APPENDICES.
Reading edition
Appendix A.
Circumstantial Evidence Defined and Described.
Circumstantial Evidence is indirect, as distinct from direct evidence. It is likewise mediate, as distinct from immediate.
Direct evidence is testimony that is a statement of what the witness himself has seen, heard, or perceived by the evidence of any one of his own five senses,[A] which testimony is directly given by a witness, to lead to the facts in issue, that is, the facts required to be proved in order to make out or to constitute the criminal case, or the civil cause of action, sought to be established, according to some rule of Law.
Indirect or mediate evidence is inferred from a relatively minor fact or relatively minor facts already directly proved.
This inference is drawn by a valid process of reasoning from a relatively minor fact or minor facts already directly deposed to by a witness, who may be a party interested in the case or cause, or a stranger-witness, either friendly or hostile.
Hence, Circumstantial Evidence is specially inferential and cumulative in its nature. It denotes the resultant of a method of knowledge, which has carried the Inquirer forward by successive stages of advancement.
It implies the inferring of the unknown from the known; but from a known which has been itself transmuted from the unknown, at some point of time anterior to the making of the successive stage of advancement in the knowledge of the facts sought to be proved, and vindicated by some rule of Law.
The following interesting account of Evidence generally is from the pen of Mr. Frank Pick, of Burton Lodge, York, a student of the Law: —
Evidence is the collective term used to denote the facts whereby some proposition, statement, or conclusion is sought to be established or confirmed.
While, as thus defined, the term Evidence primarily denotes the actual known facts themselves which form the basis or point of departure, it connotes also a method or process in the development of those known facts to a resultant fact or opinion: and the resultant fact or opinion so obtained. The former is often styled Testimony.
This will be illustrated in Circumstantial Evidence, and in what is commonly styled “Expert Evidence,” though better, “Evidence of Opinion,” where a person from a consideration of certain facts not necessarily expressed (being likewise one specially competent to form an opinion where such certain facts are involved) gives an opinion which may be used as, and for similar purposes with, evidence as above defined.
The value of evidence, i.e., the completeness and efficiency with which it serves these ends, varies with, and the weight accorded to it in judgment is determined from, a review of the character or quality of the source whence these facts proceed; and the nature or proximity of the relation which they bear to the proposition, statement, or conclusion to be supported.
As regards the character or quality of its source, evidence is distinguished into primary and secondary.
Primary Evidence is the witness or testimony of personal experience, whether shown in the spoken or written word or by conduct. Or it may be described as, on its positive side, the avowal or confession of fact of a person present knowingly, at the manifestation, in consciousness of the phenomenon to which the fact corresponds: on its negative side, as the denial or negation of fact similarly conditioned.
Secondary Evidence comprises all the manifold degrees of nearness or remoteness to primary evidence.
As all degrees are here included, it is sometimes said that there are no degrees of secondary evidence. This must not be misunderstood to mean that all secondary evidence is entitled to be received as of the same degree of credibility. For a further, and in some respects parallel, distinction to that lastly taken, arises as the speech is or is not deliberate, the writing authenticated, the conduct reasoned. And in every case partiality, bias, and prejudice are grounds not to be neglected in the ascertainment of accuracy and trustworthiness.
So far as regards the nature or proximity of the relation, evidence is either direct and immediate, or indirect and mediate, called circumstantial; as concerned rather with the surrounding circumstances leading to the proof of the presumed truth of a fact than with the fact itself.
Direct Evidence comprises those facts from which, if proved, the truth of the proposition, statement, or conclusion necessarily follows.
Circumstantial Evidence comprises those facts from which again may be inferred facts, whence the truth of the proposition, statement, or conclusion must necessarily follow.
This inferential method is especially involved in Circumstantial Evidence. In all evidence there is a presumption open more or less to rebuttal, and evidence on this account is qualified as, e.g., primâ facie, conclusive. In Direct Evidence there is the presumption of the truth of the proposition, statement, or conclusion from the proven facts. In Circumstantial Evidence there is first an inference of directly connected facts, otherwise unknown or unevidenced from remotely connected facts, known or given in evidence; then there is further a presumption of the truth of the proposition, statement, or conclusion from these mediately established facts.
Appendix B.
Discrepancy as to Date when not Material to Issue, no Disproof of Truth of the rest of the Assertion.
The above doctrine of the law of Evidence applies, of course, to whatever may be the nature or purpose of the Inquiry, whether conducted in a Court of Law, in the library of the historical scholar, or elsewhere.
The principle was soundly stated at the trial of “the Venerable” Martyrs, Fathers Whitbread, Harcourt, Fenwick, Gavan, and Turner, at the Old Bailey, by Sir William Scroggs, Knt., the Lord Chief Justice of the King’s Bench, on the occasion of the Popish Plot Trials, in the year 1679.
“If it should be a mistake only in point of time, it destroys not the evidence, unless you think it necessary to the substance of the thing.
“If you charge one in the month of August to have done such a fact, if he deny that he was in that place at that time, and proves it by witnesses, it may go to invalidate the credibility of the man’s testimony, but it does not invalidate the truth of the thing itself, which may be true in substance, though the circumstance of time differ; and the question is, whether the thing be true?” Quoted in Morris’s “Troubles: The Southcote Family,” first series, p. 378 (Burns & Oates). (The italics are mine.)