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stances, is undoubtedly no evidence at all. But where the negative witness had an opportunity of learning whether the fact was so or not, and where it is probable he would have known it if it was true, his evidence is worth something; and, as you increase this probability, in the same proportion you increase the value of his testimony. Thus, Demosthenes calls a person who sailed in the ship, to prove that there was no cargo of wine on board, and to contradict the adversary's assertion that there was one: (ante, p. 196.) Here the negative evidence might be almost, if not quite, as good as the affirmative.
A man's own conduct may have been such, that negative evidence throws great doubt upon, or even outweighs, his affirmative assertions. For example; if a man declares that he was attacked and robbed on his way home, but the members of his family declare, that he came home the same evening and never spoke a word to them about the matter, and no cause is shown for his silence, our belief in his assertion might be considerably shaken.
And sometimes a man's own acts are in the nature of negative evidence, tending to invalidate his positive testimony: as, if he demands a debt many years after it is alleged to have become due, and has never made any demand for it in the interval, when it might have been expected he would have done so: or, if he impeaches a transaction, which he never complained of at the time, having full knowledge of the circumstances. Objections of this kind are frequently made. (See ante, pages 207, 212, 247, 274, 286, 288.)
The necessity of evidence being relevant to the question is frequently urged by Demosthenes: (see ante, pages 99, 127, 278, 280, 285.) Yet he himself violates the rule, when it suits him, as do all the orators; and indeed it was impossible to prevent them doing it. Even with us, though evidence irrelevant to the issue is not admissible, it is difficult to restrain counsel in their speeches from travelling beyond the question. The water-glass was some check upon the Athenian speaker; but this was only when he had a good case, and could not afford to waste his time.
The relevancy, or the materiality, of evidence might become an important question in the Athenian courts, upon a proceeding against the witness for false testimony. Of this an example is furnished in the defence of Phanus: (see the Argument, ante, 120.) Aphobus sued, Phanus for having given evidence, that he had confessed Milyas to be a freeman. The main question in the cause is, whether this evidence was true or false. But we see that Demosthenes (in his speech for the defendant) does not confine himself to this question, but endeavours to show that the evidence was immaterial to the decision of the cause between Aphobus and himself. We are naturally tempted to ask; was this a legitimate ground of defence? I have little doubt that it was so. The plaintiff seeks to recover damages; he is bound to show that the evidence of the defendant was injurious to him by the influence which it had upon the verdict. But it is equally clear
that, in order to raise this inference, very slight proof ought to be required on the part of the plaintiff. The moment he shows, that the defendant's evidence had even a remote bearing on the issue in the cause, he raises a presumption that he influenced the verdict. To rebut such presumption, the defendant ought to prove very clearly and satisfactorily, that his evidence was not material. In the case before us, the arguments of Demosthenes appear to me too weak to sustain this ground of defence. He shows, that Phanus was called to prove à collateral point only, and not one of the principal matters in the cause. But may not the proof of a collateral point have an important effect on the verdict? Every link in the chain of evidence is important, though it does not connect itself immediately with the ultimate question; and small and seemingly trifling matters often turn the scale with the jury. The object of calling Phanus was, to overthrow an argument of the adversary. Aphobus had demanded Milyas to be given up for the torture, alleging that he could furnish evidence against his master. Demosthenes refused to give him up, on the ground that he was a freeman, and alleged that Aphobus knew and had confessed him to be such. If Aphobus really knew this, the demand of Milyas and the argument founded upon its refusal were vexatious and fraudulent, and the proof of his confession might throw discredit upon his whole case. The evidence therefore of Phanus, so far from being immaterial, might have been (for aught that we can see) highly important to the issue. The strong point for Demosthenes was, that this evidence was true; but naturally enough he avails himself of every argument which the practice of his country allowed. In the cause against Stephanus, where Demosthenes was for the plaintiff, he condemns this line of argument, and thus cautions the jury against it:
"It would be a strange proceeding, when all had given false evidence, for each to prove who did the greatest injury, instead of showing his own evidence to be true. A witness ought not to get off by showing another to be more guilty, but by proving the truth of his own evidence."
We may collect from these two speeches, that it was the practice for all defendants in such actions to use the same argument; and plaintiffs often gave them cause for it, by selecting for attack some of the least important witnesses, while they took no measures against the rest. We may observe also, that however difficult it might be for a defendant, to show that his evidence was wholly immaterial, and thus entitle himself to a verdict, it was extremely important, with a view to reduction of damages, to prove the comparative insignificance of the testimony complained of.
How Demosthenes, in defending Phanus, was himself interested in the result, appears from what I have said in Volume III. pages 344, 394. The Athenians were not without their precautionary rules to improve the quality of evidence, and guard against deception.
The rule, that all testimony should be put in the shape of a depo
sition, though it could not fulfil all the exigencies of judicial inquiry, was attended with some advantage. A deposition is less open to mistake than oral testimony; and the witness is more careful, when his evidence is in writing, because it furnishes an authentic record against him upon an indictment for perjury; though oral testimony has certainly more effect with a jury, for reasons which are obvious. The attendance of the witness at Athens to confirm his deposition had less effect, as he was not subject to cross-examination.
The importance of producing documents, when they were in existence, was understood by the Athenians, and is insisted upon by the orators: (see ante, 103, 113, 169.) And certain things were required to be in writing, as wills, mercantile contracts, and challenges. They had no rules of primary and secondary evidence, or notices to produce.
Hearsay evidence was inadmissible with them, as with us. To this rule we allow certain exceptions, which are necessary to justice; as dying declarations, statements of deceased members of the family in pedigree cases, traditionary reputation upon questions of boundary and other public rights. The Athenians allowed a still wider exception, viz. the declarations of all deceased persons. They, like us, permitted a hostile witness to be contradicted by proof that he had made a different statement at another time; of which we have seen an example in the case of Zenothemis.
While the Athenians rejected hearsay evidence, they either did not, or could not, prevent hearsay assertions by the speaker. Thus, Demosthenes, in the speech against Aphobus, tells the jury what his mother said about the contents of his father's will. And there are plenty of other instances.
The only case in which the attendance of the witness could be dispensed with was, when he was ill or out of the country. His evidence then might be received by persons deputed for that purpose. In like manner we send commissions to examine witnesses abroad.
Testimony was generally given upon oath, but not always nor necessarily, as it would seem, though a friendly witness, who declined to be sworn, would have less credit with the jury. The oath was taken at an altar either in the magistrate's office, or in court; most commonly in the former. What form of words they used, we know not. None but freemen could appear as witnesses: the rule excluded women, minors, and slaves. There was no incompetency on the ground of interest, nor for any kind of crime, unless it was followed by deprivation of the civic franchise. Disfranchised persons were considered to be hostile to the state, and therefore not to be trusted. We have seen how Demosthenes, in order to create a prejudice against
(1) Schömann takes this view. Platner confounds the oath of the witness with the voluntary one of the party, which was of a more solemn kind. That an oath was not indispensable to the giving of testimony, may be inferred from this, that an absent witness was allowed to depose without any such test. And the form papтupev Fouvve seems to show, that the hostile witness was only required to swear, if he adopted the latter alternative.
Midias, produces in court a person, whose evidence he could not put in, because Midias had by a trick caused him to be disfranchised. (Volume III. page 97.)
The parties could not give evidence for themselves, though they were at liberty to state their own cases to the jury, and a clever speaker might perhaps obtain credence without being supported by testimony. How far this operated in practice, we cannot say.
The interrogatories put by one party to the other, the evidence of slaves by torture, and the challenges to oaths, are subjects which, for the sake of convenience, I have thrown into distinct chapters.
Many ask-what need is there of any technical rules, or tests of admissibility? Why not allow all kinds of information to be received, just as you would in the common affairs of life? One kind of evidence is better than another; but why should any be excluded?
It cannot be denied, that the observance of strict rules in the examination of witnesses and the production of evidence leads often to an exclusion of truth and a denial of justice. An irregular inquiry will sometimes discover that which escapes the scrutiny of a regular There is sometimes abundant moral persuasion of a fact, of which there exists no legal proof. Many a prisoner has been acquitted after a confession of his crime, because that confession was improperly extorted and could not be given in evidence. An agreement, which has been committed to writing, is capable of being proved by parol, and perhaps by means equally satisfactory; yet this is not allowed, if the writing might have been produced. A statement, which the witness has received from one, in whose word he has good reason to place implicit confidence, is not suffered to be repeated in a court of law, because it is hearsay. These and the like inconveniences, the necessary consequence of adhering to general rules, have led some people to think that every species of proof ought to be admitted, the judge or the jury being left to form their own estimate of its value. On the other hand it has been urged in favour of rules of evidence, that it is impossible to remove every impediment to the course of judicial inquiry, without reposing in its managers a most dangerous discretionary power; that there is a necessity of guarding as well against the encroachment of the judge, as against the mental infirmity of the jury; that men are but too ready to jump to conclusions upon slight and insufficient grounds; that a bench of twelve men, taken not from the best educated portion of the community, may be very useful for certain purposes, but that its utility would be impaired, if it were too much exposed to the chances of error or the influence of prejudice; further, that the administration of justice should not only be pure, but generally believed to be so; and that nothing tends more to secure public confidence, than a steady observance of rules and principles, and a system of deliberate caution, throughout the whole of the judicial proceedings. Another argument is, that a contrary practice would lead to a loose and careless mode of transacting
business; which would produce an infinity of misunderstandings and disputes, and a vast increase of litigation. For example, written instruments would be of comparatively small value, if proofs of an inferior nature were generally admitted in their stead, or to contradict or explain them. Those safeguards, with which a prudent man may now effectually arm himself against the negligence and the dishonesty of his neighbours, would then afford but a precarious protection; he would still be exposed to the mercy of frail memories, conjecture, and falsehood. In criminal trials a latitude of discretion would be still more dangerous.
The latter view of the question, to which for many centuries the English law gave an undue prevalence, was thus expounded by Starkie in his treatise on evidence:
"The necessity for resorting to superior tests of the truth is founded on an apprehension, that the evidence, on which an individual in ordinary transactions might safely rely, could not without such tests be safely relied on in judicial investigations. In the ordinary business of life neither so many temptations, nor so many opportunities occur for practising deceit, as in the course of judicial investigations, where property, reputation, liberty, even life itself, are so frequently at stake. In the common business of life each individual uses his own discretion with whom he shall deal, and to whom he shall trust. He has not only the sanction of general reputation and character for the confidence which he reposes, but slight circumstances and even vague reports are sufficient to awaken his suspicion, and place him on his guard; and where doubt has been excited, he may suspend his judgment, till by extended and repeated inquiries doubt is removed. In judicial inquiry it is far otherwise. The character of a witness cannot easily be subjected to minute investigation. The nature of the proceedings usually excludes the benefit which might result from an extended and protracted inquiry; and a jury are under the necessity of forming their conclusions on a very limited and imperfect knowledge of the witnesses, on whose testimony they are called upon to decide.
"It has been justly observed, there is a tendency among mankind to speak truth, for it is easier to speak truth than to invent. It is equally apparent, the suspicion of mankind would usually depend on their ordinary experience of human veracity. Hence jurors would be inclined to repose a higher degree of confidence in ordinary testimony, than would be due to it in the absence of peculiar guards against deceit; for, as temptations to deceive by false evidence in judicial inquiries are far greater than in the ordinary transactions of life, they would be apt to place the same reliance on testimony offered to them as jurors which they would in ordinary cases, and would therefore in many instances overvalue it.
"The law therefore wisely requires, that the evidence should be of the purest and most satisfactory kind which the circumstances admit of, and warranted by the most weighty and solemn sanctions."