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The law of evidence during the past twenty-five years

has assumed a form foreseen in but slight measure by the early writers on this branch of the law. The researches of the late Sir Henry Sumner Maine, Sir James Stephen, and others of the Commission who prepared the Indian Evidence Act, have resulted in an analysis and arrangement of the law of evidence, which American and English judges and lawyers have accepted with substantial unanimity. It may briefly be said, that they view the law of evidence, as respects the relevancy of facts, from the standpoint of inductive logic, as systematized and refined by John Stuart Mill. The relevancy of evidence is considered in their view, and properly so, as a particular case of the process of induction; the process of inferring the unknown from the known. A fact, if it is to be received in evidence as relevant, must base its claims to consideration by the jury, upon grounds identical with those upon which a fact must claim consideration at the hands of a scientist when investigating physical facts. It must be a fact having a logical place in the chain of causation with reference to the ultimate fact to be proved. The force of the foregoing observations appears more clearly when the following remarks by Professor Wharton are considered: “The old common law rules with regard to relevancy can no longer be maintained against the criticisms, first of Mr. Bentham, then of Mr. J. S. Mill, and more recently, of Sir J. Stephen; nor, in fact, do we find these rules recognized in the shape in which they were formerly put in our later authoritative adjudications. Relevancy, it is now felt, is to be determined by the laws, not of formal jurisprudence, but of free logic; and in obedience to this conviction we have a series of recent rulings based on logical as distinguished from technically juridical grounds."

The gain to jurisprudence must be unquestionable when a comprehensive title of positive law is analyzed and adjusted according to the lines of a sound, logical theory, without disturbing the legal effect of its contents, the result of persistent and long continued juridical activity.

This conception of the law of evidence in its necessary connection with inductive logic as supplying the Freason of the law for receiving evidence of known facts to prove unknown, has been steadily kept in view in drafting this Code. The value of facts, therefore, as judicial evidence, is to be determined by their being relevant or not relevant within the meaning of that term as herein defined. The decision by the judge of the preliminary question of relevancy will give rise to two questions; first, is the fact offered in evidence within the express provisions of some specific section? or, second, if not, is it relevant because it falls within the definition or provisions defining relevant facts generally? If the question falls within the provisions of a specific section, it may be readily disposed of. But, in deciding whether the fact is relevant within the meaning of the general definition of relevancy the problem is more involved. In this case the judge refers the question to the logical nature of relevancy as defined in the provisions of this Code, for determination, and, in the light of the definition, through the exercise of his legal judgment, reaches a decision. In other words, he may be supposed to ask himself, “Is the fact in issue logically inferable from the fact offered as relevant to it, assuming it to be true, or, does this fact, having regard to the relation of cause and effect, the motives of human conduct, the usual sequence of events, considered alone, or, in connection with other facts, create a probability respecting the fact in issue?” In deciding a similar question without an express definition or clearly apprehonded standard of logical relevancy, the judge must determine the question in the light of analogous cases, and until a recent date unaided by a clear understanding of the logical principle which should determine the revelancy or irrelevancy of the particular fact.

The absence from the common law conception of the law of evidence of any appreciation of the logical nature of facts as evidence of facts to be proved, may be seen in the following extracts from Peake on Evidence: "In almost every case which presents itself for the consideration of a court of justice, some fact is disputed by the litigating parties, and the truth being unknown to those who are to decide, recourse must be had to the testimony of others. As this testimony is corroborated or opposed by the good or bad character of the witnesses who give it, by their concurrence or contradiction of each; or by the circumstances and probabilities of the story they relate; the mind of the hearer arrives at a greater or less degree of certainty, and weighing these considerations together, is enabled to pronounce on the truth or falsity of the fact in dispute." “But the principal subject for the consideration of a practical lawyer is the form in which evidence is to be produced and its admissibility. This is necessarily in all cases a pure question of law; it can never depend on any general and universal principles, but must always be governed by certain fixed and arbitrary rules. These rules can only be collected from former decisions, and the judge alone is competent to determine how far they are applicable in a particular case.'

It would be erroneous to conclude, that this Code is intended to restrict the reception of facts as evidence to a theoretical determination whether they can be placed by a purely logical induction in the category of facts which form, in the language of the law, the proximate cause of the existence or non-existence of a fact in issue or relevant to the issue, or in that category which renders their existence or non-existence probable or improbable.

Many facts possess a relevancy which may be called legal rather than logical. They have been recognized by courts as entitled to weight in relation to facts to be proved, and have for this sufficient reason, therefore, taken a position in the law of evidence which, it is unnecessary to say, they retain in this Code, expressly preserving as it does, the relevancy of every fact, which for any reason is made relevant by any rule of law of the state.

In formulating a definition of what constitutes relevancy, nothing more has been done than to formulate a principle which has always been perceived by the logical instinct of judges and lawyers, although it has rarely been stated. It has, had however, a considerable though unnoticed influence in shaping the law of evidence.

The definition of "relevant” adopted by the Commissioners as Section seventeen of this Code, is substantially that of Sir James Stephen. It may be given here and is as follows: “The term 'relevant' means that the fact to which it is applied is so related to another fact, that, according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other." With this may also be considered the following which forms Section sixty-six : “Any fact is relevant from which a fact in issue is logically inferable, or which, having regard to the relation of cause and effect, or the ordinary motives of human conduct, or the usual sequence of events, would, considered by itself, or in connection with other facts, create a probability with respect to a fact in issue.

The first is strictly the definition of the term, or explains the sense in which it is used, in the various sections of this Code wherein certain facts are said to be relevant. They may possess true logical relevancy, or they may be relevant only because they have been so declared by law, as above pointed out. In order, however, to give the utmost possible range to the reception of evidence, Section sixty-six has been inserted. It is intended to provide a rule for the admission of facts which may not fall within a specific provision. It states the whole logical theory of the law of evidence. It consists of two provisions. The first is that "any fact is relevant from which a fact in issue is logically inferable.” The facts which are relevant under this provision are familiarly known as forming “circumstantial or indirect evidence." This is described by Judge Denio in People vs. Kennedy (32 N. Y., 141); “The logic upon which circumstantial evidence is based, is this: We know from our experience that certain things are usual concomitants of each other. In seeking to establish the existence of one, where the direct proof is deficient or uncertain, we prove the certain existence of the co-relative fact, and thus establish with more or less certainty, according to the nature of the case, the reality of the principal fact.” The other provision of this section, namely, the relevancy of a fact which would create a probability with respect to the facts in issue, corresponds with the definition of "relevant" in Section seventeen. The facts which create a probability may sometimes include facts from which a fact in issue is logically presumed. The line is not easy to draw between them, nor is it important it should be drawn. Professor Wharton, (Evidence, g 21), states the rule substantially the same way : “Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable.”

It has been justly remarked by Sir James Stephen, that under the present system the law of evidence is cognizant only of rules of exclusion, that it sets forth a series of rules declaring what evidence may not be received, rather than a series of rules declaring what may be received. The sense in which this statement is to be understood, appears when we observe that the process of development of the law of evidence seems to have been from a primary assumption that any fact whatever was relevant as evidence, but that experience showed that certain classes of facts possessed no logical or evidentiary value and should be rejected as exceptions to the universal rule of relevancy. Such classes consisted largely of facts narrated by persons not produced as witnesses. They were classed under the general name of “hearsay evidence.” The untrustworthy and suspicious character of hearsay in the main justified its rejection as evidence of the purported to reproduce. The statements, however, of many persons not produced as witnesses, when made under certain circumstances, were found to possess such guarantees of accuracy as entitled them to be received as evidence. To these were added others upon the principle of necessity. These facts formed exceptions to the common law rule, that hearsay is not evidence. When it is further suggested that facts known as “res inter alios," and evidence of character and the opinion of a person were exceptions also to the universal rule of relevancy, it can easily be perceived that exceptions to a comprehensive

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