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Evidence About Character
by [?]

There has been during the week a loud and increasing demand for the application of the legal process of discovering truth to the Tilton-Beecher case. People ask that it be carried into court, not only because all witnesses might thus be compelled to appear and testify, but because apparently there is, in the minds of many, a peculiar virtue in “the rules of evidence” used by lawyers. Witnesses examined under these rules are supposed to receive from them a strong stimulus in veracity and explicitness, while they at once expose prevarication or concealment. One newspaper eulogist went so far the other day as to pronounce the rules the product of the wisdom of all ages, beginning with the Phoenicians and coming down to our own time. There is, however, only one good reason that we know of for carrying any attack on character into court, and that is the obvious one, that the courts only can compel those who are supposed to know anything about a matter of litigation to appear and state it. But we do not know of any other advantage which can be claimed for a trial in court, in such a case, over a trial before a well-selected lay tribunal. “The rules of evidence” in use in our courts are not, as too many persons seem to suppose, deductions from the constitution of the human mind, or, in other words, natural rules for the discovery of truth under all conditions. On the contrary, they are a system of artificial presumptions created for the use of a tribunal of a somewhat low order of intelligence, and are intended to produce certain well-defined and limited results, which the law considers generally beneficial. They have, that is to say, grown up for the use of the jury. The large number of exclusions which they contain are due simply to a desire to prevent jurymen’s being confused by kinds of testimony which they are not supposed to have learning or acumen enough to weigh. If anyone will go into the City Hall and listen to the trial of even a trifling cause, he will find that the proceedings consist largely in the attempt of one lawyer to have certain facts laid before the jury and the attempts of the other to prevent it, the judge sitting as arbiter between them and applying the rules of admission and exclusion to each of these facts as it comes up. If he examines, too, in each instance what it is that is thus pertinaciously offered and pertinaciously opposed, he will find that it almost invariably has something to do with the controversy before the court–it may be near or more remote–but still something. Consequently it has, logically, a certain bearing on the case, or is, under the constitution of the human mind, proper evidence. When the judge says it is irrelevant, he does not mean that it is logically irrelevant; he means that it has been declared irrelevant on certain grounds of expediency by the system of jurisprudence which he administers. He refuses to let it go to the jury because he thinks it would befog them or turn their attention away from the “legal issue” or, in other words, from the one little point on which the law compels the plaintiff and defendant to concentrate their dispute, in order to render it triable at all by the peculiar tribunal which the Anglo-Saxon race has chosen for the protection of its rights.

It follows that our rules of evidence are unknown on the European continent and in every country in which courts are composed of judges only–that is, of men with special training and capacity for the work of weighing testimony–or in which the legal customs have been created by such courts. There the litigants follow the natural order, and carry with them before the bench everything that has any relation to the case whatever, and leave the court to examine it and allow it its proper force. Our own changes in the law of evidence are all in this direction. The amount of excluded testimony–that is, of testimony with which we are afraid to trust the jury–has been greatly diminished during the last few years, and, considering the growth of popular intelligence, properly diminished. The tendency of legislation now is toward letting the jury hear everybody–the plaintiff and defendant, the prisoner, the wife, the husband, and the witness with a pecuniary interest in the result of the trial–and put its own estimate on what the testimony amounts to. But nevertheless, even now, who is there that has ever watched the preparation of a cause for trial who has not listened to lamentations over the difficulty or impossibility of getting this or that important fact before the jury, or has not witnessed elaborate precautions, on one side or another, to prevent some fact from getting before the jury? The skill of a counsel in examining or cross-examining a witness, for instance, is shown almost as much by what he avoids bringing out as by what he brings out, and no witness is allowed to volunteer any statement lest he should tell something which, however pertinent in reality, the rules pronounce inadmissible.