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TITLE IV: RELATIVE PROBATIVE VALUE OF CIRCUMSTANTIAL AND TESTIMONIAL EVIDENCE

DANIEL DEFOE.

Robinson Crusoe.
Robinson Crusoe. (1719. Dent's ed. p. 108.)
called it ever after this, I fled into it
like one pursued. Whether I went
over by the ladder, as first contrived,
or went in at the hole in the rock,
which I called a door, I cannot re-
member; no, nor could I remember
the next morning, for never frighted
hare fled to cover, or fox to earth,
with more terror of mind than I to
this retreat. I slept none that night.
The farther I was from the occasion
of my fright, the greater my ap-
prehensions were; which is some-
thing contrary to the nature of such
things, and especially to the usual
practice of all creatures in fear.
But I was so embarrassed with my
own frightful ideas of the thing, that
I formed nothing but dismal imagi-
nations to myself, even though now
I was a great way off it.

369. It happened one day, about noon, going towards my boat, I was exceedingly surprised with the print of a man's naked foot on the shore, which was very plain to be seen in the sand. I stood like one thunderstruck, or as if I had seen an apparition. I listened, I looked round me, I could hear nothing, nor see anything. I went up to a rising ground, to look farther. I went up on the shore, and down the shore. But it was all one; I could see no other impression but that one. I went to it again to see if there were any more, and to observe if it might not be my fancy; but there was no room for that, for there was exactly the very print of a foottoes, heel, and every part of a foot. How it came thither I knew not, nor could in the least imagine. But after innumerable fluttering thoughts, like a man perfectly confused, and out of myself, I came home to my fortification, not feeling, as we say, the ground I went on, but terrified to the last degree, looking behind me at every two or three steps, mistaking every bush and tree, and fancying every stump at a distance to be a man; nor is it possible to describe how many various shapes affrighted imagination represented things to me in, how many wild ideas were found every moment in my fancy, and what strange unaccountable whimsies came into my thoughts, by the way. When I came to my castle, for so I think I

Sometimes I fancied it must be the devil, and reason joined with me upon this supposition; for how should any other thing in human shape come into the place? Where was the vessel that brought them? What mark was there of any other footsteps? And how was it possible a man should come there?

I presently concluded then, that it must be some more dangerous creature, viz. that it must be some of the savages of the mainland over against me, who had wandered out to sea in their canoes, and, either driven by the currents or by contrary winds, had made the island, and had been on shore, but were gone away again to sea, being as loath,

perhaps, to have stayed in this desolate island as I would have been to have had them. . . . Then terrible thoughts racked my imagination about their having found my boat, and that there were people here; and if so, I should certainly have them come again in greater numbers, and devour me; that if it should happen so that they should not find me, yet they would find my inclosure, destroy all my corn, carry away all my flock of tame goats, and I should perish at last for mere

want.

In the middle of these cogitations, apprehensions, and reflections, it came into my thought one day, that all this might be a mere chimera of my own; and that this foot might be the print of my own foot, when I came on shore from my boat. This cheered me up a little too, and I began to persuade myself it was all a delusion, that it was nothing else but my own foot; and why might not I come that way from the boat, as well as I was going that way to the boat? Again, I considered also, that I could by no means tell, for certain, where I had trod, and where I had not; and that if, at

last, this was only the print of my own foot, I had played the part of those fools who strive to make stories of specters and apparitions, and then are frightened at them more than anybody. . . . But I could not

persuade myself fully of this till I should go down to the shore again, and see this print of a foot, and measure it by my own, and see if there was any similitude or fitness, that I might be assured it was my own foot. But when I came to the place, first, it appeared evident to me, that when I laid up my boat, I could not possibly be on shore anywhere thereabout; secondly, when I came to measure the mark with my own foot, I found my foot not so large by a great deal.

Both these things filled my head with new imaginations, and gave me thevaporsagain to the highest degree; so that I shook with cold, like one in an ague; and I went home again, filled with the belief that some man or men had been on shore there; or, in short, that the island was inhabited, and I might be surprised before I was aware. And what course to take for my security, I knew not.

370. MR. (later Attorney-General) H. M. KNOWLTON, arguing for the prosecution, in COMMONWEALTH. BORDEN. (1893. Massachusetts. 27 Amer. Law Rev. 837): What is sometimes called circumstantial evidence is nothing in the world but a presumption of circumstances. It may be one or fifty. There is no chain about it. The word "chain" is a misnomer, as applied to it. Talk about a chain of circumstances! When that solitary man had lived on this island for twenty years, and believed that he was the only human being there, and that the cannibals and savages that lived around him had not found him and had not come to his island, he walked out one day on the beach, and there he saw the fresh print of a naked foot on the sand. He had no lawyer, to tell him that was nothing but a circumstance! He had no distinguished counsel, to urge upon his fears that there was no chain about that thing which led him to a conclusion! His heart beat fast; his knees shook beneath him; he fell to the ground in fright, -because Robinson Crusoe KNEW, when he saw THAT circumstance, that a man had been there that was not himself!

It was circumstantial evidence!

It was nothing but circumstantial evidence!
But it satisfied HIM!

371. COMMONWEALTH v. WEBSTER. (1850. 5 Cush. 295, 311.) SHAW, C. J. Each of these modes of proof has its advantages and disadvantages; it is not easy to compare their relative value. The advantage of positive evidence is, that it is the direct testimony of a witness to the fact to be proved, who, if he speaks the truth, saw it done and the only question is, whether he is entitled to belief. The disadvantage is, that the witness may be false and corrupt, and that the case may not afford the means of detecting his falsehood. But, in a case of circumstantial evidence where no witness can testify directly to the fact to be proved, it is arrived at by a series of other facts, which by experience have been found so associated with the fact in question, that in the relation of cause and effect, they lead to a satisfactory and certain conclusion; as when footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of the footprints, it can be determined with equal certainty, whether they are those of a man, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the fact sought to be proved. The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. The disadvantages are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions; a source of error not existing in the consideration of positive evidence.

372. W. WILLS. A Treatise on Circumstantial Evidence. (1838. p. 26.) The best writers, ancient and modern, on the subject of evidence, have concurred in treating circumstantial as inferior in cogency and effect to direct evidence; a conclusion which seems to follow necessarily from the very nature of the different kind of evidence. But language of a directly contrary import has been so often used of late, by authorities of no mean note, as to have become almost proverbial.

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It has been said that circumstances are inflexible proofs; that witnesses may be mistaken or corrupted, but things can be neither.” 2 "Circumstances," says Paley, "cannot lie." It is astonishing that sophisms like these should have passed current without animadversion. The "circumstances" are assumed to be in every case established, beyond the possibility of mistake; and it is implied, that a circumstance established to be true, possesses some mysterious force peculiar to facts of a certain class. Now, a circumstance is neither more nor less than a minor fact, and it may be admitted of all facts, that they cannot lie; for a fact cannot at the same time exist and not exist: so that in truth the doctrine is merely the expres-sion of a truism, that a fact is a fact. It may also be admitted that “cir

1 Menochius, De Præsumptionibus, lib. 1. quest. 1. 6; Mascardus, De Probationibus vol. I, quest. 8. n. 8; Burnett on the C. L. of Scotland, p. 506; Starkie's Law of Evidence vol. I, pp. 515, 521 (2d ed.). The Theory of Presumptive Proof; Benth. Jud. Ev., vol. III, c. XV, s. IV.

2 Burnett on the C. L. of Scotland, p. 523.

3 Principles of Moral and Political Philosophy, b. VI, c. IX.

cumstances are inflexible proofs," but assuredly of nothing more than of their own existence: so that this assertion is only a repetition of the same truism in different terms. It seems also to have been overlooked that circumstances and facts of every kind must be proved by human testimony; that although "circumstances cannot lie," the narrators of them may; and that, like witnesses of all other facts, they may be biased or mistaken. So far then, circumstantial possesses no advantage over direct evidence.

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A distinguished statesman and orator has advanced in unqualified terms the proposition, supported, he alleges, by the learned, that "when circumstantial proof is in its greatest perfection, that is, when it is most abundant in circumstances, it is much superior to positive proof." Paley has said, with more caution, that "a concurrence of well-authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords." Mr. Baron Legge, upon the trial of Mary Blandy for the murder of her father by poison,3 told the jury that where "a violent presumption necessarily arises from circumstances, they are more convincing and satisfactory than any other kind of evidence, because facts cannot lie." Mr. Justice Buller, in his charge to the jury in Captain Donellan's case, declared, "that a presumption which necessarily arises from circumstances is very often more convincing and more satisfactory than any other kind of evidence, because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part if not all of those circumstances. It is obvious that the doctrine laid down in these several passages is propounded in language which not only does not accurately state the question, but implies a fallacy, and that extreme cases the strongest ones of eircumstantial, and the weakest of positive evidence have been selected for the illustration and support of a general position. "A presumption which necessarily arises from circumstances," cannot admit of dispute, and requires no corroboration; but then it cannot in fairness be contrasted with and opposed to positive testimony, unless of a nature equally cogent and infallible. If evidence be so strong as necessarily to produce certainty and conviction it matters not by what kind of evidence the effect is produced; and the intensity of the proof must be precisely the same, whether the evidence be direct or circumstantial. It is not intended to deny that circumstantial evidence affords a safe and satisfactory ground of assurance and belief; nor that in many individual instances it may be superior in proving power to other individual cases of proof by direct evidence. But a judgment based upon circumstantial evidence cannot in any case be more satisfactory than when the same result is produced by direct evidence, free from suspicion of bias or mistake. Perhaps no single circumstance has been so often considered as certain and unequivocal in its effect, as the anno-domini watermark usually contained in the fabric of writing paper, and in many instances it has led to the exposure of fraud in the propounding of forged as genuine instruments. But it is beyond any doubt (and several instances of the kind 1 Burke's Works, ut supra, vol. II, p. 624.

2 Principles of Moral and Political Philosophy, b. VI, c. IX.

a State Trials, vol. XVIII, p. 1187.

4 Gurney's Report of the Trial of John Donellan, Esq., for the willful murder of Sir Theodosius Edward Allesley Broughton, Bart., at the Assize at Warwick, March 30th, 1781.

have recently occurred) that issues of paper have taken place bearing the watermark of the year succeeding that of its distribution, a striking exemplification of the fallacy of some of the arguments which have been remarked upon. How often has it been iterated in such cases, that circum

stances are inflexible facts, and facts cannot lie!

373. ALEXANDER M. BURRILL. A Treatise on Circumstantial Evidence. (1868. p. 207.) Some lamentable mistakes have, in times past, been made in the application of circumstantial evidence, in judicial investigations of crime; and jurors, acting either in the exclusive exercise of their own discretion, or under the influence of narrow or erroneous views of the law of evidence, as expounded by the courts, have drawn conclusions entirely at variance with truth and justice; condemning innocent persons to suffer death for the crimes of others. This has led to the opinion that a species of evidence which not only admits but actually requires a certain latitude and discretion of reasoning in its application, is a dangerous instrument of investigation; and that its use, at least in cases where human life is put in jeopardy, should be discouraged or disallowed. Jurors are constantly accustomed to hear from eloquent advocates for prisoners, the open condemnation, and sometimes the unmeasured denunciation of the use of indirect evidence, as a basis and means of conviction in capital cases. . . . Jurors, instead of acting, as in former days, with an undue desire to enforce the effect of circumstances, as evidence, even where the life of the accused was at their disposal; have been found to entertain, and openly to express a determination not to convict upon such evidence, however strong and clear, in any case where life should be placed in peril.

It may tend to a clearer understanding of the subject of this chapter, to consider this adverse view of circumstantial evidence, with a more particular reference to the grounds upon which it has been formally maintained. These are, first, that it is intrinsically liable to mistake and abuse; and secondly, that it has actually led to gross injustice, in the conviction and execution of innocent persons.

The liability to error is said to arise from the very process of reasoning and inference which is inseparable from its application. Men, it is said, may and constantly do reason inaccurately, and form opinions, in the way of deduction and presumption, without any sufficient foundation; and human life, in being made to depend upon the correctness of such conclusions, is exposed to great and obvious peril: whereas, by the exclusive employment of direct or positive evidence, which admits of no such latitude of reasoning or range of discretion, this source of error and consequent danger is entirely cut off. But it may well be doubted whether the process of inference can be wholly avoided, in the application of judicial evidence of any kind. . . . As the jury must always observe with the senses of the witness, putting themselves, mentally, in his place; and thus transferring themselves to the scene and time of the occurrence related; they must see and hear as the witness saw and heard; and, if they believe him, must of course infer, as he did.

The other reason which has been urged against the propriety, and, indeed, the justice and safety of circumstantial evidence, as a medium of proof in capital cases, is that a reliance upon it has repeatedly led to the execution

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