542
Opinion of the Court
clared that the number of witnesses testifying bore no relationship to the overall credibility of the Crown's case.30
It also appears that "[a]fter the middle of the 1600s there never was any doubt that the common law of England in jury trials rejected entirely" the Roman law concept of the rule of number. Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, 15 Harv. L. Rev. 83, 93 (1901). Though the treason statute at issue in Fenwick's case, and related antecedent acts, have a superficial resemblance to the rule of number, those acts in fact reflected a concern with prior monarchical abuses relating to the specific crime of treason, rather than any vestigial belief that the number of witnesses is a proxy for probative value. Id., at 100-101; see also 7 J. Wigmore, Evidence § 2037, pp. 353-354 (J. Chadbourn rev. 1978).
VIII
Texas argues (following the holding of the Texas Court of Appeals) that the present case is controlled by Hopt v. Territory of Utah, 110 U. S. 574 (1884), and Thompson v. Missouri, 171 U. S. 380 (1898). In Hopt, the defendant was convicted of murder. At trial, the prosecution introduced the testimony of a convicted felon that tended to inculpate the defendant. Hopt objected to the competency of the witness on the basis of a law in place at the time of the alleged murder, which stated: " '[T]he rules for determining the competency of witnesses in civil actions are applicable also to criminal actions . . . .' " The relevant civil rules, in turn, specified that " 'all persons, without exception, . . . may be witnesses in any action or proceeding,' " but " 'persons against whom judgment has been rendered upon a conviction
[where you doubt, do nothing], I shall not be for it . . ."). See also Coffin v. United States, 156 U. S. 432, 456 (1895).
30 "[O]ne single Witness, if credited by Twelve Jury-men, is sufficient; and an Hundred Witnesses, if not so credited, is not sufficient to Convict a Person of a Capital Crime." Proceedings 210; see also id., at 223-226.
Page: Index Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: October 4, 2007