of evidence did not unduly increase the difficulty of obtaining convictions in criminal trials. Mr. Taft answered that in his opinion they did and that they ought to be radically changed.

This incident excited some comment in the press and a few days later at the request of the New York Evening Sun, Mr. Taft expressed more at length his views on the law of evidence and trial procedure.

RULES OF EVIDENCE NEED REFORM*

The Sun has asked me to write something concerning the rules of trial procedure, and, particularly of evidence.

The law of evidence was developed centuries after the beginnings of our system of jurisprudence. It began to assume definite form less than two centuries ago.

For a long time the English, and, indeed, the early Colonial American people, got along with few, or the very rudimentary rules of evidence On the trial of Warren Hastings, Edmund Burke said he was ignorant of the law of evidence, but he added that it could be comprised in so small a compass that a parrot he had known might get the rules by rote in a half hour and repeat them in five minutes. Unfortunately, the latter part of this remark has no application now in this country.

In the last two centuries many restrictive rules have been developed and they have been retained in the last three or four decades without reference to modern conditions, and many of them, instead of facilitating, impede the ascertainment of truth Laymen, including litigants, juries and the public at large, generally think that they impose obstacles which cautious and sagacious men do not consider necessary in investigations on the results of which they base important action. They seem artificial and out of keeping with the methods adopted in the management of ordinary affairs of life. Rules which had a basis in conditions of yesterday have not yielded to the business habits, the social customs and the moral tendencies of today, so that they seem now to be little understood subtleties. Rules founded on reason should be retained, but others should not be allowed to survive * Reprinted from New York Evening Sun of June 12th and 13th, 1922.

merely on account of fancied sanctity attaching to them because of their antiquity. Lord Chief Justice Cockburn said:

"People were formerly frightened out of their wits about admitting evidence lest juries should go wrong. In modern times we admit the evidence and discuss its weight."

The prevalence of Lord Cockburn's view has led to a condition in England where the courts are called upon to devote far less time to rulings upon evidence than in this country.

Mr. Elihu Root in an address to the American Bar Association in 1915 described the condition in this country thus:

"Our trial practice in the admission and exclusion of evidence does not agree with the common sense, the experience, or the instincts of any intelligent laymen in the country. *** It is an exceedingly difficult thing to tell the truth, the whole truth and nothing but the truth, on the witness stand, as any lawyer who has been a witness must realize; and the simplest and best way to get that done is to come as near as possible to allowing people to tell their stories their own way."

In England cases are tried by highly trained barristers who are continuously in the courts. The knowledge of rules of evidence is so intuitive that rulings by the court rarely become necessary, and exceptions to evidence infrequently require consideration on appeal. Here, on the contrary, a trial is often marked by a rapid fire of objections and exceptions, repeated ad nauseum, lest some entirely worthy lawyer, thoroughly grounded in the principles of our substantive law, but overcautious through inexperience in trial work, should miss a point;

all of which causes delay and obscures the main issue. It was of such a situation some years ago that the presiding justice in an appellate court ironically inquired of counsel for an appellant, how it happened that there were only 299 exceptions to rulings on evidence instead of 300.

The treatment of witnesses requires a word. We have all seen honest witnesses badgered with scant courtesy by opposing counsel, "grilled," as the newspapers say. A witness is required to answer "Yes" or "No" to questions not susceptible of such an answer. He is told that he may later correct his answers, but that is only after an incorrect impression has been left. Temperaments, powers of observation, powers of description, quickness of comprehension and other intellectual qualities vary in different witnesses, but under our trial procedure all must be put in the straightjacket of conventional restrictions. Most witnesses are honest and wish to tell the truth. But under our practice frequently they are made to appear as unworthy of belief because they cannot tell their story as they would out of court. Of course, there must be restrictions in the interest of avoiding garrulity and digression, but our present rules give too much opportunity for unfairly putting an honest witness in the wrong.

It is a common observation that examining counsel has a great advantage over a witness. The reason is that he knows how to use the rules of evidence to the discomfiture of a witness who is in the habit of telling the truth, but in a way quite different from that prescribed by our procedure. The witness naturally looks with wonderment and despair when the court imposes upon him, not always too gently, restrictions which are anachronisms

and the reason for which he cannot understand. While counsel must always have a certain advantage over a witness trying to tell the truth, this ought not to be increased by the factitious aid of highly technical rules. Cross examination is a most useful instrument for detecting inaccuracy and willful misrepresentation, but its efficiency should be made to depend upon showing inconsistencies, improbabilities and contradictions, and should not be made effective by rigid canons resorted to too often for the purpose of making a perfectly truthful person a "bad witness."

It would be unjust to place the responsibility for this condition upon either the counsel or the courts. It must be traced to the effect of rules of trial procedure which both encourage and justify the prevailing practice.

I have spoken to many judges upon the subject, and with scarcely an exception I find that they favor a relaxation of our rules of trial procedure and of evidence, and where it can be done without danger of criticism on appeal, the courts incline in practice to great liberality in permitting all kinds of evidence. A judge rarely initiates an objection to evidence unless there is unnecessary repetition or clear irrelevancy, resulting in waste of time. With an experienced judge and competent counsel, it is not often that the protection of a litigant's interests requires more than half a dozen objections to evidence; and the test of this is that on appeal it rarely happens that exceptions to a greater number are found worth presenting to the court.

Generalizations concerning reforms of the law without specific criticism do not produce constructive results. May I, therefore, mention a few concrete cases?