Evidence. Evidence may be defined as the means of proving an unknown or disputed fact. In ordinary legal usage the term has two meanings which should be distinguished. In one it denotes testimony as to the existence of facts; in the other it denotes relevancy to an issue, as when it is said that 'hearsay is not evidence.' Evidence is divided into oral or parole evidence, or statements made by word of mouth by witnesses in court; and documentary evidence, the testimony derived from writing, or the use of any conventional symbols which, like letters, serve to express ideas. Real evidence is the testimony of things, as where footprints in a field give evidence that some one has been there. Another distinction is drawn between direct and circumstantial evidence. Direct evidence is the testimony of witnesses to what they have themselves observed or know of their own knowledge regarding the fact to be ascertained, as when A testifies that he saw B stab C with a knife. Circumstantial evidence is testimony given by witnesses to what they have observed or know regarding facts more or less remotely connected with the unknown or disputed fact, as when A testifies that he found upon B a blood-stained knife. The relative value of direct and circumstantial evidence as proof of fact has been much discussed. Direct testimony is generally esteemed the stronger; but witnesses may be mistaken, deceived, or deliberately false; while circumstances 'cannot lie,' and the conclusion forced upon the mind by an unbroken train of circumstances pointing in the same direction is often more forcible than positive direct testimony.
Instances may be found in which combinations of facts and circumstances are morally satisfactory as grounds of assurance and judgment, and, in many cases where a conviction has proceeded upon circumstantial evidence alone, the prisoner has afterwards confessed his guilt. A good example is the case of Courvoisier, the valet and murderer of Lord William Russell (1840). Here there was no direct testimony whatever to connect the accused with the crime, and there were circumstances designed by the accused to suggest that it was the work of burglars. It was proved, however, that the prisoner had an opportunity of committing the crime, that some of the abstracted property had been concealed in his pantry, and that he personally had disposed of other portions of it. The evidence, besides, excluded the reasonable belief that any other than the prisoner was guilty, and upon these grounds he was convicted, and afterwards confessed. On the other hand there have been cases, happily rare, in which a miscarriage of justice, and the conviction of the innocent instead of the guilty, have resulted from a reliance by the jury upon circumstantial evidence. The most remarkable of these that has occurred in recent times arose out of a burglary committed at the rectory of Edlingham in 1879. Two burglars, one of whom shot at the rector, were seen on the night by the rector and another person. Two men were arrested and tried for the crime at Northumberland Assizes in 1879. Neither the rector nor the other person who had seen the burglars was able to identify the prisoners, and the defence was that the case for the prosecution was wholly one of mistaken identity. But a chisel found in the room where the crime was committed was traced to the possession of the prisoners; a piece of newspaper picked up in the same room was found to correspond with a piece in the coat of one of the prisoners; and footmarks found near the scene of the crime corresponded with those of the prisoners. The jury on this evidence found them guilty, and they were sentenced to penal servitude for life. They served in the convict settlement at Portsmouth for nine years; when, in 1888, the true burglars, two other men than those who had been convicted, confessed to the crime. Inquiries were made by the authorities, with the result that the men who had been convicted on the evidence of the chisel, the newspaper, and the footmarks, were set at liberty.
Judges and juries are not allowed by law to proceed upon their private knowledge of facts at issue before them, and must decide according to the evidence adduced. Of some facts, however, a judge takes 'judicial notice,' and these do not require to be proved by evidence. Such are all public acts of parliament, the proceedings and privileges of parliament, the course of proceeding and all rules of practice in force in the Supreme Court of Justice, the ordinary course of nature, natural and artificial divisions of time, the meaning of English words, and many other matters which judges are by statute specially directed to notice. Judges are also bound under the rules of law called presumptions to draw a certain inference from a certain fact unless the truth of such inference is disproved. A presumptio juris et de jure does not allow its inference to be disputed. For example, the law presumes that a minor is incapable of managing his own affairs; and, when a man is proved to be a minor, he will be held so incapable without regard to the question whether in truth he is so or not. A presumptio juris may be rebutted, as thus: the law presumes that when a woman is married, her husband is the father of her children; but evidence may be adduced to prove the contrary. A third kind of presumption has been distinguished, the presumptio judicis vel hominis, but this is merely another name for an argument or inference of logic. With regard to disputed facts that are not matter of judicial notice or legal presumption the general rule is that he who affirms a fact must prove it; and the burden of proof lies in the first instance on the party against whom judgment would be pronounced in the absence of evidence on either side.
The general rule governing questions as to what facts may be proved in judicial proceedings is that facts in issue (or those upon which the existence of the legal right in question depends) and facts relevant to the issue—i.e. those from which the facts in issue may be inferred—may be proved to the exclusion of all other facts. Facts collateral to the issue are not allowed to be proved—e.g. in a question whether A committed a crime, the fact that he formerly committed another crime of the same kind is held to be irrelevant, and not allowed to be proved. Hearsay evidence—i.e. testimony to the fact that a statement was made by a person not called as a witness—is similarly deemed to be irrelevant, the reason generally assigned being that the best evidence must be given. But the rule excluding hearsay suffers exceptions. Thus, voluntary confessions of crime and declarations by persons accused of crime are admitted as evidence against themselves; and declarations made by witnesses at the point of death, or in fear of death, are received as evidence against others. The opinion of a witness, as distinguished from his testimony to a fact, is generally held to be irrelevant; but the opinion of skilled persons or experts as to matters coming within their special province is admitted. Thus, in a question whether a man was sane when he made his will, the testimony of a witness to the fact that the deceased wrote his will in different coloured inks upon medicine labels would be deemed relevant, while the same witness's opinion that 'no sane man would make a will in that way' would be deemed irrelevant; but in a question whether A was poisoned, the opinion of medical men is admitted as to the effects of the poison of which A is said to have died. Evidence as to a person's character is deemed to be relevant in an inquiry regarding his conduct.
Admissible facts may be proved by documentary or by oral evidence. When the contents of documents are proved by the production of the document itself in court, the evidence is said to be primary. When copies are produced, the evidence is said to be secondary. As a general rule the documents themselves are necessary, as being the best evidence; but copies are accepted in certain settled cases—as where the original is in possession of the adverse party, who refuses to produce it; where it has been destroyed or lost; or where it is of such a nature as not to be easily movable, as in the case of a libel written on a wall. Public documents, such as the records of the realm, the acts of parliament, and the like, are proved by copies variously authenticated. When the law requires writing as proof of any proceeding or contract, oral evidence will not be admitted to alter or contradict such writing. Such evidence will, however, be received for the interpretation and construction of documents where they are obscure or couched in language used out of its ordinary sense.
The old rules which restricted or excluded the admissibility of a witness on the ground of religion, of interest, and of character have been gradually swept away by legislation. Objections of interest and character do not now affect the admissibility of witnesses, but are urged against their credibility when their testimony has been received. As a general rule all persons who are capable of giving rational evidence are admissible as witnesses. Extreme youth and mental infirmity will exclude if it is such as to prevent the witness from understanding questions or giving rational answers, or from knowing that he ought to speak the truth. In criminal cases the accused is not admissible as a witness, nor the husband or wife of the accused, except where he or she is the person injured by the crime. Some exceptions to the rule have been made by recent statutes—as e.g. the Criminal Law Amendment Act of 1885, which allows persons accused of offences under this act and their husbands or wives to be competent witnesses. Thus, a man charged under the act with abduction of a girl under sixteen may give evidence himself, and call his wife to prove that at the time the crime was said to be committed he was not at the place where it was committed; while a man charged with assault with intent to ravish (which is not within the act) can neither testify himself nor adduce his wife's evidence at all. Witnesses are in the ordinary case examined in open court by word of mouth, after taking an oath to tell the truth. If any witness is unwilling to be sworn from conscientious motives, the judge may permit him to make a solemn Affirmation (q.v.). Any person who has made such declaration and wilfully and corruptly gives false evidence may be prosecuted and punished as if he had committed Perjury (q.v.). Witnesses are first examined by the party who calls them into court. After this examination-in-chief they are cross-examined on behalf of the opposite party, and then re-examined. Leading questions—i.e. questions which suggest their own answer—may be put in cross-examination, but not in the examination-in-chief. No witness is bound to answer any question if the answer would expose him to a criminal charge; but if the result of his answer would be to render him liable to a civil suit for debt or otherwise he must answer notwithstanding. Questions may be put in cross-examination to test the accuracy or credibility of the witness, and to shake his credit by injuring his character; but the judge may disallow questions which he considers to be vexatious and not relevant to the issue. Every witness may be examined as to whether he has ever made a different statement regarding the matter of his examination; and, if he denies, proof may be led to contradict him. Spouses cannot be compelled to disclose communications made to one another during the marriage. Confidential communications between parties to legal proceedings and their legal advisers are similarly protected. Medical men and clergymen, on the other hand, may probably be compelled to disclose communications made to them in professional confidence, although the point remains doubtful (see CONFIDENTIALITY). Except in cases of treason and perjury, the evidence of one witness is held sufficient by the law of England to support a conviction; but proof of circumstances to corroborate such witness is usual. The rule runs the other way in Scotland, where no libel can be proved by the unsupported testimony of a single witness; but, as one witness is held sufficient to prove each of a chain of connected facts, the practical effect of the two rules is the same in both countries. See Sir James Fitzjames Stephen's Digest of the Law of Evidence (5th ed. 1887), and Kirkpatrick's Digest of the Scottish Law of Evidence (2d ed. 1886).
In the United States, state laws prescribe the rules of evidence which govern the state courts, and, in the absence of congressional enactments, federal courts. The effect of recent acts of congress is that there is now no restriction as to the admission of testimony based upon the colour or nationality of the witness; and in general the party in interest both in civil and criminal cases may be a competent witness, subject to the general rule that a party is not compelled to criminate himself, nor shall his silence upon any question create a presumption against his innocence, and subject also to the general rule that a husband shall not be allowed to testify against his wife, nor the wife (unless the offence has been committed by the one against the other) against her husband. Where the evidence relates to the remedy, as in the proving of an instrument by subscribing witnesses, state rules govern both in federal and state courts; hence the practice varies with the locality. Circumstantial evidence is admitted by courts with great reluctance, and in criminal cases, if not corroborated by the positive evidence of at least one witness, it must be of such a character as to be equivalent in weight of evidence to direct and positive evidence, and be entirely inconsistent with the innocence of the party accused.
A belief in God and in divine rewards and punishments, here or hereafter, for deeds done is essential to the admissibility of a witness; and this belief must have no reference to the punishment for perjury by human law; hence one having no belief in God cannot be a competent witness, and no form of oath which he declares to be binding upon his conscience cures this defect. The jury are the judges of the fact, and, as such, of the credibility of the witnesses; hence no jury in the United States is obliged to reject a statement of a witness because uncorroborated by positive testimony, either direct or circumstantial. The general rules as to relevancy; the relative value of written and oral evidence, and the control of the one by the other; and the taking of an oath or affirmation are to the same effect as those observed in England.—For the evidences of religion, see APOLOGETICS.