Section I. Introductory

SOME TESTIMONY, THOUGH RELEVANT, IS EXCLUDED

The chief general rules of evidence consist, as we have seen (ante, 488), mainly of rules of exclusion. And they are not limited to excluding such matters as are irrelevant to the issue to be tried. For even of relevant testimony there are two kinds which it has been found desirable to exclude.

1. (a) Evidence of matters so slightly relevant as not to be worth the time occupied in proving them. If every circumstance which might tend to throw light on the matters in issue were let in, trials would be protracted to an intolerable length, especially (Maine says) in India, where extraordinary ingenuity is exhibited in discovering every fact which has the remotest bearing on a question under litigation.

2. (b) Evidence which, though relating to facts that are not only relevant but even important, is itself of such a character that experience shows it to be likely to impress persons of ordinary intelligence as being a more cogent proof of those facts than it really is. ‘Hearsay’ affords a conspicuous example of this kind of evidence.

ORIGIN OF RULES OF EVIDENCE

The development of the legal rules of evidence seems, as we have already noted, to have been influenced by the gradual discovery by judges that certain kinds of proof were apt to be thus accepted, by inexperienced jurymen, with a degree of respect which was undeserved. Hence an adherence to the rules was insisted upon chiefly in cases where it was by jurymen that the evidence was to be weighed. Accordingly where the functions of the court alone are concerned (as in determining the sentence for a convicted prisoner), facts are often taken into account which have not been established in accordance with the strict rules of evidence. The law of evidence was not reduced to definite form until long after our forensic procedure had come to include the practice of producing witnesses to give evidence to juries.