The General Principles of the Law of Evidence

This attribute of "relevancy" is entirely controlled by the principles that govern logical analysis, while it adjusts itself to the emergencies of the particular case at bar through the application of rules that are in no wise fettered by either mere precedent or formula. In the suggestive language of Dr. Wharton: "It is now determined by the laws, not of formal jurisprudence, but of free logic; and in obedience to this conviction we have a series of recent rulings based on logical as distinguished from technically juridical grounds."

The rapid expansion of the science of evidence under the advantages derived from past experience and investigation, has subjected many of its exclusionary rules, especially, to the crucial test of both forensic and judicial review, resulting in such a renovation of early theories as to make a complete re-examination of the entire law not only desirable but necessary. One difficulty is obvious; so long as the administration of remedial and punitive justice reposes in numerous independent tribunals, state and Federal, it is inevitable that many mooted questions, especially those of first impression, will meet with discordant interpretations that ultimately engender such permanent contradiction as to repel all hope of reconciliation. In such cases it has been my endeavor to indicate the reasoning that contributes to this result, by apposite quotations from the sustaining authorities, accompanied by such cautionary suggestions as seem desirable, remembering that contradictory decisions are frequently a useful warning against assuming too much or generalizing too far.

As in the preceding volumes the writer studiously avoids any obtrusion of his personal views, and the constant endeavor is to state what the law of evidence is, first in its statutory phases, and secondly as expounded and interpreted by our courts of last resort, acting upon the impulse given by logical conclusions assumed after careful examination. In the endeavor to give comprehensiveness and certitude to this exposition, I have had recourse to the entire mass of criminal adjudication as preserved in our various reports, state and Federal, while the leading law periodicals of the period have contributed their quota of information to the same result. Thousands of cases have been critically examined and classified, and every principle implicated with the scheme of evidence in these numerous decisions has been examined, announced and digested.

The pivotal concept throughout has been to display the entire range of evidentiary law under its modern aspect-to disclose in the simplest manner possible the principles that underlie the recent adjudications, with the logic sustaining them, and to place before the practitioner an assistant that will be found responsive to every call that the emergencies of a hotly contested case may reasonably demand.

My further endeavor has been to emancipate the text as far as possible from metaphysical discussion and refined theorizing and to place every assertion beyond the reach of suspicion, by citing in its support the deliberate utterance of some tribunal entitled to respect. In the accomplishment of this design I have at rare intervals encountered contradictions of the character referred to. Frequently these discrepancies of view in the various jurisdictions arise from divergencies in the organic or statutory law that inspire antagonistic rulings that must be recognized as necessities of the situation and which must both be accepted and treated accordingly.

Following numerous precedents the subject is treated under five subdivisions or parts.

Part I. considers criminal evidence in its general relations to the criminal law. In many instances the rule announced is equally applicable to the trial of a civil case, and in rare instances taken in extenso from the preceding volumes on Civil Evidence. Cross-references are frequently made to these volumes in order to avoid a duplication of statement, and to economize the space, which the extent and scope of the undertaking requires.

Part II., discusses the instrumentalities of evidence and is an extended presentation of what is frequently regarded by adroit practitioners as the most vexatious phase of our entire subject.

Part III., exhibits the evidence of the prosecution, under the recitals of the indictment, and is an attempt to faithfully portray the rules of evidence that are sanctioned by authority in order to secure the conviction of the accused.

Part IV., is devoted to defensive evidence, and is expository of those rules that assist in determining the innocence of the defendant.

Part V., is a somewhat ambitious attempt to simplify and lucidly state the more intricate problems of evidentiary law as found in the trial of specific offenses. Here I have endeavored

to italicise all the deviations from standard rule and to clearly indicate the logic and effect of these deviations both upon the law and upon the practice.

As an aspirant for favorable consideration I shall not rely either upon the generosity or the indifference of the public, but rather confidently depend upon its sense of fairness and candor. Upon this I base a hope that the merits of my undertaking will be found to far outweigh its imperfections, and that its deficiencies and crudities will be attributed, in part at least, to the perplexities imposed by the extended treatment of a vast subject, many of the subordinate phases of which are still involved in contradiction and obscurity, while others still are without the least aid from judicial interpretation.

It is believed that a perusal of this final volume will justify a conclusion that the treatment accorded to the subject has been practical, accurate and modern, as well as exhaustive and discriminating. FRANK S. RICE.

Rochester, May 15th, 1893.