Courtenay Peregrine Ilbert

“ The judge is a man of trained experience, who has to arrive at a conclusion with the help of twelve untrained men, and who is naturally anxious to keep them straight, and give them every assistance in his power. The exclusion of certain forms of evidence assists the jury by concentrating their attention on the questions immediately before them, and by preventing them from being distracted or bewildered by facts which either have no bearing on the question before them, or have so remote a bearing on those questions as to be practically useless as guides to the truth. ”

“ Judicial Notice.—It may be doubted whether the subject of judicial notice belongs properly to the law of evidence, and whether it does not belong rather to the general topic of legal or judicial reasoning. Matters which are the subject of judicial notice are part of the equipment of the judicial mind. It would be absurd to require evidence of every fact; many facts must be assumed to be known. ”

“ Improvement of the statute law was the object to which Thring persistently devoted the energies of his long and active life. He endeavoured to effect this object, not merely by introducing a better style of drafting new laws, but by throwing light upon the contents, diminishing the bulk, and reducing to more orderly arrangement the vast and chaotic mass of existing statute law. He was an original member of the statute law committee which was first appointed by Lord Cairns [q. v.] ”

“ It is of course improper to try to extort a confession by fraud or under the promise of secrecy. But if a confession is otherwise admissible as evidence, it does not become inadmissible merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions, whether put by a magistrate or by a private person, or because he was not warned that he was not bound to make the confession, and that it might be used against him. ”

“ Thus, on a charge of murder, the prosecutor cannot give evidence of the prisoner’s conduct to other persons for the purpose of proving a bloodthirsty and murderous disposition. And in a civil case a defendant was not allowed to show that the plaintiff had sold goods on particular terms to other persons for the purpose of proving that he had sold similar goods on the same terms to the defendant. But this general rule must be carefully construed. Where several offences are so connected with each other as to form parts of an entire transaction, evidence of one is admissible as proof of another. ”

“ He worked at conveyancing, 'the driest of all earthly studies,' as he describes it in the autobiographical introduction to his little book on 'Practical Legislation.' Having much leisure, and finding that the task of a conveyancer was neither profitable nor attractive, he passed to the study of the statute law, and there found the work of his future life. He read the English statute book critically from its earliest pages downwards, extolled Stephen Langton as 'the prince of all draftsmen,' and contrasted the draftsman of Magna Charta favourably with his wordy successors. ”

“ The doctrine of relevancy, i.e. of the probative effect of facts, is a branch of logic, not of law, and is out of place both in an enactment of the legislature and in a compendium of legal rules. The necessity under which Stephen found himself of extending the range of relevant facts by making it include facts “deemed to be relevant,” and then narrowing it by enabling the judge to exclude evidence of facts which are relevant, illustrates the difference between the rules of logic and the rules of law. Relevancy is one thing; admissibility is another ”

“ The whole of the time of the parliamentary counsel and his assistant was to be given to the public, and they were not to engage in private practice. The parliamentary counsel was to settle all such departmental bills and draw all such other government bills (except Scotch and Irish bills) as he might be required by the treasury to settle and draw. The instructions for the preparation of every bill were to be in writing or sent by the head of the department concerned to the parliamentary counsel though the treasury, to which latter department he was to be considered responsible. ”

“ It also prevents a jury from being misled by statements the effect of which, through the prejudice they excite, is out of all proportion to their true weight. In this respect the rules of exclusion may be compared to blinkers, which keep a horse’s eyes on the road before him. In criminal cases the rules of exclusion secure fair play to the accused, because he comes to the trial prepared to meet a specific charge, and ought not to be suddenly confronted by statements which he had no reason to expect would be made against him. ”

“ The preparation of many bills relating to Ireland, which strictly lay outside the scope of his office, is accounted for by the circumstance that Irish bills always involve finance, and in practice the work of preparing them is apt to fall mainly on the office which works immediately under the treasury. It may be added that Thring's experience of Irish legislation made him a convinced home ruler. ”

“ The rule of exclusion extends only to a lawful wife. There is no ground for supposing that the wife of a prosecutor is an incompetent witness. A witness is incompetent if, in the opinion of the court, he is prevented by extreme youth, disease affecting his mind, 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. ”

“ To obviate the prejudices, the injustice, and the waste of time to which the admission of such evidence would lead, and bearing in mind the extent to which it might be carried, and that litigants are mortal, it is necessary not only to adhere to the rule, but to lay it down strictly. ”

“ 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. ”

“ No one, except a person charged with an offence when giving evidence on his own application, and as to the offence wherewith he is charged, is bound to answer a question if the answer would, in the opinion of the court, have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge, penalty, or forfeiture, which the court regards as reasonably likely to be preferred or sued for. ”

“ It is often impolitic to object to the admission of evidence, even when the objection may be sustained by previous rulings. The general tendency of modern procedure is to place a more liberal and less technical construction on rules of evidence, especially in civil cases. In recent volumes of law reports cases turning on the admissibility of evidence are conspicuous by their rarity. Various causes have operated in this direction. One of them has been the change in the system of pleading, under which each party now knows before the actual trial the main facts on which his opponent relies. ”

“ In the chancery courts the rules of evidence were always less carefully observed, or, as Westminster would have said, less understood, than in the courts of common law. A judge trying questions of fact alone might naturally think that blinkers, though useful for a jury, are unnecessary for a judge. And the chancery judge was apt to read his affidavits first, and to determine their admissibility afterwards. ”

“ The judge, like the juryman, is supposed to bring with him to the consideration of the question which he has to try common sense, a general knowledge of human nature and the ways of the world, and also knowledge of things that “everybody is supposed to know.” Of such matters judicial notice is said to be taken. But the range of general knowledge is indefinite, and the range of judicial notice has, for reasons of convenience, been fixed or extended, both by rulings of the judges and by numerous enactments of the legislature. ”

“ The exception allowing the good character of a prisoner to influence the verdict, as distinguished from the sentence, is more humane than logical, and seems to have been at first admitted in capital cases only. The exception in rape cases does not allow evidence to be given of specific acts of immorality with persons other than the prisoner, doubtless on the ground that such evidence would affect the reputations of third parties. Where the character of a person is expressly in issue, as in actions of libel and slander, the rule of exclusion, as stated above, does not apply. ”

“ It will be seen that the effect of the successive enactments which have gradually removed the disqualifications attaching to various classes of witnesses has been to draw a distinction between the competency of a witness and his credibility. No person is disqualified on moral or religious grounds, but his character may be such as to throw grave doubts on the value of his evidence. ”

“ In charges of conspiracy, after evidence has been given of the existence of the plot, and of the connexion of the accused with it, the charge against one conspirator may be supported by evidence of anything done, written, or said, not only by him, but by any other of the conspirators, in furtherance of the common purpose. On the other hand, a statement made by one conspirator, not in execution of the common purpose, but in narration of some event forming part of the conspiracy, would be treated, not as part of the “transaction,” but as a statement excluded by the hearsay rule. ”

“ He has given evidence against any other person charged with the same offence.
He may not be asked questions tending to criminate his wife.
The privilege as to criminating answers does not cover answers merely tending to establish a civil liability. No one is excused from answering a question or producing a document only because the answer or document may establish or tend to establish that he owes a debt, or is otherwise liable to any civil proceeding. It is a privilege for the protection of the witness, and therefore may be waived by him. ”

“ 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 contradicted. 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. ”

“ 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 opportunity of retracting or explaining. ”

“ A confession cannot be admitted as evidence unless proved to be voluntary. A confession is not treated as being voluntary if it appears to the court to have been caused by any inducement, threat or promise which proceeded from a magistrate or other person in authority concerned in the charge, and which, in the opinion of the court, gave the accused person reasonable ground for supposing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. ”

“ Again, in cases in which the government is immediately concerned, no witness can be compelled to answer any question the answer to which would tend to discover the names of persons by or to whom information was given as to the commission of offences. It is, as a rule, for the court to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administration of justice.
A husband is not compellable to disclose any communication made to him by his wife during the marriage ”