Copyright, 1906, 1913, All rights reserved THE PLIMPTON PRESS NORWOOD MASS.U.S.A -9 7/6/21 Frank Marition PREFACE TO THE SECOND EDITION In this second edition a number of radical changes have been made. (1) The preliminary statements of fact, as found in the original reports, have been included. (2) The arguments of counsel, whenever published in the original reports, have been included, in salient extracts. (3) Some history of each principal rule, as well as some modern critical comment on it, has been given a place, by short extracts printed in smaller type. (4) The total number of cases and extracts has been increased by more than one fifth; the total number of pages has been increased by more than one half. (5) Perhaps one half of the former cases have been replaced by different cases. (6) The distribution of the cases, in time and locality, has been changed. About one fourth are English, and three fourths are American. Of the American cases, two fifths are dated since 1895, one quarter since 1904, and one tenth since 1908. The attempt has been to represent all the masters of judicial opinion-writing, of whom so many have in recent years arisen to give distinction to our Supreme Courts. (7) Statutes are represented in thirty-eight passages. Illustrative dialogues from trials are represented in fifty-eight passages. (8) In the Appendices are placed two sets of practical exercises. Experience has shown that, after a scientific study of the individual rules, the student still needs (and can profitably seek in a law-school course) two sorts of practical exercise. (1) He needs to study and discuss problems which range indefinitely over the whole mass of the rules and conceal within themselves multiple possibilities. Thus only can he meet the rules under the guise in which they really present themselves at a trial. (2) He needs to do something himself, by way of making or opposing an offer of evidence, as he would be doing it at an actual trial. Thus only can he test whether he has grasped the rule as something to be used, not merely to be learned. The use of this volume, as planned by the compiler for his own classes, is to furnish materials for the study and teaching of the Rules of Evidence strictly so called, i.e., the rules of law for Admissibility, as determined by the Court. This is the orthodox subject of the traditional law-school course in Evidence. :· But there is another and equally important part of the advocate's task of proving a case of facts, viz., the process of reasoning upon the evidence to persuade the jury, the process of Proof. -the The weight of the evidence each separate piece of it, groups of such pieces, and the whole mass-must be analyzed and reasoned upon, so as to make the jury believe or disbelieve the facts alleged and disputed. This is something quite different from the artificial rules of Admissibility, as applied by the Judge. It is, in truth, the culminating process of the whole trial. It involves the main art of reasoning to the truth about human affairs in litigation. Yet it has never been systematically studied in law schools. It ought to be. There is plenty of science in it; and there are abundant materials for study. It involves logic, psychology, and the general science of human nature. To ignore this great part of the advocate's work is unnatural. Should we not do something to cultivate this part of the field? A collection of materials, texts, illustrations, and problems, has been made for this purpose in a separate volume, entitled "The Principles of Judicial Proof, as contained in Logic, Psychology, and General Experience, and illustrated in Judicial Trials.". That volume, it is believed, can best be used first, before the present one, in either a separate or an introductory course. Its materials are the natural ones for a student to begin on. They represent what the layman always conceives as the chief thing in a trial, viz., the reasoning to the jury on the persuasive effect of the admitted evidence. They serve to train the student to analyze and correct his loose lay notions of proof, to dissect the logic of circumstances, to estimate the credit of witnesses, and to weigh the total effect of a mass of mixed evidence. Moreover, by first working upon that volume, and thus becoming acquainted with the various sorts of evidence, he gains this additional advantage, viz., that when he then proceeds to study the artificial rules of Admissibility, the materials to which those rules apply are already familiar to him. He is thus spared that oppressive sense of strangeness and futility which usually attends him in his first (and even later) wrestlings with those rules; and he can make rapid progress with them. Thus, as a help to the more efficient study of the rules of Admissibility, the prior study of the Principles of Judicial Proof is much to be desired. That volume, and the present one, are constructed independently, and either can be used without the other. But the Compiler is convinced that a future generation will see the present rules of Admissibility much simplified and their importance reduced; while the field for the systematic study of the principles of Proof will be recognized and its field enlarged, — as it ought to be. In that view, he has tried to help forward the arrival of the coming science. NORTHWESTERN UNIVERSITY LAW SCHOOL, CHICAGO, March 4, 1913. J. H. W. |