JUDGEMENT WRITING
Honourable
Justice Roslyn Atkinson
Delivered
by the Honourable Justice Roslyn Atkinson to Magistrates Conference, Gold Coast,
March 21, 2002.
To
any of us sitting in judgment on others, whether as judge or magistrate,
judgment writing often feels like the bane of our exercise but it is, of course,
the ultimate reason for our existence. In The Eumenides, the Greek playwright
Aeschylus wrote in 458 B.C.:
“Fair
trial, fair judgment…
Evidence,
which issued clear as day…
…
[Q]uench your anger; let not indignation reign
Pestilence
on our soil, corroding every seed
Til
the whole land is sterile desert…
…
[C]alm this black and swelling wrath.
It
is said that this play is the oldest surviving courtroom drama in world
literature. Much of literature, as in life, deals with the tension between the
desire for people to take justice into their own hands, exact revenge or engage
in self-help, as opposed to the processes of the law, which, importantly from
our point of view, are determined by a fair trial and fair judgment.
A
judgment therefore, is a significant social and civic function. But what I am
more concerned with today is the everyday task of judgment writing: something we
do day in, day out. Some judgments almost write themselves. They are purely
mechanical and can be dealt with quickly. Others are more complex and require
deeper thought. All of us are constantly striving to write better, clearer
judgments. How do we do it?
The
first matter to consider is the purpose of the judgment. To my mind there are
four purposes for any judgment that is written:
(1)
To clarify your own thoughts;
(2)
To explain your decision to the parties;
(3)
To communicate the reason for the decision to the public; and
(4)
To provide reasons for an appeal court to consider.
May
I deal with these purposes in reverse order.
Firstly,
the reasons for an appeal court to consider. This is the least important reason
for a judgment to be written but often is one that worries new judges and
magistrates the most. Once you have been writing judgments for a while you come
to welcome the clarification or expansion of the law by an appeal court or the
identification of errors that you have made so that you don’t repeat those
errors. It takes an immense burden from a judicial officer to know that if you
get it wrong it can be corrected on appeal. This is not to underestimate the
very human failing we all have of being disappointed when a matter goes on
appeal or worse, is overturned on appeal.
This
is probably the source of the story I read about a lawyer who died and found
himself in heaven. The lawyer was unhappy with the standard of his
accommodation. He complained to Saint Peter who told him that his only recourse
was to appeal against the accommodation he‘d been assigned. The lawyer
immediately advised Saint Peter that he intended to appeal. Saint Peter referred
him to one of his clerks who told the lawyer that he would be waiting at least
three years before his appeal could be heard. The lawyer protested that a
three-year wait was unconscionable. These words fell on deaf ears. The lawyer
was then approached by the devil who told him he’d be able to arrange an
appeal to be heard in a few days if the lawyer was willing to change the venue
to hell. When the lawyer asked why appeals could be heard so much sooner in hell
he was told, “We have all the judges”.
So
an important reason for writing judgments, if the least important, is so that
your findings of fact and legal reasoning are revealed for an appellate court to
consider.
(2)-
Information to the public.
Courts,
unlike politicians and almost every other organ of our society, don’t commonly
issue press releases quoting from the interesting and spicy parts of a judgment,
putting the appropriate spin of it with a phone number to ring to get more
background information on why the judge or magistrate chose to make the decision
the way he or she did. In order to communicate, a judgment must be clear,
precise, and say everything that needs to be said as to why a decision was
reached and no more.
(3)-Communicating
with the parties.
The
parties and their lawyers, if they have them, need to know how and why a
decision has been reached. It is particularly important that the losing party
knows why he or she has lost the case. It is natural for someone who loses to
feel disenchanted with the legal process so it is important that the reason s
for judgment show that the losing party has been listened to, that the evidence
has been understood, the submissions comprehended and a decision reached. This
is particularly important in the case of an un represented litigant.
(4)-To
clarify your own thoughts.
I
have left this to the last because it seems to be the most important secret to
good judgment writing. We have all read poor judgments. We can list their
faults. They tend to be wordy, unclear, pompous and dull. Mark Twain, that great
storyteller, said that most cases were “chloroform in print”. How do we
avoid those outcomes? How do we become concise, clear, interesting and
accessible?
In
my view the secret is clarity. If your ideas are clear then you will be able to
express them clearly.
Clarity
of thinking and therefore expression has two stages: first structure and then
style.
Dealing
first with structure. I have a simple acronym for the structure of judgments.
It’s an acronym that is easy to remember because it’s something that all of
us get in our role as decision makers and that is – FLAC. What is FLAC other
than having to put up with the usual lawyer jokes, which transmogrify into judge
jokes or magistrate jokes once you are elevated to that position? You know the
sort I mean.
“What do you call a lawyer with an IQ of 40?” “Your Honour”
“What do you call a lawyer with an IQ of 50”? “Your Worship”; or
A
red-faced magistrate convened court after a long lunch. The first case involved
a man charged with drunk driving who claimed it simply wasn’t true. “I am as
sober as you are your worship” the man claimed.
The
magistrate replied, “Clerk, please enter a guilty plea. The defendant is
sentenced to 30 days.”
So
I’ am not taking about that kind of FLAC, I’ am talking about the structure
of a judgment.
F
for Facts
L
for Law
A
for Application, and
C
Conclusion.
That
basic structure of a judgment, modified to suit a particular situation, will
ensure that you order your own thoughts in reaching a just, and indeed one might
say, often inevitable conclusion.
F
for facts, of course, refers to the resolution of facts in issue in the case. In
a civil case the facts in issue are determined by the pleadings. The pleadings
will reveal what facts are not in dispute and what have to be determined. It is
important for the decision maker to resolve each of the facts in issue.
At
this point the judge or magistrate is telling the story of the case. As Lord
Denning effectively showed in many of his judgments, the recitation of the
facts, which are decided, need not be dull. It is the facts that have brought
the parties to court, the facts they have been unable to resolve for themselves.
What makes our work so interesting is the variety of facts that are brought to
us to resolve, the working and private lives of citizens into which we have a
brief but deep insight. This makes our work interesting and important. There is
no reason why we can’t communicate our decisions on the facts in an
interesting way.
The
second aspect of FLAC is the law. It is important to the resolution of any legal
dispute that we set out the relevant statute and case law. We set it out because
in clarifying for ourselves the right decision to come to we have to know what
the law is and to be able to state it clearly and persuasively.
The
third task is to apply the law to the facts. The parties and the public will
accept the decision much more willingly if they can see that the decision is the
result of the objective application of law to the facts that have been found.
This
leads, of course, to the conclusion. The conclusion should be the inevitable
result of the application of the law to the facts.
When
considering the facts and the law and the application of the facts to the law it
is important to clarify in your own mind exactly what it is that you have to
decide. This will save you a lot of time and energy and probably over a lifetime
of magistrates, many forests.
Within
this basic structure it is useful, before you deliver the judgment to write down
each of the points in the judgment in summary form so that you can structure the
judgment in a clear and logical way. This is so whether the judgment is going to
be given orally, immediately or soon after the hearing of the case, or in
writing after being reserved.
As well as the structure that I have
discussed there are a number of basic rules of good writing, which is as much an
element of the skill of judgment writing as the force of your legal reasoning. I
use a simple book on style by Strunk and white called “The Elements of
Style”. It informs you as to the correct rules of grammar, syntax and
punctuation, when you are in any doubt. It also sets out elementary principles
of composition, matters of form, words and expression, expressions commonly
misused and an approach to style. Here is a list of them in on particular order.
1.
Avoid the use of clichés. I always think a good way to remember this one
is to say to yourself to bite the bullet and avoid trite clichés like the
plague.
2.
Be precise and to the point. Perhaps you don’t have to be as concise as
Judge Murdock sitting in the US Tax Court. It is reputed that a taxpayer
testified, “As God is my judge, I do not owe this tax”. Judge Murdoch
replied, “He is not, I am; you do.
Another
example is Denny v Reader Industries. The opinion in the case contains very few
words beyond the following:
“The
appellant has attempted to distinguish the factual situation in this case from
that in [a prior case]. He didn’t. We couldn’t affirmed.”
3.
Use the active voice rather than the passive. The active is usually more
direct and vigorous than the passive: “I shall always remember my first day as
a Magistrate”. This is much batter than “My first day as a Magistrate will
always be remembered by me”. The latter sentence is less direct, less bold and
less concise. If the writer tries to make it more concise by omitting “by
me”, “ My first day as a Magistrate will always be remembered”, it becomes
indefinite: is it the writer or some undisclosed person or the world at large
who will always remember your first day as a Magistrate? This rule, like all
others, is not an invariable rule of practice but whenever you use the passive
you should consider the use of the active voice instead.
4.
Be particular rather than vague. In his Philosophy of Style, Herbert
Spencer gives two sentences to illustrate how the vague and general can be
turned into the vivid and particular:
“In
proportion as the manners, customs and amusements of a nation are cruel and
barbarous; the regulations of its penal code will be severe.”
“In
proportion as men delight in battles, bull fights, and combats of gladiators,
will they punish by hanging, and the rack.”
5.
Use simple and direct prose rather than abstruse wording. We are all
familiar with the scenes from “Yes Minister” where Sir Humphrey puts a
proposition to the minister, Jim Hacker, which, while technically correct, is
incomprehensible. For example, in one episode Sir Humphrey said:
“If
there had been investigations, which there haven’t or not necessarily, or
I’m not at liberty to say whether there have, there would have been a project
team, which had it existed, on which I cannot comment, would not have been
disbanded, if it had existed, and the member returned to their original
departments, if indeed there had been any such members.”
In
another episode a frustrated Jim Hacker says to Sir Humphrey:
“When
you give your evidence to the think tank, are you going to support my view that
the civil service is over manned and feather bedded, or not? Yes or No? Straight
answer!”
Sir Humphrey replies:
“Well
minister, if you ask me for a straight answer, then I shall say that, as far as
we can see, looking at it by and large, taking one thing with another in terms
of the average of departments, then in the final analysis it is probably true to
say, that at the end of the day, in general terms, you would probably find that,
not to put too fine a point on it, there probably wasn’t very much in it one
way or the other as far as one can see, at this stage.”
In other words, “No”
In the end Jim Hacker is promoted to Prime Minister and
becomes more adept at understanding what Sir Humphrey means:
“Prime
Minister, I must strongly protest in the strongest possible terms, my profound
opposition to a newly instituted practice which imposes severe and intolerable
restrictions upon the ingress and egress of senior members of the hierarchy and
which will in all probability, should the current deplorable innovation be
perpetuated, precipitate a constriction of the channel of communication and
culminate in a condition of organizational atrophy and administrative paralysis
which will render effectively impossible a coherent and co-ordinate discharge of
the function of government within her Majesty’s United Kingdom of Great
Britain and Northern Ireland”.
Hacker replies, or rather translates:
“You mean you’ve lost your
key?”-
-
Avoid
obvious errors. A number of frequent errors can be seen in the following
rather amusing list:
1.
Subjects and verb always has to agree.
2.
Make each pronoun agree with their antecedent.
3.
Just between you and I, case is important too.
4.
Being bad grammar, the writer will not use dangling participles.
5.
Join clauses good, like a conjunction should.
6.
Don’t write run-on sentences they are hard to read, you should
punctuate.
7.
Don’t use no double negatives. Not never.
8.
Mixed metaphors are a pain in the neck and ought to be thrown out the
window.
9.
A truly good writer is always especially careful to practically eliminate
the too frequent use of many adverbs.
10.
In my opinion, I think that an author when he is writing something should
not get accustomed to the habit of making use of too many redundant unnecessary
words that he does not actually really need in order to put his message across
to the reader of what he has written.
11.
About them sentence fragments. Sometimes all right.
12.
Try to not ever split infinitives.
13.
Its important to use your apostrophe’s correctly.
14.
Do not use a foreign term when there is an adequate English quid pro quo.
- Try to be interesting. Clear thinking is the key to
clear writing. A clearly expressed judgment allows the interest of the
subject matter and the exposition of legal reasoning. As for being
entertaining, not all of us can aspire to the wit and directness of by now
famous Samuel B. Kent, United State District Judge of the Southern District
of Texas in Galvaston. His many decisions can be found on the internet. I
Bradshaw v Phillips, his Honour first sets out the facts. It was an ordinary
personal injury case where the plaintiff was injured in the course of his
employment while working as a seaman. The defendant applied for summary
judgment because of a statute of limitation. Having set out the facts his
Honour went on the say:
“Before
proceeding further, the court notes that this case involves two extremely
likable lawyers, who have together delivered some of the most amateurish
pleadings ever to cross the hallowed causeway into Galvaston, and which leads
the court to surmise but one plausible explanation. Both attorneys have
obviously entered into a secret pact complete with hats, handshakes and cryptic
words to draft their pleading entirely in crayon on the backsides of gravy
stained paper placemats, in the hope that the court would be so charmed by their
childlike efforts that their utter dearth of legal authorities and their
briefing would go unnoticed. Whatever actually occurred, the court is now faced
with the daunting task of deciphering their submissions.
With big chief
tablet readied, thick black pencil in hand, and a devil-may-care laugh in the
face of death, life on the razor’s edger sense of exhilaration, the court
begins.”
The court then went on to set out the law in relation to summary
judgment, what the arguments of the parties were and then the application of the
law to the facts. Finally the court concluded that the statute of limitation
applied and summary judgment was granted. His Honour concluded:
“After this remarkably long walk
on a short legal pier, having received no useful guidance whatever from either
party, the court has endeavored, primarily based on its affection for both
counsel, but also out of its own sense of morbid curiosity, to resolve what it
perceived to be the legal issue presented. Despite the waste of perfectly good
crayons seen in both parties briefing (and the inexplicable odour of wet dog
emanating from such) the court believes it has satisfactorily resolved this
matter. Defendant’s motion for summary judgment is granted.”
The judge went on however, to sound a note of caution.
There were two defendants in this matter so the plaintiff retained a cause of
action against the remaining defendant, Unity Marine Corporation. The
plaintiff’s lawyer was cautioned against treating this defendant too lightly,
as his Honour said:-
“It is well known around these
parts that Unity Marine’s lawyer is equally likable and has bee writing
crisply in ink since the second grade. Some old times even spin yarns of ability
to type. The court cannot speak to the veracity of such loose talk, but out of
caution, the court suggests the plaintiff’s lovable counsel had best upgrade
to a nice, shiny number 2 pencil or at least sharpen what’s left of the Stubbs
of his crayons for what remains of this heart stopping spine tingling action.
In either case, the court caution plaintiff’s counsel not
to run with a sharpened writing utensil in his hand-he could put his eye out.”
Conclusion
Most of us conscientiously try to write clear, if slightly
less entertaining, judgments. They are, after all, as Aeschylus shows in The
Eumenides, a means of achieving an objective that is universal: the just
resolution of conflict.
JUDGMENT WRITING
Mr.
Justice (R) Muhammad Bashir Jehangiri
The
judgment is not an ornate diction of
Fancies of a brain, it is strictly an oracle Of findings arrived at by a trying
mind. One way, it wraps justice in word; the Other ways it exposes worth of the
Judge.
INTRODUCTION
WHAT IS A
JUDGMENT?
In its broadest sense a judgment is the
decision or sentence of the law given by a court of justice or other competent
tribunal as a result of proceedings instituted therein, or the final
consideration and determination of a court on matters submitted to it in an
action or proceeding, whether or not execution follows thereon. More
particularly it is a judicial determination that, on matters submitted to a
court for decision, a legal duty or liability does or does not exist, or that,
with respect to a claim in suit, no cause of action exists or that no defence
exists. In a broader sense here defined, a decision of any court is a judgment.
In a narrower sense the term "judgment" is limited to a decision of a
court of law. Under most codes of procedure, judgments are defined in substance
as the final determination of the rights of the parties in an action or
proceedings. In America unlike Pakistan, the terms "judgment" and
"decree" are more or less synonymous and inter changeable in code
practice. The terms "judgment" and "order" in their widest
sense may be said to include any decision given by a court on a question or
questions at issue between the parties to a proceeding properly before the
court.
A judgment is the judicial act of a Court by
which it accomplishes the purposes of its creation. It is a judicial declaration
by which the issues are settled and the rights and liabilities of the parties
are fixed as to the matters submitted for decision. In other words, a judgment
is the end of the
law; its rendition
is the object for which jurisdiction is conferred and exercised, and it is the
power by means of which a liability is
enforced against the debtor's property. A judgment constitutes the considered
opinion of the court and is a solemn record and formal expression and evidence
of the actual decision of a law-suit.
As a general rule, courts are not constituted
for the purpose of making advisory decrees or resolving academic disputes. A
proceeding seeking an advisory opinion or judgment will not find favour at the
hand of the judiciary. A mere advisory opinion upon an abstract question is
obviously not a judgment at all when no parties are to be bound, and the rights
of no one are directly affected.
The terms "judgment" and "order" in their widest
sense may be said to include any decision given by a court on a question or
questions at issue between the parties to a proceeding properly before the
court.
ESSENTIALS
OF JUDGMENT
It is essential to the validity of a judgment
that it be based on, and be in conformity with, recognized principles and
fundamentals of law. Where statutory powers are conferred on a court of inferior
jurisdiction, and the mode of executing those powers is prescribed, the course
pointed out must be substantially pursued, or the judgment of the court will be
void. The validity, force and effect of a judgment must be determined by the
laws in force at the time and in the State or country where it was rendered. It
is essential to the validity of a judgment that it be the sentence or
adjudication of a duly constituted court or judicial tribunal. Judicial powers
are sometimes conferred on tribunals not technically courts, and decisions by
such tribunals, in the exercise of powers thus conferred, are considered as
judgments. According to some authorities, it is essential to the validity of a
judgment that it be rendered by a court sitting at the time and also in the
place authorised by law, the tribunal not being otherwise a court in any legal
sense, and the proceedings being, therefore, coram non-judice. In some cases,
however, it has been held that the fact that a term of court at which a judgment
was rendered was held at a time other than that prescribed or authorised by law,
while rendering the judgment erroneous and constituting ground for its reversal,
does not render the judgment void; but a contrary view has also been taken and a
judgment rendered under such circumstances has been held to be void. It has been
held that the mere fact that the court was held at a place other than that
directed by law will not of itself render the judgment void, as where the court
errs with respect to the location of the country seat. Judgments should be
rendered in open court and not in chambers. In Pakistan, according to section
2(9) of the Code of Civil Procedure, judgment means the statement given by the
Judge of the grounds of a decree and order, and Order XX, Rules 1 to 6, Civil
Procedure Code, lay down the law in Pakistan relating to the pronouncements,
signing and contents of judgments. These relate to judgment of civil courts. As
regards criminal courts, sections 366 and 367 of the Code of
Criminal Procedure, 1898 lay down the mode of delivery, language and contents of
judgments. Sections
15 to 20 of the Code of Civil Procedure prescribe the place of suing and section
21 lays down as to when objection to territorial jurisdiction is to be taken.
Chapter XV deals with the place of inquiry or trial of criminal proceedings and
trials and section 531 Code of Criminal Procedure, 1898 states when proceedings
in wrong place can be set aside.
Illegal constitution of the court with respect
to the Judges sitting renders the judgment absolutely void. In the absence of a
constitutional or statutory provision, forbidding a disqualified Judge from
acting, a judgment rendered by a disqualified Judge is voidable but not void. It
is essential to the existence and validity of a judgment that the decision shall
have been rendered in an action or proceeding before the court, in some form
recognised and sanctioned by law. Where the jurisdiction of a court depends on
the amount in controversy, a judgment for a sum in excess of the amount over
which the court has jurisdiction is void.
Judgment has to self-contained and it must show that the court has made an
independent application of its mind to the facts of the case and the evidence
adduced by the parties. It must reveal a consideration of such evidence and the
conclusions to which such evidence would persuade. Where the finding, in a
criminal case, is as to the guilt of some of the accused while to the innocence
of others, the finding has to be supported by reason.
FORM
AND CONTENTS OF JUDGMENTS
Strict formality ordinarily is not essential
to the validity of a judgment, and substantial compliance with statutory
requirements is sufficient.
A judgment should not decide more than what is
necessary in law under which the proceedings have been taken. For example, in a
proceeding under section 145 of the Code of Criminal Procedure, the Magistrate
while deciding question of possession, cannot define shares of co-sharers. He
has to find out only as to who was in actual possession.
In a criminal case, with regard to the
conclusion that accused cannot be tried under Acts providing for treatment and
training or rehabilitation of youthful offenders, the court must record special
reasons for not doing so.
When the defence musters up a number of
witnesses, the court has to be extremely cautious and careful to enter verdict
of guilty. It may do so only if the complainant's version is supported by some
clinching circumstance of such character and quality as may reasonably assure
the judicial mind about the truth of the real position against the accused.
Stating inclination merely is not sufficient, but the court must give
reasons for disagreeing with defence contentions. When the judgment neither gave
reasons for disagreeing with defence contentions nor adverted to the patent
lapses of the investigations, it was held that accused were entitled to benefit
of doubt. The defence evidence is as important as the judgment cannot be said to
be complete.
In a case where truth cannot be separated from falsehood on account of
the two being inextricably mixed up, the court cannot make out any absolute new
case for the prosecution by conjecture. While separating the grain from the
chaff, the court should not break the grain and mix the same with chaff.
The proper course is to scrutinize the
prosecution evidence first and then to pass on the defence case. However, the
reverse course, though irregular would not vitiate judgment.
JUDGMENT SHOULD BE COMPLETE IN
ITSELF
A judgment should be complete in itself and
contain within its four corners the mandate of the' court, without extraneous
references, and leaving open no matters of description or designation out of
which contention may arise as to the meaning. It should not leave open any
judicial question to be determined by others.
LANGUAGE OF
JUDGMENT
Although it has been held that, as a matter of
practice, established precedents with respect to the language of a judgment
should be followed, apart from statute no particular form of words is necessary
to constitute a judgment, provided the words used are such as to indicate a
final determination of the rights of the parties and the relief granted or
denied.
JURISDICTIONAL
RECITALS
Except as statute or court rule may otherwise provide, the judgment of a
court of general jurisdiction need not, as a general rule, contain a recital of
the jurisdictional facts.
A JUDGMENT MUST BE DEFINITE AND CERTAIN
A judgment must be definite and certain in
itself, or capable of being made so by proper construction. It must fix clearly
the rights and liabilities of the respective parties to the cause.
CONDITIONAL
JUDGMENTS
As a general rule, a judgment must not be
conditioned on any contingency; but in a number of instances, as where equitable
relief is awarded, conditional judgments have been sustained.
ALTERNATIVE
JUDGMENTS
As a general rule, a judgment should not be in
the alternative, although under some circumstances, such as in actions for the
specific recovery of property, an alternative judgment may be proper.
DICTA-BINDING FORCE
Statements which are not necessary to the
decisions which go beyond the occasion and lay down a rule that is unnecessary
for the purpose in hand (usually termed 'dicta') have no binding authority on
another court, though they may have merely persuasive efficacy. Rights of
property should not be upset, however, merely because, when historically traced
through the reports of centuries, they rest upon a dictum, nor is it right to
distrust a practice that follows on dicta when it is the practice and not the
dicta that forms the binding authority. Even dicta of individual members of the
House of Lords (in England), although of great weight, have been held not to be
of binding authority; but, when dicta have been expressed unanimously by all the
Judges of Divisional Court, it would not be seemly for the Judges of another
Divisional Court not to follow them. Interlocutory observations by members of a
court during the argument are not judicial pronouncements and do not decide
anything.
JUDGMENT BASED ON EVIDENCE
- FRAGILITY OF
MEMORY
Very few of us are careful and accurate
observers. Those of us who are are at our best when we can check our
observations by repetition, which is exactly what is impossible in most matters
where human testimony is required in court. The tricks played by our senses are
terrifying to the seekers of truth. The evidence which is given is often not
even a recollection of the events, but only a recollection of what the witness
said about it soon after. A policeman will quite often be able to relate only
what appears in his note, not by any means the least satisfactory
kind of evidence. If one seeks to take him out of his framework, and to re-see
the events in his mind's eye, so some detail, not regarded at moment but turning
out to be important, can be recovered, in nine cases out of ten he cannot do it,
though he honestly tries. His memory is of his note, of an observed happening.
It needs no psychologist to show that, although instances occur of delayed
reproduction, memory generally fades with the passage of time, and that, when a
witness is required more than once to recall an event, his act of recalling on a
subsequent occasion may be merely an imperfect memory of what he said on an
earlier. If this is true, it is an interesting commentary on the legal rule
whereby the witness's statement, given in court perhaps months after the event,
is the real evidence while, his original proof of evidence, given perhaps within
hours of the event, and his deposition at the preliminary hearing, given a few
days or weeks after the event, are referred to only for the purpose of
contradicting him and not as independent evidence. The legal insistence upon the
necessity for an oath and upon oral statement in court appears in this light to
be irrational. It may also be pointed out that the rule excluding previous statements
as evidence of the truth of the facts stated is fundamentally inconsistent with another rule, namely, that a witness who professes that he has forgotten the details of an event can refer to a memorandum of it
which he made previously (not on oath, or subject to cross-examination) and have
this memorandum accepted as part of his evidence.
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