Page:Harvard Law Review Volume 12.djvu/103

THE PRESENT AND FUTURE OF EVIDENCE. 83 while rejecting it generally. For example, there is, sometimes, a tendency to regard a hearsay statement as admissible if it be one of a set of facts giving and reflecting credit, each to the other, — on the principle of what is called circumstantial evidence. This brings in confusion, for our law really goes but a very little way in that direction. No doubt, in point of reason, hearsay state- ments often derive much credit from the circumstances under which they are made ; say, e. g., from the fact of being made under oath, or under impressive conditions, as being against interest, or made under strong inducements to say the contrary, or as part of a series of statements, or a class of them, which are usually careful and accurate, and the like ; credit amply enough in point of reason to entitle them to be received as evidence, when once the absence of the perceiving witness is accounted for ; and it would in reason have been quite possible to shape our law in the form that hearsay was admissible, as secondary evidence, whenever the circumstances of the case alone were enough to entitle it to credit, irrespective of any credit reposed in the speaker. This point of view is forever suggesting itself in that part of the subject relating to declarations which are a part of some admissible fact, — of the res gesta, as the phrase is. They are often here spoken gf as parts of a mass of circumstantial facts, supporting and supported by each other in their tendency to prove some principal fact; instead of being regarded, as they should be, as parts of that fact itself, pars rei gestCB, lying under the curse of hearsay, but received, by way of exception, on account of this special intimacy of connection with the admissible fact. This part of the subject presents an instructive spectacle of confusion resulting from the desire, on the one hand, to hold to the just historical theory of our cases; and, on the other, to resort to first principles, without being aware of the size and complexity of the task which is thus unconsciously entered upon. I need not linger long on the two or three other chief topics in the law of evidence. The rules, roughly thus intimated, which forbid the giving of opinion evidence and of character evidence are lead- ing and important. As to the former it is traceable easily to the same source as the hearsay rule. It was for the jury to form opinions, and draw inferences and conclusions, and not for the wit- ness. He was merely to bring in to the jury, or the judge, the raw material of fact, on which their minds were to work. If the witness spoke directly to the very fact in issue, the jury were to