TITLE III (continued): EVIDENCE TO PROVE A HUMAN

TRAIT, QUALITY, OR CONDITION

SUBTITLE C: EVIDENCE TO PROVE KNOWLEDGE, BELIEF, OR CONSCIOUSNESS

30. JOHN H. WIGMORE.

Principles of Judicial Proof. (1913.)1

General Analysis of the Subject. The notions of Knowledge, Belief, and Consciousness are not precisely identical; but they have a common feature, which is the typical one so far as concerns the modes of evidencing these mental states. That feature is most nearly expressed by the term Consciousness, i.e. presence in the mind of an impression as to a given fact. Thus, a person's Knowledge of a city's streets may be inferred from his conduct in finding his way through them unerringly; his Consciousness of guilt may be inferred from his conduct in fleeing from arrest; his Belief in a friend's innocence of embezzlement may be inferred from his conduct in trusting him with money. The term Belief is used commonly when the impression is thought of as bearing on a past, present, or future external fact, Consciousness when thought of as bearing on past action, and Knowledge when thought of in connection with a present or past external fact. We are here not concerned, in theory at least, with the way in which one of these states of mind has come to be an object of proof, either as being in issue or as being itself evidential of something else. It is assumed that somehow this kind of state of mind - impression, consciousness, knowledge, belief — is in the case, either as material to the issue or as relevant to prove something; and the question is how it is in its turn to be evidenced. Of the three modes of evidencing a state of mind (ante), the first two are here the commonest. (4) External circumstances, calculated by their presence or occurrence to bring about the state of mind in question, are also available to show the probability that consciousness, knowledge, or belief subsequently ensued. (B) Conduct or behavior (including language not used assertively) illustrates and points back to the state of mind producing it. (C) A prior or subsequent state of mind indicates, within certain limits, its existence at the time in question.

(A) External Circumstances, as evidencing Knowledge, Belief, or Consciousness. There are, in a broad analysis, four kinds of circumstances (events or things) which may point forward to the probability that a given person received a given impression (i.e. obtained knowledge, formed a belief, or was made conscious): (1) The direct exposure of the fact to his sense of sight, hearing, or the like; (2) The express making of a communication to him; (3) The reputation in the community on the subject, as leading probably to an express communication; (4) The quality of the occurrence, as leading either to actual perception by his senses, or to express 1 Adapted from the same author's Treatise on Evidence. (1905. Vol. I, §§ 244, 265.)

communication. Throughout all these four modes there run two considerations, affecting some modes more strongly than others: (a) The probability that the person received an impression of any fact at all; and (b) The probability that from the particular occurrence he would gain an impression as to the specific fact in question. Doubt may arise upon either of these points, and the various modes above are stronger or weaker in one or the other of these considerations. The four modes may now be examined more in detail.

(1) Direct exposure of the fact to the senses. Here there is seldom any doubt as to the element (b) above; the question usually is whether the fact in question was brought within the range of the senses so as probably to be perceived at all. The typical case is the possession of a document. If a deed or a notice was laid on A's desk, the probability (greater or less according to circumstances) is that A read it. But actual possession by A is not necessary; the posting of a placard in a street through which A habitually passes is some evidence that A ultimately came to see and understand its contents. Occasionally the element (b) above is the emphatic one; for example, where A is charged with selling liquor to B, a minor, the appearance of B, as indicating A's knowledge of B's minority or his belief in B's maturity, was the fact brought before A, and the question is whether it would probably have informed him as to the further specific fact, namely, B's age.

(2) Express communication. Little difficulty can arise here. There may be a question as to whether the communication came from a source which the person was fairly bound to consider authentic; but this would be a question of substantive law, involving the elements of good faith, constructive notice, or the like.

(3) Reputation. Here the element (a) is the important one. The probative considerations are that, when a matter is so much talked of in a community that a reputation arises about it, a member of that community, in his ordinary intercourse with others, will come to hear it mentioned, i.e. by express communication; and the question is whether the probability is that there would be such a general discussion and whether the person is likely to have learned of that discussion.

(4) Quality of the occurrence, in general. Sundry cases here combine the considerations of all the preceding modes, as well as of both the elements (a) and (b) above. Thus, a former accident to apparatus owned by A may indicate that A learned of the defect in the apparatus, either because he probably observed the former accident or because he probably was told of it by his subordinate having charge of the apparatus, or because complaint was probably made to him; and not only is the probability (a) of his having learned of the former accident thus involved, but also the probability (b) that the former accident would have revealed to him specifically the existence of the defect. So, also, a former act of violence by the deceased, in order to have any value to show the slayer's ground for apprehension of an attack, must (a) not only have been communicated to the slayer, (b) but also must be such as would create a belief in the deceased's probable aggression.

Such being the various modes in which the evidence may operate, nevertheless in a given situation (as where an employer is to be charged with

knowledge of an employee's incompetency, or a defendant accused of murder is to show belief in the deceased's probable aggression) the knowledge, belief, or consciousness may be sought to be evidenced by more than one of the above modes.

In

to

(B) Conduct, as Evidence of Knowledge, Belief, or Consciousness. this sort of evidence, we argue from an observed effect conduct the probable cause a specific mental state; and not, as in the preceding sort, from cause to effect, i.e. from outward events to an ensuing mental state. Conduct and word utterances may betray the knowledge or belief of the actor or speaker, in so far as the specific act or utterance is of a tenor which cannot well be supposed to have been willed without the inner existence of that knowledge or belief. For example, A's act of boarding a railroad train is some evidence of his belief as to the destination of the train; B's act of taking a purse, found by him in the street, to the house of X, is some evidence that he knows or believes X to be the loser of the purse. So, also, for the verbal utterance; A's mention of Charles the Great or Roentgen rays or the Klondike is some evidence that he knows or is aware of the existence of such a person, thing, or place. Ordinary experience usually suffices, without controversy, to tell us whether the inference is a strong one.

§ 267. Same: Conduct as Evidence of Belief, and thus of the Fact Believed. In the foregoing cases the knowledge or belief — i.e. the mental condition to be evidenced was of itself material to the issue as a factum probandum, e.g. whether an insured knew of his illness, or whether the public were made to believe in a certain defamatory meaning. There is, however, a large class of cases where the belief or knowledge or consciousness is of service only evidentially, as forming a second step of inference to some other fact which forms the ultimate object of the trial, usually an act done by the person. For example, on an issue of the existence of a lost will, suppose the fact to be offered that the deceased on his death bed told his daughter, "My will was made in town yesterday"; or, on an issue of legitimacy, suppose the fact to be offered that the parents always treated the child as their own. In these instances suppose it to be argued that the deceased's utterance indicates circumstantially his belief in the will's execution, and that his belief in turn indicates the fact of the will's execution; or that the parents' conduct leads to the inference that they believed the child to have been born to them after marriage, and that this belief evidences the fact of such birth. Such a double circumstantial inference is in theory perfectly possible and proper. But in practice it opens up two possibilities of error, one for each of the two inferences. Hence it can best be considered in dealing with the second inference, i.e. Mental Traces of an Act (post, No. 147).

31. EUGENE ARAM'S CASE. (W. WILLS. dence.

(Amer. ed. 1905. p. 104.) In the memorable case of Eugene Aram [post, No. 95], who was tried in 1759 for the murder of Daniel Clark, an apparently slight circumstance

Circumstantial Evi

in the conduct of his accomplice led to his conviction and execution. About thirteen years after the time of Clark's being missing, a laborer,

33. Lord Chancellor MACCLESFIELD'S CASE. (1725. HOWELL'S State Trials. XVI, 870).