Evidence

Evidence consists of facts brought forward for judicial or other purposes as the maintenance or refutation of a proposition of any kind. By the law of England the body of rules known as the law of evidence has been gradually established during this and the last century. It is a system of restrictions upon the admission of testimony, showing that in this country, at least, the inclination has, up to a comparatively recent period, been to circumscribe and not to extend the admission of evidence. In our earlier judicial proceedings the practice was to admit without hesitation or question every species of testimony, whereas the existing law of evidence is largely composed of restrictive rules, though these have in recent years been considerably relaxed.

Evidence in a legal sense must be either oral or written, and is always given on oath of the party, except in the case of Quakers and Moravians, but the form of the oath is immaterial. A Christian is sworn upon the Gospels; a Jew upon the Old Testament, with his head covered; and a Mohammedan or other non-Christian in such form as he considers binding on his conscience. All persons who have understanding enough to know the nature and obligation of an oath are admissible as witnesses.

As a general rule, the party who affirms a thing must prove it, and he must give the best evidence which the nature of the case requires, and, as a general rule, hearsay testimony is not admitted; but there are exceptions to this rule, as, for instance, the testimony of dying persons [Declaration], the declarations of deceased persons made against their interest and respecting rights of a public nature, such as the boundaries or general customs of a manor or district.

Written evidence consists of records, documents under seal as charters, and deeds and writings not under seal. Acts of Parliament are records of the highest nature, being the memorials of the legislature. There is, however, a distinction between public and private statutes. A public statute requires no proof in courts of justice, but private statutes must be evidenced by comparison with the originals. A second and inferior kind of records is the proceedings of courts of justice, which are evidenced by exemplifications sworn and office copies. Exemplifications are transcripts of the records of different courts accredited by having the seals of such courts attached. Sworn copies are transcripts made by individuals, who authenticate them upon oath when they are produced in evidence. Office copies are copies certified to be true and accurate by an officer expressly intrusted with that business of the court to which the records belong.

The present leading rules of evidence are as follows: -

1. The sole object and end of evidence is to ascertain the truth of the several disputed facts or points in issue, and no evidence should be admitted which is not relevant to the issues.

2. The point in issue must be proved by the party asserting the affirmative, according to the maxim affirmanti non neganti incumbent probatio; but where one person charges another with a culpable omission or breach of duty this rule will not apply, for the person who makes the charge is bound to prove it, though this may involve a negative, since it is an established principle of justice not to presume that a person has acted illegally till the contrary is proved.

3. It is sufficient to prove the substance of the issue.

4. The best evidence must be forthcoming of which the nature of the case is capable.

5. Hearsay evidence of a fact is not admissible. (See above.)

6. No person is bound to criminate himself for nemo tenetur prodere se ipsum. The mode of taking evidence in the Common Law courts differed from that which was usual in the Court of Chancery. It was oral in the former and by affidavit in the latter. Now, however, that there is one Supreme Court, the ordinary mode of taking evidence is by oral examination of witnesses; but by agreement or by leave of the court or a judge affidavits or depositions may be used in the Chancery division.

Witnesses in courts of law are produced before the court and examined by counsel, after which they may be cross-examined by the counsel for the other side.

When the evidence is completed on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury, recapitulating in greater or less detail, as he may deem necessary, the statements of the witnesses, and the contents of the documents adduced on either side, commenting upon the manner in which they severally bear upon the issue, and giving his direction upon any matter of law that may arise upon them, but leaving the jury to determine for themselves the credit and weight to which they are respectively entitled, and to decide whether, upon the whole, the preponderance of proof is in favour of the plaintiff or defendant.

The jury, after the proofs are summed up, if they express a wish so to do, withdraw from the court to consider their verdict, and are kept till they are all agreed.

Trials may, however, now be before a judge or a judge with assessors alone without a jury, and a notice of trial given generally means a trial before a judge without a jury.

In the United States there is now, in consequence of recent legislation, scarcely any restriction as to admission of evidence.

Circumstantial Evidence is the term applied to indirect as opposed to direct evidence; such evidence is also sometimes known as "presumptive," because when the fact cannot be established it may be presumed by the proof of such circumstances as usually attend such fact. [Presumption.]