PART III: PROBLEMS OF PROOF, IN MASSES

OF MIXED EVIDENCE

[COMPILER'S EXPLANATION. The ensuing Problems may be used for thorough analysis and study, by the method expounded in No. 376, or merely for mental entertainment and stimulus as curious problems of fact.

For purposes of study (by whatever method) they are here arranged in a sequence graded so as to lead on from the simplest to the highest order of probative task.

First come eleven cases stated in narrative form; the cases increasing in complexity. The narrator (a judge or a commentator) has done the main work of perusing the original evidence and arguments, selecting the salient data, and arranging them in groups and stating their connection. This leaves only the final process of reflection for the reader. He is still far short of the task which falls to every counsel and juryman. The probative process is in no sense realistic.

Next comes a case similarly stated (No. 388, Franz' Case), but in three different accounts, each variant from the others. Here is presented a new item of effort, in their piecing together. The defects and variances of the three accounts begin to suggest the difficulties, in reconstructing the data for belief, which are inherent in every remove from the original sources, and help to cultivate a proper skepticism.

Next comes another narrative (No. 389, the Hillmon Case), partly stating the testimony also and the counsel's arguments; the case being the most complex of the series to that point.

Next comes a trial with the testimony substantially in full, but reported by a journalist (No. 390, Throckmorton v. Holt). This furnishes an element lacking in the verbatim reports (and indeed in all printed reports), viz. the personal impression of the respective witnesses' probative status and importance. The lack of this personal impression is what makes forever impossible a realistic conviction of certainty for one studying the mere printed trial. To supply this in some degree, a journalist's report has a value.

Next come three trials in which the original testimony, as reported "ipsissimis verbis," is set out (No. 391, Braddon's Trial; No. 392, Thanet's Trial; No. 393, Knapp's Trial). In each of these, special elements of testimonial untrustworthiness are illustrated; so that the trials cover different fields.

In the last of these (Thanet's Trial and Knapp's Trial), the arguments of counsel also are given, practically in full. This enables the reader to

construct his own scheme of proof, from the original testimony, and to compare it with the probative scheme used by the respective counsel. The arguments of Erskine, Dexter, and Webster are masterpieces worthy of careful study. In several different ways such a trial can be used as an exercise in the study of individual testimony, masses of evidence, and methods of presentation. With this example the student finally arrives at the highest form of the probative task as it is presented in actual

controversy.

In the Appendix will be found a List of Trials suitable for the further study of probative problems.]

375. ALEXANDER M. BURRILL. A Treatise on Circumstantial Evidence. (1868. p. 598.) The course of illustration, thus far adopted, exhibits the process of constructing a body of evidence out of elementary facts. It is in this way, too, that the infirmative considerations which are always necessary to be taken into view are most effectually presented, and, at the same time, most readily expunged from the process.

The theory of judicial investigation, however, requires that the juror should keep his mind wholly free from impression, until all the facts are before him in evidence; and that he should then frame his conclusion from all these facts, taken together. The difficulty attending this mode of dealing with the elements of evidence (especially in important cases requiring protracted investigation) is that the facts thus surveyed in a mass and at one view are apt to confuse, distract, and oppress the mind by their very number and variety, especially as they are only mentally contemplated, with little or no aid of the bodily senses. They are, moreover, necessarily mixed up with remembrances of the mere machinery of their introduction, and the contests (often close and obstinate) attending their proof; in the course of which attempts are sometimes made to suppress or distort the truth, in the very act of its presentation. And the reservation of the use of infirmative hypotheses, as a final means of testing a presumption or conclusion provisionally formed, is attended with more or less of danger of overlooking some single hypothesis, which, though not readily suggested, might be at the same time not unreasonable in itself, and might eventually prove to be the absolute truth of the case.

On the other hand, the manner in which the facts of a case are presented before a jury on a trial is attended with advantages peculiar to itself. In order to construct the required body of evidence out of the materials or elements which may be available for the purpose, with the nearest approach to truth, or to the actual case as it occurred, it is requisite not only that all the materials should be got together, but that they should be arranged, as far as possible, in their proper places, or in the relative positions which they occupied, or are reasonably supposed to have occupied, in the actual case; it being, in fact, as already observed, a process of reconstructing and representing, with more or less of completeness and truth, the original case itself. These relative positions cannot always be effectually ascertained until all the attainable facts have been brought together, examined, and compared, or adjusted temporarily (as it were) to each other, so as to develop the traces of their former actual connections; much as an architect would proceed who was required to reconstruct a demolished edifice, out of the

same materials which originally composed it, with the nearest possible approach to identity in every particular. This preliminary process is essentially performed by the public prosecutor, and the course of his proceedings in submitting its results to the jury may be briefly described as follows: His investigations having resulted in connecting, to his own satisfaction (as sanctioned by the action of the grand jury), the two fundamental facts of a crime and a criminal, he frames out of them the compound fact or proposition that the prisoner at the bar committed the crime charged (which is the essence of the indictment as found) and presents it formally to the jury, as the "factum probandum" of the case. Placing this in a central position, in connection with the hypothesis of guilty agency, as he has extracted it from the facts, he proceeds to present and prove in detail the particular circumstances or indicatory facts themselves; giving to them their necessary relative positions, grouping them around the assumed central point, and in this way establishing lines or links of connection between it and them; and finally compacting and, as it were, crossing, this framework of evidence, by lines connecting the facts with each other; thus realizing the common but significant figure of a network of circumstances. . . .

The defense is made in a corresponding course, by means of exculpatory facts proved and supposed; it being insisted that the criminative facts presented are not the genuine facts of the case; that the positions assigned them are not the true ones; that the connections claimed to have been established do not exist; that, in their indications, they do not converge upon the point or fact assumed, or upon any one common point or center, or that they may converge upon other points as well as that occupied by the principal fact in issue; in other words, that they may be explained and accounted for, on one or more hypotheses consistently with the innocence of the accused, as reasonably as upon the affirmative hypothesis, or more so. And, in fine, these adverse hypotheses are specifically placed before the jury; thus relieving them, in most cases, from the necessary duty of seeking for them themselves.

The figure which has, thus far, been used in illustrating the process of circumstantial proof, and which has been suggested by the meaning of the word "circumstance" itself, is that of a framework of facts, arranged in certain positions of relation to the fact sought, and connected with it and with each other by lines expressive, at once, of their separate and united significance. Another figure more frequently used as descriptive of the same process, or rather of the body of evidence constructed by it, is that of a chain connecting the two great and fundamental points of a case, the crime committed, and the individual charged with its commission, - the links of such chain answering to the evidentiary facts proved. This figure expresses, with great force and aptness, the historical order of the facts, and the necessity of a continuous connection between them throughout, but it does not represent that other feature of the process, which has been prominently presented in the present section; namely, the aggregation of distinct elements, or elements drawn from distinct sources into one consistent and homogeneous body. The evidence does not always present a

1 Mr. Bentham has taken some pains to expose the inaccuracy of the application of the metaphorical term 'chain" to a body of circumstantial evidence. In such a body, the more numerous the constituent facts, if relevant, the greater its strength and efficacy.

single line of continuous and connected circumstances, but often exhibits lines of connection from different points in collateral positions. Supposing, however, a chain to be composed of a number of minor and constituent chains, the figure acquires aptness in every sense.

The evidentiary facts, with their inferred and assigned meanings, may also in many cases be very appropriately compared to the strands of a rope or cable, forming so many lines of connection with the principal fact, each continuous in itself, though weak in its connecting power; but, when woven together in sufficient numbers, constituting a medium of connection which cannot be broken.

(1913.) The

376. JOHN H. WIGMORE. Principles of Judicial Proof. problem of collating a mass of evidence, so as to determine the net effect which it should have on one's belief, is an everyday problem in courts of justice. Nevertheless, no one hitherto seems to have published any logical scheme on a scale large enough to aid this purpose. What is here offered is therefore only an attempt at a working method, which may suffice for lack of any other yet accessible.

1

Three questions naturally arise. What is the object of such a scheme? What are the necessary conditions to be satisfied? What is the apparatus therefor?

1. THE OBJECT. The object, of course, is to determine rationally the net persuasive effect of a mixed mass of evidence. Many data, perhaps multifarious, are thrust upon us as tending to produce belief or disbelief. Each of them (by hypothesis) has some probative bearing. Consequently, we should not permit ourselves to reach a conclusion without considering all of them and the relative value of each. Negatively, therefore, our object is (in part) to avoid being misled (it may be) through attending only to some fragment of the mass of data. We must assume that a conclusion reached upon such a fragment only will be more or less untrustworthy. And our moral duty (in court) is to reach a belief corresponding to the actual facts; hence it is repugnant to us to contemplate that our belief is not as trustworthy as it could be.

Why is there such a danger of untrustworthiness? Because belief is purely mental. It is distinct from the external reality, or actual fact.2

But "take an iron chain," he observes, "the more links you add to it, the weaker you will make it, not the stronger; and, by adding link to link, you will at last make it break by its own weight." 3 Jud. Evid. 223, 224, 225, note.

[Ex parte Hayes, Oklahoma Court of Criminal Appeals (1912; 118 Pac. 609). "We think that the application of the chain theory to circumstantial evidence is improper. No chain is stronger than its weakest link, and will never pull or bind more than its weakest link will stand. With its weakest link broken, the power of the chain is gone. But it is altogether different with a cable. Its strength does not depend upon one strand, but is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight, but when these different strands are all combined together they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore think that it is erroneous to speak of circumstantial evidence as depending upon links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands, and all of the facts relied upon should be treated as a cable."]

1 See what was said in the Introduction.

2 W. Stanley Jevons, The Principles of Science; a Treatise on Logic and Scientific Method, 2d ed., 1877, reprint of 1907, p. 198: "Probability belongs wholly to the mind. This is proved by the fact that different minds may regard the very same event at the same time

Hence the approximation of our belief to a correct representation of the actual fact will depend upon how fully the data for that fact have entered into the mental formation of our belief. But those data have entered into the formation of our belief at successive times; hence a danger of omission or of inferior attention. "Knowledge in the highest perfection would consist in the simultaneous possession of a multitude of facts. To comprehend a science perfectly, we should have every fact present with every other fact. We are logically weak and imperfect in respect of the fact that we are obliged to think of one thing after another."1 And in the court room or the office the multitude of evidential facts are originally apprehended one after another. Hence the final problem is to coordinate them. Logic ignores time; but the mind is more or less conditioned by it. The problem is to remove the handicap as far as possible.

It may be answered that psychologically each evidential detail, when originally apprehended, did have its due effect, and that subconsciously the total impression is meanwhile being gradually produced. For example, when a thousand bales of cotton are piled one by one in a warehouse, the whole original thousand will finally be found there, available for sale, even though they went in there piecemeal at different times. To rebut this argument, it is enough to say that we do not yet know by psychological science that this analogy is true of the mind in its successive apprehension of sundry facts; hence we cannot afford to assume it. But furthermore, even if it were true under certain abstract conditions, it is not the fact in the ordinary conduct of justice. So many interruptions and distractions occur, both to the lawyer in preparation and to the jurors in the trial, that facts cannot be properly coördinated on their first apprehension. Hence our plain duty remains, to lift once more and finally into consciousness all the data, to attempt to coördinate them consciously, and to determine their net effect on belief.

Our object then, specifically, is in essence: To perform the logical (or psychological) process of a conscious juxtaposition of detailed ideas, for the purpose of producing rationally a single final idea. Hence, to the extent that the mind is unable to juxtapose consciously a larger number of ideas, each coherent group of detailed constituent ideas must be reduced in consciousness to a single idea; until the mind can consciously juxtapose them with due attention to each, so as to produce its single final idea.

2. THE NECESSARY CONDITIONS. Any scheme which will aid in the foregoing purpose must fulfill certain conditions, at least to a substantial degree. (a) It must employ types of evidence, suitable for representing all kinds of cases presented. And these types must be based on some logical system, i.e. a system which includes all the fundamental logical processes.

(b) It must be able with these types to include all the evidential data in a given case. This requirement is mechanically the most exacting. The types of evidence and the processes of logic are few; but the number of instances of each one of them in a given case varies infinitely. E.g. there may be in

with widely different degrees of probability; as when a steam vessel, for instance, is missing; the steam vessel either has sunk or has not sunk, and no subsequent discussion of the probable nature of the event can alter the fact. Probability thus belongs to our mental condition."

1 Jevons, p. 34.