Courtenay Peregrine Ilbert

“ Of true legal presumptions, the majority may be dealt with most appropriately under different branches of the substantive law, such as the law of crime, of property, or of contract, and accordingly Stephen has included in his Digest of the Law of Evidence only some which are common to more than one branch of the law. The effect of a presumption is to impute to certain facts or groups of facts a prima facie significance or operation, and thus, in legal proceedings, to throw upon the party against whom it works the duty of bringing forward evidence to meet it. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Among the more ordinary and more important legal presumptions are the presumption of regularity in proceedings, described generally as a presumption omnia esse rite acta, and including the presumption that the holder of a public office has been duly appointed, and has duly performed his official duties, the presumption of the legitimacy of a child born during the mother’s marriage, or within the period of gestation after her husband’s death, and the presumptions as to life and death. ”

“ 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 ”

“ Under the Indictable Offences Act 1848, where a person has made a deposition before a justice at a preliminary inquiry into an offence, his deposition may be read in evidence on proof that the deponent is dead, or too ill to travel, that the deposition was taken in the presence of the accused person, and that the accused then had a full opportunity of cross-examining the deponent. ”

“ Where a document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom is admissible as proof of its contents, if it is proved to be an examined copy or extract, or purports to be signed or certified as a true copy or extract by the officer to whose custody the original is entrusted. ”

“ 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. The particular form of the religious belief of a witness, or his want of religious belief, does not affect his competency. ”

“ If it is proved that there is no attesting witness alive, and capable of giving evidence, then it is sufficient to prove that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. ”

“ The history of criminal procedure in England has been traced by Sir James Stephen. The modern rules and practice as to evidence and witnesses in the common law courts, both in civil and in criminal cases, appear to have taken shape in the course of the 18th century. The first systematic treatise on the English law of evidence appears to have been written by Chief Baron Gilbert, who died in 1726, but whose Law of Evidence was not published until 1761. ”

“ Coke’s maxim describes in a broad general way the distinction between the functions of the judge and of the jury, but is only true subject to important qualifications. Judges in jury cases constantly decide what may be properly called questions of fact, though their action is often disguised by the language applied or the procedure employed. Juries, in giving a general verdict, often practically take the law into their own hands. ”

“ A person is bound by the statements of his agent, acting within the scope of his authority, and barristers and solicitors are agents for their clients in the conduct of legal proceedings. Conversely, a person suing or defending on behalf of another, e.g. as agent or trustee, is bound by the statements of the person whom he represents. Statements respecting property made by a predecessor in title bind the successor. Where a statement is put in evidence as an admission by, or binding on, any person, that person is entitled to have the whole statement given in 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 accomplice 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. ”