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JULY, 1915




WO recent criminal trials, to which the sensational press has given given great publicity, throw into strong relief certain grave weaknesses of American judicial procedure. I say "American," not because we are in that respect behind other nations, but because, as a democratic people, we ought to be far in advance of others in these matters, and because it is with American law that we are concerned.

In both the Thaw and Becker trials, the weakness of the so-called law of evidence is most painfully apparent. The law of evidence is a body of tradition, affected somewhat by occasional legislative modifications. Although it has no statutory force, it is safe to say that it is more held in veneration by our judges than are the legal enactments of the people. It is, in fact, judge-made law, and one of the worst examples of that accumulation of hampering tradition which the legal profession holds in such high regard, and everybody else despises.

It would be more accurate to speak of rules of evidence, than of the law of evidence, but the latter is the more usual phrase for this mass of custom, which is not law, and which so often defeats both the purpose of the law and the substance of justice.

The most curious result of this body of rules is that which it has come to produce in the mental habit, the habitual reasoning of lawyers. The "legal mind," surcharged with this method of procedure, as if it were a scientific and truly logical mode of investigation, has come to have an


logical cast deeply, often vitally, at variance with correct thinking.

Of course it is true that here and there the rules of evidence coincide with scientific method, but it is wholly by accident when they do so. They have not come into being as the result. of a process of reasoning, nor have they become established with the purpose of bringing out the truth of a proposition, or accusation. They are the result of tradition, mostly dating back to conditions long forgotten and inoperative, and often arising from customs whose antiquity defies investigation. There may be something pic turesque in keeping these things alive, that might excuse them as mere matters of form, but there can be no excuse for their long continued abuses and frequent perversions of justice.

There is practically no use in telling these things to a lawyer, or arguing them with him. The "legal mind" is so imbued with this method of procedure that it cannot, literally is mentally unable, to see its illogical character. Reform must come from the lay public, and be forced upon the practice of the courts by legislative action.

The rules of evidence in use in American courts are mostly taken from English practice, although they are not so bad as the practice in England. Less than fifty years ago, the rules of evidence in England were matters of local custom, and a judge traveling in circuit from county to county, must adopt one procedure, say, in Lincolnshire, and a very different procedure in Northumberland. These local traditions arose from spe

cial privileges granted by kings to favored municipalities, to the rights of powerful guilds, and to racial traditions dating back to tribal organization. They are replete with the evidences of the necessity of resisting tyrants, and no less full of the trail of the serpent of tyranny, in which ruthless kings have sought to rule by corrupt judicial practice. The worst of these rules have, of course, been gradually eliminated by act of Parliament. The only law of evidence, in the sense of legal enactment, in England, at least up to a recent time, is an occasional negative action, correcting some of the worst of these local traditions and habitual abuses.

Aside from the wholly accidental body of tradition that underlies the law of evidence, there has been one main trend, that may be said to dominate its development. This is judicial distrust of the jury.

The rules of evidence are a body of judge-made rules as to what may and what may not be placed before a jury as evidence in a trial. It is obviously necessary that there should be such rules, in order that the time of the court and the attention of the jury might not be diverted from the point at issue. It is also true that writers on the subject have endeavored to render more reasonable the practice of the courts and to reduce the traditional rules to some semblance of logic and reason. This is a laudable intention, but it might have been better to have left it undone for it tends to conceal the really unscientific and illogical character of the whole structure, and particularly to corrupt and deceive the legal profession into a belief that they are acting in accordance with reason in the acceptance and use of this mass of heterogeneous and accidental tradition.

In a future article, or series of articles, the New England Magazine may go into this subject in minute particularity. The object of the present editorial is to take advantage of the attention of the public mind, and of

the interest aroused by two notorious cases, to fix the general truth that the practice of our courts, in following the accepted rules of evidence, quite as often defeats justice as it secures it.

An example of the manner in which this body of tradition, miscalled law, has grown up, will show the general process by which it has all come into being, and the accidental character of its reasonableness. In a certain case in England, many, many years ago, in which a patron sued a brewer for supplying him with bad beer, the judge maintained that it was "irrelevant" to prove that the brewer gave good beer to other customers. This decision has been used in English law schools, and I do not know but that it is used in American law schools, as illustrating the nature of "relevancy" of evidence. It is perhaps not possible for us to ascertain why that English judge made that decision. It may, or may not, have been a good decision in that particular case. But he was a great and famous judge, and it was the custom to use his decisions as sound precedent, therefore his ruling has come to be one of the classic illustrations of the nature of relevancy of evidence. Of course it is obvious to any one of a scientific and really logical mind, unwarped by legal training, that the brewer makes his beer in bulk, and not separately for each customer, and that the kind of beer that he was habitually supplying to other customers, was very relevant evidence as to the kind of beer he had actually supplied to this customer. Taken in conjunction with evidence that it had come from the same vat as other beer, that could be proven to be good, it would be conclusive evidence, especially since the actual beer in question was all consumed, and could not be examined. The ruling that only direct testimony, that is, testimony of those who had seen or tasted or knew of the particular consignment of beer delivered to that customer, might very easily become the foundation of an outrageous defeat of justice. That this same clas

sic ruling, used as precedent for all kinds of cases, has defeated justice time and time again, there cannot be the slightest doubt.

It is the custom of the writers of the rules of evidence to lay much stress upon a causal connection between facts as the touchstone of relevancy. This contention creates a semblance of logical soundness that is most deceptive, and blinds the truth. There could be no connection of cause and effect between the beer delivered to one customer and that delivered to another. Nevertheless, the ruling out of the testimony that other beer was good shuts out the brewer's only possible line of defense, for the beer itself not only no longer existed, but was wholly consumed by those interested in establishing a case against


It would be easy to show the illogical character of the rules of evidence from thousands upon thousands of recent cases in American courts. This would be particularly evident in cases where expert testimony has been a

prominent element in the case. The abuses of expert testimony, the rules of which differ from those of ordinary evidence are one of the standing disgraces of American legal practice.

Not only is the rule of relevancy, with its absurdly fictitious foundation, and supposedly logical foundation on causal connection, a source of perennial abuse, but the much more apparently reasonable rule as to the exclu sion of hearsay and of opinion. Most supposedly direct observation is, in reality, only opinion, and opinion formed on other than "ocular" evidence, may be far more sound. And there may be cases where hearsay contains the gist of the whole matter.

The whole subject is in need of a thorough airing. It is a subject which the "legal mind" cannot be trusted to handle. The rules of evidence must become a law of evidence, and that law must be the enactment, not of lawyers and judges, but of the common sense and scientific training of the lay public.


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