Some Observations on the Law of Evidence: Family Relations

Except In cases of necessity the wife was incompetent to testify for or against her husband at common law Coke suggests that the reason for the rule lay in the fact that husband and wife were one, and naturally could not be divided for the purposes of testimony Although the courts soon got beyond this doctrine, they insisted on the value of the rule. They argued that spouses, though perhaps not physically identical, were identical in interest. When disqualification by interest was removed, the judges bad to take other ground, and did so in Stapleton v Crofts.\u27 There they decided that the true basis for the rule was the necessity of martial harmony and confidence. But even this philosophy has been unable to sustain the noton that one spouse cannot appear for or against the other. The disqualification has gradually been reduced to a disqualification in criminal cases alone. The dissenting opinion of Mr. Justice Erle in Stapleton v. Crofts states the arguments that have prevailed against broader disqualification. He points out that the idea of promoting domestic peace is incapable of consistent application in these cases. It is not applied to witnesses not parties to the action. Mr. W may testify for the plaintiff, Mrs. W against him. Their stories may lead to endless ructions in the W household. Erle, J., doubts, too, whether husbands suborn their wives to perjury He is reasonably sure that the exclusion of the evidence is a definite loss, whereas the gain, if any, is remote and speculative

Some Observations on the Law of Evidence -- Consciousness of Guilt

Consciousness of guilt is another state of mind that raises anew set of legal and psychological problems. Wigmore dramaticallystates its significance when he says: As an axe leaves its mark in the speechless tree, so anevil deed leaves its mark in the evil doer\u27s consciousness. Again: The reliance is not upon the testimonial credit of a person,but upon psychologic forces closely analogous to theforces of external nature. As a result, we are not here concerned, as in the case of state ofmind to prove an act, with the hearsay rule or an exception toit. We need not worry about finding a necessity for the introductionof the statements, or a guarantee of their trustworthiness.We are dealing with a firmly established notion in thelaw, based on an equally well-settled axiom of common sense

Some Observations on the Law of Evidence -- State of Mind to Prove an Act

Except In cases of necessity\u27 the wife was incompetent to testify for or against her husband at common law2 Coke suggests3 that the reason for the rule lay in the fact that husband and wife were one, and naturally could not be divided for the purposes of testimony Although the courts soon got beyond this doctrine, they insisted on the value of the rule. They argued that spouses, though perhaps not physically identical, were identical in interest. When disqualification by interest was removed, the judges bad to take other ground, and did so in Stapleton v Crofts.\u27 There they decided that the true basis for the rule was the necessity of martial harmony and confidence. But even this philosophy has been unable to sustain the noton that one spouse cannot appear for or against the other. The disqualification has gradually been reduced to a disqualification in criminal cases alone.\u27 The dissenting opinion of Mr. Justice Erle in Stapleton v. Crofts states the arguments that have prevailed against broader disqualification. He points out that the idea of promoting domestic peace is incapable of consistent application in these cases. It is not applied to witnesses not parties to the action. Mr. W may testify for the plaintiff, Mrs. W against him. Their stories may lead to endless ructions in the W household. Erle, J., doubts, too, whether husbands suborn their wives to perjury He is reasonably sure that the exclusion of the evidence is a definite loss, whereas the gain, if any, is remote and speculative

Some Observations on the Law of Evidence -- The Competency of Witnesses

Courts of last resort now seldom reverse a ruling on the competencyof witnesses.\u27 Convinced, and rightly so, that they cannotlearn from the record all the circumstances which influencedthe decision below, they usually let it stand, even when the transcriptalone might suggest another conclusion. Trial courts, intheir turn, to a greater extent than formerly prefer to admit theevidence of infants, insane people, and mental defectives, andleave the jury to estimate its value. Perhaps this is becauseexclusion has heretofore worked particular hardship in prosecutionsfor crimes against children and the insane, where the onlyevidence available was that of the victim. Now these aggrievedindividuals may testify even when the gist of the action, as instatutory rape, or the title of the action, as where a lunatic sues by his next friend, indicates their infirmity. The infirmityalone does not render them incompetent