CURRENT LEGISLATION: Statutory Changes in Rules of EvidenceAuthor(s): Thomas I. Parkinson and J. P. ChamberlainSource: American Bar Association Journal, Vol. 8, No. 8 (AUGUST, 1922), pp. 505-506Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25710991 .

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CURRENT LEGISLATION It will be the purpose of this Department to

bring to the attention of the bar the interesting

changes in the Heids of law which are being made

by the legislatures. No person can be more alive

to the possibilities of error, especially errors of

omission, than the editors of the Department..

The work of collecting the statutes for the past year has been performed under great difficulty, but it is hoped that it will be more successful with greater experience. The notes in the department will be simply a statement of the law as it appears in the statutes, with little or no attempt at its

interpretation through a discussion of the cases.

Statutory Changes in Rules of Evidence

RECENT statutes regulating evidence illustrate a tendency on the one hand to modify the common law rules and on the other hand to

turn back to common law theories after unneces

sarily broad departures in earlier legislation. In both cases the tendency is liberal, representing an attempt to adapt this technical branch of the law to modern conditions and sound reason. Unfortu nately, our statutes dealing with the rules of evi dence do not always show that cooperation of the bar which is peculiarly required for the reform of so technical a branch of the law.

A good instance of the necessity of legislation to modify a common law rule in keeping with mod ern conditions and a better understanding of the questions involved is the statutory change in the rule disqualifying husband and wife as witnesses for or against one another. (See Wigmore, .Ch. 24, ?488). In the legislative year of 1921 Nevada took the sweeping position of repealing ?745 of the Re vised Laws of 1912 which prohibited husband or wife from being a witness for or against one an other in criminal cases. Missouri (p. 392) extended an old statute which in specified actions did away with the disqualification of husband or wife as wit ness in civil suits prosecuted in the name of or against the other party, whether joined or not as a party. The new law removes the disqualification in all civil actions but still continues the restric tion forbidding testimony as to admissions or con fidential communications made by one party to the other. This limitation applies while the relation ex ists and subsequently. South Dakota (412) makes another breach in the general rule in its code that neither wife nor husband ca,n be examined for or against the other spouse. Exception from the rule had already been made in case of civil actions by one against the other or criminal actions for crimes committed by one against the other, or for suits for damages for certain causes necessarily involv ing the marital relationship and the exception is now extended to omit from the operation of the rule cases of bigamy and adultery.

Evidence of an inferential character has been quite widely authorized in the "redlight" statutes now common in the country. For example, New Mexico (1921, Ch. 69) and Wisconsin (227) allow

testimony concerning the reputation of a place or building or of persons frequenting it in prosecutions under the law. New Mexico (Ch. 86) extends the same rule to gambling houses and Montana \76) allows this testimony as to places where narcotics

are sold in prosecutions for violation of the narcotic act. The excuse for this indirect evidence, espe cially in criminal cases, must be the difficulty of otherwise proving the offense (Wigmore ?1620).

The legislature in dealing with evidence is not

always seeking to bring the common law to date; it is sometimes attempting to return to the com

mon law by wray of exception to broad rules it has itself laid down in derogation of that law. An in stance is the privilege of physicians which did not exist at common law. (See Wigmore, ?2380). Wis consin, by statute, forbade a physician to disclose

professional information acquired in a professional capacity. It has found it necessary, howrever, to limit the rule in the physician's own interest, and

by Ch. 122 of the Laws of 1921 a further limitation authorized him to disclose information when per mitted in writing by the patient or the person suing"" for a personal injury in case of the patient's deaths If there is no reason for the professional secret or if the interest of physician or patient is benefitted by a disclosure, it is at least fair to raise the ques tion whether it should prevail over the public in terest especially in criminal matters. In many jurisdictions fhere is a statutory rule against con viction on testimony of an accomplice, thus chang ing the common law which authorized the judge

merely to caution the jury against such testimony if uncorroborated. (See Wigmore, ?2056). In an

anti-gambling act in New Mexico (Ch. 86) the

statutory rule is set aside and it is provided that a conviction may be had for violation of the act on the unsupported testimony of any eiccomplice or

participant. The difficulties of putting the adverse party on

the stand under the rule against impeaching one's own witness inspired Wisconsin (116) to allow an examination "as if under cross-examination" at the

request of the adverse party, of any person who is a party of record in a civil action or for whose bene fit an action is prosecuted. The side calling for the examination is not concluded thereby and "may rebut the evidence given by counter or impeaching testimony." The reasonableness of this rule, now

widely adopted in statute law, is strongly sup ported by Professor Wigmore in ?916. (See 21 Col. L. Rev. 815).

The tendency of legislatures to relieve admin istrative commissions and officers from observance of the technical rules of evidence in the conduct of administrative hearings is illustrated by recent workmen's compensation acts. Arizona (1921, p. 236, ?92) provides that the industrial commission "shall not be bound by the usual common law or

statutory rules of evidence . . . but may make the investigation in such manner as in its judgment

505

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506 American Bar Association Journal

is best calculated to ascertain the substantial rights of the parties." In view of the purpose and person nel of administrative bodies it is not to be expected that their hearings should be required to conform to technical court procedure and rules of evidence. But there is a limit to legislative authorization of administrative informality. Private rights cannot be taken away even by an administrative officer without due process. Some process short of that

resulting from compliance with the technical rules of evidence may be "due process," but there must be some competent evidence to support action taken

by the administrative body. Under a statute simi lar to the Arizona Act, the New York Court of Ap peals held that an award of the workmen's com

pensation commission which wTas based upon noth

ing but hearsay evidence was invalid (Carroll v

Ice Co., 218 N. Y. 435). The court said that under the statute hearsay evidence may be received by the administrative body but "in the end there must

be a residuum of legal evidence to support the claim before an award can be made." The original com

pensation legislation in California gave to the ad ministrative commission power "to regulate and

prescribe the nature and extent of the proofs and

evidence" in proceedings on compensation claims. In Englebretson v. Commission (151 Pac. 421) the court said that such a power would be unconstitu tional as an improper delegation to the administra tive body of power to determine what is within its own jurisdiction. The statute also provided that an administrative body should not be "bound by the technical rules of evidence." In the same case

it was held that the hearsay rule is not a mere tech

nicality but a rule founded on reasonable experi ence and therefore the statute did not justify an award where there was no evidence other than

hearsay to prove the accident. Subsequently the California statute was amended to provide that no

award of the commission should be invalid because of the admission into the record and use as proof of any fact in dispute "of any evidence not admis sible under the said common law or statutory rules of evidence and procedure." In a case in which

the only proof that the deceased was an employee of the defendant was incompetent hearsay, the Su

preme Court of California held that hearsay evi

dence was not only admissible before the commis

sion, but its weight as proof was a question for the

commission and therefore an award based solely on such hearsay could not be set aside by the court

(Perry v. Commission, 181 Pac. 788). Most of the states follow the New York rule.

The legislature may make hearsay admissible, but

that does not dispense with the necessity of some

competent evidence to support the finding or award

of an administrative body. If the legislature should

go further and expressly declare that hearsay evi

dence is not only to be admitted by the administra

tive body, but that such evidence shall be sufficient

to support any finding or action of the administra

tive body, there will be presented squarely to the

courts the question whether administrative action

based on hearsay is "due process." Thomas I. Parkinson and J. P. Chamberlain.

(Articles by Prof. Chafee on The ^Progress of the Law, Vol. 35

Harvard L. Rev., pp. 302-317, 428-449, 673-714, contain a review of

the recent cases on Evidence.)

INJUNCTIONS IN LABOR DISPUTES AND DECISIONS OF INDUSTRIAL TRIBUNALS

By Everett P. Wheeler Chairman, Committee on Jurisprudence and Law Reform

HE recent case of Truax vs. Corrigan, 42 Sup.

That the Statute of Arizona forbidding the

use of injunctions to restrain peaceful picketing de

nied "to persons within its jurisdiction the equal pro tection of the laws." The criticisms upon this case

overlook the fact that the Writ of Injunction has been for over a century an important remedial process. Its

purpose is to secure to citizens protection against forcible invasion of their rights.

There are many cases where such invasion, if not

prevented, works irreparable injury. A strong organi zation composed of many members and with large sums of money in its treasury, determines to force

upon a group of citizens, whether doing business ?s a

corporation or as a partnership, a particular course of

conduct. It may be to compel the demand for higher wages; it may be to compel the exclusion from em

ployment of all persons who are not willing to join the union and contribute money to its treasury.

Whatever the reason, it is a case where the parties do not agree and where the combination, called a union, seeks to compel compliance with its demands. To use the language of Mr. Debs in his testimony before

Ct. Rep. 124, held:

the Commission of Investigation of the railroad

strike of 1894, which was appointed by Mr. Cleve

land, "A strike is war, not necessarily a war of blood

and bullets, but a war in the sense that it is a conflict

between two contending interests or classes of inter

est."

Circuit Judge, now Chief Justice William H.

Taft, said in re Phelan, 62 Fed. Rep. 803 :

The purpose shortly stated was to force the

railroad companies and the public into compelling Pullman to do something which he had no lawful right to compel him to do. Certainly the starvation

of a nation cannot be a lawful purpose of a combina

tion and it is utterly immaterial whether the pur

pose is effected by means usually lawful or other

wise.

In the Railroad Labor Board Act, provision is

made for voluntary arbitration before that Tribunal. The strike is declared because the union declaring the

strike refuses to submit to the decision of this Board

and is determined to compel submission to its demands

by force. If the strike continues long enough, it will not only compel the companies against which it is de

clared to go out of business or yield to its demands, but

will cause inconvenience and loss to the public which

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