the documents involved; in criminal cases, however, direct evidence is less often obtainable. But in either case, what was said or done by the parties at the time, and with reference to the matter, is generally admissible as part of the transaction, or pars rei gestae. Questions of evidence under this head usually arise with regard to statements, since with other in cidents there is less danger of the jury being misled. Such state ments must, to be admissible, have been substantially contempo raneous with the act, i.e., made during, or just before or after its occurrence, but not at such an interval therefrom as to allow of fabrication or reduce them to mere narrative; they must relate to the fact they accompany, and not to prior or subsequent facts; and, though admissible to explain the transaction, or the state of mind of the parties thereto, they are no proof of the truth of the matters asserted, i.e., they are original evidence, as above defined, and not hearsay admitted by exception. Among facts which, though not part of the main transaction, are relevant to prove or disprove its existence, the following should be noted: Consistent and Inconsistent Facts, e.g., on a question of paternity, the resemblance or non-resemblance of the child to the alleged father; on a claim for money lent, the poverty of the alleged lender as rendering the loan improbable ; or, on a claim for rent, the production of a receipt for later rent, from which it may be presumed that the earlier rent was paid. Prior or Subsequent Exist ence of Facts: In certain cases, the existence of the main fact at a given time, e.g., of life, marriage, sanity, opinions, partnership, official character or domicil, may be shown by its existence prior or subsequent thereto, there being a probability that such facts continue. The presumption of continuance, which is one of fact and not of law, weakens, however, with time, and only prevails un til the contrary is shown, or a different presumption arises from the nature of the case. Thus, to show that A., when taking a certain oath, had no belief in a Deity, evidence that he had no such belief four years before, was admitted, though had the interval been 3o years, the evidence would have been rejected, since the inference of continuance would then have been unreasonable. This presump tion may also apply retrospectively; e.g., proof that a vessel was, during a voyage and without visible cause, unseaworthy, is evi dence that it was so at the time of sailing. Course of Business: To prove that a given act was done, it is relevant to prove that in the ordinary course of business or office it would ordinarily have been done, e.g., to prove the posting of a letter, testimony by a clerk that he habitually posted the letters, though he had no recollection of the particular one, was held sufficient. Custom: Proof of usage is admissible to annex unexpressed incidents (not inconsistent with those expressed) to oral or written contracts, grants or wills, it being presumed that a party dealing in a particular market or place, intends to adopt its usages. Custom may be proved by the direct testimony of witnesses, or by similar instances in which it has been followed, or by reported cases in which it has been upheld, when it will be judicially noticed without evidence. Standards of Comparison: On questions of negligence, the acts or precautions proper to be taken under the circumstances, or the general practice of the community on the subject, are relevant. So, in cases of disputed handwriting, comparison may be made with specimens proved to the judge to be genuine, and the party whose writing is in dispute may be required to write in the judge's presence. Acting in a capacity is in general evidence of title there to, even in favour of the party so acting. Thus, acting in a public office (though not usually in a private one) is admissible, even though the appointment is required to be by deed ; trading as a public company is evidence of incorporation; and cohabitation evidence of a valid marriage, its weight varying with the circum stances. Similarly, title to property may be inferred from acts of ownership, e.g., possession, receipt of rents, or execution of re pairs; while, in rebuttal, these may be shown to have been dis puted, or done in the absence of persons entitled to dispute them. Complaints: In cases of rape and similar sexual crimes, complaints (with their particulars) made by the prosecutrix shortly after the outrage are admissible to confirm her testimony and rebut con sent, but not to prove the truth of the facts stated. Complaints in these special cases are receivable irrespective of the yes gesta rule, which latter applies generally, but under much stricter con ditions.

Identity of Parties and States of Mind.—When a party's identity with a known individual is in question, it may be proved not only by direct testimony, but presumptively by similarity of their personal characteristics or former history. When, however, a party's identity is only material as showing that he did some specific act, the range of relevant facts is much narrower. In civil cases, this question usually arises in connection with the execution of documents, and here, apart from the production of direct testimony, identity of name and handwriting will generally suffice. In criminal cases, when the occurrence of the act has been proved, the identity of the accused may be inferred from mo tive, means and opportunity, preparation or previous attempts, knowledge of circumstances, or possession of special skill, en abling him to do the act, or subsequent flight, change of habits, suppression or fabrication of evidence, foot-marks, finger-prints, or articles of his found at the spot, or those of others found upon him. On the other hand, the accused may rebut these, or set up an alibi, or show that the act was more likely to have been com mitted by the prosecutor or third persons. Neither confessions, acquittals, nor convictions of third persons are, however, evidence for, or against, the defendant for this purpose. Thus, the death bed confession of a third person that it was he, and not the pris oner, who had killed the deceased, has been rejected in a murder trial.

States of mind as to a fact may be proved by the party's own testimony (though not by that of others), or by the facts of the transaction itself, or by matters previous or subsequent there to. Statements made out of court and tendered for this purpose, however, are no evidence of the truth of the matter asserted, except against the party as admissions. As instances under the present head, knowledge of facts may be shown either by the party's own testimony, or presumptively from its being his duty to know, or from his having the means of knowledge ; and good faith in doing an act may generally be inferred from any facts which would justify its doing.

Rules of Exclusion.—Facts, although logically relevant to the issue, are, as has been shown, not invariably admissible; and there are five classes thereof, viz., similar facts, character, privileged matters, hearsay, and opinions, which, subject to important excep tions, are shut out by as many excluding rules, either because they are too vague and uncertain to form the basis of judicial decisions, or because they would embarrass the enquiry with collateral issues, or would unfairly prejudice the parties with the jury.

(a) Similar Facts.—Facts which are relevant merely from their general similarity to the main fact, and not from their specific connection therewith, are inadmissible to show its existence; nor, to prove that a party did an act, may evidence be given of sim ilar acts done by him in order to show his tendency to do such acts, and consequent probability of his having done the act in question. On the particular charge of receiving goods knowing them to be stolen, and for the purpose of showing such knowledge, an exceptional licence is allowed to the prosecution by the Larceny Act 1916, s. 43, proof being receivable (a) that other property, stolen within twelve months preceding the offence, was or had been in the accused's possession, and (b) after seven days' notice to him and proof of such possession, that he had within five years preceding the offence been convicted of fraud or dishonesty.

(b) Character.—When a party's character is in issue, proof must necessarily be received of what that character is, or is not. But when a party's character is tendered in proof, or disproof, of some other issue, it is usually excluded, not as being logically irrelevant, but because it is unfair to rake up a person's whole career without notice. Exceptions: (r) Parties. In criminal cases, the accused is, on grounds of humanity, allowed the privilege of proving his good character (either by his own or other testimony, or by cross-examination) for the purpose of raising a presumption of his innocence. The character proved must be of the kind im peached, e.g., honesty where dishonesty is charged, and should refer to a date proximate to that of the offence. When such evidence is given, the prosecution may rebut it either by cross examination, or by proof of the defendant's general bad character, or previous conviction for crime. Moreover, under the Criminal Evidence Act 1898, the prosecution may give such evidence not only in rebuttal of evidence of good character, but also if the defendant has impeached the character of the witnesses for the prosecution, or given evidence against a co-defendant. In civil actions, good character, being presumed, may not (except in rebuttal) be proved in aggravation of damages ; but in cases of libel, or breach of promise, the bad character of the plaintiff may be proved in reduction of damages. (2) Third Persons. In cases of rape, the bad character of the prosecutrix is admissible in defence ; and to show consent, previous immoral acts with the prisoner may be shown by cross-examination or independent proof, and similar acts with other men may also be suggested in cross-examination, but if denied cannot be proved. In actions for seduction, or petitions for damages for adultery, the bad character of the woman betrayed may be proved in reduction of damages. And the character of the witnesses, whether parties or not, is also always admissible as affecting credit.

(c) Public Policy and Privilege.—Evidence of the following matters is excluded on grounds of public policy :—(i) affairs of State : e.g., communications between the governor of a colony and the secretary of State; (2) information for the detection of crime : this may only be disclosed if necessary to show the inno cence of the accused; (3) judicial disclosures: judges and barris ters are not compellable, nor are jurors allowed, to testify as to matters arising in the discharge of their duties; (4) statements by parents bastardizing their offspring : neither the testimony, nor the statements out of court, of the parents are admissible in any legal proceeding to prove their access, or non-access, during mar riage so as to bastardize their offspring, though either fact may be proved by other means. The following matters are protected from disclosure on grounds of privilege :—(i) professional confi dences : a client cannot be compelled, nor a legal adviser per mitted, without his client's consent, to disclose communications made between them in professional confidence. This protection, which does not extend to priests, doctors or agents, is confined to matters within the usual scope of professional employment, and such matters once privileged, are always privileged, e.g., in future litigation, on change of advisers, or on the death of the client. The privilege may be waived by the client, either expressly or impliedly, though not by the adviser. But advice obtained for purposes outside the above limit, e.g., to further a fraud, is not protected, even though the adviser is ignorant of the fraud. (2) Criminating questions : subject to the exceptions below, no witness is compellable to answer questions, or produce documents, tending to expose him, her, or their respective consorts, to any criminal charge, penalty or forfeiture. Answers subjecting the witness to claims for debt, or incriminating co-defendants, are not within the protection; and under the Criminal Evidence Act 1898, the Bankruptcy Act 1915, and the Larceny Act 1916, criminating answers may, with certain qualifications, be compelled. (3) Matrimonial communications : husbands and wives are not com pellable to disclose communications made between them during marriage. (4) Admissions of adultery in divorce cases: in cases of divorce, but not in nullity, legitimacy or ordinary cases, wit nesses are not liable to be asked or bound to answer imputations of adultery, unless they have already denied that fact in the same proceedings.

(d) Hearsay.—Statements, oral or written, made by persons not called as witnesses, are inadmissible to prove the truth of the the facts stated, except in the cases enumerated below. State ments made out of court may, as has been shown, be either what is awkwardly called "original" evidence, i.e., where the statement is offered as relevant irrespective of its truth, or hearsay, i.e., where it is offered testimonially in proof of the matters asserted. Thus, statements tendered as constituting a libel, contract, or threat, or as forming a part of the res gesta, or as conveying knowledge or notice, or as showing a party's good or bad faith or malice, are admissible as "original" evidence; while, an entry by a shop-man, debiting a customer with goods and tendered to prove the truth of the sale asserted, is hearsay, and only admissible in exceptional cases. The test of whether a statement belongs to one class or the other, is, therefore, the purpose for which it is tendered. The essential grounds for the exclusion of hearsay are the absence of the safeguards of oath, cross-examination, and opportunity of observing demeanour, which, in the case of wit nesses, tend to ensure the reliability of their testimony. The hear say rule is, however, subject to three important groups of excep tions :—( I ) admissions, statements in the presence of a party, and confessions; (2) declarations by deceased persons made under conditions of special credibility; and (3) statements contained in public documents.

(I) Admissions, etc.—In civil cases, statements made by a party to the proceedings, or by a person identified in interest with him, are admissible to prove the facts stated against him, but not in. his favour, otherwise everyone, when in a difficulty might make evidence for himself. Thus, in an action by A. against B. for goods, an entry by A., in his shop-books, debiting them to C., is admissible against him, but an entry debiting them to A. is not admissible for him. The circumstances of the admission may gen erally be proved to impeach or enhance its credibility, e.g., that it was made in mistake, ignorance, levity or an abnormal state of mind, while its weight is increased by deliberation. In the special case, however, of offers of compromise made, expressly or im plied by, "without prejudice," these are, on grounds of public policy, altogether excluded. When an admission is against a party he may prove so much of the whole statement or correspondence as is necessary to explain it, including parts favourable to himself, but the jury may attach different degrees of credit to the different parts, and distinct matters cannot be proved in explanation. Statements made in the presence and hearing of a party, and documents in his possession, are also evidence against him of the truth of the matters stated, if by his conduct or silence he has acquiesced in their contents. Confes sions made by an accused person voluntarily are evidence against him of the facts stated. (See CONFESSION : Law.) When property has been discovered by means of an inadmissible confession, the discovery and so much of the confession as strictly relates thereto, may be proved since this portion cannot be untrue, but the other portions will be rejected.

(2) Declarations by Deceased Persons.—'The second main group of exceptions to the hearsay rule consists of statements by per sons since deceased made against interest, or in the course of duty, or as to public rights, pedigree, or homicide, which are admissible to prove the facts stated, the truth of such state ments being prima facie guaranteed by the special conditions imposed. In the first two cases the declarations are admissible on any issue ; in the last three they are only receivable from the necessity of the case, and in proof of the particular issues named. (a) Declarations Against Interest. The interest involved must have been pecuniary or proprietary, and the declarations are evidence not only of the precise fact against interest, but of any connected facts necessary to explain it, though not against interest. Unconnected facts, however, though contained in the same statement or document are inadmissible. (b) Declarations in Course of Duty. Declarations made by the deceased in the ordi nary course of duty, contempc:aneously with the facts stated, and without motive to misrepresent, are admissible in proof of their contents. The duty must have been to a third person, and not a. mere personal custom ; and, unlike those against interest, the declarations here are only evidence of the precise matter it was the duty of the deceased to perform and record. (c) Declarations as to Public Rights. Statements by deceased persons of competent knowledge, made before dispute had arisen, are admissible in. proof of ancient rights of a public or general nature, e.g., rights of common, highway or ferry, or the boundaries of a parish or manor. Maps, copies of court rolls, old deeds and depositions, verdicts or judgments in former suits, are admissible under the present exception, though not awards, or unprosecuted claims_ (d) Declarations as to Pedigree. On issues involving pedigree, e.g., family succession (testate or intestate), relationship or legitimacy, statements by deceased relations, made before the question was controverted, are admissible. Thus, the birth, marriage or death of members of the family may be so proved if required for some genealogical purpose, but not otherwise.

(e) Declarations as to Homicide.

In trials for murder or man slaughter, only, the dying declarations of the deceased, made when all hope of recovery was abandoned, are admissible to prove the cause and circumstances of his death.

(3) Public Documents.—The third main group of exceptions to the hearsay rule comprises statements contained in public documents, which, subject to various qualifications, are admis sible, even against strangers, in proof of the facts recorded, upon the general grounds that they have been made by the authorized agents of the public, and as to matters of public interest or concern. Under this head are included statutes, parliamentary journals, the Government gazettes of London, Edinburgh and (now) Belfast, and public registers of births, marriages and deaths and the like.

(4) Opinions and Judgments.—The last of the classes excluded by the rules above mentioned, consists of opinion evidence, which, either in the form of general reputation, or of individual opinion and belief, is in general inadmissible to prove material facts, since if founded on no evidence, or illegal evidence, it is worthless, and if founded on legal it tends to usurp the func tions of the tribunal whose business alone it is to draw conclu sions of law or fact. There are, however, exceptions under each of these headings. Thus, reputation based on general opinion, but not on individual statements, is admissible in proof of public rights, pedigree, marriage, and the identification of persons re ferred to in libels or threats. The opinion of experts is ad missible on subjects the knowledge of which requires a course of special study or experience, e.g., science, art, trade, technical terms, handwriting, or foreign law. When, however, (i) the tribunal is as capable of forming an opinion as the witness, as in disputed points of duty, morality, or etiquette ; or (ii.) the court is assisted by assessors, as in admiralty cases involving nautical skill, the evidence is inadmissible. (See ASSESSOR and EXPERT.) When opinion evidence takes the form of a judgment of a court of law, more technical rules apply; but, broadly speaking, judg ments in rem (i.e., those affecting status) are conclusive evidence of the facts actually decided, when tendered in future proceedings between either parties or strangers, while judgments in personam (i.e., those in contract, tort, or crime) are conclusive evidence both of the fact decided and the grounds of the decision, but only between parties and those in privity with them, being in general Wholly inadmissible between strangers.

Attendance.

If a witness does not attend a trial voluntarily he can be required to attend in the High Court by a writ of subpoena, in the superior criminal courts by recognisance, or sub poena, and in the county courts, or before magistrates, by summons.

A witness is incompetent if, in the opinion of the court, he is prevented by extreme youth, disease affecting his mind, drunken ness, or any other cause of the same kind, from recollecting the matter on which he is to testify, from understanding the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth. A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible.

Under the general law as it stood before the Criminal Evidence Act 1898 came into force, a person charged with an offence was not competent to give evidence on his own behalf. But many exceptions had been made to this rule by legislation, and the rule itself was finally abolished by the act of 1898. Under that law a person charged is a competent witness, but he can only give evidence for the defence, and can only give evidence if he himself applies to do so. Under the law as it stood before 1898, persons jointly charged and being tried together were not competent to give evidence either for or against each other. Under the act of 1898 a person charged jointly with another is a competent witness, but only for the defence, and not for the prosecution. If, therefore, one of the persons charged applies to give evidence his cross-examination must not be conducted with a view to establish the guilt of the other. Consequently, if it is thought desirable to use against one prisoner the evidence of another who is being tried with him, the latter should be released, or a separate verdict of not guilty taken against him. A prisoner so giving evidence is popularly said to turn king's evidence. It follows that, subject to what has been said above as to persons tried together, the evidence of an accomplice is admissible against his principal, and vice versa. The evidence of an accom plice is, however, always received with great jealousy and caution. A conviction on the unsupported testimony of an accomplice may, in some cases, be strictly legal, but the practice is to require it to be confirmed by unimpeachable testimony in some material part, and more especially as to his identification of the person or persons against whom his evidence may be received. The wife of a person charged is now a competent witness, but, except in certain special cases, she can only give evidence for the defence, and can only give evidence if her husband applies that she should do so. The special cases in which a wife can be called as a witness either for the prosecution or for the defence, and without the consent of the person charged, are cases arising under par ticular enactments scheduled to the act of 1898, and relating mainly to offences against wives and children, and cases in which the wife is by common law a competent witness against her husband, i.e., where the proceeding is against the husband for bodily injury or violence inflicted on his wife. The rule of ex clusion extends only to a lawful wife. There is no ground for supposing that the wife of a prosecutor is an incompetent witness.

Oaths.

Except in the case of children, when very young, witnesses merely producing documents, or counsel and judges explaining cases in which they have been professionally con cerned, oral evidence must be given under the sanction of an oath, or solemn affirmation, the form of which will differ accord ing as the witness has, or has not, a religious belief. A believer must be sworn either in the usual way, or in some other that he declares to be binding, unless he states that an oath is con trary to his religion, when he will be allowed to affirm. If, however, he objects on grounds other than the above, or will not state what form of oath is binding on him, his testimony will be excluded. The testimony of an atheist is admissible if he has been sworn without objection, or has been allowed to affirm because he has no religious belief.

Witnesses at the trial of any action or criminal charge must in general give their evidence viva vote, and in open court ; but in certain statutory cases, and in proceedings affecting lunatics and wards of court, or where publicity would defeat the ends of justice, the hearing may be had in camera.

Examination.

The normal course of procedure is this. The party who begins, i.e., ordinarily the plaintiff or prosecutor, calls his witnesses in order. Each witness is first examined on behalf of the party for whom he is called. This is called the examination in chief. Then he is liable to be cross-examined on behalf of the other side. And, finally, he may be re-examined on behalf of his own side. After the case for the other side has been opened, the same procedure is adopted with the witnesses for that side. In some cases the party who began is allowed to adduce further evidence in reply to his opponent's evidence.

In the examination in chief questions must be confined to mat ters bearing on the main issue, and a witness must not be asked as to facts protected by public policy or privilege, nor must material matters in general be elicited by leading questions, i.e., questions suggesting the answer which the person putting the question wishes or expects to receive, or suggesting disputed facts about which the witness is to testify. But the rule about leading questions is not applied where the questions asked are simply introductory, and form no part of the real substance of the inquiry, or where they relate to matters which, though material, are not disputed. And if the witness called by a person appears to be directly hostile to him, or interested on the other side, or unwilling to reply, the reason for the rules applying to examina tion in chief breaks down, and the witness may be asked leading questions and cross-examined, and treated in every respect as though he was a witness called on the other side, except that a party producing a witness must not impeach his credit by general evidence of bad character (Evidence and Practice on Criminal Trials Act i86). A witness under examination may refresh his memory by referring to any writing made by himself at or about the time of the occurrence to which the writing relates, or made by any other person, and read and found accurate by the witness at or about the time. An expert may refresh his memory by reference to professional treatises.

In cross-examination questions not bearing on the main issue and leading questions may be put and (subject to the rules as to privilege) must be answered, as the cross-examiner is entitled to test the examination in chief by every means in his power. The licence allowed in cross-examination has often been seriously abused, and the power of the court to check it is recognized by one of the rules of the supreme court (R.S.C. xxxvi. 39, added in 1883). It is considered wrong to put questions which assume that facts have been proved which have not been proved, or that answers have been given contrary to the fact. A witness ought not to be pressed in cross-examination as to any facts which, if admitted, would not affect the question at issue or the credibility of the witness. If the cross-examiner intends to adduce evidence contrary to the evidence given by the witness, he ought to put to the witness in cross-examination the substance of the evidence which he proposes to adduce, in order to give the witness an oppor tunity of retracting or explaining. Where a witness has answered a question which only tends to affect his credibility by injuring his character, it is only in a limited number of cases that evidence can be given to contradict his answer. Where he is asked whether he has ever been convicted of any felony or misdemeanour, and denies or refuses to answer, proof may be given of the truth of the facts suggested (28 & 29 Vict. C. 15, s. 6). The same rule is observed where he is asked a question tending to show that he is not impartial. Where a witness has previously made a statement inconsistent with his evidence, proof may be given that he did in fact make it. But before such proof is given the circumstances of the alleged statement, sufficient to designate the particular oc casion, must be mentioned to the witness, and he must be asked whether he did or did not make the statement. And if the state ment was made in, or has been reduced to, writing, the attention of the witness must, before the writing is used against him, be called to those parts of the writing which are to be used for the purpose of contradicting him (Evidence and Practice on Criminal Trials Act 1865, ss. 4, 5) . The credibility of a witness may be impeached by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit on his oath. These persons may not on their examination in chief give reasons for their belief, but they may be asked their reasons in cross-examination, and their answers cannot be contra dicted. When the credit of a witness is so impeached, the party who called the witness may give evidence in reply to show that the witness is worthy of credit. When an accused person offers him self as a witness, he may be asked any question in cross-examina tion, notwithstanding that it would tend to criminate him as to the offence charged. But he may not be asked, and if he is asked must not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any other offence, or is of bad character, unless:— (i.) the proof that he has committed, or been convicted of, the other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or, (ii.) he has personally, or by his advocate, asked questions of the witnesses for the prosecution, with a view to establish his own good character, or has given evidence of his good character, or the nature or con duct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or, (iii.) he has given evidence against any other person charged with the same offence. Nor may he be asked questions tending to criminate his wife.

Re-examination must be directed exclusively to the explana tion of matters referred to in cross-examination, and if new matter is, by the permission of the court, introduced in re-exam ination, the other side may further cross-examine upon it.

Number of Witnesses and Corroboration.—As a general rule courts may act on the testimony of a single witness even though uncorroborated; or upon duly proved documentary evi dence without such testimony at all. But whenever there are circumstances of suspicion, or the testimony of a witness is chal lenged by cross-examination or otherwise, corroboration is al lowed, and in certain cases no verdict can be obtained without it. Thus, on charges of treason, or personation at elections, two witnesses are essential; in cases of perjury, breach of promise or bastardy, one witness will only suffice if corroborated in material particulars; and where proof of an offence rests on the unsworn testimony of children, corroboration is also required. In the above instances, the rules are statutory; but by a rule of practice, though not of strict law, corroboration is also needed in claims to the property of deceased persons, and in criminal cases, of the testimony of accomplices.

Protection of Witnesses.—A witness is privileged from arrest on civil process while he is in attendance on a court of justice, or is on his way to or from the court (eundo, morando et redeundo) ; but the privilege does not exempt from arrest on a criminal charge. And it is a contempt to threaten, bribe, or coerce a witness with intent to influence or prevent his evidence. Moreover, on grounds of public policy, no action will in general lie against a witness in respect of the testimony given by him in court.

Questions of evidence under this head may arise with respect to the execution, contents, supersession, variation or interpreta tion of documents.

Execution.—As to execution, public or judicial documents are sometimes (e.g., in the case of statutes or letters-patent) judicially noticed on their mere production; in other cases they may require no further authentication than that of appearing in a Government gazette, or of "purporting" to be printed by offi cial printers, or to be certified, signed or sealed by some court or public department. The execution of private documents is proved by evidence of their signature given by the writer, or some person who saw it signed or knows the writing, as explained above; or, if the document is required by law to be attested, by calling the attesting witness, unless it is 3o years old and pro duced from proper custody, when it proves itself ; or by the admission of the party against whom it is tendered ; or by corn parison, made by experts or other witnesses, of the documents in question with genuine specimens of the writing. (See HAND WRITING.) Contents.—The contents of public or judicial documents may be proved either by ordinary evidence (i.e., production or admis sion) or, more usually, by secondary evidence, which may consist here of Government printers' copies, Government gazette copies, certified copies (in the case of non-judicial documents such as registers), or office copies (in the case of judicial documents), but not of oral evidence. The contents of private documents must be proved by primary evidence, as above, except where (I) the original is lost or destroyed; or (2) its production is impossible or highly inconvenient, as in the case of registers, tombstones, or documents in a foreign country; or (3) when the original is in the possession of a stranger who refuses, and is not compellable by law, to produce it ; or (4) when the original is in the possession of the opponent, who refuses to produce it either after notice to produce, or when such notice is excused, which occurs when the document is itself a notice to the opponent, or the latter is charged, in the same case, with its possession, or has it in court, or has admitted its loss. When, under the above ex ceptions, secondary evidence of a private document is admissible, such evidence may consist of an examined copy (i.e., one sworn to be true by a witness who has examined it, line by line, with the original, the copies used in proof of public documents not being applicable here) ; or of oral testimony by witnesses who have read the document ; or of entries as to its contents made by deceased persons against their pecuniary interest, or in the discharge of duty; or of presumptive evidence, e.g., proof that parties who had interests under the document had acted in ac cordance with its tenor.

Supersession.—With regard to the supersession of documents, the rule is that if a transaction has been reduced to a documentary form, either by requirement of law or agreement of the parties, the terms of the transaction must be proved by production of the document, or an authenticated copy thereof, and not by oral evi dence, even though the oral and written terms may be identical, or the oral Lerms have been acted upon before reduction to writing. The party whose witnesses show that the transaction was reduced to writing must produce, or explain the absence of the instrument ; and the opponent, in order to ascertain the fact, may either in terpose in chief, or reserve the question for cross-examination, or, if the document be denied, may at once prove its existence. Where, however, the plaintiff can establish a prima facie case without disclosing the document, he will not be prejudiced by the defendant proving its existence, for the burden will then be shifted, and if the latter rely on the document he must produce it as part of his own case (with the usual liability as to stamp ing), even though he has served a notice to produce it on the plaintiff. When the mere existence of a transaction, irrespective of its terms, is in question, this may generally be shown by parol, without production of the document, e.g., the existence of a partnership or official appointment.

Contradiction and Variation.—The rule here provides that when a transaction has been reduced into writing by requirement of law, or agreement of the parties, parol evidence (i.e., oral or written matter extrinsic to the document) is in general inadmis sible to contradict, vary, enlarge, or restrict the written terms. The grounds of exclusion commonly given are that where the law requires superior evidence, to admit inferior would be to nullify the law; and that where the parties have deliberately put their agreement into writing, it is conclusively presumed between them selves and those in privity with them that they intended it to be a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith, or treacherous memory. The rule, however, is sometimes thought to be based on the "best evidence" principle, though historically it is in fact much older; sometimes on the doctrine of estoppel; and sometimes wholly on the substantive law. It is subject to the fol lowing exceptions, in some of which parol evidence is admitted wholly to contradict the document, and in others merely to sup plement it, but without contradiction. Thus (I) public docu ments, e.g., entries in a register of the tonnage of a ship, are in general given no exclusive authority by law as instruments of evidence, and may be contradicted or varied by parol. (2) Ex trinsic evidence is in general admissible to show the true nature of a transaction, or the legal relationship of the parties, although such evidence may contradict or modify the instrument. Thus, a sale, absolute on its face, may be proved by parol to be a loan, a conveyance merely a mortgage, an unqualified devise subject to a secret trust, or a receipt in, or indorsed on, a deed, contra dicted. Fraud, or mistake may be similarly established, though the document is thereby impeached. (3) Where a contract, not required by law to be in writing, has been reduced thereto, but the court infers that the document was not intended to contain the whole agreement between the parties, proof may be given of any omitted term expressly or impliedly agreed between them at or before the execution of the document, and not inconsistent therewith. The question whether the document was intended to contain the whole agreement may be determined either by the document itself, or by extrinsic circumstances, and may be left to the jury. Moreover, although there exists a contract purporting to be fully expressed in writing, whether required by law to be so or not, proof may be given of a prior or contemporaneous oral agreement or warranty, if it forms part of the consideration for the main contract, and is not inconsistent with the document. The collateral contract must be between the same parties, and not include others as well. Apart, however, from such omitted or collateral terms, unexpressed incidents, if not inconsistent with those expressed, may be annexed to contracts, grants, or wills, either by usage, for here it is presumed that the customs of the particular market or place have been tacitly adopted by the parties, or by law, in which case the incidents annexed will be judicially noticed without resort to evidence, and may in some cases (e.g., in contracts under the Sale of Goods Act 1893, s. 55) be varied or contradicted by parol. (4) Written con tracts, if not required by law to be in writing, may at any time before breach, be either rescinded or modified by parol ; if re quired by law to be in writing, they may be wholly rescinded by a parol agreement, even though such agreement may itself be unenforceable, but not partially abandoned or varied thereby. Deeds may be discharged, but not varied, by oral agreement made for valuable consideration; bills and notes may be dis charged by writing, or delivery up; and wills may be revoked by later wills, or destruction animo revocandi, or modified by further testamentary instruments.

Interpretation.—When the language of a document is clear and applies without difficulty to the facts of the case, extrinsic evidence is not admissible to affect its interpretation ; but when the language is peculiar, or its application to the facts is am biguous or inaccurate, extrinsic evidence may, subject co the under-mentioned rules, be received to explain it.

Rule i. (surrounding circumstances).—In order to show the identity or extent of the objects referred to in a document, ex trinsic evidence (including the knowledge and surrounding cir cumstances of the writer, his treatment of, and habits of speech concerning, such objects, but not his direct declarations of inten tion) may be given. The principle is that, as most documents refer to the circumstances under which they were written, the court, in interpreting them, should be placed as nearly as possible in the same situation as the writer; while, as to the degree of cer tainty required, the maxim id certum est quod certum reddi potest applies. Such evidence, however, is not admissible when the ambiguity is merely a grammatical one, or when the language is so vague or imperfect that no reasonable meaning can be at tached to it, so that to admit evidence would be, not to in terpret the document, but virtually to make a new one. Thus, where A. appointed as his executor "Percival —, of Brighton, the father," evidence that A. had two friends called Percival B., father and son, and both of Brighton, was received, and probate granted to the former. While, where A. left legacies to "Mr. —," and "Lady —," extrinsic evidence to fill the blanks was rejected, the language being wholly defective and uncertain. So, where A., a farmer, sued B. on a contract signed by B. "to take your wool at i 6s. a stone," a letter from A. to B.'s agent, before the con tract, that he "had sold part of his own clip, but was promised other wool which would go with his own," was received to show that in the contemplation of the parties "your wool" included both clips, and not A.'s clip only.

Rule ii. (primary and secondary meanings, correct and less correct names and descriptions).—When the words of a document in their primary or ordinary sense, are applicable to the facts and not modified by the context, extrinsic evidence cannot be given to show that they were not used in that sense ; but when it is clear from the context, or the facts, that such meaning can not have been intended, extrinsic evidence of the kinds above specified may be given to show that they were used in some secondary or less ordinary sense, provided it is one which the words can properly bear. Rule i. included cases where the words, being of a vague or general character, were equally applicable to a wide or narrow meaning. The present rule deals with words having a proper and also a less proper sense or application. Thus, words of relationship import legitimate relationship; if, therefore, legitimate members exist, evidence cannot in general be given that illegitimates were intended ; though if none do or can exist, or if, though some exist, the context may include the latter, the evidence will be receivable. Again, if a given person, known to the testator, accurately fulfils the words in the will, and there is no other claimant, evidence cannot be given that he was not intended ; and if one of two claimants fulfils the words and the other not, evidence in favour of the latter will be rejected. So, also, in cases of property, if a subject exists satisfying all the written terms, evidence cannot be given that something more or less extensive was intended. As instances of the foregoing, where A. left property to his "children," having none of his own, but only step-daughters, evidence that they lived with him, adopted his surname, were known by the neighbours as his children, and were so treated and called by him, was received in their favour; while where A. left property to B's "children," B. having both legitimate and illegitimate issue, evidence that A. treated and promised to provide for them all alike was rejected, and the legitimates alone held entitled.

Rule iii. (incorrect names and descriptions).—When the words of a document apply in part correctly and in part incorrectly to a single subject-matter, extrinsic evidence of the kinds stated in Rule i. may be given to show whether they were intended by the writer to apply to it, or not ; and when the words apply partly to one subject and partly to another, but correctly to neither, similar evidence may be given to show which of the two was intended, the maxim falsa demonstratio non nocet cum de corpore constat applying. Thus, where a voting paper beginning "I, the under signed A." was signed "B.," evidence by the town clerk that he gave A.'s paper by mistake to B. who signed it without noticing the mistake, was admitted to explain the patent ambiguity and validate the vote. So, where A. left a legacy to "my dear wife C.," evidence that his wife, from whom he was separated, was called M., but that he had bigamously married C., who was living with him at the dates of his will and death, was received and the legacy given to C.

Rule iv. (equivocations).—Where the words of a document, though intended to apply to one object only, apply equally to more, and it is impossible to gather from the context which was intended, an equivocation arises, and in addition to the evidence admissible above, direct declarations of the writer's intention may be given to solve the ambiguity. An equivocation may arise where the same name or description fits two objects ac curately; or one accurately and the other popularly though less accurately, e.g., the same name borne by father and son; or one accurately and the other in a transposed order, or with addi tional names. There is no equivocation, however, where there are legitimate and illegitimate relations of the same degree, for the case then falls under Rule ii. above; nor where part of a name or description applies to one object and the remainder to another, for the case then falls under Rule iii.

Rule v. (usage, experts, dictionaries).—Where the words of a document have a double meaning, the one common and the other local or peculiar, evidence of the latter is admissible, if the con text, or facts, point to such a user by the parties. And the testi mony of experts, or a reference to dictionaries, is similarly ad missible to explain local, technical or foreign terms.