must be had to the opportunities of knowledge possessed by the
parties respectively, and to the express provisions of statutes
directing where the burden of proof is to lie in particular cases.
Thus many statutes expressly direct that the proof of lawful
excuse or authority, or the absence of fraudulent intent, is to lie
on the person charged with an offence. And the Summary
Jurisdiction Act 1848 provides that if the information or complaint
in summary proceedings negatives any exemption, exception,
proviso, or condition in the statute on which it is founded,
the prosecutor or complainant need not prove the negative, but
the defendant may prove the affirmative in his defence.
II. Classes of Evidence
Evidence is often described as being either oral or documentary. To these two classes should be added a third, called by Bentham real evidence, and consisting of things presented immediately to the senses of the judge or the jury. Thus the judge or jury may go to view any place the sight of which may help to an understanding of the evidence, and may inspect anything sufficiently identified and produced in court as material to the decision. Weapons, clothes and things alleged to have been stolen or damaged are often brought into court for this purpose. Oral evidence consists of the statements of witnesses. Documentary evidence consists of documents submitted to the judge or jury by way of proof. The distinction between primary and secondary evidence relates only to documentary evidence, and will be noticed in the section under that head. A division of evidence from another point of view is that into direct and indirect, or, as it is sometimes called, circumstantial evidence. By direct evidence is meant the statement of a person who saw, or otherwise observed with his senses, the fact in question. By indirect or circumstantial evidence is meant evidence of facts from which the fact in question may be inferred. The difference between direct and indirect evidence is a difference of kind, not of degree, and therefore the rule or maxim as to “best evidence” has no application to it. Juries naturally attach more weight to direct evidence, and in some legal systems it is only this class of evidence which is allowed to have full probative force. In some respects indirect evidence is superior to direct evidence, because, as Paley puts it, “facts cannot lie,” whilst witnesses can and do. On the other hand facts often deceive; that is to say, the inferences drawn from them are often erroneous. The circumstances in which crimes are ordinarily committed are such that direct evidence of their commission is usually not obtainable, and when criminality depends on a state of mind, such as intention, that state must necessarily be inferred by means of indirect evidence.
III. Rules of Exclusion
It seems desirable to state the leading rules of exclusion in their crude form instead of obscuring their historical origin by attempting to force them into the shape of precise technical propositions forming parts of a logically connected system. The judges who laid the foundations of our modern law of evidence, like those who first discoursed on the duties of trustees, little dreamt of the elaborate and artificial system which was to be based upon their remarks. The rules will be found, as might be expected, to be vague, to overlap each other, to require much explanation, and to be subject to many exceptions. They may be stated as follows:—(1) Facts not relevant to the issue cannot be admitted as evidence. (2) The evidence produced must be the best obtainable under the circumstances. (3) Hearsay is not evidence. (4) Opinion is not evidence.
1. Rule of Relevancy.—The so-called rule of relevancy is sometimes stated by text-writers in the form in which it was laid down by Baron Parke in 1837 (Wright v. Doe and Tatham, 7 A. and E. 384), when he described “one great principle” in the law of evidence as being that “all facts which are relevant to the issue may be proved.” Stated in different forms, the rule has been made by FitzJames Stephen the central point of his theory of evidence. But relevancy, in the proper and natural sense, as we have said, is a matter not of law, but of logic. If Baron Parke’s dictum relates to relevancy in its natural sense it is not true; if it relates to relevancy in a narrow and artificial sense, as equivalent to admissible, it is tautological. Such practical importance as the rule of relevancy possesses consists, not in what it includes, but in what it excludes, and for that reason it seems better to state the rule in a negative or exclusive form. But whether the rule is stated in a positive or in a negative form its vagueness is apparent. No precise line can be drawn between “relevant” and “irrelevant” facts. The two classes shade into each other by imperceptible degrees. The broad truth is that the courts have excluded from consideration certain matters which have some bearing on the question to be decided, and which, in that sense, are relevant, and that they have done so on grounds of policy and convenience. Among the matters so excluded are matters which are likely to mislead the jury, or to complicate the case unnecessarily, or which are of slight, remote, or merely conjectural importance. Instances of the classes of matters so excluded can be given, but it seems difficult to refer their exclusion to any more general principle than this. Rules as to evidence of character and conduct appear to fall under this principle. Evidence is not admissible to show that the person who is alleged to have done a thing was of a disposition or character which makes it probable that he would or would not have done it. This rule excludes the biographical accounts of the prisoner which are so familiar in French trials, and is an important principle in English trials. It is subject to three exceptions: first, that evidence of good character is admissible in favour of the prisoner in all criminal cases; secondly, that a prisoner indicted for rape is entitled to call evidence as to the immoral character of the prosecutrix; and thirdly, that a witness may be called to say that he would not believe a previous witness on his oath. 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. Nor does it prevent evidence of bad character from being given in mitigation of damages, where the amount of damages virtually depends on character, as in cases of defamation and seduction. As to conduct there is a similar general rule, that evidence of the conduct of a person on other occasions is not to be used merely for the purpose of showing the likelihood of his having acted in a similar way on a particular occasion. 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. Thus, where a prisoner is charged with stealing particular goods from a particular place, evidence may be given that other goods, taken from the same place at the same time, were found in his possession. And where it is proved or admitted that a person did a particular act, and the question is as to his state of mind, that is to say, whether he did the act knowingly, intentionally, fraudulently, or the like, evidence may be given of the commission by him of similar acts on other occasions for the purpose of proving his state of mind on the occasion. This principle is most commonly applied in charges for uttering false documents or base coin, and not uncommonly in charges for false pretences, embezzlement or murder. In proceedings for the receipt or possession of stolen property, the legislature has expressly authorized evidence to be given of the possession by the prisoner of other stolen property, or of his previous conviction of an offence involving fraud or dishonesty
