CHAPTER I. DIRECT AND CIRCUMSTANTIAL EVIDENCE; AND PRE- SECTION 1. DIRECT AND CIRCUMSTANTIAL EVIDEnce, and pRE SUMPTIONS, IN GENERAL. direct or cir Circumstantial § 286. ALL judicial evidence is either direct or circum- Judicial evistantial. By "direct evidence" is meant where the dence either principal fact or factum probandum is attested directly cumstantial. by witnesses, things, or documents. To all other forms Direct evidence. the term "circumstantial evidence" is applied, which evidence. may be defined, that modification of indirect evidence, either by witnesses, things, or documents, which the law deems sufficiently proximate to be receivable as evidentiary of a principal fact or factum probandum. And it is of two kinds, conclusive and presumptive: "Conclu- Conclusive. sive," when the connexion between the principal and evidentiary facts-the factum probandum and factum probans-is a necessary consequence of the laws of nature; as where a party accused of a crime shews that at the moment of its commission he was at another place, &c.: "presumptive," when the inference of the principal Presumptive. fact from the evidentiary is only probable, whatever the degree of persuasion generated by it (d). cumstantial § 287. As regards legal admissibility, direct and cir- Direct and circumstantial evidence stand, generally speaking, on the evidence same footing. It might at first sight be imagined that equally admisthe latter, especially when in a presumptive shape, is (d) Introd. sect. 1, § 27. sible. As to admiss?" of secondary evidence of fprivate documents. of: Boyle & Wisemand 1 dur 4.8.116. inferior or secondary to the former, and by analogy to the principle which excludes secondhand and postpones secondary evidence (e), ought to be rejected, at least when direct evidence can be procured. The law is, however, otherwise, and a little reflection will shew the difference between the cases. Secondhand and secondary evidence are rejected because they derive their force from something kept back-the non-production of which affords a presumption that it would, if produced, make against the party by whom it is withheld. But circumstantial evidence, whether conclusive or presumptive, is as original in its nature as direct evidence:— they are distinct modes of proof, acting as it were in parallel lines, wholly independent of each other. Suppose an indictment against A. for the murder of B., killed by a sword. If C. saw A. kill B. with a sword, his evidence of the fact would be direct. If, on the other hand, a short time before the murder, D. saw A. with a drawn sword, walking towards the spot where the body was found, and after the lapse of a time long enough for its commission, saw him returning with the sword bloody; these circumstances are wholly independent of the evidence of C.-they derive no force from it whatever-and, coupled with others of a like nature, might generate quite as strong a persuasion of guilt. Besides, facts being provable by circumstances as well as by direct testimony has a considerable effect in preventing the tampering or making away with witnesses and other instruments of evidence, which would be constantly practised if guilty or dishonest parties knew that the only evidence against them that the law would receive was contained in a few easily-ascertained depositories. Still the non-production of direct evidence in the power of a party to produce is matter of observation to the jury (f), as indeed is the wilful suppression of any (e) See the two next chapters. (f) 1 Stark. Ev. 578, 3rd Ed.; Id. 874, 4th Ed.; 2 Ev. Poth. 340; 3 Benth. Jud. Ev. 230. sort of proof. And here it is essential to observe that the process of reasoning evidencing any fact, principal or subalternate, may be more or less complex, longer or shorter. The inference may be drawn from one evidentiary fact, or from a combination-usually termed a chain of evidentiary facts (g). Again, the facts from which the inference is drawn may either be themselves proved to the satisfaction of the tribunal, or only consequences, necessary or probable as the case may be, of other facts thus proved (h). between direct § 288. Direct and presumptive evidence (using the Comparison words in their technical sense) being, as has been shewn, and presumpdistinct modes of proof, have each their peculiar advan- tive evidence. tages and characteristic dangers. Abstractedly speaking, presumptive is inferior to direct evidence, seeing that it is in truth only a substitute for it, and an indirect mode of proving that which otherwise might not be provable at all (i). Hence a given portion of credible direct evidence must ever be superior to an equal portion of equally credible presumptive evidence of the same fact. But in practice it is, from the nature of things, impossible, except in a few rare and peculiar cases, to obtain more than a very limited portion of direct evidence to any fact, especially any fact of a criminal kind; and with the probative force of such a limited portion of direct evidence, that of a chain of evidentiary facts, forming a body of presumptive proof, may well bear comparison. When Advantages of proof is direct, as, for instance, consisting of the positive presumptive testimony of one or two witnesses, the matters proved evidence. are more proximate to the issue, or, to speak correctly, are identical with the physical facts of it, and thus leave but two chances of error, namely, those which may arise (g) 3 Benth. Jud Ev. 223. Jud. Ev. 3. (i) Gilb. Ev. 157, 4th Ed.; R. v. Burdett, 4 B. & A. 123; p. 55. direct over Advantages of presumptive over direct evidence. from mistake or mendacity on the part of the witnesses; while in all cases of mere presumptive evidence, however long and apparently complete the chain, there is a third, -namely, that the inference from the facts proved ever so clearly may be fallacious (k). Besides, there is an anxiety felt for the detection of crimes, particularly such as are either very heinous or peculiar in their circumstances, which often leads witnesses to mistake or exaggerate facts, and tribunals to draw rash inferences; and there is also natural to the human mind a tendency to suppose greater order and conformity in things than really exist, and likewise a sort of pride or vanity in drawing conclusions from an isolated number of facts, which is apt to deceive the judgment (1). Accordingly, the true meaning of the expressions in our books, that all presumptive evidence of felony should be warily pressed, admitted cautiously, &c., is, not that it is incapable of producing a degree of assurance equal to that derivable from direct testimony, but that in its application tribunals should be upon their guard against the peculiar dangers just described. Such are its disadvantages. But then, on the other hand, a chain of presumptive evidence has some decided advantages over the direct testimony of a limited number of witnesses, which are thus clearly stated by an able modern writer (m). "1. By including in its composition a portion of circumstantial evidence, the aggregate mass on either side is, if mendacious, the more exposed to be disproved. Every false allegation being liable to be disproved by any such notoriously true fact as it is incompatible with; the greater the number of such distinct false facts, the (k) 3 Benth. Jud. Ev. 249; Ph. & Am. Ev. 459; Bonnier, Traité des Preuves, § 637. (1) Bacon, Nov. Organ. Aphor. 45; R. v. Hodge, 2 Lew. C. C. 227, per Alderson, B.; Ph. & Am. Ev. 459. See further infra, sect. 3, sub-sect. 2. (m) 3 Benth. Jud. Ev. 251-2. See also Paley's Moral and Political Philosophy, bk. 6, ch. 9. more the aggregate mass of them is exposed to be disproved for it is the property of a mass of circumstantial evidence, in proportion to the extent of it, to bring a more and more extensive assemblage of facts under the cognizance of the judge. 2. Of that additional mass of facts, thus apt to be brought upon the carpet by circumstantial evidence, parts more or less considerable in number will have been brought forward by so many different deposing witnesses. But, the greater the number of deposing witnesses, the more seldom will it happen that any such concert, and that a successful one, has been produced, as is necessary to give effect to a plan of mendacious testimony, in the execution of which, in the character of deposing witnesses, divers individuals are concerned. 3. When, for giving effect to a plan of mendacious deception, direct testimony is of itself, and without any aid from circumstantial evidence, regarded as sufficient; the principal contriver sees before him a comparatively extensive circle, within which he may expect to find a mendacious witness, or an assortment of mendacious witnesses, sufficient to his purpose. But where, to the success of the plan, the fabrication or destruction of an article of circumstantial evidence is necessary, the extent of his field of choice may in this way find itself obstructed by obstacles not to be surmounted." Lest too much reliance should be placed on this, it is important to observe that circumstantial evidence does not always contain either numerous circumstances or circumstances attested by numerous witnesses, and also, that the more trifling any circumstance is in itself the greater is the probability of its being inaccurately observed and erroneously remembered (n). after every deduction made, it is impossible to deny that a conclusion deduced from a process of well conducted reasoning on evidence purely presumptive may be quite (n) 19 Ho. St. Tr. 74, note B B But |