date

22 Sept. 1803 Evidence Instructions
22 Sept. 1803

Evidence

Instructions

Considerations

Extraction bad

1. Causa alia

1. First case of suspicious evidence, the suspicion arising from its having been extracted in the course of another cause, between other parties.

The ground of distrust /infirmity/ here arises from this circumstance, viz: that the party against whom the evidence /testimony/ is produced had no opportunity of encountering it by other evidence.

This ground will be stronger or weaker according to several circumstances.

1. It may be that the party against whom the evidence was produced in the prior cause had exactly the same interest, or what comes to the same thing an interest equally strong to encounter it to do what was in his power to encounter it, as the party against whom it is produced in the principal cause /case upon the carpet/. And though the stake should not be so great, yet if in the prior cause the interest was adequate, and the means adequate, i:e: if in the joint considerations of delay vexation and expense there was nothing that was capable of /of a nature to/ deterring or disabling the party from inconsistency, the evidence, from producing the opposite evidence /counter evidence/ (the witnesses whether to the same fact or to ulterior fact) necessary to the purpose, in this though the interest itself were less strong, the effect of it upon the conduct of the party in question and thence upon the fate of the cause would not naturally /in general/ be materially different.

In this case the only infirmity attending the extraneous evidence with reference to the purpose of the principal suit is what results from that circumstance - viz: that a man can not naturally /in general/ have the same confidence in the exertion of another as he has in his own. To the party it will accordingly appear /be apt/ that if in the prior cause the inconsistency of the evidence had fallen to his share instead of that of the actual party in that cause - viz: the party against whom it was produced in that cause, his exertions might have been attended with more success. Be this as it may /At any rate/, such is the observation which he will naturally be disposed to bring forward, as an argument against the competency or the credit of the extraneous evidence. But what weight is due to the observation will not with the judge of fact to determine, consideration had of the individual circumstances of the principal case.

In this case it is supposed /the supposition/ that in the principal case the means of encountering the extraneous evidence have been carried off by death or what is tantamount to death: for if not, the case affords no reason why it /the evidence/ should not be permitted to be encountered: just as it might have been encountered if exhibited in the principal cause in the first instance without having ever been exhibited in any prior cause.
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