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Washington Lawyer

Legal Spectator: Wigmore No More

From Washington Lawyer, January 2008

By Jacob A. Stein

spectator Members of the Bar, I regret to inform you that, based on persuasive circumstantial evidence, Wigmore on Evidence (all 10 volumes) is dead. Here is the proof. While dozing off before a TV talk show, I noticed there appeared on the stage-prop bookshelf, among the usual old law books, the dark green binding of a book bearing the gold lettering Wigmore on Evidence.

A few days later, I saw another odd volume of Wigmore on Evidence resting on a worn leather briefcase in a Ralph Lauren shop. The clear inference to be drawn is that Wigmore on Evidence is dead, and the corpse has been taken over by the interior decorators. A sad ending.

A few words about John Henry Wigmore. He taught law at Keio University in Japan from 1889 to 1892. He served as dean of the Northwestern University School of Law from 1901 until 1929. The Colonel (he served as a colonel in WWI) became the Supreme Commander of the law of evidence with the publication in 1904 of Wigmore on Evidence. It reflected Wigmore’s obsession with the law of evidence from the beginning of time to the date of publication.

The law of evidence, taken as a whole, is a study of man’s cunning as a liar and his reciprocal cunning in catching a liar by use of the art of cross-examination. Here is Wigmore’s comment on the art:

It may be that in more than one sense [cross-examination] takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate its wonderful power, … cross- examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.

Cross-examination has changed since Wigmore described it. In his day the advocate had little background information concerning the witness and very few documents to work with. He relied on intuition and a careful study of the witness under examination. That has changed. Today the cross-examiner, using Google, knows more about the witness than the witness knows about himself. Each question put to the witness is fortified by an impeaching statement or document.

Wigmore assumed the reader of his book was a well-educated gentleman, a classics scholar who quickly connects with Wigmore’s scattered literary allusions and byways of ancient legal history.

Wigmore’s astonishing reservoir of information overflows everywhere. His footnotes, like Edward Gibbon’s, are filled with interesting odds and ends. For instance, if you failed to read the footnote to section 2251, you would have missed this:

During the discussions which took place on the Indian Code of Criminal Procedure in 1872 (drawn by Sir J. Stephen himself), some observations were made on the reasons which occasionally lead [sic] native police officers to apply torture to prisoners. An experienced civil officer observed, ‘There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.’ …

Inasmuch as I relied on circumstantial evidence in signing the death certificate, I took a look in Wigmore’s Volume I to see what he had to say about such evidence. I am sorry to report he writes so much about it that he fails to give a short, plain, simple definition.

If Wigmore were around today, I would refer him to R.E. Megarry’s A New Miscellany-at-Law (The Law Book Exchange, Limited, 2005) for a good definition. Megarry quotes Pollock C. B.:

It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. [Cite omitted.]

Wigmore was a healthy, happy boulevardier of 80 when on April 20, 1943, he suffered a mortal injury. Earlier that day he attended a luncheon meeting of the editorial board of the Journal of Criminal Law and Criminality at the Chicago Bar Association. It is reported he was full of life, told stories, and discussed books—maybe he even hummed “Old Northwestern,” the song he wrote for his university. He left the meeting and boarded a cab to go home. The cab collided with another car, killing Wigmore and giving his personal representative a substantial claim for wrongful death damages. His ashes were interred with military honors at Arlington National Cemetery.

Wigmore was fortunate that he died before the adoption of the Federal Rules of Evidence in 1988. These rules compressed into 27 pages the law of evidence, pushing aside the thousands (maybe millions) of cases Wigmore spent a lifetime studying. But, as we know, the law runs to complexity and the Federal Rules themselves are now the subject of thousands of cases interpreting the Rules.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.