Report No. 69
Scope and Object of Rules of Evidence and their Relation to Judicial Investigation of Facts
3.1. Nature of law of evidence.-
We propose to discuss, in this Chapter, the scope and object of rules of evidence, and their relationship to the judicial investigation of facts. As already stated,1 the law of evidence is a law of procedure.2 It deals with the means or the process of the law, as distinct from the substantive law, which deals with rights and liabilities. We have already referred to some of the American codes,3 which define evidence as the means sanctioned by law of ascertaining in judicial proceeding the truth respecting a question of fact. The nature of the means so prescribed by the law bears examination.
1. Chapter 1, supra.
2. Gardner v. Lucas, (1878) 3 AC 582 (603) (HL).
3. Chapter 1, supra.
3.2. Scope of the rules of evidence.-
It is to be noted that the law of evidence is distinct from the logical processes of reasoning; but it based upon, and assumes, the existence of these processes. Because of this assumption, as Holdsworth1 has pointed out, three consequences follow: In the first place, the rules of the law of evidence sometimes take the negative form of exceptions to these assumed processes of reasoning by laying down that this or that fact, which, on the general principles of reasoning, has an evidential value shall not be admissible in a court of law. Secondly, the court takes judicial notice of certain obvious facts.
In this context, we are concerned with defining the matters which are so notorious that the court can notice and act upon them without further proof and the like2. Thirdly, the existence of certain facts creates a presumption as to the existence of other facts; but, as cases are decided and the law gets more elaborate, a large number of these presumptions arise in connection with different branches of the law, sometimes conclusive, sometimes not conclusive, but in both cases giving rise to a inference as to the facts in issue3.
1. Holdsworth History of English Law, Vol. 9, pp. 128-129.
2. Holdsworth History of English Law, Vol. 9, p.,135.
3. Holdsworth History of English Law. Vol. 9, p. 139.
Coming to presumptions we may state that in essence, presumptions are rather rules of substantive law. However, because they are applied in the conduct of litigation, and because of the form in which these presumptions are expressed, they have been supposed to be part of the law of evidence.1
Though belonging primarily to those particular branches of the substantive law with which they are concerned, these presumptions are connected with that part of the adjective law which is concerned with evidence, because they direct the court to deduce particular inferences from particular facts till the contrary is proved. Even irrebuttable presumptions of law, though they belong more properly to the substantive law, are rules of substantive law which borrow the terminology and adopt the disguise of that branch of law which deals with evidence. There is much in common between an irrebuttable presumption of law and an estoppel.
In Thayer's Essay on Presumption of Law and Presumptive Evidence,2 it is said that, 'in some cases of conclusive legal presumption a party is said to be estopped, and to have created an estoppel against himself. An estoppel is when a man has done some act which affords a conclusive presumption against himself in respect of the matter at issue'; so too Stephen in his Digest of the Law of Evidence, devotes one Chapter (Chapter 14) to 'Presumptions and Estoppels'.
1. Holdsworth History of English Law, Vol. 9, pp. 129, 139.
2. Thayer Law Magazine, vi, 348 (1831), printed as App. A to Thayer Evidence, pp. 539, 540, cited by Holdsworth History of English Law, Vol. 9, p. 128.
3.4. Rules concerned with selection of material.-
In relationship to the rules of the logical process of reasoning, it can be said that sometimes the law of evidence adopts them, sometimes it modifies them and sometimes it supplements them. The doctrine of 'relevance' represents the area common to both. However, the rules of evidence with which the law has been concerned all through its history, have never been solely dependent upon the doctrine of relevancy.1They are concerned primarily with the selection of the material on which these processes operate.
As Thayer observed, "In giving evidence, we are furnishing to a tribunal a new basis for reasoning. This is not saying that we do not have to reason in order to ascertain this basis; it is merely saying that reasoning alone will not, or at least does not supply it. The new element thus added is what we call the evidence." In this sense, the term 'evidence' is a term of 'forensic procedure', and imports something put forward in a court of justice.2"
1. Holdsworth History of English Law, Vol. 9, p. 128.
2. Thayer Preliminary Treatise on Evidence at the Common Law, pp. 263-264, cited in Holdsworth History of English Law, Vol. 9, p. 128.
3.5. Object of rules.-
To spell out this function of the law of evidence, it may be stated that rules as to evidence and proof are intended to attain one or more of the following objects,1 with a view to the ascertainment of truth, namely:
(1) to limit the discretion of judges in declaring facts as proved or disproved,2
(2) to provide for speedy decisions and, at the same time, to guard the judges from error,3
(3) to preclude needless vexation and expense in coming to decisions,4 and
(4) to preclude injury to the State or the public.5
1. Best on Evidence, 7th Edn., paras. 38, 41, 47 and 49.
2. E.g. provisions as to "relevant facts".
3. E.g. rule against hearsay.
4. E.g. rule as to judicial notice.
5. E.g. provisions as to affairs of the State etc.
3.6. Judicial evidence of species of evidence.-
The term "evidence" is not a term peculiar to the law. We employ it in every-day life. "Evidence is that which tends to render evident or to generate proof of a fact. The fact which is sought to be proved may be called the principal fact, and the fact which tends to establish it may be called the evidentiary fact."1 Judicial evidence is a species of evidence.
"Judicial" evidence may be used as indicating the evidence received, by courts of justice in proof or disproof of facts, the existence of which comes in question before them2. In general, it is evidence modified by rule of positive law. Some of these rules are of an exclusionary nature and reject, as legal evidence, facts which are in themselves entitled to consideration. Others are of an "investitive" character, inasmuch as they invest natural evidence with an artificial weight, and may even attribute the property of evidence to that which, speaking in the abstract, has no probative force at all.
1. Senthem Judicial Evidence, Vol. 1, p. 18, cited in the Best Principles of Evidence, (1922).
2. Best Principles of Evidence, (1922), p. 22, para. 33.
3.7. Need for limitations.-
Doubtful and disputed facts come up for determination in judicial proceedings, what then, is the need for limiting the sphere of judicial evidence to a narrower one than that permitted by logic? The need for imposing some limitations on the process of such determination arises for several reasons. In the first place, while the relations of cause and effect are innumerable, the power of a tribunal in relation to the determination of questions of fact cannot remain unrestrained, because there must be some stability and uniformity in the principles followed in the determination of questions of fact. This restraint is illustrated by the rules which prevent judges from deciding facts on their own personal knowledge.1
More concretely, this aspect is also demonstrated by the requirement that there must be some connection between the principal fact and the evidentiary fact.
Judicial evidence is evidence connected with any matter of fact, the effect, tendency or design of which (connection) is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact.2 The law seeks to define the nature of this connection.
1. Cf. section 165, first proviso.
2. Bentham Judicial Evidence, Vol. 1, p. 17, cited in Best Principles of the Law of Evidence, (1922), p. 6, para. 11.
3.8. Imperfections of judicial fact-finding.-
Judicial fact-finding cannot be perfect. There may be weaknesses in the methods employed for finding facts, or in the witnesses, or in the quality of the judge. There are inherent difficulties in any restructuring of the past by oral narrative or even by a record. The non-congruence of facts as found by the Court, with the actual facts, cannot sometimes be avoided. Even the most perfect rules of evidence, and the most truthful witnesses before the most competent judge, can reconstruct the past facts only in an approximate manner.
Again, the more complex the facts, the more difficult will be even the approximate ascertainment of truth.
As has been pointed out by Best on evidence,1 if things are traced up to their ultimate source, the remote but chief cause of the appearance of a criminal at the bar might be found in his parents, his education, and the examples of others, but the tribunal must look at the proximate cause-his own act.
1. Best Principles of Evidence, (1922), p. 26.
3.9. Secondly, a tribunal must give a decision, and must give that speedily. "Litigation should not be interminable while litigants are merely mortal."
This aspect has been well explained by Bonnier, a foreign jurist, in French, of which the following is a translation:1 "The determining to what extent a certain known element renders probable the existence of such or such an unknown cause, governed, as it necessarily is by, the light of reason, in general depends wholly on the discrimination of the judge. But, in the most important cases, the law, desirous of insuring the stability of certain positions, and of cutting short certain controversies, has established presumptions to which the judge. is obliged to conform."
In an English case2 an eminent judge observed: "The laws of evidence as to what is receivable or not are founded on a compound consideration of what, abstract considered, is calculated to throw light on the subject in dispute, and of what is practicable. Perhaps if we lived to the age of a thousand years, instead of sixty or seventy, it might throw light on any subject that came into dispute, if all matters which could by possibility affect it were severally gone into; and inquiries carried on from month to month as to the truth of everything connected with it. I do not say how that would be, but such a course is found to be impossible at present."
1. Bonnier Traite des Preuves, 710, 2nd Edn., cited in Best Principles of Evidence, (1922), p. 29.
2. Attorney-General v. Hitchocock, (1849) 11 Jurist 478 (482): SC 1 Exch 91 (105): 74 RR 592 (Rolfe B.). 3, Best Principles of the Law of Evidence, (1922), p. 2, para. 2.
3.10. Process of determination of facts in judicial proceedings.-
Thus, while facts which are in dispute in courts of justice are enquired into and determined in the same way as doubtful or disputed facts are enquired into and determined by making in general, positive law interposes with artificial rules to secure impartiality ,and accuracy of decision or to exclude collateral mischiefs likely to result from the investigation.1
1. Best Principles of the Law of Evidence, (1922), p. 6, para. 11.
3.11. Meaning of "evidence".-
So much as regards the function of legal rules of evidence. Some attention may now be paid to the term "evidence". The word "evidence" is derived from the Latin "evidential and signifies the state of being evident, that is, plain, apparent or notorious. But, as has been pointed out,1 it is applied to that which tends to render evident or to generate proof. In R. v. Earl of Banbury, 1965 Skin 517 (523). Hold C.J. observed: "All causes . consist more of matters of fact than of law, and it is beneath the dignity of their Lordship to be troubled with matters of fact."
The history of this reluctance of the appellant courts has been dealt with exhaustively by Dixon C.J.2 in an Australian case. It is for these reasons that facts as are taken for purposes of a particular judicial proceeding can, at best, only have an approximate relation to the actual facts.
1. R. v. Earl of Banbury, 1695 Skin 517 (523).
2. Paterson v. P., (1953) 89 CLR 212 (219).
3.12. Judgmen't to be based upon- facts relevant and duly proved.-
To supplement these deficiencies, where they are regarded as causing serious injuries, the court has a power to call witnesses of its own, and in matrimonial causes, it has a special duty of satisfying itself about the truth, of the allegations on which relief is claimed. The judgment in a case must be based upon facts which are relevant and duly proved in the proceedings in that particular case. It is so enacted in the first proviso to section 165 of the Evidence Act
3.13. Limitations of reform.-
It is in the light of the above aspects, that a reform of the law on the subject will have to be thought of. It may not be difficult to enunciate theoretically the broad principles on which a well-designed and well-constructed code can be built. Two leading principles were enunciated by Thayer1, more than about eighty years ago, "(1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.".
1. Thayer Preliminary Treatise on Evidence, (1898), cited in Evidence, (1937) 50 Harvard Law Review 909 (923).
3.14. Difficulty of application.-
As often happens, formulation of broad principles does not present much difficulty; what presents difficulty, however, is the prescribing of rules to implement the said broad principles. We have carefully borne in mind this aspect of the problem in examining the several provisions of the Act, and our approach in the present inquiry will, therefore, be to recommend changes in the existing provisions of the Act only where we are satisfied that the working of the Act has shown that some of its provisions do not adequately meet the complex requirements of modern litigation.