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Public Documents. Documents of a public nature and of public authority are admissible without the same authentication required for private writings; and copies certified by the proper officers are often used. Oral accounts of the contents of a document given by some person who has himself seen it are in some cases admissible. The advice of the attorney is essential in determining the probable admissibility of evidence of this character.

Documents Prima Facie Evidence. Documents are said to be only prima facie evidence; other evidence may be presented to offset or overcome them. Nevertheless, in many cases no other evidence of equal quality can be found and often no evidence combating them will be considered admissible. Documentary evidence of certain kinds thus becomes wellnigh conclusive. It may properly be mentioned here that any erasure in a document tends to subject it to suspicion; occasionally a document contains, just above the signature, a statement that a certain number of words were interlined on a given page, and this represents good practice.

Ancient Documents. Ancient documents (more than thirty years old) need not be proved in the ordinary way; but their age must be proved and generally by some one who has seen them more than thirty years before. Their appearance must inspire confidence, and they must have come from a custody apparently not improper, from a custody reasonable and probable in view of the character of the document. For instance, old surveys found in a surveyor-general's office have been accepted.

Ancient documents ordinarily have qualities as evidence, as to whether relevant or material, no different from other documents; but they have been admitted in some cases, where as modern writings they would not be admissible, as evidence of boundaries, title, existence of highways and of watercourses, and other purposes not of interest here.

MAPS, DIAGRAMS, AND MODELS

Maps, Diagrams, Models. Special attention may properly be given here to maps, diagrams, and models; a map of a site or a parcel of land; a diagram or a model of a structure, a machine, or a mine. One definition of a map is that it is a transcript of a region which it portrays, narrowed in compass so as to facilitate an understanding of the original. If the map is to be used in this sense, and is to constitute substantially direct evidence to this end, it must have the testimony of a witness to support it. When its accuracy is thus established, it takes its place in evidence as a non-verbal means of expressing a witness's testimony. This is well established and the rule holds as to models and to diagrams of various sorts, including photographs; these, like other diagrams, must be proved

to be true by proper witnesses. In this way they are pictorial testimony given by qualified witnesses.

Official Maps. Official maps, like any official documents, are received on the basis of their official character and without other proof of their accuracy, which is prima facie assumed, but which may be disproved by presenting evidence sufficient to discredit it. The lithographed maps published by the U. S. Geological Survey are frequently made with direct authorization and coöperation on the part of the State, and apparently in their official character should be admissible in evidence.

Maps for Illustration. But diagrams, maps, and models may be used in another way, when they are not introduced as direct evidence. It is well established that they may be used to illustrate oral testimony, even though they be not drawn to scale, provided some witness testifies to their substantial accuracy, no matter who made them. This can often be done without formally introducing the diagram or model in evidence. A witness may even make a diagram while testifying; he may use one he finds satisfactory, even if made by another, provided that it serves to make his testimony clearer and does not tend to mislead the jury. It is always desirable that a map, diagram, or model should be given full credit by the testimony of him who made it and knows it to be correct. In that case it has full and direct value as evidence. Nevertheless, a diagram not thus sponsored may be of great value, and should not be discarded unless ruled out by the judge; even in this case, it may be an error for him to reject it, and an appeal from his decision may be taken by the attorney.

Privileged Communications. Certain evidence is not admissible, but is "privileged," as it is called. A lawyer may refuse to divulge any communication made by his client as privileged, and this is at Common Law. The same rule holds between physicians and patients; this is not a Common Law privilege, but statutory in many States. It seems proper also that the rule should apply to communications in the nature of confessions between a member of a church or congregation and his clergyman or pastor. This is not Common Law, but prevails largely. This privilege is in favor of the client, the patient, the church member, and may be waived by them. A similar privilege exists for communications between man and wife, but this privilege in many instances cannot be waived by either man or wife.

OPINIONS

Opinions. While an expert may express opinions and is often called upon to do so, the ordinary witness may not in general express opinions. The law holds the jury to be as competent as the ordinary witness where a matter

of opinion is involved, and so is slow to allow a witness as to facts to express any opinion as to the quality or effect of facts which have come to his knowledge through his senses, of sight, hearing, or otherwise.

Exceptions. The witness may, however, express opinions as to certain things, such as:

1. The age of a man he has seen;

2. Identity of a person or object;

3. Appearance of a person intoxicated, angry, sad, nervous, or apparently in pain;

4. Concerning another's health- sick, or rational or insane, looking well or ill;

5. Habits, as intemperate;

6. Actions strange or childish, or short in answers;

7. Character- eccentric or fickle;

8. Reputation - good or bad.

And opinions are received as to:

1. Size, color, weight or quantity;

2. Time or distance;

3. Direction and character of sounds;

4. Whether an act was in insulting or jocular manner;

5. How an object or an act appeared;

6. Value;

7. Cold, heat, light, or darkness;

8. Dispositions of pernicious animals;

9. Sometimes the sufficiency of object for purpose intended. Expert Testimony. There is necessity oftentimes for an analysis of cause and effect, and the bearing of facts in a more complete way than the experience of the jury (or even the judge when trying a case without a jury) would secure. Accordingly "experts", as they are termed, may testify to their opinions concerning the facts in the case. Before anyone may testify in this way, however, he must be shown to be competent. Expert testimony will receive some attention in a later chapter.

BURDEN OF PROOF

Definition. When a man brings suit against another it is necessary in law for him to prove his case; if he alleges that the man sued owes him money, he must offer evidence to that effect; unless he does so, the man sued need not prove that he does not owe him, and need not offer any evidence. The "burden of proof" is on the party suing.

If one man alleges a debt, and the second denies it, and the testimony of one appears to be as good as that of the other, and there is no other

evidence, the case falls to the ground; there is no preponderance of evidence; the burden is on the plaintiff, and the plaintiff loses.

If, in the pleadings that bring the case to issue, the defendant admits receiving money but alleges payment, the burden of proof then rests on the defendant to prove payment, and with no preponderance of evidence, the defendant loses.

Placing the Burden. In bringing a case to issue through the pleadings, there is some opportunity for skill in placing the burden of proof upon the opposite party; this is for the lawyer; but the engineer, in collecting evidence, is at some advantage if he has a proper notion as to where the burden is likely to rest.

The rule in a general way is that the party who finds it necessary in his case to affirm that a fact in dispute is true or is not true, has in substance the affirmative, and the burden of proof is on him; this burden. he must support by a preponderance of evidence in civil cases; in criminal cases beyond a reasonable doubt. One test as to the burden of proof is as to which party would be successful if no evidence, or if no more evidence, were given.

The burden of proof rests on the party who wishes to support his case by a particular fact peculiarly within his knowledge, or of which he has special means of acquiring knowledge, even though this requires proving a negative. The party who finds it necessary to go forward with evidence not in negation of that presented, sustains the burden. These are some of the views which have been advanced.

Shifting Burden. When evidence has been presented sufficient to make a prima facie case in favor of him on whom the burden of proof rests, his opponent has two courses open; first, to combat this evidence by other evidence opposed to it, to destroy the preponderance; or, second, to introduce evidence leading in another direction, for instance to show that, if true, the evidence presented fails to make a case against him. This raises a new issue and was at one time thought to shift the burden of proof, but at present it seems to be good law that the burden never shifts.

Burden both for Competency and Weight. There may be said to be two sides to the burden of proof. On one side then there is a burden on the proper party to bring to the judge evidence of competent character tending to prove his case, and sufficient, if true, to prove it. On the other side the evidence which is submitted must be sufficiently persuasive to convince the jury by a preponderance of evidence, even though some of it may be disputed by testimony from the other side.

The importance of the burden of proof is evident; the scope of this treatise does not justify an extended discussion of this somewhat intricate question.

Lack of Evidence Presented. It has not infrequently happened that a case has been lost when sufficient evidence was at hand, because either the attorney was unskilled in presenting his evidence, which was ruled inadmissible, or was unfortunate either in the questions asked his witnesses or in their dullness in answering suitably, so that he was unable to bring out the evidence necessary to be presented by his client on whom the burden of proof rested. No effective evidence was presented, and the case was lost. Such a result has sometimes been due to failure to prepare the case properly beforehand.

Persuasiveness. On the other hand, with regard to persuasiveness, much depends upon the presence and clearness of testimony of a witness, and much finally on the skill with which the evidence is presented to the jury, depending upon the arrangement and clearness of presentation of the facts, and perhaps the eloquence or personal magnetism of the attorney.

Summing Up. When all the evidence desired (or admissible) has been presented by both parties to the suit, each attorney has opportunity to sum up, to bring to the attention of the jury the facts which seem to him important, and to arrange these in such a way as to make a clear and favorable presentation of the claims of his client. The judge finally "charges" the jury, that is, instructs them as to the law pertinent to the facts presented in the case, but in this country without expressing any opinion whatever as to the probable truth of matters in dispute as shown by the testimony. It remains only for the jury to retire, to deliberate, and to bring in their verdict, if they succeed in agreeing, which is commonly, but not always the case in civil trials.

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