TITLE III (continued): EVIDENCE TO PROVE A HUMAN TRAIT, QUALITY, OR CONDITION SUBTITLE A: EVIDENCE TO PROVE MORAL CHARACTER 28. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 Inasmuch as heredity and environment are not yet defined enough, in their known influences, to be available as evidence, there is for the prospectant class of evidence practically nothing to be considered under this head. Under the retrospectant class, on the other hand, there is an abundance, namely, the conduct of the person, exhibiting his moral traits. But for present purposes it will be sufficient to note several distinctions, which in practice limit the scope of the subject. At the outset of this entire class of inferences, it must be noted that, where the doing of an act is the ultimate proposition to be proved, there can never be a direct inference from an act of former conduct to the act charged; there must always be a double step of inference of some sort, a "tertium quid." In other words, it cannot be argued: "Because A did an act X last year, therefore he probably did the act X as now charged." Human action being infinitely varied, there is no adequate probative connection between the two. A may do the act once, and may never do it again; and not only may he not do it again, but it is in no degree probable that he will do it again. The conceivable contingencies that may intervene are too numerous. Thus, whenever resort is had to a person's past conduct or acts as the basis of inference to a subsequent act, it must always be done intermediately through another inference. It may be argued: "A once committed a robbery; (1) therefore he probably has a thieving disposition; (2) therefore he probably committed this robbery"; or " (1) therefore he had some general design to commit certain robberies; (2) therefore he probably carried out that design and committed this robbery." Or it may be argued: "A gave money to his poor friend B; (1) therefore A probably is of a benevolent disposition; (2) therefore A probably did not commit the present robbery"; or "(1) therefore he probably had a kindly feeling towards B; (2) therefore he probably did not rob B." The impulse to argue from A's former bad deed or good deed directly to his doing or not doing of the bad deed charged is perhaps a natural one; but it will always be found, upon analysis of the process of reasoning, that there is involved in it a hidden intermediary step of some sort, resting on a second inference of character, motive, plan, or the like. This intermediate step is always implicit, and must be brought out. 1 Adapted from the same author's Treatise on Evidence. (1905. Vol. I, § 192.) To make available such evidence of past conduct or acts, some use for it must be found as evidencing character, design, or other quality. Moral Character of an Accused. That specific acts of misconduct have probative value in leading to a belief as to the existence of a moral trait of more or less constant nature is undoubted: ... State v. Lapage. (1876. 57 N. H. 275, 299). On a charge of murder committed in an attempt to rape, the fact of the defendant's recent rape of another person was offered; Mr. Norris, arguing for the defense: "Making no point of remoteness in time or space, let us see how well this evidence will bear analyzing. Premise to be proved: he committed a rape, in no way, except in kind, connected with this crime. Inference a general disposition to commit this kind of offense. Next premise: this general disposition in him. Inference: he committed this particular offense. . . . It may be tried by the common test of the validity of arguments. Some men who commit a single crime have, or thereby acquire, a tendency to commit the same kind of crimes; if this man committed the rape, he might therefore have or thereby acquire a tendency to commit other rapes; if he had or so acquired such a tendency, and if another rape was committed within his reach, he might therefore be more likely to be guilty if more likely to be guilty of rape, and if there was a murder committed in perpetrating or attempting to perpetrate rape, he might therefore be more likely to be guilty of this rape, and hence of this murder; a sort of an 'ex-parte' conviction of a single rape, from which the jury are to find a general disposition to that kind of crimes, in order to help them out in presuming the commission of another rape as a motive or occasion of the murder. We can find nothing like it in the books." LADD, J. "It is argued on behalf of the State (if I have not wholly misapprehended the drift of the argument) that the evidence was admitted because, as matter of fact, its natural tendency was to produce conviction in the mind that the prisoner committed rape upon his victim at the time he took her life. . . . I shall not undertake to deny this. If I know a man has broken into my house and stolen my goods, I am for that reason more ready to believe him guilty of breaking into my neighbor's house and committing the same crime there. We do not trust our property with a notorious thief. We cannot help suspecting a man of evil life and infamous character sooner than one who is known to be free from every taint of dishonesty or crime. We naturally recoil with fear and loathing from a known murderer, and watch his conduct as we would the motions of a beast of prey. When the community is startled by the commission of some great crime, our first search for the perpetrator is naturally directed, not among those who have hitherto lived blameless lives, but among those whose conduct has been such as to create the belief that they have the depravity of heart to do the deed. This is human nature the teaching of human experience. If it were the law, that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the State would doubtless be hard to answer. If I know a man has once been false, I cannot after that believe in his truth as I did before. If I know he has committed the crime of perjury once, I more readily believe he will commit the same awful crime again, and I cannot accord the same trust and confidence to his statements under oath that I otherwise should. . . . Suppose the general character of one charged with crime is infamous and degraded to the last degree; that his life has been nothing but a succession of crimes of the most atrocious and revolting sort: does not the knowledge of all this inevitably carry the mind in the direction of a conclusion that he has added the particular crime for which he is being tried to the list of those that have gone before? Why, then, should not the prosecutor be permitted to show facts which tend so naturally to produce a conviction of his guilt? Inasmuch, however, as the settled rule of law of Admissibility prohibits the use of this class of evidence for an accused's character, there is at present no utility in seeking for its principles of proof; nor is there adequate material for studying them. At some future stage of the law, such principles may be developed. In its present stage we are confined to using the moral trait itself (post, No. 84). This we usually arrive at by reputation. To the extent that the accused's former specific misdeeds become disclosed at the trial, our inference nominally is still from his supposed trait; though actually it may be a hazy double inference from conduct to trait and from trait to act in issue. Moral Character of Other Persons. The above-named exclusionary rule of law applies to an accused's character only. What of other persons' moral character? In two not uncommon classes of cases, the moral trait may be evidentially relevant to the doing of an act, and not prohibited by any artificial rule,—the woman-complainant in rape, and the civil party charged with negligence. Here the probative force would naturally be dependent somewhat on the circumstances of each former act, the number of them, and the similarity of them to the trait involved in the case in hand. But as mere Admissibility has almost invariably been the subject of the judicial rulings, practically no material exists for studying the probative value of such evidence. The same is true of conduct evidence when the moral trait is in issue under the pleadings. Hence, no further consideration of the subject is here feasible. TITLE III (continued): EVIDENCE TO PROVE A HUMAN TRAIT, QUALITY, OR CONDITION SUBTITLE B: EVIDENCE TO PROVE MOTIVE 29. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 Motive. The term "motive" is commonly used in a confusing way, as if there were but one thing and one evidential question involved. But there are two things, and two distinct evidential steps. (1) We may argue, first, that since a specific emotion or passion is likely to lead to the doing of the appropriate act for example, desire for money to theft or robbery, or angry hostility to an act of violence the presence of such an emotion in the person in question is likely to lead to the deed in question. In this step of the argument we assume the emotion as a fact, proved somehow or other. Just as a specific sort of disposition, of habit, of plan, is likely to lead to the appropriate act, so a specific sort of emotion or passion has a similar evidential bearing. The basis of this inference is the living, impelling, active emotion, seeking for an outlet in volition. (2) But this emotion must in its turn be proved, just as character, design, capacity, must be proved. This is the next step, and evidential by a very different one. Usually the evidence is circumstantial; and of two sorts, (a) conduct of the person, and (b) events about him tending to excite the emotion. In (a) his conduct is the expression and effect of the existing internal emotion. In (b) the outward facts are such as may be the stimulus and cause of the emotion. But whether a person's conduct or outer events have shown the existence of the emotion is a different question from the question whether a proved emotion did actually culminate in an act induced by it. - The unfortunate ambiguity in the word "motive" thus reveals itself. That which has value to show the doing or not doing of the act is the inward emotion, passion, feeling, of the appropriate sort; but that which shows the probable existence of this emotion is termed when it is of the sort (b) above, i.e. some outer fact the "motive." For example, the prosecution of A by B in a suit at law may be said to have been a "motive" for A's subsequent burning of B's house. But in strictness the external fact of B's suit cannot be A's "motive"; for the motive is a state of mind of A; the external fact does tend to show the excitement of the hostile and vindictive emotion, but it is not identical with that emotion. This use of the word "motive" thus tends to obscure the double evidential step involved; for when it is said that B's suit may be offered in evidence as the "motive" for A's burning, we are apt to conceive ourselves as inferring directly from the suit (as the evidentiary fact) to the burning (as the proposition to be proved); when in truth there are two steps involved, — from 1 Adapted from the same author's Treatise on Evidence. (1905. Vol. I, § 117.) the lawsuit to the emotion, and the emotion to the act. It ought, therefore, to be clearly understood that the "motive," in the correct sense, is the emotion supposed to have led to the act, and that the external fact is merely the possible exciting cause of this "motive," and not identical with the "motive" itself. The opportunities for erroneous inference being therefore of a double nature, the illustrative cases can therefore not well be separated; the skill to distinguish the precise point of weakness of the inference can best be cultivated by studying them together. Accordingly they are all placed post, Title IV, Doing of a Human Act, Subtitle B, Prospectant Circumstances, Topic 2, Motive (Nos. 101-115). |