Effect of Evidence; What Judges are to Consider

The judges or referees or juries are the judges of the effect or value of evidence addressed to them, except when it is declared by law to be conclusive. In so weighing the evidence, they shall consider: 1. That their power in judging the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence; 2. That they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a lesser number or against a presumption or other evidence satisfying their minds; 3. That a witness who fails in one part of his testimony may be distrusted in others; 4. That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution; 5. That in civil cases, the affirmative of the issue must be proved, and when the evidence is contradictory, the decision must be made according to the preponderance of the evidence, that in criminal cases guilt must be established beyond reasonable doubt; 6. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore, 7. That if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory evidence was within the COL120106 DIV. 2 PRINCIPLES OF E VIDENCE CH. 8 THE EFFECT OF E VIDENCE power of the party, the evidence offered should be viewed with distrust.