Just after midnight one evening a few years ago, some detectives asked me to review a search warrant for some devices that they hoped might lead to the discovery of a missing person. After reading the warrant, I could tell I might someday be confronted with a rare legal question – can you prove a murder case without ever finding the body of the victim? Too curious to sleep, I poured a cup of coffee, fired up Westlaw, and started looking, totally unaware that by sunrise I would stumble across a treatise that altered my career.1The following commentary is offered pursuant to Canon 4(B) of the Code of Judicial Conduct: “A Judge may (1) speak, write, lecture, teach and participate in extrajudicial activities concerning the law, the legal system, the administration of justice and non-legal subjects subject to the requirements of this Code.” Here’s how.
Though I don’t remember the exact phrasing I used for the search, I did as I normally do when encountering a new topic-I found a few recent cases2This all happened in 2017. For the practitioner, the most recent Texas case to discuss the topic is Nisbett v. State, 552 S.W.3d 244, 263-268 (Tex. Crim. App. 2018) and worked backwards, searching for the oldest ones which formed the analytical foundation upon which the newest ones rest.3The research line that morning went something like this: Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015) to Fisher v. State, 851 S.W.2d 298 (Tex. Crim. App. 1993) to Wood v. State, 152 S.W.2d 335 (Tex. Crim. App.1941) to Lott v. State, 131 S.W. 553 (Tex. Crim. App. 1910) to Kugadt v. State, 44 S.W.989 (Tex. Crim. App. 1898). I landed on Kugadt v. State, a fascinating case about a man accused of killing his sister, where the court decided that a defendant’s confession could be used to establish that the crime of murder did in fact happen.4“Shoemaker Charles Kugadt was convicted and hanged for murdering his elderly sister. Click here for some newspaper transcriptions about this fascinating case. They just don’t write like this anymore: “Truly much good and ill omen did this autumn north hold in store for this unfortunate being who was the first and only white man ever legally executed in Washington County.” In it, the Court discussed at length “A Treatise on the Nature, Principles and Rules of Circumstantial Evidence” by Alexander M. Burrill.5See Kugadt, 44 S.W. 989 at 996-998. That’s nifty discovery number one.
Burrill discerned analytical principles applicable to all cases. They represent a checklist the practitioner should go through when piecing together what may have happened in a given case: Start with the appearance of the crime scene, follow leads that may indicate a suspect’s involvement, learn about the suspect’s whereabouts before (“precedent” circumstances) and after (“subsequent” circumstances) a crime in the hopes of determining the what, how and why of what he was doing during (“concomitant” circumstances) the commission of the crime:
The criminal act, which alone the law regards and punishes, is but one of a series of mental and outward acts, constituting a course of conduct; beginning at an antecedent point, sometimes quite remote, when the idea of crime is first presented to the mind, or the first criminal inclination is entertained; and ending with the last act of the criminal which can be made the subject of evidence. All these acts are connected together by order of their succession, by their immediate relations to each other, and by their common and constant reference, direct or indirect, to the principal act, or crime itself. And as the object of the criminal agent is usually threefold,-to prepare for the crime, to commit it, and to escape from it’s legal consequences, the acts themselves may be conveniently classed under a corresponding threefold division of precedent, concomitant and subsequent circumstances.6Burrill, page 123.
He did not “discover” these principles in the sense that they were unpracticed; he articulated them in a generalized, cohesive and digestible manner. Indeed, John Henry Wigmore called the work “masterly.”7See Wigmore, John H., “The Principles of Judicial Proof” page 2, fn1 Even though forensic science has come a long way, the thing that struck me most about the work when I stumbled upon it was that the principles discerned from cases 170 years old and much older apply today with equal force – forensic science has changed but human nature and the physical laws of cause and effect have not.
Several other cases around Kudgadt’s time also mention Burrill.8See e.g., Gill v. State, 38 S.W. 190, 191 (Tex. Crim. App. 1896)(“On this subject Mr. Burrill, in his valuable work on Circumstantial Evidence…); Bryant v. State, 8 S.W. 937, 938 (Tex. App. 1888)(“Upon this subject we would most earnestly call attention to the observations of Mr. Burrill in his work on Circumstantial Evidence…); Jernigan v. State, 10 Tex. App. 546, 550-551 (Tex. App. 1881). The first time the Treatise made into the books in Texas appears to have been in 1859, but it was only cited as as a premise offered by the defense in support of their position in Monroe v. State, 23 Tex. 210 (Tex. Sup. Ct. 1859). The first time it appears to have been relied upon as a source of authority by a Texas Court appears to be Ivey v. State in 1875. 43 Tex. 425, 429 (Tex. Sup. Ct. 1875). Though the work had been cited as recently as 2007,9Rollerson v. State, 227 S.W.3d 718, 725 fn. 18 (Tex. Crim. App. 2007) it wasn’t on Westlaw. So I Googled it, and found nifty tool number two: Archive.org.
Archive.org is a “non-profit library of millions of free books, movies, software, music, websites, and more.” Burrill’s entire Treatise is available there in an easy to read open book format. If you’d like to know where to start, I’ll refer you to pages 580-602 in Chapter 2 where you’ll get an very clear idea of how he works. On Archive.org, you can create an account, and set up your own personal library of favorites. Here’s mine. There are lots of similar widely used scholarly works on the website; take Wigmore on Evidence10For a fascinating book on Dean Wigmore’s legendary Treatise on evidence, read “John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law” by University of Oklahoma Law Professor Andrew Porwancher. or Wharton on the Law of Homicide as perfect examples. They have all profoundly deepened my understanding of the evidence rules as they exist today, and are worth their weight in gold.
And they are all right at your fingertips. For free.
Archive.org has so much more to offer than scans of old lawbooks, and I’ll invite you to look around and see what grabs your attention: music in the public domain, news clippings and videos, and archived websites. Historic treatises appear to be but pebbles on the mountain. Perhaps you’ll find something that alters your career path like I did. How? As I read through Burrill’s Treatise, I remember thinking to myself, “this oughta be a textbook.” That’s exactly what it has become for my students. Take a look and let me know your thoughts.