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Vol. III


No. 7



An erroneous ruling having been made and excepted to, and the excepting party having received an adverse verdict on the law and the evidence, the great question on appeal then becomes, Shall a new trial be granted because of the erro. neous admission or exclusion of the particular piece of evidence ? It is a great question, because, although it does not directly involve the tenor of the rules of evidence, yet the whole status of the law of evidence, as well as the efficiency of our methods of doing justice, is dependent upon the answer. Whether that law of evidence shall be a mere means to an end--the end being a just settlement of particular controversies-, or whether it shall be an end in itsell-an end so independent of justice, and so superior thereto, that it must be attained even at the cost of justice, this depends practically upon whether it can be conceded that an erroneous ruling of evidence is ipso facto a ground for a new trial.

1. The orthodox English Rule, and the Exchequer Rule. The original and orthodox English rule was plain. An er. roneous admission or rejection of a piece of evidence was not a sufficient ground for setting aside the verdict and ordering a new trial, unless upon all the evidence it appeared to the judges that the truth had thereby not been reached :

1807, R. v. Ball, R. & R., 133: · Whether the Judges on a case reserved would hold a conviction wrong on the ground that some evidence had been improperly received, when other evidence had been properly admitted that was of itself sufficient to support the conviction, the Judges seemed to think must depend on the nature of the case and the weight of the evidence. If the case were clearly made out by proper evidence, in such a way as to have no doubt of the guilt of the prisoner in the mind of any reasonable man, they thought that as there could not be a new trial in felony, such a conviction ought not to be set aside because some other evidence had been given which ought not to have been received. But if the case without such improper evidence were not clearly made out, and the improper evidence might be supposed to have had an effect on the minds of the jury, it would be otherwise."

Such was the rule in the King's Bench, in criminal as well as in civil cases, 2 Such was the rule in the Common Pleas, 3 plainly stated in Doe v. Tyler. Such was equally the practice in Chancery,4 when issues had been sent to a jury in a common-law court. All this lasted down to the decade

of 1830.

In that decade the Court of Exchequer in Crease v. Bur. rett, 1 announced a rule which in spirit and in later interpretation signified that an error of ruling created per se for the excepting and defeated party a right to a new trial. The new Exchequer rule was speedily accepted in the other courts;2 and for something more than a generation it remained the law of England, until it was reformed away, for civil causes, in 1875.3

11781, Tinkler's Case, R. & R. 133. note (all the Judges thought the evidence of a witness of the name of Parsons ought not in strictness to have been received ; but as the evidence was ample without it, "the Judges did not think themselves tound to stop the course of justice"); 1807, R. v. Ball, R. & R. 133 (quoted supra); 1809, Lord Ellenborough, C. J., in R. v. Teal, 11 Ea-t 311: (*. If the evideuce (as to character] had been admitted, it could have made no difference, at least it ought not to have made any difference in the verdict "); 1810, R. v. Treble, R. & R. 164, Heath, J. Though there could not at this period be a new trial in cases of felony, but only a pardon of the prisoner, still the general judicial tendency of those times to savor the escape from the gallows was such as to make up, in the judicial mind, for this difference between the modern law and the earlier law as affecting the balance of risks.

21819, Abbott, C. J., in Tyrwhitt v. Wynne, 2 B. & Ald. 554, 559 (the mere erroneous ruling of rejection “will not be sufficient, for it must be further shown and substantiated that, it they had been received, they would have led to a probable conclusion in favor of the offering puty.) In Edwards v. Evans, 3 East 451, 455 (1803) occurs a premonitory instance of the later rule.

31807, Mansfield, C. J., in Horford v. Wilson, i Taunt. 12, 14 ("Neither will the Court set aside a verdict on account of the admission of evidence which ought not to have been received, provided there be sufficient without it 10 authorize i he finding of the jury "); 1830. Doe v. Tyler, 6 Bing. 561 (rule explicitly approved); so the Federal Supreme Court, for new trials as distinguished from writs of error: 1828, Story, J., in M'Lanahan v. Ins. Co., 1 Pet. 170, 183 ("In such cases, the whole evidence is examined with minute care, and the inferences which a jury night properly draw from it are adopted by the Court itself ; if therefore upon the whole case justice has been done between the parties, and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial ").

* 1805, L. C. Eldon, in Pemberton v. Pemberton, u Ves. 50, 52 (“If upon the whole (record) he is satisfied that justice has been done though he may think that some evidence was improperly rejected at law, he is at liberty to refuse a new trial "); 1816, Bullen v. Michel, 4 Dow 297, 319, 330 ; 1826. Barker v. Ray, 2 Russ. 76; 1838, L. C. Cottenham, in Lorton v. Kingston, 5 Cl. & F. 269, 340 (** The true consideration always is whether upon the whole there appears to be such a case as evables the judge in equity satisfactorily to administer the equilies between the parties without the assistance of another trial.”)

too, in

The Exchequer rule duly obtained recognition in the United States in a majority of jurisdictions. In its most extreme form, and in language exhibiting in the most radical manner the theory that the rules of evidence form an end in themselves, the new doctrine-- which had indeed given sporadic signs of independent growth-was now rapidly promulgated. 4 During the last generation, the Exchequer heresy has clearly gained the ascendance.

1 1835. Crease v. Barrett, 1 C. M. & R. 919, 932 (intimating that the only cases where the error would be ineffective were where the same fact was otherwise proved or not disputed and where a verdict in favor of the defeated party “would have been clearly and manifestly against the weight of evidence and certainly set aside upon application to the Court as an improper verdict'); 1846, Hughes v. Hughes, 15 M. & W. 701 (Alderson, B., declared the rule to be that "the Court will not grant a new trial if with the evidence rejected a verdict given for the party offering it would be clearly against the weight of evidence, or if without the evidence received there be enough to warrant the verdict "; confusing two different tests, and citing Doe v. Tyler and Crease v. Barrett without discrimination); 1847, Doe v. Lang field, 16 id. 497, 515 (approving Crease v. Barrett, Parke, B., applies the exception there stated, and here refuses a new trial since “ no evidence was improperly rejected but such as was immaterial and if admitted would not have prevented a nonsuit.'')

: 1835, Rutzen v. Farr, 4 A. & E. 53 (the Exchequer rule in Crease v. Barrett followed, and the Common Pleas rule in Doe v. Tyler rejected); 1837, Wright v. Tatham, 7 A. & E. 313, 330 (Denman, C. J. “As this Court has so lately, on full consideration, and in conformity with a decision of the Court of Exchequer, renounced the discretion which was in that case [of Doe v. Tyler) exercised, we need not rep at our reasons for holding that

the losing party has a right to a new trial”); 1887, Coleridge, C J., in R. v. Gibson, L. R. 18 Q. B. D. 537, 540 (“* Until the passing of the Judicature Acts, the rule was that if any bit of evidence not legally admissible, which might have affected the verdict, had gone to the jury, the party against whom it was given was entitled to a new tri l.'')

: 1875, Judicature Act, 1883, Rules of the Supreme Court, Order 39, rule 6 (" A new trial shall not be granted on the ground or misdirection or of the improper admission or rejection of evidence

unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occa-ioned on the trial "); 1893, Pearce v. Lansdowne, 69 L. T. Rep. 316. The reform had originally been introduced by Mr. (later Sir) James F. Stephen: 1872, Indian Evidence Act (Stephen's ed.), $ 167 (“. The improper admission or rejection of evidence shall not be ground of itselt for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is iaised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.")

• 1895. Miller, J., in State v. Callahan. 47 La. An. 497 : ("The admission of illegal evidence in a civil case is comparatively unimportant.

But in a criminal case * it is for the jury to convict, and it is presumed to act on all the evidence submitted.

It is the right of the accused to be tried on legal evidence alone.

The conviction must be by legal evidence only "); 1808, Sewall, J., in Bartlet v, Delprat, 4 Mass. 708 : (“And upon the whole, although the other facis appearing in this case leave very little doubt of the justice of the verdict, yet as the competency of the evidence excepted to is not supported by any of the authorities we have examined, we think the verdict must be set aside "); 1894, Com. v.






* * *



There are, to be sure, Courts that still cling to the old. fashioned notion, resting on the orthodoxy of Doe v. Tyler, and refusing to bow the knee to the Baal-worship of the rules of evidence. A model example of such an opinion is the following:

1866, Porter, J., in People v. Fernandez, 35 N. Y. 49, 59: “ The circumstances which were established by evidence, confessedly competent, were so conclusive as to the guilt of the prisoner that no honest jury could refuse to convict him of the crime. To acquit him would be to shield guilt from justice and deny the protection of law to the innocent. If, therefore, the Court below was right in holding that the judge erred in admitting additional evidence tending to the same conclusion, we think it was clearly wrong in reversing the conviction ; for, upon the facts disclosed, the supposed error could work no legal injury to the prisoner. As it was shown, beyond all question, by undisputed and competent proof, that the accused was one of the murderers, we are under no legal or moral obligation to assume that the jury might have rendered a false verdict of acquittal but for the erroneous admission of other and needless evidence. In this respect, there is no distinction between civil and criminal cases. The reception of illegal evidence is presumptively injurious to the party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt, that the result would have been the same, if the objectionable proof had been rejected, the error furnishes no ground for reversal."

2. Reason and Practical Working of the Exchequer Rule. What can be said on behalf of the Exchequer rule? The theories advanced to support it have been chiefly two. The first is the theory that a party has a legal right to the White, 162 Mass. 403, 38 N. E. 707; 1886, Cobb, J., in Masters v. Marsh, 19 Neb. 467 (excluding certain books of account : “ While I do not think that the books would have proved any fact of the least value in the case had they been properly admitted, yet the party presenting them would scarcely be permitted to escape the consequence of an erroneous ruling on that ground"); 1874, Cole, J., in Schaser v. State, 36 Wis. 434: (" It may be shown by the most irrefragable proof that the deft. is guilty of the offense charged against him ; but this does not justify the viola ion of well settled rules of evidence in order to secure his conviction)." So, too, the words of Mr. Justice Story have been forgotten in the Court which he distinguished : 1894, Waldron v. Waldron, 156 U. S., 380, 15 Sup. 383; 1898, Northern P. R. Co. v. Hayes, C. C. A., 87 Fed. 131 (“. It is elementary that the admission of illegal evidence over objection necessitates a reversal”').

*1885. State v. Beaudet, 53 Conn. 536, 539 (if evidence excluded “could not properly have changed the result, then he was not aggrieved by the ruling "); 1846, McCleskey v. Leadbetter, 1 Ga. 551, 556 (“The Courts will not set aside a verdict on account of the admission of evidence which ought to have been rejected, provided there be sufficient without it to authorize the finding”); 1896, Gardner v R. Co., 135 Mo. 30. 36 S. W. 214 (“The judgment was manifestly for the right party; and where such is the case, the judgment will not be reversed because some incompetent testimony was admitted "); 1839, State v. Ford, 3 Strobh.528 (Earle, J., dissenis as to the propriety of admitting certain evidence, but agrees to dismiss the motion for a new trial; for in such a case as this, where the prisoner's guilt is very manifest * * *, I think it would exhibit unnecessary squeamishness to say he has not been legally convicted on abundant evidence").


judicial observance of the rules of evidence per se.

The second is the theory that the judicial consideration of the weight of all the evidence, as a motive for refusing a new trial, would be a usurpation of the jury's function. The whole doctrine, no doubt, has its deepest roots in the inveterate and unconscious professional instinct, which grows to venerate unduly the rules that form its daily mental pabulum. But there must at least be some ostensible reason; and these two have served in that capacity :

1835, Parke, B., in Crease v. Barrett, i C. M. & R. 919, 932: “The rule is there laid down (in the Common Pleas] much too generally; and it is obvious that if it were acted upon to that extent, the Court would in a degrec assume the province of the jury; and besides, its frequent application would cause the rules of evidence to be less carefully considered.”

1838, Morton, J., in Ellis v. Short, 21 Pick. 142, 144; “Some of the evidence objected to was not only clearly irrelevant, but might have prejudiced the jury against the plaintiff. We therefore find ourselves constrained to grant a new trial. We regret that we find it necessary to do this; because the action involves no principle of law, is attended with an expense disproportionate to its importance, has been fully and elaborately tried, and been brought to a result, which was entirely satisfactory and which there is very little reason to suppose will be ch:inged on another trial, by the exclusion of the evidence which was improperly admitted. The English Courts and those of some of our sister States exercise a much broader discretion in relation to the granting of new trials than we do. Their practice is to refuse new trials for the improper admission or rejection of evidence, whenever, in their opinion, such erroneous admission or rejection of evidence, whether material or immaterial, ought not to have affected the verdict, or substantial justice has been done. This seems to us to trench upon the province of the jury. How can the Court know how much influence each particular piece of evidence had upon the minds of the jury, or that the illegal evidence was not the weight, however small it may be, which turned the balance, and that without it the opposite scale would not have preponderated ? To sustain a verdict, under such circumstances, may be to make a decision contrary to the convictions which the legal evidence would have produced upon the minds of the jury. * * It is the province of the Court to guard the decisions of the jury from the inAuence of foreign or irrelevant matter and preconceived opinions and prejudices; and this imposes upon it the duty, on proper occasions, of giving to the jury an opportunity to revise its decisions; but never authorizes it to weigh the evidence or to determine how they should ultimately decide upon matters of fact.”

1875, Devine, J., in Pigg v. State, 43 Tex. 112: “ The refusal of the Court to permit the witness to answer the question (an opinion as to insanity] deprived the accused of a clear legal right. How far his defense may have been prejudiced by it, we cannot say. It is sufficient to know


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