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Report No. 69

III. Three Leading Rules of Evidence Relating to Documents, Opinion and Hearsay

2.8. Three leading rules excluding certain evidence.-

The three leading rules which were beginning to emerge during the 17th Century, were-the rule that the contents of a written document cannot be varied by oral evidence, the rule that mere opinion is not generally admissible, and the rule that "hearsay" is not evidence1. As regards the first of these rules, we have already discussed the history.2

1. Holdsworth History of English Law, Vol. 9, p. 211.

2. See supra.


2.9. History of rule as to opinion evidence.-

The rule as to opinion evidence has a long history. It was an old rule of the civil and canon law that a witness should speak as to matters which had come under the personal observation of his own senses "de visu et auditu1". This rule made for the exclusion of mere opinion. The main exception was in the case of experts, to whose opinion courts had recourse as early as the 14th century. For example, in 1353, surgeons were summoned by the court to give their opinion on the question whether a wound amounted to a mayhem2 (crime of maiming the person so as to render him partly or wholly defenceless).

1. Salmond Essays on Jurisprudence, pp. 81-83, cited in Holdsworth History of English Law, Vol. 9, p. 211.

2. Holdsworth History of English Law, Vol. 9, p. 21.

2.10. History of expert evidence-Learned Hand quoted.-

It may, in this connection, be of interest to note that as early as the 14th century1, experts with no personal knowledge of the facts in issue used to advise the English Courts about matters of science that would be helpful in determining the facts in issue. In this connection, we may quote Learned Hand, who has observed2-

"In early times, and before trial by jury was much developed, there seem to have been two modes of using what experts knowledge there was: first to select as jurymen such persons as were by experience especially fitted to know the class of facts which were before them, and second, to call to the aid of the court skilled persons whose opinion it might adopt or not as it pleased. Both these methods exist, at least theoretically, at the present day, though each has practically given place to the third and much more recent method of calling before the jury skilled persons as witnesses."

1. See Learned Hand Historical and Practical Considerations Regarding Expert Testimony, (1901) 15 Harvard Law Review 40.

2. Learned Hand Historical and Practical Considerations Regarding Expert Testimony, (1901) 15 Harvard Law Review 40.

2.11. First method.-

In 1345, before the jury system1 developed fully, the court summoned surgeons to rule whether or not a wound was fresh. This practice illustrates the established fourteenth century procedure of having qualified people decide the issues. The special jury, in this connection, means a jury of persons especially fitted to judge of the peculiar facts upon which the particular issue at bar turns2. The practice is certainly old, at least in one instance of like kind-the jury of matrons de ventre inspiciends.3

1. Anonymous Lib. Ass. 28, P1, 5 (28 Edn. III), cited in Impartial Medical Testimony, (Civil), 34 Temple Law Quarterly 470.

2. See generally Learned Hand Historical and Practical Considerations Regarding Expert Testimony, (1901) 15 Harvard Law Review 40 (48).

3. Cf. Beg v. Wycherly, 8 C&P 262.

2.12. In this connection, it is pertinent to quote Learned Hand again. He has stated1-

"The method mentioned above was to summon to the advice of the court certain skilled persons to help it out of its difficulties. I wish particularly to distinguish here between what we should today call matter of fact for the court and matter of fact for the jury. The cases I shall mention are those in which during a procedure incident to the conduct of a case there arose some question of fact which the court had to decide. That is, the court, having no rule of law to administer and not intending to establish any, had a mere question up for decision of something in that particular case, and summoned experts to help it where its knowledge was lacking.

In 1345, in an appeal of mayhem, the court summoned surgeons from London to aid them in learning whether or not the wound was fresh. This was, however, in deciding whether or not the appellant should be allowed to go to trial at all."

1. Learned Hand, in 15 Harvard Law Review 40 (42).

2.13 and 2.14. In 1620, the conclusions of physicians1, not called by either side, were submitted to the jury for the first time. This represents the second method.

Later, the third method was devised, namely, calling the expert as witness.

1. Alsep v. Bowtrell, Cro Jac 541.

2.15. In course of time, many of the cases on which opinion was admissible became the centres of separate rules of law-for example, rules as to handwriting. With some limitations, the rule was that a witness whose handwriting was in issue, could express his opinion. The Trial of Sidney 1s one of the earliest known cases of the admission of such evidence. Some of the limitations disappeared in course of time, and, in 1854,2 (evidence of persons who got their knowledge merely from a comparison of the disputed document with genuine documents)-that is, opinion of handwriting experts-also became admissible, like the evidence of experts in any other art or science.

1. Trial of Sidnay, (1683).

2. Common Law Procedure Act, 1854, extended to criminal courts by the Criminal Procedure Act, 1865 (17-16 Vict., Ch. 125), section 27.


2.16. Rule against hearsay.-

The rule against hearsay evidence, in its modern form, was not established fully till the end of the 17th century. It would appear that the development of this rule was facilitated by several factors, of which the important are mentioned below:-

(1) First, there was the old rule, applied in civil and canon law, that witnesses should testify only to matters under the personal observation of their own senses. No doubt, this older rule is somewhat different from the modern hearsay rule. According to the older rule, once a witness gives evidence as to matters which he has himself heard, an assertion of a person who is not called as a witness could be given in testimony, but the modern rule would reject1 it. The modern rule might have developed separately, but its development was helped by the memory of this older rule.

(2) The disappearance of the doctrine that a particular number of witnesses was required, led to importance being given to the credibility of witnesses.2 This might have helped to call attention to the admitted inferiority of hearsay evidence, and induced the judges to agree to its total exclusion.

(3) During the 16th century, it was gradually coming to be evident that juries based their verdicts neither upon their own knowledge nor upon enquiries, but upon the oral evidence of witnesses given in open court3 and the statute of 1562-1563 provided for the first time a compulsory process for witnesses. More attention was, therefore, paid to the nature of the evidence by which the juries were led.4

(4) There was a strong condemnation of hearsay by Coke in his third institute (1641)-a statement which was at once accepted as an authoritative statement of law.5 This might have fixed the attitude of the post-Restoration judges in relation to criminal cases, and, obviously, the rule for criminal cases would easily be applied to civil cases also.6

1. Holdsworth History of English Law, Vol. 9, p. 214.

2. Holdsworth History of English Law, Vol. 9, p. 218.

3. Holdsworth History of English Law, Vol. 2, pp. 335-336.

4. Holdsworth History of English Law, Vol. 9, p. 216.

5. Holdsworth History of English Law, Vol. 5, pp. 471-472.

6. Holdsworth History of English Law, Vol. 9, p. 216.

2.17. Expansion of the rule against hearsay.-

Once the general rule of exclusion of hearsay was established, there was logical expansion of its scope. The first such expansion was the emergence of the view that hearsay was not admissible even as corroborative evidence.1 In this connection, it should be noted that at least upto 1683, the view seems to have been canvassed that hearsay evidence was admissible as corroborative evidence.2 In fact, the utility of hearsay at least as corroborative evidence survived for a long time, in the rule that a witness's own prior statement could be proved to show that he had always told the same story and, therefore, ought to be believed.

1. Holdsworth History of English Law, Vol. 9, p. 217.

2. See discussion between the Chief Justice Pemberton and the Attorney General in R. v. Lord Russell, (1683) 9 ST 613.

2.18. The next expansion of the rule against hearsay is illustrated by the establishment of the rule that the bar applied even to previous statements made on oath1 which are res inter alias octa.

1. Case of Penwick, (1696) 13 ST 618.

2.19. The reason assigned was that the defendant, not being present when the depositions were taken, had lost the benefit of a cross-examination.1 It was because of this development that some depositions of witnesses before justices of the Peace were, by legislative action, excluded except under very stringent conditions.

1. R. v. Paine, (1696) 5 Mad 163 (165), referred to in Holdsworth History of English Law, Vol. 9, pp. 218-219.

2.20. Exceptions to the rule against hearsay.-

No doubt, the tide turned in the 18th and 19th centuries, when some exceptions to the rule against hearsay were elaborated.

2.21. In general, the exceptions to the rule against hearsay were intended to permit evidence of a certain statement where the nature and the special circumstances under which it was made, offered strong assurances of accuracy, and the declarant was unavailable as a witness. This reform, sometimes by judicial exposition and sometimes by legislation, was gradual, and therefore, the process was piecemeal.

2.22. The courts, it is said, "seem to be satisfied with a showing of circumstances in which a normal man in the situation of the declarant would have desired to tell the truth, and in which the dangers from deficiencies in his perception, memory and narration are not incapable of intelligent appraisal by the trier of fact."1

1 Edmond M. Morgan Hearsay and Preserved Memory, (1926-27) 40 Harvard Law Review 712 (714)

2.23. Exceptions based on absence of danger of inaccuracy.-

In the various exceptions to the hearsay rule, the dangers of deliberate or inadvertent departure from the ideal, as regards perception, memory and narration, though not eliminated, are usually reduced to a manageable proportion. The following illustrations1 would bear this out2:-

(a) Former testimony: The witness was subject to cross-examination when he gave his testimony. Hence one of the safeguards of truth is present.

(b) Admission: The person who made the admission, can hardly object that he had no opportunity to cross-examine himself.

(c) Reputation: The witness testifies, and can be cross-examined, as to the existence and content of the reputed fact.

(d) Commercial lists and reports: The compiler of such lists has usually power, opportunity and incentive for correct perception. The danger of incorrect narration will usually be minimised by the fact that the reports are likely to be checked by members of the trade or profession for whom they are prepared.

(e) Learned treatises: Normally a person in the position of the writer of the treatise would desire to speak truly, because his opinion would usually be subject to criticism by professional colleagues.

(f) Shop books and entries: Since the entries are usually of a regular character, and relate to simple matters, and are made near the time of the event, there is little danger of faulty memory. The danger of fabrication and lack of opportunity for cross-examination is no doubt, there, to some extent.

(g) Official statements: Official duty usually furnishes a sufficient guarantee of a desire to observe and record facts correctly, though it must be stated that where the statement relates to matters observed not by the person recording but by others, the defects of hearsay are present in some degree.

(h) Declarations of presently existing state of mind: Memory is not involved, nor is there a danger of error in perception. The requirement that the declaration must be made naturally and without circumstances avoids suspicion.

(i) Contemporaneous declarations (Res gestae): There is little danger of fabrication or faulty memory, though not sufficient means of checking the accuracy.

(j) Dying declarations: There is no strain upon memory in general, and the man would desire to tell the truth at the time of death. However, there may not be a guarantee of accuracy or completeness of perception or of narration.

(k) Statements against interest: Usually, there is a guarantee against fabrication.

(l) Statements as to pedigree: There is no motive to misrepresent the facts, and normally the declarant would have some trustworthy information.

(m) Ancient documents: Where declarations in ancient documents are accepted for the truth of the matter and accepted without qualifications, there is a danger of their being untrue.

1 Some of the reasons are taken from Edmond Morgan Hearsay and Preserved Memory, (1926-27) 40 Harvard Law Review 712 (714).

2 The illustrations deal with exceptions in force in England or elsewhere.

2.24. Statements of conspirators.-

In this connection, the position as to conspiracy is of interest. The special evidentiary rule that permits out of court statements of one conspirator to be used against another, has some cogent reasons in support thereof. On the subject of the evidentiary advantages of a conspiracy trial to the prosecution, considerable literatures has come into being during the last half a century.1 Nevertheless, it is obvious that such statements are exceptions to the rule against hearsay. The important pre-requisite to their admissibility is that, speaking broadly, the statements made by one conspirator, in order to be admissible against others, must be made in furtherance of the criminal purpose.

The rationale of admitting this evidence is that the common purpose having been established, the acts and observances of one conspirator can be used against the other in evidence because of the common purpose. The aspect of common purpose was brought out in a working definition of conspiracy which was supplied by Mr. Justice Holmes, who said-"A conspiracy is a partnership in criminal purposes.2 There may be a practical reason also, namely, that every conspiracy is, by its nature, secret. "A case can hardly be supposed where men concert together for crime and advertise that purpose to the world3."

1. See Note The Conspiracy Dilemma, (1948) 62 Harvard Law Review 276.

2. United States v. Kissel, 218 US 601 (608).

3. Grunewald v. United States, (1957) 353 US 391 (402).

2.25. Bar against admission of previous convictions.-

The hearsay rule did not present any obstacle to the admission of a prior conviction in a civil case.1 But the bar against admitting a conviction seems to be an illustration of the opinion rule or, at least, an illustration of the rule that transactions not between the parties to the present case are not, in general, admissible. The position is different if the parties are the same. For example, where the State is a party to the civil action, a previous acquittal would be conclusive2-3.

1. See Ghaffee Progress of the Law-Evidence, (1922) 35 Harvard Law Review 302 (440).

2. Coffes v. United States, (1886) 16 US 436.

3. See note Admissibility of Evidence in a prior conviction in a subsequent suits, (1927-28) 41 Harvard Law Review 241 (241).

Indian Evidence Act, 1872 Back

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