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short time after A says that he left it. This circumstantial evidence, unless explained, would be to most reasonable men satisfactory proof that B was the thief.
Sometimes circumstantial evidence may be even more convincing than so-called direct evidence, because less subject to bias. A street-car company is sued for a collision of one of its cars with an automobile at a crossing, and one of the issues is the speed of the street-car at the time of the accident. The motorman says that the car was barely moving, but several witnesses, although they did not notice the car before the accident, heard the crash of the collision, and, turning toward the sound, saw the automobile hurled thirty-five or forty feet. The effect on the automobile is only a circumstance, but it must be apparent that it is a far more reliable criterion of the speed of the car than the direct testimony of the motorman. The latter is strongly influenced by the personal equation; he has his reputation as a careful employee, possibly his position at stake, and he would be more than human if he did not minimize the speed of his car. On the other hand, it is as certain as gravity that the automobile could not have been carried the distance that it was, unless the street-car which struck it had been moving at high speed. We should reject the testimony of a dozen witnesses that the car was moving slowly, sooner than recede from this conviction, because it is based on an impersonal and unvarying law of cause and effect.
Circumstantial evidence may thus, on occasion, be of superior value to direct testimony; and again, where direct testimony is available and unbiased, it may be more satis
factory than circumstantial evidence because it furnishes proof of the precise point that we want to know. In any event, both kinds of evidence are constantly presented to the courts, and usually in conjunction. The distinction between the two, though real, often becomes shadowy, and is probably less regarded by practitioners than it is by strangers to the courts.
§ 11. Limitation of evidence by rules. It has already been shown that evidence consists of matters of fact, bearing on the disputed questions raised by the pleadings. But not all such matters of fact will be received and considered by the courts. If B is charged with stealing A's overcoat, it might seem pertinent to show that shortly before he stole a suit from C. There is undeniably a certain likelihood that a man who has stolen once will steal again. Yet such evidence, as we shall see later, would be inadmissible, and this is only one instance in which matters bearing upon cases before the courts are excluded, because, in the eye of the law, they are more likely to do harm than good. This policy of exclusion is now expressed in certain rules of evidence, which have been developed hand in hand with the Anglo-Saxon jury system.
§ 12. Rules of evidence developed with the jury system. The jury in the beginning consisted of men chosen from the vicinity of the controversy, who, as far as possible, were acquainted with the parties and the facts involved, and used their own knowledge as well as the testimony of such witnesses as might appear before them, in deciding the issues. Gradually the character of the jury changed, until to-day the country is scoured to secure jurors who are
absolutely ignorant of the cases on which they sit. That is they are now merely triers of the facts, which they gather exclusively from the evidence. As this change progressed, the jury becoming more dependent on witnesses and able to rely less on their own information, the judges who presided over their investigations became solicitous lest matters should be presented to them which might be misleading. When the jurors could correct the impressions of witnesses by their own knowledge, there was comparatively little danger that they would be led astray. Without this corrective, however, they would be far more subject to mistaken notions from the evidence, and testimony which could safely be submitted to judges, accustomed to weighing testimony and discriminating between the reliable and the unreliable, might lead to serious error on the part of men unlearned in the law and not practiced in such discrimination.
Let us assume that B is charged with assaulting A. C testifies that at the time of the assault he saw B in another town. D offers to testify that E told him that he saw B commit the attack on A. The second statement clearly has a tendency to show that B assaulted A, but it is only second-hand evidence. D knows nothing about the matter of his own knowledge, E is not present before the court where he can be examined, and there is a strong possibility that D is not able to repeat E's statement exactly as it was made. If the evidence were submitted to a judge, who could take all these clements into account, it might be proper for consideration for what it was worth, but a jury might be struck by the idea that E had seen B commit the
attack, overlooking the hearsay character of the testimony, and thus allow the reported statement of E to prevail over the first-hand testimony of C to an alibi, to the serious detri ment of the accused. Therefore the offered evidence of D is inadmissible.
§ 13. Object of rules of evidence to save jury from error. Possibly the discernment of the jury has been underrated; possibly allowance would be made by juries for the hearsay character of evidence, if such evidence were admitted, and it would certainly seem that it would be in the case put But actual cases are less clear, more complicated; discernment is less easy, and a glance at the juries who try many, perhaps most of our cases, does not inspire confidence in their ability to make nice intellectual distinctions. At any rate, for the simplification of the jury's task and the protection of litigants from the misguided action of jurors, a definite code of rules has grown up. To-day this code applies not only to jury cases, but also, with some relaxation, to trials by the court without a jury. Nevertheless, it seems designed primarily for the jury. In the words of an English judge: "By the rules of evidence established in the courts of law, circumstances of great moral weight are often excluded, from which much assistance might in particular cases be afforded in coming to a just conclusion, but which are nevertheless withheld from the consideration of the jury upon general principles, lest they should produce an undue influence upon the minds of persons unaccustomed to consider the limitations and restrictions which legal views upon the subject would impose" (3).
(3) Wright v. Doe d. Tatham, 1 A. & E. 375.
Though these rules, if viewed apart from their origin, may in some cases seem arbitrary, there was in the beginning and usually is now a reason for them; they are an application of rough Anglo-Saxon common sense. It will be our endeavor, in the development of the subject, not merely to state the rules, but, as far as possible, to disclose the underlying reasons.
§ 14. Value of knowledge of rules of evidence. It is obvious that to the practicing lawyer knowledge of the rules of evidence is indispensable; they are, as has been said, the rules of the game which he plays. But familiarity with the general principles of admitting and excluding evidence is helpful to everybody, who by any chance may be called upon to defend his rights in the courts. For instance there are certain rules governing the introduction in evidence of written instruments. Knowing these, a person executing a writing of any importance will preserve it, in either the original or a copy, in such shape that it can be proved. Furthermore, if the time comes when he has a grievance which he contemplates taking into court, he can determine whether he has facts which are both admissible and sufficient to prove his case; and, even if at this stage he consults a lawyer, as any prudent man would, still he can confer more intelligently, is in a better position to be advised, can cooperate more effectively in preparing the case, and will make a better witness in his own behalf. The frequent trial, sometimes almost despair, of lawyers is the failure of their clients, good business men as they are, as witnesses. They want to state the points of their case in a form which the court will not receive, and