ABSTRACT
Erle CJ: I concur with the Chief Justice of England on many points of the judgment that he has just delivered. The admissibility of evidence of character for the prisoner stands on peculiar grounds. The question of admissibility of evidence that the good character given to the prisoner is undeserved is now brought for the first time before us for adjudication. The progress of our law should be adapted to the interests of society; and the rules relating to the admissibility of evidence should be regulated by attending carefully to the interests of truth. If the prisoner, having a bad character, misleads the court by calling witnesses to say that he has a good one, in the interests of truth and justice the false impression should be removed; and I quite agree with the Chief Justice of the Queen’s Bench upon the first question, that evidence was admissible in this case to rebut the good character given to the prisoner. With respect to the second question, I agree that evidence of individual facts is to be excluded; but whether the answer given by the witness in this case is in the nature of an individual fact or not I do not stop to inquire, because a question of very general importance has been raised; and, with reference to that question, I am of opinion that the answer, understood as evidence of disposition, is admissible. Now, what is the principle on which evidence of character is admitted? It seems to me that such evidence is admissible for the purpose of shewing the disposition of the party accused, and basing thereon a presumption that he did not commit the crime imputed to him. Disposition cannot be ascertained directly; it is only to be ascertained by the opinion formed concerning the man, which must be founded either on personal experience, or on the expression of opinion by others, whose opinion again ought to be founded on their personal experience. The question between us is, whether the court is at liberty to receive a statement of the disposition of a prisoner, founded on personal experience of the witness, who attends to give evidence and state that estimate which long personal knowledge of and acquaintance with the prisoner has enabled him to form. I think that each source of evidence is admissible. You may give in evidence the general rumour prevalent in the prisoner’s neighbourhood, and, according to my experience, you may have also the personal judgment of those who are capable of forming a more real, substantial, guiding opinion than that which is to be gathered from general rumour. I never saw a witness examined to character without an inquiry being made into his personal means of knowledge of that character. The evidence goes to the jury depending entirely upon the personal experience of the witness who has offered his testimony. Suppose a witness to character were to say, ‘This man has been in my employ for twenty years. I have had experience of his conduct; but I have never heard a human being express an opinion of him in my life. For my own part, I have always regarded him with the highest esteem and respect, and have had abundant experience that he is one of the worthiest men in the world.’ The principle the Lord Chief Justice has laid down would exclude this evidence; and that is the point where I differ from him. To my mind personal experience gives cogency to the evidence; whereas such a statement as, ‘I have heard some persons speak well of him’, or, ‘I have heard general report in favour of the prisoner’, has a very slight effect in comparison. Again, to the proposition that general character is alone admissible the answer is that it is impossible to get at it. There is no such thing as general character; it is the general inference supposed to arise from hearing a number of separate and disinterested
statements in favour of the prisoner. But I think that the notion that general character is alone admissible is not accurate. It would be wholly inadmissible to ask a witness what individual he has ever heard give his opinion of a particular fact connected with the man. I attach considerable weight to this distinction, because, in my opinion, the best character is that which is the least talked of ... [T]he practice is to stop a witness when he refers to particular facts only, but to leave him at liberty to give his opinion founded on those facts. In this particular case the question was, ‘What was the character of the prisoner?’, and, if the answer had been, ‘I knew him when I was a pupil, and I say that his character is bad’, and it had stopped there, it would in my opinion have been unobjectionable. It was a statement of personal experience; and the witness gave his answer according to the general inference which he had drawn from that experience. But the witness added a specific fact: the opinion of his brothers. Strictly, that specific fact was not admissible; but, in a grave case involving a very important question, I cannot rest my decision on the particular answer. On the general principle which I have stated, I think that both questions ought to be answered in the affirmative, and that the conviction should stand.
