1. The growth of adversary procedure:
The growth of adversary procedure in criminal trials was a large step towards the development of our modern law of evidence, but one important element remained lacking: until 1907, there was no effective system of criminal appeals. Without such an appellate system, a rule-based system of law could scarcely develop to match the one that was growing rapidly in the civil courts.
2. Common law in the 19th century:
Before the 19th century the common law was generally regarded as being in a continuous process of growth, flexible enough to operate as an instrument of reform and better suited to that task than Parliament. These views depended on the belief that common law was essentially a system of reasoning, which might be partially expressed by way of maxims, and of which the decisions of the judges were only evidence. There was little scope for binding authority because the three common law courts developed separately, and law reporting was inadequate. However, a line of authority might be strong enough to be considered binding, and in this situation there was room for the idea to develop that decisions of the courts formed the substance of the law, and were not merely evidence of it. The 19th century saw a change in attitude to case law, and this affected the way in which evidence law developed. In this development treatise writers, law reporters and judges all played a part.
3. Rule based system derived from case law:
Treatise writers attempted to present their subject as a rule-based system derived from case law. Passages in the works of WM Best and of other writers show that the authors regarded their subject as having been recently developed by the judges, although based on older principles. The treatise writers’ increasingly rule-based approach left less room for judicial discretion in the admission of testimony. The writers themselves appear to have realised that this was a novel development. Several of them argued in favour of exclusionary rules, relying on the supposed lack of weight possessed by certain types of testimony, the difficulties experienced by jurors in assessing evidence, and the need for clear, general rules in the interests of certainty. There was a perception that uncertainty was a great defect in English law and, for various reasons, this could not be remedied by codification. Not least of these reasons was the fact that, in criminal evidence, the case law was underdeveloped through lack of an effective appellate system. In addition, Members of Parliament were unwilling to allow significant changes in the law to be made without thorough examination, for which there was insufficient parliamentary time. Among the judges, codification was supported only by a minority.
4. The certainty of the common law:
Any increase in the certainty of the common law had therefore to be made by the judges. In the law of civil evidence, they tried to achieve this by developing an increasingly rule-based system of exclusions. In this they were assisted by institutional changes that made for a more uniform approach to civil appeals. However, because the criminal courts lacked an effective appellate structure until 1907, the judges were unable to develop rules of criminal evidence to anything like the same extent. There were informal common practices, but no more. On the information of the Court of Criminal Appeal in that year, criminal evidence law began to develop in the same way. Only in recent decades have the benefits of a more discretionary approach to admissibility been appreciated. The result is that modern criminal evidence law is a mixture of statute law, of common law rules, and more recent discretionary powers. As for civil evidence, the rule-based, exclusionary system that had developed during the 19th century could no longer be justified after the virtual abolition during the 20th century of trial by jury in civil actions. Gradually it was demolished by statute, and today comparatively little of importance remains.
5. Abolition of the old restrictions on competence:
The other great change in evidence law during the 19th century was the gradual abolition of the old restrictions on competence, which was a long and piecemeal process. The religious bars were removed in two stages. Attention was focused during the first on the relief of those who, like Quakers, had religious conscience against taking an oath. After some partial reforms, complete success was achieved for civil proceedings when the Common Law Procedure Act 1854 made an affirmation an acceptable replacement for a religious oath. This reform was extended to criminal trials in 1861. Attention then turned to the relief of those who refused to take an oath because they subscribed to no religious belief. These attempts succeeded with the passing of the Evidence Further Amendment Act 1869.
6. The removal of witness disqualifications:
The 19th century also saw the removal of witness disqualifications based on criminal convictions and financial interest in the outcome of the litigation. Three main stages can be seen. The first was reached in 1843: in that year, Lord Denman’s Act abolished the rule whereby persons with certain criminal convictions had been disqualified from giving evidence. The Act also made a substantial inroad on the rule that an interested witness could not testify. The second stage was reached in 1851, when the Evidence Amendment Act made competent the parties to most civil proceedings in the superior courts of common law. The third stage was reached only in 1898, when the Criminal Evidence Act permitted the accused to give evidence in all criminal cases.
7. Bentham’s contribution:
Holdsworth noted that these statutory reforms were largely inspired by the critique of Jeremy Bentham, many of whose writings on evidence were published during the 1820s. There is no doubt that, for the student of jurisprudence or intellectual history, Bentham is a alarming figure. It is likely that the traditional view exaggerates Bentham’s role in the story of evidence law reform. Debates in parliament, as well as in leaflets, journals and newspapers, show that those supporting the various proposals for reform had widely different concerns from those expressed by Bentham. He had wanted competence to be extended as part of a grand campaign for reform, which was aimed at the destruction of what he called the sinister interests of Church and State. The statutory reforms were achieved for pragmatic reasons that had nothing to do with such a radical programme. Success depended on convincing enough lawyers and politicians that increased social stability made change both safe and desirable, and, so far as the 1898 reforms were concerned, that what was proposed involved no threat to the relatively new balance of power in criminal trials between judge, counsel and the accused.
B. Historical development:
1. Gilbert’s Law of Evidence:
Counsel in the 18th century regularly appeared in civil cases followed a well established work on evidence by Gilbert, which was published in 1754 and was the leading work on the subject for about 50 years. Gilbert’s Law of Evidence was not primarily a work of theory: it was a practical work, in which the longest section was taken up with a consideration of the evidence admissible to prove or disprove issues arising in different forms of action. Gilbert shows us what evidential matters were important to lawyers acting for parties in 18th century civil proceedings.
2. Rules of excluding the classes of witnesses:
Apart from the large section dealing with substantive law, two features indicate a way of looking at evidential problems that was strikingly different from the way we look at it today. The first is a substantial body of rules excluding not classes of evidence, but classes of witnesses. Two major groups were affected. Those who would not give evidence on oath were generally excluded, whether their refusal was due to religious conscience or to lack of any religious belief. In addition, anyone with a financial or proprietary interest in the outcome of a case was incompetent to testify as a witness in it, however small the interest might be. One of the effects of this rule was to bar the parties to the litigation from testifying. In addition, some potential witnesses might be excluded because of past criminal convictions. Some idea of the reasons for these exclusions can be gathered from arguments that were raised against subsequent proposals for reform. Evidence had to be given on oath because it was thought that people with the wrong sort of religious belief-or, worse, no religious belief at all-could not be trusted as responsible members of society. The oath was a fundamental safeguard of truth; to make it optional would be to encourage infidelity and irreligion. Treatise writers tended to justify the exclusion of interested persons from testifying on the basis of their supposed lack of integrity or impartiality. However, when reform was mooted a different argument was put forward: people ought not to be put in a position where they might be tempted to commit perjury. This argument may in fact have been closer to the original purpose of the rule than that suggested by the treatise writers.
3. Written testimony override oral testimony:
The second feature of Gilbert’s treatise that marks it out from later writings on evidence is the emphasis placed on written testimony. Gilbert’s basic principle was that proof should be by the best available evidence. In his hierarchy of sources, written evidence was preferred because he thought it less likely to be imperfect than mere oral testimony. This preference is reflected in the amount of space devoted to the two subjects: written evidence was given about three times as much space as oral evidence. He first considered sealed public records, then other public documents such as affidavits and depositions, and then private documents such as deeds. Only afterwards did he turn to the subject of oral evidence.
4. The notion of probability:
Gilbert’s style is simple and convincing, but the key to his success lay in the fact that he set out to establish a tightly integrated theory of evidence based on the notion of probability. The Law of Evidence begins with that the rights of men in civil life have to be determined on the basis of something less than demonstration, that is judgments of probability. Gilberts set out to erect a theory of evidence in trials on the foundation of this explicitly Lockean theory of knowledge: The first therefore, and most signal Rule, in Relation to Evidence, is this, That a man must have the utmost evidence the nature of the fact is capable of; for the design of the law is to come to rigid demonstration in matters of right, and there can be no demonstration of a fact without the best evidence that the nature of the thing is capable of.
5. The best evidence rule:
Taking this very general and rather rigid formulation of the ‘best evidence rule’, which he purported to derive from Holt, Gilbert proceeded to establish various categories of evidence and to grade them in terms of probabilities in something approaching a formal hierarchy, with public records at the top, as the very best evidence.
6. Other authors comments on the Law of Evidence:
The Law of Evidence was recognized as the leading work on the subject for about fifty years after its first publication in 1754 and was re-issued on at least four occasions between 1791 and 1801. This was not merely a commercial success. Bathurst used it as a model; Peake, the author of the first important nineteenth-century treatise, made handsome acknowledgement of Gilbert’s influence, as did several other later writers. Blackstone, who carefully side stepped ‘the numerous niceties and distinctions’ of the law of evidence, referred his readers to Gilbert’s treatise as ‘ a work which it is impossible to abstract or abridge without losing some beauty and destroying the chain as a whole’. Gilbert was seen by his admirers as having presented the law of evidence within a coherent theoretical framework and in a clear, concise and useful form. It was partly for this reason that Bentham was provoked into a deadly attack.
7. Bentham’s criticisms on Gilbert’s priority of written testimony:
According to Bentham the efficient cause of Gilbert’s error was a defective scheme of arrangement; the final cause was the sinister interest of the legal fraternity to throw and keep the subject in confusion; the result a false theory which erroneously gives precedence to written over oral evidence. By making the distinction between written and oral evidence the foundation of their system, Gilbert and his successors were led into several errors: they overlook real evidence, give insufficient attention to circumstantial evidence and ignore several crucial distinctions. For example, Gilbert failed to discriminate between various kinds of temporary and pre-appointed evidence. The error of ranking written evidence above unwritten is based on confusing verity and authenticity of documents. It may be the case that few records are not authentic, but many of them are clearly unreliable. Gilbert had placed first in his hierarchy of probability the legal memorials of the legislature and of the king’s courts of justice deposited at the Treasury of Westminster. Mocking the Chief Baron’s love of mathematics, Bentham suggests that Gilbert treats records as ‘ a diagram for the demonstration of right’ produced by a ‘supersacred and super-human class of persons’. But officials are but men, whose trustworthiness needs to be determined by the same tests as any other men; and legal records are notoriously unreliable, ‘compounds or reservoirs of truths and lies undistinguishably shaken together, penned by nobody knows who, and kept under the orders, how seldomsoever, if ever, actually subjected to the eyes of the judges of Westminster Hall’. They are the repositories of legal fictions and so, in Bentham’s eyes, particularly suspect.
Bentham’s attack on Gilbert’s theory is as sharp as any to be found in his often polemical writings on evidence. En passant he takes sideswipes at some familiar targets-legal fictions, judge-made law, the double-fountain of Law and Equity, and the sinister interest in mystification (confusion) of ‘Judge and Co’. The main target is apparently Gilbert’s scheme of classification, but the real object of attack is the attempt to regulate judgments of probability by formal rules.
8. Gilbert provided Bentham the law of evidence to criticize:
In an important sense one of Gilbert’s principal achievements was to provide Bentham with an identifiable target to attack. Before Gilbert there was hardly a law of evidence to criticize. As the most coherent and the most influential expositor of this branch of law Gilbert provided an important focus of attention. Furthermore his theory was clearly false in Bentham’s eyes. The immediate source of error was defective scheme of classification, but the core of the matter was the suggestion that the weighing of evidence could be governed by rigid rules. By talking in terms of rules of probability Gilbert had conflated questions of admissibility and questions of weight, and had suggested that both kinds of question could be governed by formal rules, whereas Bentham believed that the former should not be and the latter could not be. What a modern commentator has termed misplaced mathematicization was just one more symptom of a generally faulty attempt to formalize a subject that was literally ungovernable. The attractive simplicity and seeming elegance of Gilbert’s theory no doubt made it seem all the more dangerous.
9. Thayer comments on Gilbert’s rigid rule of exclusion:
During the nineteenth century, as Thayer was eventually to point out, it became even more rigid by being transformed from a positive caution to adduce the most reliable kind of evidence, especially in respect of documents, to a rigid rule of exclusion, sometimes leading to the loss of valuable evidence, sometimes to complicated distinctions and exceptions. Thayer concludes that ‘Gilbert in his premature, ambitious and inadequate attempt to adjust to the philosophy of John Locke the rude beginnings and hesitant, unconscious efforts of the courts in the direction of a body of rules of evidence, hurt rather than helped matters’. Nevertheless, the view that Gilbert’s theory was false and had exercised a baneful influence prevailed; similarly during the nineteenth century it was Bentham’s conceptual scheme rather than Gilbert’s which prevailed, not because of his attack on Gilbert, but because this was one part of Bentham’s theory of evidence that was picked up by most later writers.
C. Bentham’s contribution on evidence:
1. Bentham’s main published works:
Bentham’s main work on evidence was done in the period 1802-1812, but his interest in the subject spanned the whole of his working life. His writings on evidence and procedure are vast: in addition to the main published works, Traite des preuves judiciaries, An introductory View of the Rationale of Evidence, Rationale of Judicial Evidence, and Principles of Judicial Procedure, there are several important other works in which the subject is discussed; the surviving unpublished manuscripts are almost as extensive as the corpus of published works, although many of them represent earlier versions of the latter.
2. The main Bentham’s work The Rationale of Judicial Evidence :
Elie Halevy wrote: ‘Of all Bentham’s works The Rationale of Judicial Evidence is the most voluminous and also without doubt the most important. In the John Stuart Mill edition it runs to nearly three thousand pages. It is not possible here to do justice to the richness, diversity and crankiness (oddness) of its arguments, but the central thesis can be briefly stated: the direct end of adjective law is rectitude of decision, that is the correct application of valid laws to true facts. The collateral end is to minimize the pains of displeasure, expense and delay. Conflicts between the direct and collateral ends are to be determined on the basis of utility, but Bentham leaves no doubt that in this calculation he placed a high value on the pursuit of truth in adjudication. Judgments about the truth of allegations of fact are to be made by considering the relevant evidence-‘Evidence is the basis of Justice’. Such judgments are based on estimates of probabilities, which estimates in turn are based on experience. The system of adjudication most favourable to promoting the ends of judicature is the Natural System as opposed to the Technical System. The Natural System takes as its example the wise father adjudicating in the bosom of the family, the disputants face to face, giving viva voce testimony and subject to cross-examination. No witness, including the parties themselves, and no relevant evidence is excluded, subject to preponderant annoyance, expense or delay: ‘Be the dispute what it may, -see everything that is to be seen: hear everybody who is likely to know anything about the matter: hear everybody, but most attentively of all, and first of all, those who are likely to know most about it-the parties’.
3. Bentham’s central thesis:
Much of Bentham’s central thesis is negative in import. It consists of a sustained polemic on the unnecessary complication, absurdity and obscurity of the Technical System and on the sinister interests of the judiciary and the legal profession (Judge and Co) which sustain the system in England. Bentham also attacks all exclusionary rules of evidence and the very idea that the weighing of evidence is vulnerable to regulation by formal rules, what I shall refer to hereafter as the anti-nomian thesis. There is a positive side to the Rationale, for Bentham deals at length with such matters as the means of securing the forthcomingness of witnesses and of evidence, with securities for correctness and completeness of evidence, and with guidance by way of instructions to the judge about the weighing of evidence.
4. Bentham’s nearest rival is Wigmore’s science of judicial proof:
Bentham’s Rationale and mixed writings still represent the most ambitious and fully developed theory of evidence and proof in the history of legal thought. The nearest rival is Wigmore’s science of judicial proof, which underlies his great Treatise and is more fully, but still only partially, explained in his neglected work The Principles of Judicial Proof. Wigmore deals more comprehensively with some of the logical and psychological dimensions of proof, as well as dealing in far more detail with the history, content and underlying rationales of particular evidence doctrines. But Bentham’s theory is more extensive in several key respects: first, his theory of evidence and proof is more explicitly and fully integrated with a theory of adjudication, which in turn is part of a general constitutional theory and ultimately of a general theory of law. Wigmore did not develop a rounded theory of procedure or of adjudication comparable to Bentham’s. Secondly, Bentham’s prescriptions on evidence represent a direct and relatively straightforward application of the principle of utility. As such they are based on an explicit theory of value, albeit a highly controversial one. Most other theorists of evidence, including Wigmore, are less explicit and less coherent about the basis of their evaluations and recommendations. Thirdly, Bentham’s writings on evidence contain some of his most extensive discussions of epistemology and psychology and, to a lesser extent, of logic. In the Rationale he expounds what might be characterized as a cognitivist, empirical epistemology, based on a correspondence theory of truth, which owes a great deal to Locke. Rather less clearly he advances a theory of induction, including a rather obscure account of reasoning about probabilities, which has been interpreted-probably correctly-as being non-mathematicist. Except on the annoyed issue of the nature of probabilistic reasoning, nearly all leading Anglo-American writers on evidence have adopted, more often than not sub silentio, epistemological and logical views which are similar to Bentham’s.
It is also relevant here to say something about Bentham’s anti-nomian thesis. At first sight it seems surprising that the jurist who more than any other believed in the desirability and feasibility of a complete code of substantive laws, leaving no discretion to judges to make law, should also have been an extreme opponent of the view that judicial discretion in respect of deciding questions of fact should be limited by rules. Whether there is a fundamental inconsistency in Bentham’s views on substantive and adjective law in this respect is a matter of controversy among specialists. But there is no doubt about his opposition to rules of evidence: To find perfect rules for evidence, rules which insure a just decision is, from the nature of things, absolutely impossible; but the human mind is too appropriate to establish rules which only increase the probabilities of a bad decision. All the service that an impartial investigator of the truth can perform in this respect is, to put the legislators and judges on their guard against such quick rules.
Although in the Rationale he placed particular emphasis on the non-exclusion principle, Bentham was opposed to all rules of evidence: rules governing credibility, weight and quantum of evidence are all mischievous. The apparent extremism of the anti-nomian thesis is subject to two major warnings. First, Bentham admits that in theory a time may come when judging the closeness of the connection between a principal fact and an alleged evidentiary fact might profitably be subjected to rules: ‘To take the business out of the hands of instinct, to subject it to rules, is a task which, if it lies within the reach of human faculties, must at any rate be reserved, I think, for the improved powers of some maturer age’. But he consistently maintains that such a task, even if it is conceivable, is not yet feasible.
A second concession is more significant: what Bentham is opposed to is ‘unbending rules’ addressed to the will of the judge; it is the role of the legislator to provide instructions addressed to the understanding- general guides which he even sometimes refers to as rules. This is significant, for several subsequent writers on evidence have questioned the desirability of having binding rules of evidence, as opposed to guiding principles. Some have even gone so far as to doubt whether rulings on points of evidence should ever have the force of precedent and whether such rulings should be subject to appeal. Even Wigmore, in debating the Model Code of Evidence, went so far as to suggest that its rules should be directory, not mandatory to the judge, whose rulings should be subject to review only in extreme instances. Viewed in this light Bentham’s anti-nomian thesis has some distinguished allies. Subsequent Anglo-American writers on evidence have been selective in their reception of the anti-nomian thesis. With relatively minor exceptions, they have rejected the idea that weight of evidence is at risk to formal regulation. Perhaps the classic formulation is that of Wigmore: ‘The principles of Proof, then, represent the natural processes of the mind in dealing with the evidential facts after they are admitted to the jury: while the rules of Admissibility represent the artificial legal rules peculiar to our Anglo-American jury system.
In respect of rules of weight, Bentham’s views have largely prevailed. There are two main exceptions. First, the law of evidence still lays down some formal minimum requirements concerning sufficiency of evidence: for example, the requirement of confirmation in cases of perjury, in relation to the evidence of accomplices, and to certain sexual offences. Moreover the civil and criminal standards of proof could be interpreted as rules of quantum. Secondly, there has been a controversy as to whether questions of relevancy are ever questions of law. Thayer advanced the view that the law furnishes no test of relevancy. Stephen, Best and Wigmore have variously argued that natural evidence is restrained or modified by rules of positive law, with the result that the courts sometimes treat as irrelevant matters which are logically relevant and that some judicial decisions on relevance have value as precedents. The dispute is largely one of terminology, with few important practical consequences, for no clear formal lines are drawn and judges tend to exercise their discretion in this area along lines that are quite compatible with Bentham’s thesis. There are few formal rules governing questions of weight or credibility of evidence and, in this respect, Bentham’s victory is substantial, if not complete.
The position with regard to exclusionary rules is less simple. Many of Bentham’s particular arguments have been accepted and some of his main targets, notably the exclusion of parties and others as competent witnesses, have virtually disappeared.
Nearly all the changes made since his day have been in the direction of abolishing or diminishing the importance of the exclusionary rules. This trend has generally gone further in England than the United States, especially in respect of civil evidence. However, Bentham’s general principle of non-exclusion has not been accepted. Certain doctrines, such as legal professional privilege, parts of hearsay, the rule about previous convictions, and some other safeguards for the accused are still firmly entrenched, while others remain the subject of continuing controversy. The exclusionary rules have been eroded (tough), but there is no immediate prospect of their complete abolition.
Nevertheless, Bentham’s anti-nomian thesis has immense historical significance. Since his day protagonists of the common law rules of evidence have generally been on the defensive; the actual scope of the law of evidence, in the sense of those matters which are governed by mandatory rules, has steadily diminished and is today a good deal narrower than is sometimes supposed; and , haunting every expositor of the rules and challenging those who favour a broader approach to law is the question: ‘What would we study in respect of evidence and proof if there were no rules? But this is to run ahead of my theme.