EVIDENCE. (The word evidence con sidered in relation to law includes all the legal means which tend to prove or disprove any mat ter of fact the truth of which is submitted to judicial investigation.'" (Taylor). Evidence may be either oral or documentary. Oral evi dence is the statements made by witnesses dur ing the trial; and documentary evidence con sists of the production of papers, on which is writing, marks or characters capable of being read, which are submitted during the course of the trial. Oral evidence must in all cases be direct: if it is of something that was seen, by the person who saw it; if of something heard, by the person who heard if ; if of an opinion, by the person who holds that opinion; or if the knowledge was acquired in any other man ner, by the person who perceived it in that manner. The general rule is that hearsay evi dence is not admissible. Documentary evidence may be either primary or secondary. Primary evidence of a document is where the document itself is produced for the inspection of the court. When a document has been executed in counterparts, each counterpart is primary evi dence against the party executing it, and where a document has been made by printing or any other means that will ensure an exact repro duction, each copy is primary evidence of the other copies, but none of them is primary evi dence of the originaL Secondary evidence of a document would be counterparts of the docu ment as against the party who did not execute them, copies made from the original and com pared with it,•office copies, official copies and oral evidence of the contents of a document by a person who has seen the original. Before secondary evidence will be received the party offering it must show a legal reason why the original is not produced, such as being lost, destroyed, in possession of the adverse party who refuses to produce it after notice to do so, or when it is a public document, or when it is in a country or place from which it is not per mitted to be removed.
Either oral or documentary evidence may be given of any fact in issue or relevant to the issue; and where two facts are so connected, although one fact is and the other fact is not the issue or relevant to the issue, yet evidence of both may be given if that fact will render probable the existence or non-existence of the.
other fact which is in issue or relevant to the issue.
Admissions are statements made by a party to any proceeding and in reference to that pro ceeding, and they are admissible against the party making them, but not in his favor. Ad missions may also be made by an agent, but to bind the principal they must be made by the agent in his regular course of business or em ployment. If an admission is made after an agreement has been entered into between the parties not to use it as evidence, it is not ad missible, nor is it admissible in evidence made under duress. A confession is a statement made
by a person charged with a crime stating or suggesting that he committed .that crime. If made voluntarily it is admissible as evidence against him, but if made while the person is under any threat or promise which has been given by a person in authority, it is not admis sible. Confessions may be made during the course of the trial, but if the question which produced the confession is an improper one, and after the witness had refused to answer it he had been compelled to do so, it is not a volun tary confession and therefore inadmissible. But if he made no objection to answering the ques tion, it is admissible as a voluntary confession. A witness's opinion is received in evidence when it falls under the head of expert testimony; as, when the question is of some science or art, the opinions of persons specially skilled in that art or science are relevant. Any subject on which special study or experience is necessary to the formation of a correct opinion is a science or art. The most frequent illustrations are medical and handwriting experts. Before the testimony of a person called as an expert is received, he must satisfy the court as to his ability to form a correct opinion on the partic ular subject on which he is to testify. The gen eral rule is that evidence as to a person's char acter is not admissible unless it is the fact in issue, except in criminal cases, but if a person introduce evidence to show good character, the other side may produce witnesses to show the contrary. All facts should be proved by the best or highest evidence. If a fact can be proved by a written instrument, the writing should be produced and the party alleging a fact must prove it.
In the United States the rules of evidence are laid down by State enactments which apply in State courts in civil cases, and in Federal courts also, in the absence of Federal enact ments. There is no bar to the giving of testi mony, either of color or nationality. In crim inal trials evidence follows common-law rules, as interpreted by the Federal courts, modified by Federal enactments. Consult Chamberlayne, 'Treatise on Evidence' (4 vols., Albany 1911) ; Greenleaf, 'Treatise on the Law of Evidence' (16th ed., Boston 1899) ; Stephen, J. F., 'Di gest of the Law of Evidence' (7th ed., London 1907) ; Thayer, 'Preliminary Treatise on Evi dence at Common Law' (Boston 1898) ; Wig more, 'System of Evidence in Trials at Com mon Law) (Boston 1904) ; Mills, 'Theory and Practice of the Law of Evidence' (London 1907).