[Every attempt has been made to replicate the original as printed.
Some typographical errors have been corrected; a list follows the
text. German and French spellings have not been altered from the
original.
(etext transcriber's note)]
CRIMINAL PSYCHOLOGY
MODERN CRIMINAL SCIENCE SERIES
_Published under the auspices of the American Institute of Criminal Law
and Criminology_
1. =Modern Theories of Criminality.= By C. BERNALDO DE QUIRÓS, of Madrid.
Translated from the Second Spanish edition, by Dr. ALFONSO DE SALVIO,
Assistant Professor of Romance Languages in Northwestern University.
With an American Preface by the Author, and an Introduction by W. W.
SMITHERS, of the Philadelphia Bar.
2. =Criminal Psychology.= By HANS GROSS, Professor of Criminal Law in the
University of Graz, Austria, Editor of the Archives of Criminal
Anthropology and Criminalistics, etc. Translated from the Fourth German
edition, by Dr. HORACE M. KALLEN, Professor of Philosophy in Wisconsin
University. With an American Preface by the Author, and an Introduction
by JOSEPH JASTROW, Professor of Psychology in the University of
Wisconsin.
3. =Crime, Its Causes and Remedies.= By CESARE LOMBROSO, late Professor of
Psychiatry and Legal Medicine in the University of Turin, author of the
“Criminal Man,” Founder and Editor of the “Archives of Psychiatry and
Penal Sciences.” Translated from the French and German editions by Rev.
HENRY P. HORTON, M.A., of Ithaca, N. Y. With an Introduction by MAURICE
PARMELEE, Associate Professor of Sociology in the University of
Missouri.
4. =The Individualization of Punishment.= By RAYMOND SALEILLES, Professor
of Comparative Law in the University of Paris. Translated from the
Second French edition, by Mrs. RACHAEL SZOLD JASTROW, of Madison, Wis.
With an Introduction by ROSCOE POUND, Professor of Law in Harvard
University.
5. =Penal Philosophy.= By GABRIEL TARDE, Late Magistrate in Picardy,
Professor of Modern Philosophy in the College of France, and Lecturer in
the Paris School of Political Science. Translated from the Fourth French
edition by RAPELJE HOWELL, of the New York Bar. With an Editorial
Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and an Introduction
by ROBERT H. GAULT, Assistant Professor of Psychology in Northwestern
University.
6. =Crime and Its Repression.= By GUSTAV ASCHAFFENBURG, Professor of
Psychiatry in the Academy of Practical Medicine at Cologne, Editor of
the “Monthly Journal of Criminal Psychology and Criminal Law Reform.”
Translated from the Second German edition by ADALBERT ALBRECHT. With an
Editorial Preface by MAURICE PARMELEE, Associate Professor of Sociology
in the University of Missouri, and an Introduction by ARTHUR C. TRAIN,
formerly Assistant District Attorney for New York County.
7. =Criminology.= By RAFFAELE GAROFALO, late President of the Court of
Appeals of Naples. Translated from the First Italian and the Fifth
French edition, by ROBERT W. MILLAR, Esq., of Chicago, Professor in
Northwestern University Law School. With an Introduction by E. RAY
STEVENS, Judge of the Circuit Court, Madison, Wis.
8. =Criminality and Economic Conditions.= By W. A. BONGER, Doctor in Law
of the University of Amsterdam. Translated from the French by HENRY P.
HORTON, M.A., of Ithaca, N. Y. With an American Preface by the Author,
and an Editorial Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and
an Introduction by FRANK H. NORCROSS, Justice of the Supreme Court of
Nevada.
9. =Criminal Sociology.= By ENRICO FERRI, of the Roman Bar, and Professor
of Criminal Law and Procedure in the University of Rome, Editor of the
“Archives of Psychiatry and Penal Sciences,” the “Positivist School in
Penal Theory and Practice,” etc. Translated from the Fourth Italian and
Second French edition, by JOSEPH I. KELLY, late Lecturer on Roman Law in
Northwestern University, and Dean of the Faculty of Law in the
University of Louisiana, and JOHN LISLE, late of the Philadelphia Bar.
With an American Preface by the Author, an Editorial Preface by WILLIAM
W. SMITHERS, of the Philadelphia Bar, and Introductions by CHARLES A.
ELLWOOD, Professor of Sociology in the University of Missouri, and
QUINCY A. MYERS, formerly Chief Justice of the Supreme Court of
Indiana.
THE MODERN CRIMINAL SCIENCE SERIES
_Published under the Auspices of_
THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY
Criminal Psychology
A MANUAL FOR
JUDGES, PRACTITIONERS, AND STUDENTS
BY HANS GROSS, J.U.D.
_Professor of Criminal Law at the University of
Graz, Austria. Formerly Magistrate of the
Criminal Court at Czernovitz, Austria_
Translated from the Fourth German Edition
BY HORACE M. KALLEN, PH. D.
_Assistant and Lecturer in Philosophy in Harvard University_
WITH AN INTRODUCTION BY JOSEPH JASTROW, PH.D.
PROFESSOR OF PSYCHOLOGY IN THE UNIVERSITY OF WISCONSIN
BOSTON
LITTLE, BROWN, AND COMPANY
1918
_Copyright, 1911_,
BY LITTLE, BROWN, AND COMPANY.
_All rights reserved_
GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE SERIES.
At the National Conference of Criminal Law and Criminology, held in
Chicago, at Northwestern University, in June, 1909, the American
Institute of Criminal Law and Criminology was organized; and, as a part
of its work, the following resolution was passed:
“_Whereas_, it is exceedingly desirable that important treatises on
criminology in foreign languages be made readily accessible in the
English language, _Resolved_, that the president appoint a committee of
five with power to select such treatises as in their judgment should be
translated, and to arrange for their publication.”
The Committee appointed under this Resolution has made careful
investigation of the literature of the subject, and has consulted by
frequent correspondence. It has selected several works from among the
mass of material. It has arranged with publisher, with authors, and with
translators, for the immediate undertaking and rapid progress of the
task. It realizes the necessity of educating the professions and the
public by the wide diffusion of information on this subject. It desires
here to explain the considerations which have moved it in seeking to
select the treatises best adapted to the purpose.
For the community at large, it is important to recognize that criminal
science is a larger thing than criminal law. The legal profession in
particular has a duty to familiarize itself with the principles of that
science, as the sole means for intelligent and systematic improvement of
the criminal law.
Two centuries ago, while modern medical science was still young, medical
practitioners proceeded upon two general assumptions: one as to the
cause of disease, the other as to its treatment. As to the cause of
disease,--disease was sent by the inscrutable will of God. No man could
fathom that will, nor its arbitrary operation. As to the treatment of
disease, there were believed to be a few remedial agents of universal
efficacy. Calomel and bloodletting, for example, were two of the
principal ones. A larger or smaller dose of calomel, a greater or less
quantity of bloodletting,--this blindly indiscriminate mode of treatment
was regarded as orthodox for all common varieties of ailment. And so his
calomel pill and his bloodletting lancet were carried everywhere with
him by the doctor.
Nowadays, all this is past, in medical science. As to the causes of
disease, we know that they are facts of nature,--various, but
distinguishable by diagnosis and research, and more or less capable of
prevention or control or counter-action. As to the treatment, we now
know that there are various specific modes of treatment for specific
causes or symptoms, and that the treatment must be adapted to the cause.
In short, the individualization of disease, in cause and in treatment,
is the dominant truth of modern medical science.
The same truth is now known about crime; but the understanding and the
application of it are just opening upon us. The old and still dominant
thought is, as to cause, that a crime is caused by the inscrutable moral
free will of the human being, doing or not doing the crime, just as it
pleases; absolutely free in advance, at any moment of time, to choose or
not to choose the criminal act, and therefore in itself the sole and
ultimate cause of crime. As to treatment, there still are just two
traditional measures, used in varying doses for all kinds of crime and
all kinds of persons,--jail, or a fine (for death is now employed in
rare cases only). But modern science, here as in medicine, recognizes
that crime also (like disease) has natural causes. It need not be
asserted for one moment that crime is a disease. But it does have
natural causes,--that is, circumstances which work to produce it in a
given case. And as to treatment, modern science recognizes that penal or
remedial treatment cannot possibly be indiscriminate and machine-like,
but must be adapted to the causes, and to the man as affected by those
causes. Common sense and logic alike require, inevitably, that the
moment we predicate a specific cause for an undesirable effect, the
remedial treatment must be specifically adapted to that cause.
Thus the great truth of the present and the future, for criminal
science, is the individualization of penal treatment,--for that man, and
for the cause of that man’s crime.
Now this truth opens up a vast field for re-examination. It means that
we must study all the possible data that can be causes of crime,--the
man’s heredity, the man’s physical and moral make-up, his emotional
temperament, the surroundings of his youth, his present home, and other
conditions,--all the influencing circumstances. And it means that the
effect of different methods of treatment, old or new, for different
kinds of men and of causes, must be studied, experimented, and compared.
Only in this way can accurate knowledge be reached, and new efficient
measures be adopted.
All this has been going on in Europe for forty years past, and in
limited fields in this country. All the branches of science that can
help have been working,--anthropology, medicine, psychology, economics,
sociology, philanthropy, penology. The law alone has abstained. The
science of law is the one to be served by all this. But the public in
general and the legal profession in particular have remained either
ignorant of the entire subject or indifferent to the entire scientific
movement. And this ignorance or indifference has blocked the way to
progress in administration.
The Institute therefore takes upon itself, as one of its aims, to
inculcate the study of modern criminal science, as a pressing duty for
the legal profession and for the thoughtful community at large. One of
its principal modes of stimulating and aiding this study is to make
available in the English language the most useful treatises now extant
in the Continental languages. Our country has started late. There is
much to catch up with, in the results reached elsewhere. We shall, to be
sure, profit by the long period of argument and theorizing and
experimentation which European thinkers and workers have passed through.
But to reap that profit, the results of their experience must be made
accessible in the English language.
The effort, in selecting this series of translations, has been to choose
those works which best represent the various schools of thought in
criminal science, the general results reached, the points of contact or
of controversy, and the contrasts of method--having always in view that
class of works which have a more than local value and could best be
serviceable to criminal science in our country. As the science has
various aspects and emphases--the anthropological, psychological,
sociological, legal, statistical, economic, pathological--due regard was
paid, in the selection, to a representation of all these aspects. And as
the several Continental countries have contributed in different ways to
these various aspects,--France, Germany, Italy, most abundantly, but the
others each its share,--the effort was made also to recognize the
different contributions as far as feasible.
The selection made by the Committee, then, represents its judgment of
the works that are most useful and most instructive for the purpose of
translation. It is its conviction that this Series, when completed, will
furnish the American student of criminal science a systematic and
sufficient acquaintance with the controlling doctrines and methods that
now hold the stage of thought in Continental Europe. Which of the
various principles and methods will prove best adapted to help our
problems can only be told after our students and workers have tested
them in our own experience. But it is certain that we must first
acquaint ourselves with these results of a generation of European
thought.
In closing, the Committee thinks it desirable to refer the members of
the Institute, for purposes of further investigation of the literature,
to the “Preliminary Bibliography of Modern Criminal Law and Criminology”
(Bulletin No. 1 of the Gary Library of Law of Northwestern University),
already issued to members of the Conference. The Committee believes that
some of the Anglo-American works listed therein will be found useful.
COMMITTEE ON TRANSLATIONS.
_Chairman_, WM. W. SMITHERS,
_Secretary of the Comparative Law Bureau of the American Bar
Association, Philadelphia, Pa._
ERNST FREUND,
_Professor of Law in the University of Chicago_.
MAURICE PARMELEE,
_Professor of Sociology in the State University of Kansas_.
ROSCOE POUND,
_Professor of Law in the University of Chicago_.
ROBERT B. SCOTT,
_Professor of Political Science in the State University of
Wisconsin_.
JOHN H. WIGMORE,
_Professor of Law in Northwestern University, Chicago_.
INTRODUCTION TO THE ENGLISH VERSION.
What Professor Gross presents in this volume is nothing less than an
applied psychology of the judicial processes,--a critical survey of the
procedures incident to the administration of justice with due
recognition of their intrinsically psychological character, and yet with
the insight conferred by a responsible experience with a working system.
There is nothing more significant in the history of institutions than
their tendency to get in the way of the very purposes which they were
devised to meet. The adoration of measures seems to be an ineradicable
human trait. Prophets and reformers ever insist upon the values of
ideals and ends--the spiritual meanings of things--while the people as
naturally drift to the worship of cults and ceremonies, and thus secure
the more superficial while losing the deeper satisfactions of a duty
performed. So restraining is the formal rigidity of primitive cultures
that the mind of man hardly moves within their enforced orbits. In
complex societies the conservatism, which is at once profitably
conservative and needlessly obstructing, assumes a more intricate, a
more evasive, and a more engaging form. In an age for which machinery
has accomplished such heroic service, the dependence upon mechanical
devices acquires quite unprecedented dimensions. It is compatible with,
if not provocative of, a mental indolence,--an attention to details
sufficient to operate the machinery, but a disinclination to think about
the principles of the ends of its operation. There is no set of human
relations that exhibits more distinctively the issues of these
undesirable tendencies than those which the process of law adjusts. We
have lost utterly the older sense of a hallowed fealty towards man-made
law; we are not suffering from the inflexibility of the Medes and the
Persians. We manufacture laws as readily as we do steam-rollers and
change their patterns to suit the roads we have to build. But with the
profit of our adaptability we are in danger of losing the underlying
sense of purpose that inspires and continues to justify measures, and to
lose also a certain intimate intercourse with problems of theory and
philosophy which is one of the requisites of a professional equipment
and one nowhere better appreciated than in countries loyal to Teutonic
ideals of culture. The present volume bears the promise of performing a
notable service for English readers by rendering accessible an admirable
review of the data and principles germane to the practices of justice as
related to their intimate conditioning in the psychological traits of
men.
The significant fact in regard to the procedures of justice is that they
are of men, by men, and for men. Any attempt to eliminate unduly the
human element, or to esteem a system apart from its adaptation to the
psychology of human traits as they serve the ends of justice, is likely
to result in a machine-made justice and a mechanical administration. As
a means of furthering the plasticity of the law, of infusing it with a
large human vitality--a movement of large scope in which religion and
ethics, economics and sociology are worthily cooperating--the psychology
of the party of the first part and the party of the second part may well
be considered. The psychology of the judge enters into the consideration
as influentially as the psychology of the offender. The many-sidedness
of the problems thus unified in a common application is worthy of
emphasis. There is the problem of evidence: the ability of a witness to
observe and recount an incident, and the distortions to which such
report is liable through errors of sense, confusion of inference with
observation, weakness of judgment, prepossession, emotional interest,
excitement, or an abnormal mental condition. It is the author’s view
that the judge should understand these relations not merely in their
narrower practical bearings, but in their larger and more theoretical
aspects which the study of psychology as a comprehensive science sets
forth. There is the allied problem of testimony and belief, which
concerns the peculiarly judicial qualities. To ease the step from ideas
to their expression, to estimate motive and intention, to know and
appraise at their proper value the logical weaknesses and personal
foibles of all kinds and conditions of offenders and witnesses,--to do
this in accord with high standards, requires that men as well as
evidence shall be judged. Allied to this problem which appeals to a
large range of psychological doctrine, there is yet another which
appeals to a yet larger and more intricate range,--that of human
character and condition. Crimes are such complex issues as to demand the
systematic diagnosis of the criminal. Heredity and environment,
associations and standards, initiative and suggestibility, may all be
condoning as well as aggravating factors of what becomes a “case.” The
peculiar temptations of distinctive periods of life, the perplexing
intrusion of subtle abnormalities, particularly when of a sexual type,
have brought it about that the psychologist has extended his laboratory
procedures to include the study of such deviation; and thus a common set
of findings have an equally pertinent though a different interest for
the theoretical student of relations and the practitioner. There are, as
well, certain special psychological conditions that may color and quite
transform the interpretation of a situation or a bit of testimony. To
distinguish between hysterical deception and lying, between a
superstitious believer in the reality of an experience and the victim of
an actual hallucination, to detect whether a condition of emotional
excitement or despair is a cause or an effect, is no less a
psychological problem than the more popularly discussed question of
compelling confession of guilt by the analysis of laboratory reactions.
It may well be that judges and lawyers and men of science will continue
to differ in their estimate of the aid which may come to the practical
pursuits from a knowledge of the relations as the psychologist presents
them in a non-technical, but yet systematic analysis. Professor Gross
believes thoroughly in its importance; and those who read his book will
arrive at a clearer view of the methods and issues that give character
to this notable chapter in applied psychology.
The author of the volume is a distinguished representative of the modern
scientific study of criminology, or “criminalistic” as he prefers to
call it. He was born December 26th, 1847, in Graz (Steiermark), Austria,
pursued his university studies at Vienna and Graz, and qualified for the
law in 1869. He served as “Untersuchungsrichter” (examining magistrate)
and in other capacities, and received his first academic appointment as
professor of criminal law at the University of Czernowitz. He was later
attached to the German University at Prague, and is now professor in the
University of Graz. He is the author of a considerable range of volumes
bearing on the administration of criminal law and upon the theoretical
foundations of the science of criminology. In 1893 he issued his
“Handbuch für Untersuchungsrichter, als System der Kriminalistik,” a
work that reached its fifth edition in 1908, and has been translated
into eight foreign languages. From 1898 on he has been the editor of the
“Archiv für Kriminalanthropologie und Kriminalistik,” of which about
twenty volumes have appeared. He is a frequent contributor to this
journal, which is an admirable representative of an efficient technical
aid to the dissemination of interest in an important and difficult
field. It is also worthy of mention that at the University of Graz he
has established a Museum of Criminology, and that his son, Otto Gross,
is well known as a specialist in nervous and mental disorders and as a
contributor to the psychological aspects of his specialty. The volume
here presented was issued in 1897; the translation is from the second
and enlarged edition of 1905. The volume may be accepted as an
authoritative exposition of a leader in his “Fach,” and is the more
acceptable for purposes of translation, in that the wide interests of
the writer and his sympathetic handling of his material impart an
unusually readable quality to his pages.
JOSEPH JASTROW.
MADISON, WISCONSIN,
DECEMBER, 1910.
AUTHOR’S PREFACE TO THE AMERICAN EDITION.
The present work was the first really objective Criminal Psychology
which dealt with the mental states of judges, experts, jury, witnesses,
etc., as well as with the mental states of criminals. And a study of the
former is just as needful as a study of the latter. The need has
fortunately since been recognized and several studies of special topics
treated in this book--e.g. depositions of witnesses, perception, the
pathoformic lie, superstition, probability, sensory illusions,
inference, sexual differences, etc.--have become the subjects of a
considerable literature, referred to in our second edition.
I agreed with much pleasure to the proposition of the American Institute
of Criminal Law and Criminology to have the book translated. I am proud
of the opportunity to address Americans and Englishmen in their
language. We of the German countries recognize the intellectual
achievements of America and are well aware how much Americans can teach
us.
I can only hope that the translation will justify itself by its
usefulness to the legal profession.
HANS GROSS.
TRANSLATOR’S NOTE.
The present version of Gross’s Kriminal Psychologie differs from the
original in the fact that many references not of general psychological
or criminological interest or not readily accessible to English readers
have been eliminated, and in some instances more accessible ones have
been inserted. Prof. Gross’s erudition is so stupendous that it reaches
far out into texts where no ordinary reader would be able or willing to
follow him, and the book suffers no loss from the excision. In other
places it was necessary to omit or to condense passages. Wherever this
is done attention is called to it in the notes. The chief omission is a
portion of the section on dialects. Otherwise the translation is
practically literal. Additional bibliography of psychological and
criminological works likely to be generally helpful has been appended.
CONTENTS.
PAGE
GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE
SERIES v
INTRODUCTION TO THE ENGLISH VERSION ix
AUTHOR’S PREFACE TO THE AMERICAN EDITION xiii
TRANSLATOR’S NOTE xiv
INTRODUCTION 1
PART I. THE SUBJECTIVE CONDITIONS OF EVIDENCE
(THE MENTAL ACTIVITIES OF THE JUDGE) 7
TITLE A. CONDITIONS OF TAKING EVIDENCE 7
Topic 1. METHOD 7
§ 1 (_a_) General Considerations 7
§ 2 (_b_) The Method of Natural Science 9
Topic 2. PSYCHOLOGIC LESSONS 14
§ 3 (_a_) General Considerations 14
§ 4 (_b_) Integrity of Witnesses 16
§ 5 (_c_) Correctness of Testimony 18
§ 6 (_d_) Presuppositions of Evidence-Taking 20
§ 7 (_e_) Egoism 25
§ 8 (_f_) Secrets 28
§ 9 (_g_) Interest 37
Topic 3. PHENOMENOLOGY: The Outward Expression
of Mental States 41
§ 10 41
§ 11 (_a_) General External Conditions 42
§ 12 (_b_) General Signs of Character 53
§ 13 (_c_) Particular Character-signs 61
(_d_) Somatic Character-Units 69
§ 14 (1) General Considerations 69
§ 15 (2) Causes of Irritation 71
§ 16 (3) Cruelty 76
§ 17 (4) Nostalgia 77
§ 18 (5) Reflex Movements 78
§ 19 (6) Dress 82
§ 20 (7) Physiognomy and Related Subjects 83
§ 21 (8) The Hand 100
TITLE B. THE CONDITIONS FOR DEFINING THEORIES 105
Topic 1. THE MAKING OF INFERENCES 105
§ 22. 105
§ 23 (_a_) Proof 106
§ 24 (_b_) Causation 117
§ 25 (_c_) Scepticism 129
§ 26 (_d_) The Empirical Method in the Study of Cases 136
§ 27 (_e_) Analogy 144
§ 28 (_f_) Probability 147
§ 29 (_g_) Chance 159
§ 30 (_h_) Persuasion and Explanation 161
§ 31 (_i_) Inference and Judgment 165
§ 32 (_j_) Mistaken Inferences 176
§ 33 (_k_) Statistics of the Moral Situation 179
Topic 2. KNOWLEDGE 183
§ 34 183
PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION
(THE MENTAL ACTIVITY OF THE EXAMINEE) 187
TITLE A. GENERAL CONDITIONS 187
Topic 1. OF SENSE PERCEPTION 187
§ 35 187
§ 36 (_a_) General Considerations 187
(_b_) The Sense of Sight 196
§ 37 (1) General Considerations 196
§ 38 (2) Color-vision 204
§ 39 (3) The Blind Spot 207
§ 40 (_c_) The Sense of Hearing 208
§ 41 (_d_) The Sense of Taste 212
§ 42 (_e_) The Sense of Smell 213
§ 43 (_f_) The Sense of Touch 215
Topic 2. PERCEPTION AND CONCEPTION 221
§ 44 221
Topic 3. IMAGINATION 232
§ 45 232
Topic 4. INTELLECTUAL PROCESSES 238
§ 46 (_a_) General Considerations 238
§ 47 (_b_) The Mechanism of Thinking 243
§ 48 (_c_) The Subconscious 245
§ 49 (_d_) Subjective Conditions 248
Topic 5. THE ASSOCIATION OF IDEAS 254
§ 50 254
Topic 6. RECOLLECTION AND MEMORY 258
§ 51 258
§ 52 (_a_) The Essence of Memory 259
§ 53 (_b_) The Forms of Reproduction 263
§ 54 (_c_) The Peculiarities of Reproduction 268
§ 55 (_d_) Illusions of Memory 275
§ 56 (_e_) Mnemotechnique 279
Topic 7. THE WILL 281
§ 57 281
Topic 8. EMOTION 283
§ 58 283
Topic 9. THE FORMS OF GIVING TESTIMONY 287
§ 59 287
§ 60 (_a_) General Study of Variety in Forms of Expression 288
§ 61 (_b_) Dialect Forms 293
§ 62 (_c_) Incorrect Forms 296
TITLE B. DIFFERENTIATING CONDITIONS OF GIVING
TESTIMONY 300
Topic 1. GENERAL DIFFERENCES 300
(_a_) Woman 300
§ 63 1. General Considerations 300
§ 64 2. Difference between Man and Women 307
3. Sexual Peculiarities 311
§ 65 (_a_) General 311
§ 66 (_b_) Menstruation 311
§ 67 (_c_) Pregnancy 317
§ 68 (_d_) Erotic 319
§ 69 (_e_) Submerged Sexual Factors 322
4. Particular Feminine Qualities 332
§ 70 (_a_) Intelligence 332
§ 71 1. Conception 333
§ 72 2. Judgment 335
§ 73 3. Quarrels with Women 337
§ 74 (_b_) Honesty 340
§ 75 (_c_) Love, Hate and Friendship 350
§ 76 (_d_) Emotional Disposition and Related
Subjects 359
§ 77 (_e_) Weakness 361
§ 78 (_b_) Children 364
§ 79 1. General Considerations 364
§ 80 2. Children as Witnesses 365
§ 81 3. Juvenile Delinquency 369
§ 82 (_c_) Senility 372
§ 83 (_d_) Differences in Conception 375
§ 84 (_e_) Nature and Nurture 384
§ 85 1. The Influence of Nurture 385
§ 86 2. The Views of the Uneducated 388
§ 87 3. Onesided Education 391
§ 88 4. Inclination 393
§ 89 5. Other Differences 395
§ 90 6. Intelligence and Stupidity 398
Topic 2. ISOLATED INFLUENCES 406
§ 91 (_a_) Habit 406
§ 92 (_b_) Heredity 410
§ 93 (_c_) Prepossession 412
§ 94 (_d_) Imitation and the Crowd 415
§ 95 (_e_) Passion and Emotion 416
§ 96 (_f_) Honor 421
§ 97 (_g_) Superstition 422
Topic 3. MISTAKES 422
(_a_) Mistakes of the Senses 422
§ 98 (1) General Considerations 422
§ 99 (2) Optical Illusions 427
§ 100 (3) Auditory Illusions 443
§ 101 (4) Illusions of Touch 449
§ 102 (5) Illusions of the Sense of Taste 452
§103 (6) The Illusions of the Olfactory Sense 453
§ 104 (_b_) Hallucinations and Illusions 454
§ 105 (_c_) Imaginative Ideas 459
(_d_) Misunderstandings 467
§ 106 1. Verbal Misunderstandings 467
§ 107 2. Other Misunderstandings 470
(_e_) The Lie 474
§ 108 1. General Considerations 474
§ 109 2. The Pathoformic Lie 479
Topic 4. ISOLATED SPECIAL CONDITIONS 480
§ 110 (_a_) Sleep and Dream 480
§ 111 (_b_) Intoxication 484
§ 112 (_c_) Suggestion 491
APPENDIX A. BIBLIOGRAPHY, INCLUDING TEXTS MORE EASILY
WITHIN REACH OF ENGLISH READERS 493
APPENDIX B. WORKS ON PSYCHOLOGY OF GENERAL INTEREST 500
INDEX 503
CRIMINAL PSYCHOLOGY.
INTRODUCTION.
Of all disciplines necessary to the criminal justice in addition to the
knowledge of law, the most important are those derived from psychology.
For such sciences teach him to know the type of man it is his business
to deal with. Now psychological sciences appear in various forms. There
is a native psychology, a keenness of vision given in the march of
experience, to a few fortunate persons, who see rightly without having
learned the laws which determine the course of events, or without being
even conscious of them. Of this native psychological power many men show
traces, but very few indeed are possessed of as much as criminalists
intrinsically require.
In the colleges and pre-professional schools we jurists may acquire a
little scientific psychology as a “philosophical propaedeutic,” but we
all know how insufficient it is and how little of it endures in the
business of life. And we had rather not reckon up the number of
criminalists who, seeing this insufficiency, pursue serious
psychological investigations.
One especial psychological discipline which was apparently created for
our sake is the psychology of law, the development of which, in Germany,
Volkmar[1] recounts. This science afterward developed, through the
instrumentality of Metzger[2] and Plainer,[3] as criminal psychology.
From the medical point of view especially, Choulant’s collection of the
latter’s, “Quaestiones,” is still valuable. Criminal psychology was
developed further by Hoffbauer,[4] Grohmann,[5] Heinroth,[6]
Schaumann,[7] Münch,[8] Eckartshausen,[9] and others. In Kant’s time the
subject was a bone of contention between faculties, Kant representing in
the quarrel the philosophic, Metzger, Hoffbauer, and Fries,[10] the
medical faculties. Later legal psychology was simply absorbed by
psychiatry, and thereby completely subsumed among the medical
disciplines, in spite of the fact that Regnault,[11] still later,
attempted to recover it for philosophy, as is pointed out in
Friedreich’s[12] well-known text-book (cf. moreover V. Wilbrand’s[13]
text-book). Nowadays, criminal psychology, as represented by Kraus,[14]
Krafft-Ebing,[15] Maudsley,[16] Holtzendorff,[17] Lombroso,[18] and
others has become a branch of criminal anthropology. It is valued as the
doctrine of motives in crime, or, according to Liszt, as the
investigation of the psychophysical condition of the criminal. It is
thus only a part of the subject indicated by its name.[19] How utterly
criminal psychology has become incorporated in criminal anthropology is
demonstrated by the works of Näcke,[20] Kurella,[21] Bleuler,[22]
Dallemagne,[23] Marro,[24] Ellis,[25] Baer,[26] Koch,[27] Maschka,[28]
Thomson,[29] Ferri,[30] Bonfigli,[31] Corre,[32] etc.
Literally, criminal psychology should be _that form of psychology used
in dealing with crime_; not merely, the psychopathology of criminals,
the natural history of the criminal mind. But taken even literally, this
is not all the psychology required by the criminalist. No doubt crime is
an objective thing. Cain would actually have slaughtered Abel even if at
the time Adam and Eve were already dead. But for us each crime exists
only as we perceive it,--as we learn to know it through all those media
established for us in criminal procedure. But these media are based upon
sense-perception, upon the perception of the judge and his assistants,
i.e.: upon witnesses, accused, and experts. Such perceptions must be
psychologically validated. The knowledge of the principles of this
validation demands again a special department of general
psychology--even such a _pragmatic applied psychology as will deal with
all states of mind that might possibly be involved in the determination
and judgment of crime_. It is the aim of this book to present such a
psychology. “If we were gods,” writes Plato in the Symposium, “there
would be no philosophy”--and if our senses were truer and our sense
keener, we should need no psychology. As it is we must strive hard to
determine certainly how we see and think; we must understand these
processes according to valid laws organized into a system--otherwise we
remain the shuttlecocks of sense, misunderstanding and accident. We must
know how all of us,--we ourselves, witnesses, experts, and accused,
observe and perceive; we must know how they think,--and how they
demonstrate; we must take into account how variously mankind infer and
perceive, what mistakes and illusions may ensue; how people recall and
bear in mind; how everything varies with age, sex, nature, and
cultivation. We must also see clearly what series of influences can
prevail to change all those things which would have been different under
normal conditions. Indeed, the largest place in this book will be given
to the witness and the judge himself, since we want in fact, from the
first to keep in mind the creation of material for our instruction; but
the psychology of the criminal must also receive consideration
where-ever the issue is not concerned with his so-called psychoses, but
with the validation of evidence.
Our method will be that fundamental to all psychological investigation,
and may be divided into three parts:[33]
1. The preparation of a review of psychological phenomena.
2. Study of causal relationships.
3. Establishment of the principles of psychic activity.
The subject-matter will be drawn on the one hand, from that already
presented by psychological science, but will be treated throughout from
the point of view of the criminal judge, and prepared for his purposes.
On the other hand, the material will be drawn from these observations
that alone the criminologist at work can make, and on this the
principles of psychology will be brought to bear.
We shall not espouse either pietism, scepticism, or criticism. We have
merely to consider the individual phenomena, as they may concern the
criminalist; to examine them and to establish whatever value the
material may have for him; what portions may be of use to him in the
interest of discovering the truth; and where the dangers may lurk that
menace him. And just as we are aware that the comprehension of the
fundamental concepts of the exact sciences is not to be derived from
their methodology, so we must keep clearly in mind that the truth which
we criminalists have to attain can not be constructed out of the
_formal_ correctness of the content presented us. We are in duty bound
to render it _materially_ correct. But that is to be achieved only if we
are acquainted with principles of psychology, and know how to make them
serve our purposes. For our problem, the oft-quoted epigram of Bailey’s,
“The study of physiology is as repugnant to the psychologist as that of
acoustics to the composer,” no longer holds. We are not poets, we are
investigators. If we are to do our work properly, we must base it
completely upon modern psycho physical fundamentals. Whoever expects
unaided to find the right thing at the right moment is in the position
of the individual who didn’t know whether he could play the violin
because he had not yet tried. We must gather wisdom while we are not
required to use it; when the time for use arrives, the time for harvest
is over.
Let this be our fundamental principle: _That we criminalists receive
from our main source, the witnesses, many more inferences than
observations_, and that this fact is the basis of so many mistakes in
our work. Again and again we are taught, in the deposition of evidence,
that only facts as plain sense-perceptions should be presented; that
inference is the judge’s affair. But we only appear to obey this
principle; actually, most of what we note as fact and sense-perception,
is nothing but a more or less justified judgment, which though presented
in the honestest belief, still offers no positive truth. “Amicus Plato,
sed magis amica Veritas.”
There is no doubt that there is an increasing, and for us jurists, a not
unimportant demand for the study of psychology in its bearing on our
profession. But it must be served. The spirited Abbé de Baëts, said at a
meeting of criminalists in Brussels, that the _present tendency of the
science of criminal law demands the observation of the facts of the
daily life_. In this observation consists the alpha and omega of our
work; we can perform it only with the flux of sensory appearances, and
the law which determines this flux, and according to which the
appearances come, is the law of causation. But we are nowhere so
neglectful of causation as in the deeds of mankind. A knowledge of that
region only psychology can give us. Hence, to become conversant with
psychological principles, is the obvious duty of that conscientiousness
which must hold first place among the forces that conserve the state. It
is a fact that there has been in this matter much delinquency and much
neglect. If, then, we were compelled to endure some bitterness on
account of it, let it be remembered that it was always directed upon the
fact that we insisted on studying our statutes and their commentaries,
fearfully excluding every other discipline that might have assisted us,
and have imported vitality into our profession. It was Gneist[34] who
complained: “The contemporary low stage of legal education is to be
explained like much else by that historical continuity which plays the
foremost rôle in the administration of justice.” Menger[35] does not
mention “historical continuity” so plainly, but he points sternly enough
to the legal sciences as the most backward of all disciplines that were
in contact with contemporary tendencies. That these accusations are
justified we must admit, when we consider what Stölzel[36] and the
genial creator of modern civil teaching demands: “It must be recognized
that jurisprudence in reality is nothing but the thesis of the healthy
human understanding in matters of law.” But what the “healthy human
mind” requires we can no longer discover from our statutory paragraphs
only. How shameful it is for us, when Goldschmidt[37] openly narrates
how a famous scientist exclaimed to a student in his laboratory: “What
do you want here? You know nothing, you understand nothing, you do
nothing,--you had better become a lawyer.”
Now let us for once frankly confess why we are dealt these disgraceful
reproaches. Let us agree that we have not studied or dealt with
jurisprudence as a science, have never envisaged it as an empirical
discipline; that the aprioristic and classical tradition had kept this
insight at a distance, and that where investigation and effort toward
the recognition of the true is lacking, there lacks everything of the
least scientific importance. To be scientifically legitimate, we need
first of all the installation of the disciplines of research which shall
have direct relationships with our proper task. In this way only can we
attain that spiritual independence by means of spiritual freedom, which
Goldschmidt defines as the affair of the higher institutions of
learning, and which is also the ideal of our own business in life. And
this task is not too great. “Life is movement,” cried Alois von
Brinz,[38] in his magnificent inaugural address. “Life is not the
thought, but the thinking which comes in the fullness of action.”
It may be announced with joy and satisfaction, that since the
publication of the first edition of this book, and bearing upon it,
there came to life a rich collection of fortuitous works which have
brought together valuable material. Concerning the testimony of
witnesses, its nature and value, concerning memory, and the types of
reproduction, there is now a considerable literature. Everywhere
industrious hands are raised,--hands of psychologists, physicians, and
lawyers, to share in the work. Should they go on unhurt we may perhaps
repair the unhappy faults committed by our ancestors through stupid
ignorance and destructive use of uncritically collected material.
PART I.
THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE MENTAL ACTIVITIES OF THE
JUDGE.
TITLE A. THE CONDITIONS OF TAKING EVIDENCE.
Topic I. METHOD.
Section 1. (a) General Considerations.
Socrates, dealing in the Meno with the teachability of virtue, sends for
one of Meno’s slaves, to prove by him the possibility of absolutely
certain a priori knowledge. The slave is to determine the length of a
rectangle, the contents of which is twice that of one measuring two
feet; but he is to have no previous knowledge of the matter, and is not
to be directly coached by Socrates. He is to discover the answer for
himself. Actually the slave first gives out an incorrect answer. He
answers that the length of a rectangle having twice the area of the one
mentioned is four feet, thinking that the length doubles with the area.
Thereupon Socrates triumphantly points out to Meno that the slave does
as a matter of fact not yet quite know the truth under consideration,
but that he really thinks he knows it; and then Socrates, in his own
Socratic way, leads the slave to the correct solution. This very
significant procedure of the philosopher is cited by Guggenheim[39] as
an illustration of the essence of a priori knowledge, and when we
properly consider what we have to do with a witness who has to relate
any fact, we may see in the Socratic method the simplest example of our
task. We must never forget _that the majority of mankind dealing with
any subject whatever always believe that they know and repeat the
truth_, and even when they say doubtfully: “I believe.--It seems to me,”
there is, in this tentativeness, more meant than meets the ear. When
anybody says: “I believe that--” it merely means that he intends to
insure himself against the event of being contradicted by better
informed persons; but he certainly has not the doubt his expression
indicates. When, however, the report of some bare fact is in question
(“It rained,” “It was 9 o’clock,” “His beard was brown,” or “It was 8
o’clock,”) it does not matter to the narrator, and if he imparts _such_
facts with the introduction, “I believe,” then he was really uncertain.
The matter becomes important only where the issue involves
partly-concealed observations, conclusions and judgments. In such cases
another factor enters--conceit; what the witness asserts he is fairly
certain of just because he asserts it, and all the “I believes,”
“Perhapses,” and “It seemeds,” are merely insurance against all
accidents.
Generally statements are made without such reservations and, even if the
matter is not long certain, with full assurance. What thus holds of the
daily life, holds also, and more intensely, of court-witnesses,
particularly in crucial matters. Anybody experienced in their conduct
comes to be absolutely convinced that witnesses do not know what they
know. A series of assertions are made with utter certainty. Yet when
these are successively subjected to closer examinations, tested for
their ground and source, only a very small portion can be retained
unaltered. Of course, one may here overshoot the mark. It often happens,
even in the routine of daily life, that a man may be made to feel shaky
in his most absolute convictions, by means of an energetic attack and
searching questions. Conscientious and sanguine people are particularly
easy subjects of such doubts. Somebody narrates an event; questioning
begins as to the indubitability of the fact, as to the exclusion of
possible deception; the narrator becomes uncertain, he recalls that,
because of a lively imagination, he has already believed himself to have
seen things otherwise than they actually were, and finally he admits
that the matter might probably have been different. During trials this
is still more frequent. The circumstance of being in court of itself
excites most people; the consciousness that one’s statement is, or may
be, of great significance increases the excitement; and the
authoritative character of the official subdues very many people to
conform their opinions to his. What wonder then, that however much a man
may be convinced of the correctness of his evidence, he may yet fail in
the face of the doubting judge to know anything certainly?
Now one of the most difficult tasks of the criminalist is to hit, in
just such cases, upon the truth; neither to accept the testimony blindly
and uncritically; nor to render the witness, who otherwise is telling
the truth, vacillating and doubtful. But it is still more difficult to
lead the witness, who is not intentionally falsifying, but has merely
observed incorrectly or has made false conclusions, to a statement of
the truth as Socrates leads the slave in the Meno. It is as modern as it
is comfortable to assert that this is not the judge’s business--that the
witness is to depose, his evidence is to be accepted, and the judge is
to judge. Yet it is supposed before everything else that the duty of the
court is to establish the material truth--that the formal truth is
insufficient. Moreover, if we notice false observations and let them by,
then, under certain circumstance, we are minus one important piece of
evidence _pro_ and _con_, and the whole case may be turned topsy turvy.
At the very least a basis of development in the presentation of evidence
is so excluded. We shall, then, proceed in the Socratic fashion. But,
inasmuch as we are not concerned with mathematics, and are hence more
badly placed in the matter of proof, we shall have to proceed more
cautiously and with less certainty, than when the question is merely one
of the area of a square. On the one hand we know only in the rarest
cases that we are not ourselves mistaken, so that we must not, without
anything further, lead another to agree with us; on the other hand we
must beware of perverting the witness from his possibly sound opinions.
It is not desirable to speak of suggestion in this matter, since, if I
believe that the other fellow knows a matter better than I and conform
to his opinion, there is as yet no suggestion. And this pure form of
change of opinion and of openness to conviction is commonest among us.
Whoever is able to correct the witness’s apparently false conceptions
and to lead him to discover his error of his own accord and then to
speak the truth--whoever can do this and yet does not go too far,
deducing from the facts nothing that does not actually follow from--that
man is a master among us.
Section 2. (b) The Method of Natural Science.[40]
If now we ask how we are to plan our work, what method we are to follow,
we must agree that to establish scientifically the principles of our
discipline alone is not sufficient. If we are to make progress, the
daily routine also must be scientifically administered. Every sentence,
every investigation, every official act must satisfy the same demand as
that made of the entire juristic science. In this way only can we rise
above the mere workaday world of manual labor, with its sense-dulling
disgust, its vexatious monotony, and its frightful menace against law
and justice. While jurists merely studied the language of dead laws,
expounding them with effort unceasing, and, one may complain,
propounding more, we must have despaired of ever being scientific. And
this because law as a science painfully sought justification in
deduction from long obsolete norms and in the explanation of texts. To
jurisprudence was left only the empty shell, and a man like Ihering[41]
spoke of a “circus for dialectico-acrobatic tricks.”
Yet the scientific quality is right to hand. We need only to take hold
of the method, that for nearly a century has shown itself to us the most
helpful. Since Warnkönig (1819)[42] told us, “Jurisprudence must become
a natural science,” men have rung changes upon this battle cry (cf.
Spitzer[43]). And even if, because misunderstood, it led in some
directions wrongly, it does seem as if a genuinely scientific direction
might be given to our doctrines and their application. We know very well
that we may not hurry. Wherever people delayed in establishing the right
thing and then suddenly tried for it, they went in their haste too far.
This is apparent not only in the situations of life; it is visible, in
the very recent hasty conclusions of the Lombrosists, in their very
good, but inadequate observations, and unjustified and strained
inferences. We are not to figure the scientific method from these.[44]
It is for us to gather facts and to study them. The drawing of
inferences we may leave to our more fortunate successors. But in the
daily routine we may vary this procedure a little. We draw there
_particular_ inferences from correct and simple observations. “From
facts to ideas,” says Öttingen.[45] “The world has for several
millenniums tried to subdue matter to preconceptions and the world has
failed. Now the procedure is reversed.” “From facts to ideas”--there
lies our road, let us for once observe the facts of life without
prejudice, without maxims built on preconceptions; let us establish
them, strip them of all alien character. Then finally, when we find
nothing more in the least doubtful, we may theorize about them, and draw
inferences, modestly and with caution.
Every fundamental investigation must first of all establish the nature
of its subject matter. This is the maxim of a book, “Über die
Dummheit”[46] (1886), one of the wisest ever written. The same axiomatic
proposition must dominate every legal task, but especially every task of
criminal law. It is possible to read thousands upon thousands of
testimonies and to make again this identical, fatiguing, contrary
observation: The two, witness and judge, have not defined the nature of
this subject; they have not determined what they wanted of each other.
The one spoke of one matter, the other of another; but just what the
thing really was that was to have been established, the one did not know
and the other did not tell him. But the blame for this defective
formulation does not rest with the witness--formulation was the other
man’s business.
When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[47] I believe, has for our purpose
defined it best. It consists in trying to keep constant the complex of
conditions demonstrated to be necessary for the realization of a given
effect. It consists in varying these conditions, in isolating one from
the other in a numerically determinable order, and finally, in
establishing the accompanying changes with regard to the effect, in a
quantified or countable order.
I can not here say anything further to show that this is the sole
correct method of establishing the necessary principles of our science.
The aim is only to test the practicality of this method in the routine
of a criminal case, and to see if it is not, indeed, the only one by
which to attain complete and indubitable results. If it is, it must _be
of use_ not only during the whole trial--not only in the testing of
collected evidence, but also in the testing of every individual portion
thereof, analyzed into its component elements.
Let us first consider the whole trial.
The _effect_ is here the evidence of A’s guilt. The complex conditions
for its establishment are the collective instruments in getting
evidence; the individual conditions are to be established by means of
the individual sources of evidence--testimony of witnesses, examination
of the premises, obduction, protocol, etc.
_The constantification of conditions_ now consists in standardizing the
present instance, thus: Whenever similar circumstances are given, i.e.:
the same instruments of evidence are present, the evidence of guilt is
established. Now the accompanying changes with regard to the effect,
i.e.: proof of guilt through evidence, have to be tested--therefore the
individual conditions--i.e.: the individual sources of evidence have to
be established and their values to be determined and _varied_. Finally,
the accompanying change in effect (conviction by evidence) is to be
tested. The last procedure requires discussion; the rest is self
evident. In our business isolation is comparatively easy, inasmuch as
any individual statement, any visual impression, any effect, etc., may
be abstracted without difficulty. Much harder is the determination of
its value. If, however, we clearly recognize that it is necessary to
express the exact value of each particular source of evidence, and that
the task is only to determine comparative valuation, the possibility of
such a thing, in at least a sufficiently close degree of certainty, must
be granted. The valuation must be made in respect of two things--(1) its
_reliability_ (subjective and relative); (2) its _significance_
(objective and absolute). On the one hand, the value of the evidence
itself must be tested according to the appraisement of the person who
presents it and of the conditions under which he is important; on the
other, what influence evidence accepted as reliable can exercise upon
the _effect_, considered in and for itself. So then, when a testimony is
being considered, it must first be determined whether the witness was
able and willing to speak the truth, and further, what the importance of
the testimony may be in terms of the changes it may cause in the
_organization_ of the case.
Of greatest importance and most difficult is the variation of conditions
and the establishment of the changes thereby generated, with regard to
the _effect_,--i.e.: the critical interpretation of the material in
hand. Applied to a case, the problem presents itself in this wise: I
consider each detail of evidence by itself and cleared of all others,
and I vary it as often as it is objectively possible to do so. Thus I
suppose that each statement of the witness might be a lie, entirely or
in part; it might be incorrect observation, false inference, etc.--and
then I ask myself: Does the evidence of guilt, the establishment of an
especial trial, now remain just? If not, is it just under other and
related possible circumstances? Am I in possession of these
circumstances? If now the degree of apparent truth is so far tested that
these variations may enter and the accusation still remain just, the
defendant is convicted: but only under these circumstances.
The same procedure here required for the conduct of a complete trial, is
to be followed also, in miniature, in the production of particulars of
evidence. Let us again construe an instance. The _effect_ now is the
establishment of the objective correctness of some particular point
(made by statements of witnesses, looks, etc.). The _complex of
conditions_ consists in the collection of these influences which might
render doubtful the correctness--i.e., dishonesty of witnesses,
defective examination of locality, unreliability of the object,
ignorance of experts, etc. It is necessary to know clearly which of
these influences might be potent in the case in hand, and to what
degree. The _standardization_ consists, also this time, in the
comparison of the conditions of the present case with those of other
cases. The _variation_, again, consists in the abstraction from the
evidence of those details which might possibly be incorrect, thus
correcting it, from various points of view, and finally, in observing
the _effect_ as it defines itself under this variety of formulation.
This procedure, adopted in the preparation and judgment of each new
piece of evidence, excludes error as far as our means conceivably
permit. Only one thing more is needful--a narrow and minute research
into that order of succession which is of indispensable importance in
every natural science. “Of all truths concerning natural phenomena,
those which deal with the order of succession are for us the most
important. Upon a knowledge of them is grounded every intelligent
anticipation of the future” (J. S. Mill).[48] The oversight of this
doctrine is the largest cause of our failures. We must, in the
determination of evidence, cleave to it. Whenever the question of
influence upon the “_effect_” is raised, the problem of order is found
invariably the most important. Mistakes and impossibilities are in the
main discovered only when the examination of the order of succession has
been undertaken.
In short: We have confined ourselves long enough to the mere study of
our legal canons. We now set out upon an exact consideration of their
material. To do this, obviously demands a retreat to the starting-point
and a beginning we ought to have made long ago; but natural sciences, on
which we model ourselves, have had to do the identical thing and are now
at it openly and honestly. Ancient medicine looked first of all for the
universal panacea and boiled theriac; contemporary medicine dissects,
uses the microscope, and experiments, recognizes no panacea, accepts
barely a few specifics. Modern medicine has seen the mistake. But we
lawyers boil our theriac even nowadays and regard the most important
study, the study of reality, with arrogance.
Topic II. PSYCHOLOGIC LESSONS.
Section 3. (a) General Considerations.
Of the criminalist’s tasks, the most important are those involving his
dealings with the other men who determine his work, with witnesses,
accused, jurymen, colleagues, etc. These are the most pregnant of
consequences. In every case his success depends on his skill, his tact,
his knowledge of human nature, his patience, and his propriety of
manner. Anybody who takes the trouble, may note speedily the great
differences in efficiency between those who do and those who do not
possess such qualities. That they are important to witnesses and accused
is undoubted. But this importance is manifest to still others. The
intercourse between various examining judges and experts is a matter of
daily observation. One judge puts the question according to law and
expects to be respected. He does not make explicit how perfectly
indifferent the whole affair is to him, but experts have sufficient
opportunity to take note of that fact. The other narrates the case,
explains to the experts its various particular possibilities, finds out
whether and what further elucidation they demand, perhaps inquires into
the intended manner and method of the expert solution of the problem,
informs himself of the case by their means, and manifests especial
interest in the difficult and far too much neglected work of the
experts. It may be said that the latter will do their work in the one
case as in the other, with the same result. This would be true if,
unfortunately, experts were not also endowed with the same imperfections
as other mortals, and are thus far also infected by interest or
indifference. Just imagine that besides the examining magistrate of a
great superior court, every justice and, in addition, all the chiefs and
officials manifested equal indifference! Then even the most devoted
experts would grow cool and do only what they absolutely had to. But if
all the members of the same court are actuated by the same keen interest
and comport themselves as described, how different the affair becomes!
It would be impossible that even the indifferent, and perhaps least
industrious experts, should not be carried out of themselves by the
general interest, should not finally realize the importance of their
position, and do their utmost.
The same thing is true of the president, the jurymen and their
fellow-judges. It is observable that here and there a presiding justice
succeeds in boring all concerned during even criminal cases interesting
in themselves; the incident drags on, and people are interested only in
finally seeing the end of the matter. Other presiding justices again,
fortunately the majority, understand how to impart apparent importance
to even the simplest case. Whatever office anybody may hold,--he and his
mates are commissioned in the common task, and should the thing come up
for judgment, everybody does his best. The difference here is not due to
temperamental freshness or tediousness; the result depends only upon a
correct or incorrect psychological handling of the participants. The
latter must in every single case be led and trained anew to interest,
conscientiousness and co-operation. In this need lies the educational
opportunity of the criminal judge. Whether it arises with regard to the
accused, the witness, the associate justice, or the expert, is all one;
it is invariably the same.
That knowledge of human nature is for this purpose most important to the
criminalist will be as little challenged as the circumstance that such
knowledge can not be acquired from books. Curiously enough, there are
not a few on the subject, but I suspect that whoever studies or
memorizes them, (such books as Pockel’s, Herz’s, Meister’s, Engel’s,
Jassoix’s, and others, enumerated by Volkmar) will have gained little
that is of use. A knowledge of human nature is acquired only (barring of
course a certain talent thereto) by persevering observation, comparison,
summarization, and further comparison. So acquired, it sets its
possessor to the fore, and makes him independent of a mass of
information with which the others have to repair their ignorance of
mankind. This is to be observed in countless cases in our profession.
Whoever has had to deal with certain sorts of swindlers, lying
horsetraders, antiquarians, prestidigitators, soon comes to the
remarkable conclusion, that of this class, exactly those who flourish
most in their profession and really get rich understand their trade the
least. The horse-dealer is no connoisseur whatever in horses, the
antiquarian can not judge the value nor the age and excellence of
antiquities, the card-sharp knows a few stupid tricks with which, one
might think, he ought to be able to deceive only the most innocent
persons. Nevertheless they all have comfortable incomes, and merely
because they know their fellows and have practised this knowledge with
repeatedly fresh applications.
I do not of course assert that we criminalists need little scholarly
knowledge of law, and ought to depend entirely upon knowledge of men. We
need exactly as much more knowledge as our task exceeds that of the
horse-dealer, but we can not do without knowledge of humanity. The
immense onerousness of the judge’s office lies in just the fact that he
needs so very much more than his bare legal knowledge. He must, before
all things, be a jurist and not merely a criminalist; he must be in full
possession not only of the knowledge he has acquired in his academy, but
of the very latest up-to-date status of his entire science. If he
neglects the purely theoretical, he degenerates into a mere laborer. He
is in duty bound not only to make himself familiar with hundreds of
things, to be able to consort with all sorts of crafts and trades, but
also, finally, to form so much out of the material supplied him by the
law as is possible to human power.
Section 4. (b) Integrity of Witnesses.
One of the criminal judge’s grossest derelictions from duty consists in
his simply throwing the witness the question and in permitting him to
say what he chooses. If he contents himself in that, he leaves to the
witness’s conscience the telling of the truth, and the whole truth; the
witness is, in such a case, certainly responsible for one part of the
untruthful and suppressed, but the responsibility for the other, and
larger part, lies with the judge who has failed to do his best to bring
out the uttermost value of the evidence, indifferently for or against
the prisoner. The work of education is intended for this purpose,--not,
as might be supposed, for training the populace as a whole into good
witnesses, but to make that individual into a good, trustworthy witness
who is called upon to testify for the first, and, perhaps, for the last
time in his life. This training must in each case take two
directions--it must make him _want_ to tell the truth; it must make him
_able_ to tell the truth. The first requirement deals not only with the
lie alone, it deals with the development of complete conscientiousness.
How to face the lie itself can not be determined by means of training,
but conscientious answers under examination can certainly be so
acquired. We are not here considering people to whom truth is an utter
stranger, who are fundamentally liars and whose very existence is a
libel on mankind. We consider here only those people who have been
unaccustomed to speaking the full and unadulterated truth, who have
contented themselves throughout their lives with “approximately,” and
have never had the opportunity of learning the value of veracity. It may
be said that a disturbingly large number of people are given to
wandering, in conversation, and in the reproduction of the past. They do
not go straight, quickly, and openly to the point, they loiter toward
it--“If I do not reach it in a bee line, I can get along on by-paths, if
not to-day, then to-morrow; and if I really do not get to it at all, I
do get somewhere else.” Such people have not homes but inns--if they are
not in one place, another will do.
These persons are characterized by the event that whenever one has seen
their loitering and puts the matter to them with just anger, they either
get frightened or say carelessly, “Oh, I thought this was not so
accurate.” This famine of conscience, this indifference to truth, does
far-reaching damage in our profession. I assert that it does immensely
greater harm than obvious falsehood, because, indeed, the unvarnished
lie is much more easily discoverable than the probable truth which is
still untruth. Moreover, lies come generally from people with regard to
whom one is, for one reason or another, already cautious, while these
insinuating approximations are made by people who are not mistrusted at
all.[49]
The lack of conscientiousness is common to all ages, both sexes, and to
all sorts and conditions of men. But it is most characteristically
frequent and sharply defined among people who have no real business in
life. Whoever romances in the daily life, romances when he ought to be
absolutely truthful. The most dangerous of this class are those who make
a living by means of show and exhibition. They are not conscienceless
because they do nothing worth while; they do nothing worth while because
they are conscienceless. To this class belong peddlers, street
merchants, inn-keepers, certain shop-keepers, hack-drivers, artists,
etc., and especially prostitutes (cf. Lombroso, etc., etc.). All these
people follow a calling perhaps much troubled, but they do no actual
work and have chosen their profession to avoid regular, actual work.
They have much unoccupied time, and when they are working, part of the
work consists of gossip, part of loafing about, or of a use of the hands
that is little more. In brief,--since they loiter about and make a
profit out of it, it is no wonder that in giving evidence they also loaf
and bring to light only approximate truth. Nor is it difficult to
indicate analogous persons in the higher walks of life.
The most hateful and most dangerous of these people are the congenital
tramps--people who did not have to work and faithfully pursued the
opportunity of doing nothing. Whoever does not recognize that the world
has no place for idlers and that life on God’s earth must be earned by
labor, is without conscience. No conscientious testimony need be
expected from such. Among the few rules without exception which in the
course of long experience the criminalist may make, this is one--that
_the real tramps of both sexes and all walks of life will never testify
conscientiously;--hic niger est, hunc Tu, Romane, caveto_.
Section 5. (c) The Correctness of Testimony.
The training of the witness into a _capacity_ for truth-telling must be
based, (1) on the judge’s knowledge of all the conditions that affect,
negatively, correct observations and reproductions; (2) on his making
clear to himself whether and which conditions are operative in the case
in question; and (3) on his aiming to eliminate this negative influence
from the witness. The last is in many cases difficult, but not
impossible. That mistakes have been made is generally soon noted, but
then, “being called and being chosen” are two things; and similarly, the
discovery of _what_ is correct and the substitution of the essential
observations for the opinionative ones, is always the most difficult of
the judge’s tasks.
When the witness is both unwilling to tell the truth and unable to do
so, the business of training may be approached from a few common
view-points. Patience with the witness is perhaps the most important key
to success. No doubt it is difficult to be patient where there is no
time; and what with our contemporary over-tasking, there is no time. But
that must be altered. Justice must have strength to keep everybody’s
labor proportional to his task. A nation whose representatives do not
grant money enough for this purpose must not expect satisfactory law
courts--“no checkee no washee;” no money no justice. People who have
time will acquire patience.
Patience is necessary above all while taking evidence. A great many
witnesses are accustomed to say much and redundantly, and again, most
criminal justices are accustomed to try to shut them off and to require
brief statements. That is silly. If the witness is wandering on purpose,
as many a prisoner does for definite reasons of his own, he will spread
himself still more as he recognizes that his examiner does not like it.
To be disagreeable is his purpose. He is never led by impatience beyond
his introduction, and some piece of evidence is lost because almost
every accused who speaks unintelligibly on purpose, says too much in
the course of his speech and brings things to light that no effort might
otherwise have attained to. Besides, whoever is making a purposely
long-winded testimony does not want to say anything superfluous, and if
he actually does so, is unaware of it. And even when he knows that he is
talking too much (most of the time he knows it from the impatient looks
of his auditors), he never can tell just what exceeded the measure. If,
then, he is asked to cut it short, he remains unmoved, or at most begins
again at the beginning, or, if he actually condescends, he omits things
of importance, perhaps even of the utmost importance. Nor must it be
forgotten that at least a large proportion of such people who are
brought to court have prepared their story or probably blocked it out in
the rough. If they are not permitted to follow their plans, they get
confused, and nothing coherent or half-coherent is discovered. And
generally those who say most have thought their testimony over before.
Those who merely have to say no more than _yes_ and _no_ at the trial do
not reduce the little they are going to say to any great order; that is
done only by such as have a story to tell. Once the stream of talk
breaks loose it is best allowed to flow on, and only then interrupted
with appropriate questions when it threatens to become exhausting. Help
against too much talk can be found in one direction. But it must be made
use of before the evil begins, and is in any event of use only in the
description of a long chain of events,--e.g., a great brawl. There, if
one has been put in complete possession of the whole truth, through one
or more witnesses, the next witness may be told: “Begin where X entered
the room.” If that is not done, one may be compelled to hear all the
witness did the day before the brawl and how these introductions, in
themselves indifferent, have led to the event. But if you set the
subject, the witness simply abandons the first part of possibly studied
testimony without thereby losing his coherence. The procedure may be
accurately observed: The witness is told, “Begin at this or that point.”
This deliverance is generally followed by a pause during which he
obviously reviews and sets aside the part of his prepared speech dealing
with the events preliminary to the required points. If, however, the
setting of a starting point does not work and the witness says he must
begin at the earlier stage, let him do so. Otherwise he tries so hard to
begin according to request that, unable to go his own way, he confuses
everything.
The patience required for taking testimony is needful also in
cross-examination. Not only children and slow-witted folk, but also
bright persons often answer only “yes” and “no,”[50] and these bare
answers demand a patience most necessary with just this bareness, if the
answers are to be pursued for some time and consecutively. The danger of
impatience is the more obvious inasmuch as everyone recognizes more or
less clearly that he is likely to set the reserved witness suggestive
questions and so to learn things that the witness never would have said.
Not everybody, indeed, who makes monosyllabic replies in court has this
nature, but in the long run, this common characteristic is manifest, and
these laconic people are really not able to deliver themselves
connectedly in long speeches. If, then, the witness has made only the
shortest replies and a coherent well-composed story be made of them, the
witness will, when his testimony is read to him, often not notice the
untruths it might contain. He is so little accustomed to his own
prolonged discourse that at most he wonders at his excellent speech
without noticing even coarse falsehoods. If, contrary to expectation, he
does notice them, he is too chary of words to call attention to them,
assents, and is glad to see the torture coming to an end. Hence, nothing
but endless patience will do to bring the laconic witness to say at
least enough to make his information coherent, even though brief. It may
be presented in this form for protocol.
Section 6. (d) Presuppositions of Evidence-Taking.
One of the most important rules of evidence-taking is not to suppose
that practically any witness is skilled in statement of what he
remembers. Even of child training, Fröbel[51] says, “Men must be drawn
out, not probed.” And this is the more valid in jurisprudence, and the
more difficult, since the lawyers have at most only as many hours with
the individual as the teacher has years. However, we must aim to draw
the witness out, and if it does not work at first, we must nevertheless
not despair of succeeding.
The chief thing is to determine the witness’s level and then meet him on
it. We certainly can not succeed, in the short time allowed us, to raise
him to ours. “The object of instruction” (says Lange[52]) “is to endow
the pupil with more apperceptive capacity, i.e., to make him
intellectually free. It is therefore necessary to discover his ‘funded
thoughts,’ and to beware of expounding too much.” This is not a little
true. The development of apperceptive capacity is not so difficult for
us, inasmuch as our problem is not to prepare our subject for life, but
for one present purpose. If we desire, to this end, to make one more
intellectually free, we have only to get him to consider with
independence the matter with which we are concerned, to keep him free of
all alien suggestions and inferences, and to compel him to see the case
as if no influences, personal or circumstantial, had been at work on
him. This result does not require merely the setting aside of special
influences, nor the setting aside of all that others have said to him on
the matter under discussion, nor the elucidation of the effect of
fear,[53] of anger, of all such states of mind as might here have been
operative,--it requires the establishment of his unbiased vision of the
subject from a period antecedent to these above-mentioned influences.
Opinions, valuations, prejudices, superstitions, etc., may here be to a
high degree factors of disturbance and confusion. Only when the whole
Augean stable is swept out may the man be supposed capable of
apperception, may the thing he is to tell us be brought to bear upon him
and he be permitted to reproduce it.
This necessary preliminary is not so difficult if the second of the
above-mentioned rules is observed and the “funded thought” of the
witness is studied out. It may be said, indeed, that so long as two
people converse, unaware of each other’s “funded thought,” they speak
different languages. Some of the most striking misunderstandings come
from just this reason. It is not alone a matter of varying verbal
values, leading to incompatible inferences; actually the whole of a
man’s mind is involved. It is generally supposed to be enough to know
the meaning of the words necessary for telling a story. But such
knowledge leads only to external and very superficial comprehension;
real clearness can be attained only by knowing the witness’s habits of
thought in regard to all the circumstances of the case. I remember
vividly a case of jealous murder in which the most important witness was
the victim’s brother, an honest, simple, woodsman, brought up in the
wilderness, and in every sense far-removed from idiocy. His testimony
was brief, decided and intelligent. When the motive for the murder, in
this case most important, came under discussion, he shrugged his
shoulders and answered my question--whether it was not committed on
account of a girl--with, “Yes, so they say.” On further examination I
reached the astonishing discovery that not only the word “jealousy,” but
the very notion and comprehension of it were totally foreign to the man.
The single girl he at one time thought of was won away from him without
making him quarrelsome, nobody had ever told him of the pangs and
passions of other people, he had had no occasion to consider the
theoretic possibility of such a thing, and so “jealousy” remained
utterly foreign to him. It is clear that his hearing now took quite
another turn. All I thought I heard from him was essentially wrong; his
“funded thought” concerning a very important, in this case a regulative
concept, had been too poor.
The discovery of the “funded thought” is indubitably not easy. But its
objective possibility with witness and accused is at least a fact. It is
excluded only where it is most obviously necessary--in the case of the
jury, and the impossibility in this case turns the institution of trial
by jury into a Utopian dream. The presiding officer of a jury court is
in the best instances acquainted with a few of the jurymen, but never so
far as to have been entrusted with their “funded thought.” Now and then,
when a juryman asks a question, one gets a glimpse of it, and when the
public prosecutor and the attorney for the defence make their speeches
one catches something from the jury’s expressions; and then it is
generally too late. Even if it be discovered earlier nothing can be done
with it. Some success is likely in the case of single individuals, but
it is simply impossible to define the mental habits of twelve men with
whom one has no particular relations.
The third part of the Fröbelian rule, “To presuppose as little as
possible,” must be rigidly adhered to. I do not say this
pessimistically, but simply because we lawyers, through endless
practice, arrange the issue so much more easily, conceive its history
better and know what to exclude and what, with some degree of certainty,
to retain. In consequence we often forget our powers and present the
unskilled laity, even when persons of education, too much of the
material. Then it must be considered that most witnesses are uneducated,
that we can not actually descend to their level, and their unhappiness
under a flood of strange material we can grasp only with difficulty.
Because we do not know the witness’s point of view we ask too much of
him, and therefore fail in our purpose. And if, in some exceptional
case, an educated man is on the stand, we fail again, since, having the
habit of dealing with the uneducated, we suppose this man to know our
own specialties because he has a little education. Experience does not
dispel this illusion. Whether actual training in another direction dulls
the natural and free outlook we desire in the witness, or whether, in
our profession, education presupposes tendencies too ideal, whatever be
the reasons, it is a fact that our hardest work is generally with the
most highly educated witnesses. I once had to write a protocol based on
the testimony of a famous scholar who was witness in a small affair. It
was a slow job. Either he did not like the terms as I dictated them, or
he was doubtful of the complete certainty of this or that assertion. Let
alone that I wasted an hour or two, that protocol, though rewritten, was
full of corrections and erasures. And the thing turned out to be
nonsense at the end. The beginning contradicted the conclusion; it was
unintelligible, and still worse, untrue. As became manifest later,
through the indubitable testimony of many witnesses, the scholar had
been so conscientious, careful and accurate that he simply did not know
what he had seen. His testimony was worthless. I have had such
experiences repeatedly and others have confessed them. To the question:
Where not presuppose too much? the answer is: everywhere. First of all,
little must be presupposed concerning people’s powers of observation.
They claim to have heard, seen or felt so and so, and they have not
seen, heard, or felt it at all, or quite differently. They assent
vigorously that they have grasped, touched, counted or examined
something, and on closer examination it is demonstrated that it was only
a passing glance they threw on it. And it is still worse where something
more than ordinary perception is being considered, when exceptionally
keen senses or information are necessary. People trust the conventional
and when close observation is required often lack the knowledge proper
to their particular status. In this way, by presupposing especial
professional knowledge in a given witness, great mistakes are made.
Generally he hasn’t such knowledge, or has not made any particular use
of it.
In the same way too much attention and interest are often presupposed,
only to lead later to the astonishing discovery of how little attention
men really pay to their own affairs. Still less, therefore, ought
knowledge in less personal things be presupposed, for in the matter of
real understanding, the ignorance of men far exceeds all
presuppositions. Most people know the looks of all sorts of things, and
think they know their essences, and when questioned, invariably assert
it, quite in good faith. But if you depend on such knowledge bad
results arise that are all the more dangerous because there is rarely
later opportunity to recognize their badness.
As often as any new matter is discussed with a witness, it is necessary,
before all, to find out his general knowledge of it, what he considers
it to be, and what ideas he connects with it. If you judge that he knows
nothing about it and appraise his questions and conclusions accordingly,
you will at least not go wrong in the matter, and all in all attain your
end most swiftly.
At the same time it is necessary to proceed as slowly as possible. It is
Carus[54] who points out that a scholar ought not to be shown any object
unless he can not discover it or its like for himself. Each power must
have developed before it can be used. Difficult as this procedure
generally is, it is necessary in the teaching of children, and is there
successful. It is a form of education by examples. The child is taught
to assimilate to its past experience the new fact, e.g.: in a comparison
of some keen suffering of the child with that it made an animal suffer.
Such parallels rarely fail, whether in the education of children or of
witnesses. The lengthy description of an event in which, e.g., somebody
is manhandled, may become quite different if the witness is brought to
recall his own experience. At first he speaks of the event as perhaps a
“splendid joke,” but as soon as he is brought to speak of a similar
situation of his own, and the two stories are set side by side, his
description alters. This exemplification may be varied in many
directions and is always useful. It is applicable even to accused,
inasmuch as the performer himself begins to understand his deed, when it
can be attached to his fully familiar inner life.
The greatest skill in this matter may be exercised in the case of the
jury. Connect the present new facts with similar ones they already know
and so make the matter intelligible to them. The difficulty here, is
again the fact that the jury is composed of strangers and twelve in
number. Finding instances familiar to them all and familiar in such wise
that they may easily link them with the case under consideration, is a
rare event. If it does happen the success is both significant and happy.
It is not, however, sufficient to seek out a familiar case analogous to
that under consideration. The analogy should be discovered for each
event, each motive, each opinion, each reaction, each appearance, if
people are to understand and follow the case. Ideas, like men, have an
ancestry, and a knowledge of the ancestors leads to a discovery of the
cousins.
Section 7. (e) Egoism.
It is possible that the inner character of egoism shall be as profoundly
potent in legal matters as in the daily life. Goethe has experienced its
effect with unparalleled keenness. “Let me tell you something,” he
writes (Conversations with Eckermann. Vol. 1). “All periods considered
regressive or transitional are subjective. Conversely all progressive
periods look outward. The whole of contemporary civilization is
reactionary, because subjective.... The thing of importance is
everywhere the individual who is trying to show off his lordliness.
Nowhere is any mentionable effort to be found that subordinates itself
through love of the whole.”
These unmistakable terms contain a “discovery” that is applicable to our
days even better than to Goethe’s. _It is characteristic of our time
that each man has an exaggerated interest in himself._ Consequently, he
is concerned only with himself or with his immediate environment, he
understands only what he already knows and feels, and he works only
where he can attain some personal advantage. It is hence to be concluded
that we may proceed with certainty only when we count on this
exaggerated egoism and use it as a prime factor. The most insignificant
little things attest this. A man who gets a printed directory will look
his own name up, though he knows it is there, and contemplate it with
pleasure; he does the same with the photograph of a group of which his
worthy self is one of the immortalized. If personal qualities are under
discussion, he is happy, when he can say,--“Now I am by nature so.”--If
foreign cities are under discussion, he tells stories of his native
city, or of cities that he has visited, and concerning things that can
interest only him who has been there. Everyone makes an effort to bring
something of his personal status to bear,--either the conditions of his
life, or matters concerning only him. If anybody announces that he has
had a good time, he means without exception, absolutely without
exception, that he has had an opportunity to push his “I” very
forcefully into the foreground.
Lazarus[55] has rightly given this human quality historical
significance: “Pericles owed a considerable part of his political
dictatorate to the circumstance of knowing practically all Athenian
citizens by name. Hannibal, Wallenstein, Napoleon I, infected their
armies, thanks to ambition, with more courage than could the deepest
love of arms, country and freedom, just through knowing and calling by
name the individual soldiers.”
Daily we get small examples of this egoism. The most disgusting and
boresome witness, who is perhaps angry at having been dragged so far
from his work, can be rendered valuable and useful through the initial
show of a little _personal_ interest, of some comprehension of his
affairs, and of some consideration, wherever possible, of his views and
efficiency. Moreover, men judge their fellows according to their
comprehension of their own particular professions. The story of the
peasant’s sneer at a physician, “But what can he know when he does not
even know how to sow oats?” is more than a story, and is true of others
besides illiterate boors. Such an attitude recurs very frequently,
particularly among people of engrossing trades that require much
time,--e.g., among soldiers, horsemen, sailors, hunters, etc. If it is
not possible to understand these human vanities and to deal with these
people as one of the trade, it is wise at least to suggest such
understanding, to show interest in their affairs and to let them believe
that really you think it needful for everybody to know how to saddle a
horse correctly, or to distinguish the German bird-dog from the English
setter at a thousand paces. What is aimed at is not personal respect for
the judge, but for the judge’s function, which the witness identifies
with the judge’s person. If he has such respect, he will find it worth
the trouble to help us out, to think carefully and to assist in the
difficult conclusion of the case. There is an astonishing difference
between the contribution of a sulking and contrary witness and of one
who has become interested and pleased by the affair. Not only quantity,
but truth and reliability of testimony, are immensely greater in the
latter case.
Besides, the antecedent self-love goes so far that it may become very
important in the examination of the accused. Not that a trap is to be
set for him; merely that since it is our business to get at the truth,
we ought to proceed in such proper wise with a denying accused as might
bring to light facts that otherwise careful manipulation would not have
brought out. How often have anonymous or pseudonymous criminals betrayed
themselves under examination just because they spoke of circumstances
involving their capital _I_, and spoke so clearly that now the clue was
found, it was no longer difficult to follow it up. In the examination of
well-known criminals, dozens of such instances occur--the fact is not
new, but it needs to be made use of.
A similar motive belongs to subordinate forms of egoism--the obstinacy
of a man who may be so vexed by contradiction as to drive one into
despair, and who under proper treatment becomes valuable. This I learned
mainly from my old butler, a magnificent honest soldier, a figure out of
a comedy, but endowed with inexorable obstinacy against which my skill
for a long time availed nothing. As often as I proposed something with
regard to some intended piece of work or alteration, I got the identical
reply--“It won’t do, sir.” Finally I got hold of a list and worked my
plan--“Simon, this will now be done as Simon recently said it should be
done,--namely.” At this he looked at me, tried to think when he had said
this thing, and went and did it. And in spite of frequent application
this list has not failed once for some years. What is best about it is
that it will serve, mutatis mutandis, with criminals. As soon as ever
real balkiness is noted, it becomes necessary to avoid the least
appearance of contradictoriness, since that increases difficulties. It
is not necessary to lie or to make use of trickery. Only, avoid direct
contradiction, drop the subject in question, and return to it indirectly
when you perceive that the obstinate individual recognizes his error.
Then you may succeed in building him a golden bridge, or at least a
barely visible sidedoor where he can make his retreat unnoticed. In that
case even the most difficult of obstinates will no longer repeat the old
story. He will repeat only if he is pressed, and this although he is
repeatedly brought back to the point. If, however, the matter is once
decided, beware of returning to it without any other reason, save to
confirm the settled matter quite completely,--that would be only to wake
the sleeper to give him a sleeping powder.
Speaking generally, the significant rule is this: _Egoism, laziness and
conceit are the only human motives on which one may unconditionally
depend_. Love, loyalty, honesty, religion and patriotism, though firm as
a rock, may lapse and fall. A man might have been counted on for one of
these qualities ten times with safety, and on the eleventh, he might
collapse like a house of cards. Count on egoism and laziness a hundred
or a thousand times and they are as firm as ever. More simply, count on
egoism--for laziness and conceit are only modifications of egoism. The
latter alone then should be the one human motive to keep in mind when
dealing with men. There are cases enough when all the wheels are set in
motion after a clue to the truth, i.e., when there is danger that the
person under suspicion is innocent; appeals to honor, conscience,
humanity and religion fail;--but run the complete gamut of self-love
and the whole truth rings clear. Egoism is the best criterion of the
presence of veracity. Suppose a coherent explanation has been painfully
constructed. It is obvious that the correctness of the construction is
studied with reference to the given motive. Now, if the links in the
chain reach easily back to the motive, there is at least the possibility
that the chain is free of error. What then of the motive? If it is
noble--friendship, love, humaneness, loyalty, mercy--the constructed
chain may be correct, and happily is so oftener than is thought; but it
_need not_ be correct. If, however, the structure rests on egoism, in
any of its innumerable forms, and if it is logically sound, then the
whole case is explained utterly and reliably. The construction is
indubitably correct.
Section 8. (f) Secrets.
The determination of the truth at law would succeed much less frequently
than it does if it were not for the fact that men find it very difficult
to keep secrets. This essentially notable and not clearly understood
circumstance is popularly familiar. Proverbs of all people deal with it
and point mainly to the fact that keeping secrets is especially
difficult for women. The Italians say a woman who may not speak is in
danger of bursting; the Germans, that the burden of secrecy affects her
health and ages her prematurely; the English say similar things still
more coarsely. Classical proverbs have dealt with the issue; numberless
fairy tales, narratives, novels and poems have portrayed the difficulty
of silence, and one very fine modern novel (Die Last des Schweigens, by
Ferdinand Kürnberger) has chosen this fact for its principal motive. The
universal difficulty of keeping silence is expressed by Lotze[56] in the
dictum that we learn expression very young and silence very late. The
fact is of use to the criminalist not only in regard to criminals, but
also with regard to witnesses, who, for one reason or another, want to
keep something back. The latter is the source of a good deal of danger,
inasmuch as the witness is compelled to speak and circles around the
secret in question without touching it, until he points it out and half
reveals it. If he stops there, the matter requires consideration, for “a
half truth is worse than a whole lie.” The latter reveals its subject
and intent and permits of defence, while the half truth may, by
association and circumscriptive limitations, cause vexatious errors both
as regards the identity of the semi-accused and as regards the
circumstances with which he is thus involved. For this reason the
criminalist must consider the question of secrets carefully.
As for his own silence, this must be considered in both directions. That
he is not to blab official secrets is so obvious that it need not be
spoken of. Such blabbing is so negligent and dishonorable that we must
consider it intrinsically impossible. But it not infrequently happens
that some indications are dropped or persuaded out of a criminal judge,
generally out of one of the younger and more eager men. They mention
only the event itself, and not a name, nor a place, nor a particular
time, nor some even more intimate matter--there seems no harm done. And
yet the most important points have often been blabbed of in just such a
way. And what is worst of all, just because the speaker has not known
the name nor anything else concrete, the issue may be diverted and
enmesh some guiltless person. It is worth considering that the effort
above mentioned is made only in the most interesting cases, that crimes
especially move people to disgusting interest, due to the fact that
there is a more varied approach to synthesis of a case when the same
story is repeated several times or by various witnesses. For by such
means extrapolations and combinations of the material are made possible.
By way of warning, let me remind you of an ancient and much quoted
anecdote, first brought to light by Boccaccio: A young and much loved
abbé was teased by a bevy of ladies to narrate what had happened in the
first confession he had experienced. After long hesitation the young
fellow decided that it was no sin to relate the confessed sin if he
suppressed the name of the confessor, and so he told the ladies that his
first confession was of infidelity. A few minutes later a couple of
tardy guests appeared,--a marquis and his charming wife. Both reproached
the young priest for his infrequent visits at their home. The marquise
exclaimed so that everybody heard, “It is not nice of you to neglect me,
your first confessée.” This squib is very significant for our
profession, for it is well known how, in the same way, “bare facts,” as
“completely safe,” are carried further. The listener does not have to
combine them; the facts combine themselves by means of others otherwise
acquired, and finally the most important official matters, on the
concealment of which much may perhaps have depended, become universally
known. Official secrets have a general significance, and must therefore
be guarded at all points and not merely in detail.
The second direction in which the criminal justice must maintain
silence looks toward witnesses and accused. If, in the first instance,
the cause of too much communicativeness was an over-proneness to talk;
its cause in this case is a certain conceit that teases one into
talking. Whether the justice wants to show the accused how much he
already knows or how correctly he has drawn his conclusions; whether he
wishes to impress the witness by his confidences, he may do equally as
much harm in one case as in the other. Any success is made especially
impossible if the judge has been in too much of a hurry and tried to
show himself fully informed at the very beginning, but has brought out
instead some error. The accused naturally leaves him with his false
suppositions, they suggest things to the witness--and what follows may
be easily considered. Correct procedure in such circumstances is
difficult. Never to reveal what is already known, is to deprive oneself
of one of the most important means of examination; use of it therefore
ought not to be belated. But it is much worse to be premature or
garrulous. In my own experience, I have never been sorry for keeping
silence, especially if I had already said something. The only rule in
the matter is comparatively self-evident. Never move toward any
incorrectness and never present the appearance of knowing more than you
actually do. Setting aside the dishonesty of such a procedure, the
danger of a painful exposure in such matters is great.
There is still another great danger which one may beware of, optima
fide,--the danger of knowing something untrue. This danger also is
greatest for the greatest talent and the greatest courage among us,
because they are the readiest hands at synthesis, inference, and
definition of possibilities, and see as indubitable and shut to
contradiction things that at best are mere possibilities. It is
indifferent to the outcome whether a lie has been told purposely or
whether it has been the mere honest explosion of an over-sanguine
temperament. It is therefore unnecessary to point out the occasion for
caution. One need only suggest that something may be learned from people
who talk too much. The over-communicativeness of a neighbor is quickly
noticeable, and if the why and how much of it are carefully studied out,
it is not difficult to draw a significant analogy for one’s own case. In
the matter of secrets of other people, obviously the thing to be
established first is what is actually a secret; what is to be
suppressed, if one is to avoid damage to self or another. When an actual
secret is recognized it is necessary to consider whether the damage is
greater through keeping or through revealing the secret. If it is still
possible, it is well to let the secret be--there is always damage, and
generally, not insignificant damage, when it is tortured out of a
witness. If, however, one is honestly convinced that the secret must be
revealed--as when a guiltless person is endangered--every effort and all
skill is to be applied in the revelation. Inasmuch as the least echo of
bad faith is here impossible, the job is never easy.
The chief rule is not to be overeager in getting at the desired secret.
The more important it is, the less ought to be made of it. It is best
not directly to lead for it. It will appear of itself, especially if it
is important. Many a fact which the possessor had set no great store by,
has been turned into a carefully guarded secret by means of the
eagerness with which it was sought. In cases of need, when every other
means has failed, it may not be too much to tell the witness, cautiously
of course, rather more of the crime than might otherwise have seemed
good. Then those episodes must be carefully hit on, which cluster about
the desired secret and from which its importance arises. If the witness
understands that he presents something really important by giving up his
secret, surprising consequences ensue.
The relatively most important secret is that of one’s own guilt, and the
associated most suggestive establishment of it, the confession, is a
very extraordinary psychological problem.[57] In many cases the reasons
for confession are very obvious. The criminal sees that the evidence is
so complete that he is soon to be convicted and seeks a mitigation of
the sentence by confession, or he hopes through a more honest narration
of the crime to throw a great degree of the guilt on another. In
addition there is a thread of vanity in confession--as among young
peasants who confess to a greater share in a burglary than they actually
had (easily discoverable by the magniloquent manner of describing their
actual crime). Then there are confessions made for the sake of care and
winter lodgings: the confession arising from “firm conviction” (as among
political criminals and others). There are even confessions arising from
nobility, from the wish to save an intimate, and confessions intended to
deceive, and such as occur especially in conspiracy and are made to gain
time (either for the flight of the real criminal or for the destruction
of compromising objects). Generally, in the latter case, guilt is
admitted only until the plan for which it was made has succeeded; then
the judge is surprised with well-founded, regular and successful
establishment of an alibi. Not infrequently confession of small crimes
is made to establish an alibi for a greater one. And finally there are
the confessions Catholics[58] are required to make in confessional, and
the death bed confessions. The first are distinguished by the fact that
they are made freely and that the confessee does not try to mitigate his
crime, but is aiming to make amends, even when he finds it hard; and
desires even a definite penance. Death bed confessions may indeed have
religious grounds, or the desire to prevent the punishment or the
further punishment of an innocent person.
Although this list of explicable confession-types is long, it is in no
way exhaustive. It is only a small portion of all the confessions that
we receive; of these the greater part remain more or less unexplained.
Mittermaier[59] has already dealt with these acutely and cites examples
as well as the relatively well-studied older literature of the subject.
A number of cases may perhaps be explained through pressure of
conscience, especially where there are involved hysterical or nervous
persons who are plagued with vengeful images in which the ghost of their
victim would appear, or in whose ear the unendurable clang of the stolen
money never ceases, etc. If the confessor only intends to free himself
from these disturbing images and the consequent punishment by means of
confession, we are not dealing with what is properly called conscience,
but more or less with disease, with an abnormally excited
imagination.[60] But where such hallucinations are lacking, and
religious influences are absent, and the confession is made freely in
response to mere pressure, we have a case of conscience,[61]--another of
those terms which need explanation. I know of no analogy in the inner
nature of man, in which anybody with open eyes does himself exclusive
harm without any contingent use being apparent, as is the case in this
class of confession. There is always considerable difficulty in
explaining these cases. One way of explaining them is to say that their
source is mere stupidity and impulsiveness, or simply to deny their
occurrence. But the theory of stupidity does not appeal to the
practitioner, for even if we agree that a man foolishly makes a
confession and later, when he perceives his mistake, bitterly regrets
telling it, we still find many confessions that are not regretted and
the makers of which can in no wise be accused of defective intelligence.
To deny that there are such is comfortable but wrong, because we each
know collections of cases in which no effort could bring to light a
motive for the confession. The confession was made because the confessor
wanted to make it, and that’s the whole story.
The making of a confession, according to laymen, ends the matter, but
really, the judge’s work begins with it. As a matter of caution all
statutes approve confessions as evidence only when they agree completely
with the other evidence. Confession is a means of proof, and not proof.
Some objective, evidentially concurrent support and confirmation of the
confession is required. But the same legal requirement necessitates that
the value of the concurrent evidence shall depend on its having been
arrived at and established independently. The existence of a confession
contains powerful suggestive influences for judge, witness, expert, for
all concerned in the case. If a confession is made, all that is
perceived in the case may be seen in the light of it, and experience
teaches well enough how that alters the situation. There is so strong an
inclination to pigeon-hole and adapt everything perceived in some given
explanation, that the explanation is strained after, and facts are
squeezed and trimmed until they fit easily. It is a remarkable
phenomenon, confirmable by all observers, that all our perceptions are
at first soft and plastic and easily take form according to the shape of
their predecessors. They become stiff and inflexible only when we have
had them for some time, and have permitted them to reach an equilibrium.
If, then, observations are made in accord with certain notions, the
plastic material is easily molded, excrescences and unevenness are
squeezed away, lacunæ are filled up, and if it is at all possible, the
adaptation is completed easily. Then, if a new and quite different
notion arises in us, the alteration of the observed material occurs as
easily again, and only long afterwards, when the observation has
hardened, do fresh alterations fail. This is a matter of daily
experience, in our professional as well as in our ordinary affairs. We
hear of a certain crime and consider the earliest data. For one reason
or another we begin to suspect A as the criminal. The result of an
examination of the premises is applied in each detail to this
proposition. It fits. So does the autopsy, so do the depositions of the
witnesses. Everything fits. There have indeed been difficulties, but
they have been set aside, they are attributed to inaccurate observation
and the like,--the point is,--that the evidence is against A. Now,
suppose that soon after B confesses the crime; this event is so
significant that it sets aside at once all the earlier reasons for
suspecting A, and the theory of the crime involves B. Naturally the
whole material must now be applied to B, and in spite of the fact that
it at first fitted A, it does now fit B. Here again difficulties arise,
but they are to be set aside just as before.
Now if this is possible with evidence, written and thereby unalterable,
how much more easily can it be done with testimony about to be taken,
which may readily be colored by the already presented confession. The
educational conditions involve now the judge and his assistants on the
one hand, and the witnesses on the other.
Concerning himself, the judge must continually remember that his
business is not to fit all testimony to the already furnished
confession, allowing the evidence to serve as mere decoration to the
latter, but that it is his business to establish his proof by means of
the confession, and by means of the other evidence, _independently_. The
legislators of contemporary civilization have started with the proper
presupposition--that also false confessions are made,--and who of us has
not heard such? Confessions, for whatever reason,--because the confessor
wants to die, because he is diseased,[62] because he wants to free the
real criminal,--can be discovered as false only by showing their
contradiction with the other evidence. If, however, the judge only fits
the evidence, he abandons this means of getting the truth. Nor must
false confessions be supposed to occur only in case of homicide. They
occur most numerously in cases of importance, where more than one person
is involved. It happens, perhaps, that only one or two are captured, and
they assume all the guilt, e.g., in cases of larceny, brawls, rioting,
etc. I repeat: the suggestive power of a confession is great and it is
hence really not easy to exclude its influence and to consider the
balance of the evidence on its merits,--but this must be done if one is
not to deceive oneself.
Dealing with the witness is still more ticklish, inasmuch as to the
difficulties with them, is added the difficulties with oneself. The
simplest thing would be to deny the existence of a confession, and thus
to get the witness to speak without prejudice. But aside from the fact
of its impossibility as a lie, each examination of a witness would have
to be a comedy and that would in many cases be impossible as the witness
might already know that the accused had confessed. The only thing to be
done, especially when it is permissible for other reasons, is to tell
the witness that a confession exists and to call to his attention that
it is not yet evidence, and finally and above all to keep one’s head and
to prevent the witness from presenting his evidence from the point of
view of the already-established. In this regard it can not be
sufficiently demonstrated that the coloring of a true bill comes much
less from the witness than from the judge. The most excited witness can
be brought by the judge to a sober and useful point of view, and
conversely, the most calm witness may utter the most misleading
testimony if the judge abandons in any way the safe bottom of the
indubitably established fact.
Very intelligent witnesses (they are not confined to the educated
classes) may be dealt with constructively and be told after their
depositions that the case is to be considered as if there were no
confession whatever. There is an astonishing number of
people--especially among the peasants--who are amenable to such
considerations and willingly follow if they are led on with confidence.
In such a case it is necessary to analyze the testimony into its
elements. This analysis is most difficult and important since it must be
determined what, taken in itself, is an element, materially, not
formally, and what merely appears to be a unit. Suppose that during a
great brawl a man was stabbed and that A confesses to the stabbing. Now
a witness testified that A had first uttered a threat, then had jumped
into the brawl, felt in his bag, and left the crowd, and that in the
interval between A’s entering and leaving, the stabbing occurred. In
this simple case the various incidents must be evaluated, and each must
be considered by itself. So we consider--Suppose A had not confessed,
what would the threat have counted for? Might it not have been meant for
the assailants of the injured man? May his feeling in the bag not be
interpreted in another fashion? Must he have felt for a knife only? Was
there time enough to open it and to stab? Might the man not have been
already wounded by that time? We might then conclude that all the
evidence about A contained nothing against him--but if we relate it to
the confession, then this evidence is almost equal to direct evidence of
A’s crime.
But if individual sense-perceptions are mingled with conclusions, and if
other equivalent perceptions have to be considered, which occurred
perhaps to other people, then the analysis is hardly so simple, yet it
must be made.
In dealing with less intelligent people, with whom this construction
cannot be performed, one must be satisfied with general rules. By
demanding complete accuracy and insisting, in any event, on the ratio
sciendi, one may generally succeed in turning a perception, uncertain
with regard to any individual, into a trustworthy one with regard to the
confessor. It happens comparatively seldom that untrue confessions are
discovered, but once this does occur, and the trouble is taken to
subject the given evidence to a critical comparison, the manner of
adaptation of the evidence to the confession may easily be discovered.
The witnesses were altogether unwilling to tell any falsehood and the
judge was equally eager to establish the truth, nevertheless the issue
must have received considerable perversion in order to fix the guilt on
the confessor. Such examinations are so instructive that the opportunity
to make them should never be missed. All the testimony presents a
typical picture. The evidence is consistent with the theory that the
real confessor was guilty, but it is also consistent with the theory
that the real criminal was guilty, but some details must be altered,
often very many. If there is an opportunity to hear the same witnesses
again, the procedure becomes still more instructive. The witnesses
(supposing they want honestly to tell the truth) naturally confirm the
evidence as it points to the second, more real criminal, and if an
explanation is asked for the statements that pointed to the “confessor,”
the answers make it indubitably evident, that their incorrectness came
as without intention; the circumstance that a confession had been made
acted as a suggestion.[63]
Conditions similar to confessional circumstances arise when other types
of persuasive evidence are gathered, which have the same impressive
influence as confessions. In such cases the judge’s task is easier than
the witness’s, since he need not tell them of evidence already at hand.
How very much people allow themselves to be influenced by antecedent
grounds of suspicion is a matter of daily observation. One example will
suffice. An intelligent man was attacked at night and wounded. On the
basis of his description an individual was arrested. On the next day
the suspect was brought before the man for identification. He identified
the man with certainty, but inasmuch as his description did not quite
hit off the suspect he was asked the reason for his certainty. “Oh, you
certainly would not have brought him here if he were not the right man,”
was the astonishing reply. Simply because the suspect was arrested on
the story of the wounded man and brought before him in prison garb, the
latter thought he saw such corroboration for his data as to make the
identification certain--a pure ὑστερον πρωτερον, which did not at all
occur to him in connection with the vivid impression of what he saw. I
believe that to keep going with merely what the criminalist knows about
the matter, belongs to his most difficult tasks.
Section 9. (g) Interest.
Anybody who means to work honestly must strive to awaken and to sustain
the interest of his collaborators. A judge’s duty is to present his
associates material, well-arranged, systematic, and exhaustive, but not
redundant; and to be himself well and minutely informed concerning the
case. Whoever so proceeds may be certain in even the most ordinary and
simplest cases, of the interest of his colleagues,--hence of their
attention; and, in consequence, of the best in their power. These are
essentially self-evident propositions. In certain situations, however,
more is asked with regard to the experts. The expert, whether a very
modest workman or very renowned scholar, must in the first instance
become convinced of the judge’s complete interest in his work; of the
judge’s power to value the effort and knowledge it requires; of the fact
that he does not question and listen merely because the law requires it,
and finally of the fact that the judge is endowed, so far as may be,
with a definite comprehension of the expert’s task.
However conscientiously and intensely the expert may apply himself to
his problem, it will be impossible to work at it with real interest if
he finds no co-operation, no interest, and no understanding among those
for whom he, at least formally, is at work. We may be certain that the
paucity of respect we get from the scientific representatives of other
disciplines (let us be honest,--such is the case) comes particularly
from those relations we have with them as experts, relations in which
they find us so unintelligent and so indifferent with regard to matters
of importance. If the experts speak of us with small respect and the
attitude spreads and becomes general, we get only our full due. Nobody
can require of a criminal judge profound knowledge of all other
disciplines besides his own--the experts supply that--but the judge
certainly must have some insight into them in so far as they affect his
own work, if he is not to meet the expert unintelligent and
unintelligible, and if he is to co-operate with and succeed in
appraising the expert’s work. In a like fashion the judge may be
required to take interest in the experts’ result. If the judge receives
their report and sticks to the statutes, if he never shows that he was
anxious about their verdict, and merely views it as a number, it is no
wonder that in the end the expert also regards his work as a mere
number, and loses interest. No man is interested in a thing unless it is
made interesting, and the expert is no exception. Naturally no one would
say that the judge should pretend interest,--that would be worst of
all;--he must be possessed of it, or he will not do for a judge. But
interest may be intensified and vitalized. If the judge perceives that
the finding of the experts is very important for his case he must at
least meet them with interest in it. If that is present he will read
their reports attentively, will note that he does not understand some
things and ask the experts for elucidation. One question gives rise to
another, one answer after another causes understanding, and
understanding implies an ever-increasing interest. It never happens that
there should be difficulties because of a request to judicial experts to
explain things to the judge. I have never met any in my own practice and
have never heard any complaints. On the contrary, pleasure and
efficiency are generally noticeable in such connections, and the state,
above all, is the gainer. The simple explanation lies here in the fact
that the expert is interested in his profession, interested in just that
concrete way in which the incomparably greater number of jurists are
not. And this again is based upon a sad fact, for us. The chemist, the
physician, etc., studies his subject because he wants to become a
chemist, physician, etc., but the lawyer studies law not because he
wants to become a lawyer, but because he wants to become an official,
and as he has no especial interest he chooses his state position in that
branch in which he thinks he has the best prospects. It is a bitter
truth and a general rule--that those who want to study law and the
science of law are the exceptions, and that hence we have to acquire a
real interest in our subject from laymen, from our experts. But the
interest can be acquired, and with the growth of interest, there is
growth of knowledge, and therewith increase of pleasure in the work
itself and hence success.
The most difficult problem in interest, is arousing the interest of
witnesses--because this is purely a matter of training. Receiving the
attention is what should be aimed at in rousing interest, inasmuch as
full attention leads to correct testimony--i.e., to the thing most
important to our tasks. “No interest, no attention,” says Volkmar.[64]
“The absolutely new does not stimulate; what narrows appreciation,
narrows attention also.” The significant thing for us is that “the
absolutely new does not stimulate”--a matter often overlooked. If I tell
an uneducated man, with all signs of astonishment, that the missing
books of Tacitus’ “Annals” have been discovered in Verona, or that a
completely preserved Dinotherium has been cut out of the ice, or that
the final explanation of the Martian canals has been made at Manora
observatory,--all this very interesting news will leave him quite cold;
it is absolutely new to him, he does not know what it means or how to
get hold of it, it offers him no matter of interest.[65] I should have a
similar experience if, in the course of a big case, I told a man,
educated, but uninterested in the case, with joy, that I had finally
discovered the important note on which the explanation of the events
depended. I could not possibly expect interest, attention, and
comprehension of a matter if my interlocutor knows nothing about the
issue or the reason of the note’s importance. And in spite of the fact
that everything is natural and can be explained we have the same story
every day. We put the witness a definite question that is of immense
importance to us, who are fully acquainted with the problem, but is for
the witness detached, incoherent, and therefore barren of interest. Then
who can require of an uninterested witness, attention, and effective and
well-considered replies?[66] I myself heard a witness answer a judge who
asked him about the weather on a certain day, “Look here, to drag me so
many miles to this place in order to discuss the weather with
me,--that’s--.” The old man was quite right because the detached
question had no particular purpose. But when it was circumstantially
explained to him that the weather was of uttermost significance in this
case, how it was related thereto, and how important his answer would be,
he went at the question eagerly, and did everything thinkable in trying
to recall the weather in question by bringing to bear various associated
events, and did finally make a decidedly valuable addition to the
evidence. And this is the only way to capture the attention of a
witness. If he is merely ordered to pay attention, the result is the
same as if he were ordered to speak louder,--he does it, in lucky cases,
for a moment, and then goes on as before. Attention may be generated but
not commanded, and may be generated successfully with everybody, and at
all times, if only the proper method is hit upon. The first and absolute
requirement is to have and to show the same interest oneself. For it is
impossible to infect a man with interest when you have no interest to
infect with. There is nothing more deadly or boresome than to see how
witnesses are examined sleepily and with tedium, and how the witnesses,
similarly infected, similarly answer. On the other hand, it is
delightful to observe the surprising effect of questions asked and heard
with interest. Then the sleepiest witnesses, even dull ones, wake up:
the growth of their interest, and hence of their attention, may be
followed step by step; they actually increase in knowledge and their
statements gain in reliability. And this simply because they have seen
the earnestness of the judge, the importance of the issue, the case, the
weighty consequences of making a mistake, the gain in truth through
watchfulness and effort, the avoidance of error through attention. In
this way the most useful testimony can be obtained from witnesses who,
in the beginning, showed only despairing prospects.
Now, if one is already himself endowed with keen interest and resolved
to awaken the same in the witnesses, it is necessary carefully to
consider the method of so doing and how much the witness is to be told
of what has already been established, or merely been said and received
as possibly valuable. On the one hand it is true that the witness can be
roused to attention and to more certain and vigorous responses according
to the quantity of detail told him.[67] On the other, caution and other
considerations warn against telling an unknown witness, whose
trustworthiness is not ascertained, delicate and important matters. It
is especially difficult if the witness is to be told of presuppositions
and combinations, or if he is to be shown how the case would alter with
his own answer. The last especially has the effect of suggestion and
must occur in particular and in general at those times alone when his
statement, or some part of it, is apparently of small importance but
actually of much. Often this importance can be made clear to the witness
only by showing him that the difference in the effect of his testimony
is pointed out to him because when he sees it he will find it worth
while to exert himself and to consider carefully his answer. Any one of
us may remember that a witness who was ready with a prompt, and to him
an indifferent reply, started thinking and gave an essentially different
answer, even contradictory to his first, when the meaning and the effect
of what he might say was made clear to him.
How and when the witness is to be told things there is no rule for. The
wise adjustment between saying enough to awaken interest and not too
much to cause danger is a very important question of tact. Only one
certain device may be recommended--it is better to be careful with a
witness during his preliminary examination and to keep back what is
known or suspected; thus the attention and interest of the witness may
perhaps be stimulated. If, however, it is believed that fuller
information may increase and intensify the important factors under
examination, the witness is to be recalled later, when it is safe, and
his testimony is, under the new conditions of interest, to be corrected
and rendered more useful. In this case, too, the key to success lies in
increase of effort--but that is true in all departments of law, and the
interest of a witness is so important that it is worth the effort.
Topic III. PHENOMENOLOGY: STUDY OF THE OUTWARD EXPRESSION OF MENTAL
STATES.
Section 10.
Phenomenology is in general the science of appearances. In our usage it
is the systematic co-ordination of those outer symptoms occasioned by
inner processes, and conversely, the inference from the symptoms to
them. Broadly construed, this may be taken as the study of the habits
and whole bearing of any individual. But essentially only those external
manifestations can be considered that refer back to definite psychical
conditions, so that our phenomenology may be defined as the semiotic of
normal psychology. This science is legally of immense importance, but
has not yet assumed the task of showing how unquestionable inferences
may be drawn from an uncounted collection of outward appearances to
inner processes. In addition, observations are not numerous enough, far
from accurate enough, and psychological research not advanced enough.
What dangerous mistakes premature use of such things may lead to is
evident in the teaching of the Italian positivistic school, which
defines itself also as psychopathic semiotic. But if our phenomenology
can only attempt to approximate the establishment of a science of
symptoms, it may at least study critically the customary popular
inferences from such symptoms and reduce exaggerated theories concerning
the value of individual symptoms to a point of explanation and proof. It
might seem that our present task is destructive, but it will be an
achievement if we can show the way to later development of this science,
and to have examined and set aside the useless material already to hand.
Section 11. (a) General External Conditions.
“Every state of consciousness has its physical correlate,” says
Helmholtz,[68] and this proposition contains the all in all of our
problem. Every mental event must have its corresponding physical
event[69] in some form, and is therefore capable of being sensed, or
known to be indicated by some trace. Identical inner states do not, of
course, invariably have identical bodily concomitants, neither in all
individuals alike, nor in the same individual at different times. Modern
methods of generalization so invariably involve danger and incorrectness
that one can not be too cautious in this matter. If generalization were
permissible, psychical events would have to be at least as clear as
physical processes, but that is not admissible for many reasons. First
of all, physical concomitants are rarely direct and unmeditated
expressions of a psychical instant (e.g., clenching a fist in
threatening). Generally they stand in no causal relation, so that
explanations drawn from physiological, anatomical, or even atavistic
conditions are only approximate and hypothetical. In addition,
accidental habits and inheritances exercise an influence which, although
it does not alter the expression, has a moulding effect that in the
course of time does finally so recast a very natural expression as to
make it altogether unintelligible. The phenomena, moreover, are in most
cases personal, so that each individual means a new study. Again the
phenomena rarely remain constant; e.g.: we call a thing habit,--we say,
“He has the habit of clutching his chin when he is embarrassed,”--but
that such habits change is well known. Furthermore, purely physiological
conditions operate in many directions, (such as blushing, trembling,
laughter,[70] weeping, stuttering, etc.), and finally, very few men want
to show their minds openly to their friends, so that they see no reason
for co-ordinating their symbolic bodily expressions. Nevertheless, they
do so, and not since yesterday, but for thousands of years. Hence
definite expressions have been transmitted for generations and have at
the same time been constantly modified, until to-day they are altogether
unrecognizable. Characteristically, the desire to fool others has also
its predetermined limitations, so that it often happens that simple and
significant gestures contradict words when the latter are false. E. g.,
you hear somebody say, “She went down,” but see him point at the same
time, not clearly, but visibly, _up_. Here the speech was false and the
gesture true. The speaker had to turn all his attention on what he
wanted to say so that the unwatched co-consciousness moved his hand in
some degree.
A remarkable case of this kind was that of a suspect of child murder.
The girl told that she had given birth to the child all alone, had
washed it, and then laid it on the bed beside herself. She had also
observed how a corner of the coverlet had fallen on the child’s face,
and thought it might interfere with the child’s breathing. But at this
point she swooned, was unable to help the child, and it was choked.
While sobbing and weeping as she was telling this story, she spread the
fingers of her left hand and pressed it on her thigh, as perhaps she
might have done, if she had first put something soft, the corner of a
coverlet possibly, over the child’s nose and mouth, and then pressed on
it. This action was so clearly significant that it inevitably led to the
question whether she hadn’t choked the child in that way. She assented,
sobbing.
Similar is another case in which a man assured us that he lived very
peaceably with his neighbor and at the same time clenched his fist. The
latter meant illwill toward the neighbor while the words did not.
It need not, of course, be urged that the certainty of a belief will be
much endangered if too much value is sanguinely set on such and similar
gestures, when their observation is not easy. There is enough to do in
taking testimony, and enough to observe, to make it difficult to watch
gestures too. Then there is danger (because of slight practice) of
easily mistaking indifferent or habitual gestures for significant ones;
of supposing oneself to have seen more than should have been seen, and
of making such observations too noticeable, in which case the witness
immediately controls his gestures. In short, there are difficulties, but
once they are surmounted, the effort to do so is not regretted.
It is to be recommended here, also, not to begin one’s studies with
murder and robbery, but with the simple cases of the daily life, where
there is no danger of making far-reaching mistakes, and where
observations may be made much more calmly. Gestures are especially
powerful habits and almost everybody makes them, mainly _not_
indifferent ones. It is amusing to observe a man at the telephone, his
free hand making the gestures for both. He clenches his fist
threateningly, stretches one finger after another into the air if he is
counting something, stamps his foot if he is angry, and puts his finger
to his head if he does not understand--in that he behaves as he would if
his interlocutor were before him. Such deep-rooted tendencies to gesture
hardly ever leave us. The movements also occur when we lie; and inasmuch
as a man who is lying at the same time has the idea of the truth either
directly or subconsciously before him, it is conceivable that this idea
exercises much greater influence on gesture than the probably transitory
lie. The question, therefore, is one of intensity, for each gesture
requires a powerful impulse and the more energetic is the one that
succeeds in causing the gesture. According to Herbert Spencer[71] it is
a general and important rule that any sensation which exceeds a definite
intensity expresses itself ordinarily in activity of the body. This fact
is the more important for us inasmuch as we rarely have to deal with
light and with not deep-reaching and superficial sensations. In most
cases the sensations in question “exceed a certain intensity,” so that
we are able to perceive a bodily expression at least in the form of a
gesture.
The old English physician, Charles Bell,[72] is of the opinion, in his
cautious way, that what is called the external sign of passion is only
the accompanying phenomenon of that spontaneous movement required by the
structure, or better, by the situation of the body. Later this was
demonstrated by Darwin and his friends to be the indubitable starting
point of all gesticulation:--so, for example, the defensive action upon
hearing something disgusting, the clenching of the fists in anger; or
among wild animals, the baring of the teeth, or the bull’s dropping of
the head, etc. In the course of time the various forms of action became
largely unintelligible and significatory only after long experience. It
became, moreover, differently differentiated with each individual, and
hence still more difficult to understand. How far this differentiation
may go when it has endured generation after generation and is at last
crystallized into a set type, is well known; just as by training the
muscles of porters, tumblers or fencers develop in each individual, so
the muscles develop in those portions of our body most animated by the
mind--in our face and hands, especially, have there occurred through the
centuries fixed expressions or types of movement. This has led to the
observations of common-sense which speak of raw, animal, passionate or
modest faces, and of ordinary, nervous, or spiritual hands; but it has
also led to the scientific interpretation of these phenomena which
afterwards went shipwreck in the form of Lombroso’s “criminal stigmata,”
inasmuch as an overhasty theory has been built on barren, unexperienced,
and unstudied material. The notion of criminal stigmata is, however, in
no sense new, and Lombroso has not invented it; according to an
incidental remark of Kant in his “Menschenkunde,” the first who tried
scientifically to interpret these otherwise ancient observations was the
German J. B. Friedreich,[73] who says expressly that determinate somatic
pathological phenomena may be shown to occur with certain moral
perversions. It has been observed with approximate clearness in several
types of cases. So, for example, incendiarism occurs in the case of
abnormal sexual conditions; poisoning also springs from abnormal sexual
impulses; drowning is the consequence of oversatiated drink mania, etc.
Modern psychopathology knows nothing additional concerning these
marvels; and similar matters which are spoken of nowadays again, have
shown themselves incapable of demonstration. But that there are
phenomena so related, and that their number is continually increasing
under exact observations, is not open to doubt.[74] If we stop with the
phenomena of daily life and keep in mind the ever-cited fact that
everybody recognizes at a glance the old hunter, the retired officer,
the actor, the aristocratic lady, etc., we may go still further: the
more trained observers can recognize the merchant, the official, the
butcher, the shoe-maker, the real tramp, the Greek, the sexual pervert,
etc. Hence follows an important law--_that if a fact is once recognized
correctly in its coarser form, then the possibility must be granted that
it is correct in its subtler manifestations_. The boundary between what
is coarse and what is not may not be drawn at any particular point. It
varies with the skill of the observer, with the character of the
material before him, and with the excellence of his instruments, so that
nobody can say where the possibility of progress in the matter ceases.
Something must be granted in all questions appertaining to this subject
of recognizable unit-characters and every layman pursues daily certain
activities based on their existence. When he speaks of stupid and
intelligent faces he is a physiognomist; he sees that there are
intellectual foreheads and microcephalic ones, and is thus a
craniologist; he observes the expression of fear and of joy, and so
observes the principles of imitation; he contemplates a fine and elegant
hand in contrast with a fat and mean hand, and therefore assents to the
effectiveness of chirognomy; he finds one hand-writing scholarly and
fluid, another heavy, ornate and unpleasant; so he is dealing with the
first principles of graphology;--all these observations and inferences
are nowhere denied, and nobody can say where their attainable boundaries
lie.
Hence, the only proper point of view to take is that from which we set
aside as too bold, all daring and undemonstrated assertions on these
matters. But we will equally beware of asserting without further
consideration that far-reaching statements are unjustified, for we shall
get very far by the use of keener and more careful observation, richer
material, and better instruments.
How fine, for example, are the observations made by Herbert Spencer
concerning the importance of the “timbre” of speech in the light of the
emotional state--no one had ever thought of that before, or considered
the possibilities of gaining anything of importance from this single
datum which has since yielded such a rich collection of completely
proved and correctly founded results. Darwin knew well enough to make
use of it for his own purposes.[75] He points out that the person who is
quietly complaining of bad treatment or is suffering a little, almost
always speaks in a high tone of voice; and that deep groans or high and
piercing shrieks indicate extreme pain. Now we lawyers can make just
such observations in great number. Any one of us who has had a few
experiences, can immediately recognize from the tone of voice with which
a new comer makes his requests just about what he wants. The accused,
for example, who by chance does not know why he has been called to
court, makes use of a questioning tone without really pronouncing his
question. Anybody who is seriously wounded, speaks hoarsely and
abruptly. The secret tone of voice of the querulous, and of such people
who speak evil of another when they are only half or not at all
convinced of it, gives them away. The voice of a denying criminal has in
hundreds of cases been proved through a large number of physiological
phenomena to do the same thing for him; the stimulation of the nerves
influences before all the characteristic snapping movement of the mouth
which alternates with the reflex tendency to swallow. In addition it
causes lapses in blood pressure and palpitation of the heart by means of
disturbances of the heart action, and this shows clearly visible
palpitation of the right carotid (well within the breadth of hand under
the ear in the middle of the right side of the neck). That the left
carotid does not show the palpitation may be based on the fact that the
right stands in much more direct connection with the aorta. All this,
taken together, causes that so significant, lightly vibrating, cold and
toneless voice, which is so often to be perceived in criminals who deny
their guilt. It rarely deceives the expert.
But these various timbres of the voice especially contain a not
insignificant danger for the criminalist. Whoever once has devoted
himself to the study of them trusts them altogether too easily, for even
if he has identified them correctly hundreds of times, it still may
happen that he is completely deceived by a voice he holds as
“characteristically demonstrative.” That timbres may deceive, or
simulations worthy of the name occur, I hardly believe. Such deceptions
are often attempted and begun, but they demand the entire attention of
the person who tries them, and that can be given for only a short time.
In the very instant that the matter he is speaking of requires the
attention of the speaker, his voice involuntarily falls into that tone
demanded by its physical determinants: and the speaker significantly
betrays himself through just this alteration. We may conclude that an
effective simulation is hardly thinkable.
It must, however, be noticed that earlier mistaken observations and
incorrect inference at the present moment--substitutions and similar
mistakes--may easily mislead. As a corroborative fact, then, the
judgment of a voice would have great value; but as a means in itself it
is a thing too little studied and far from confirmed.
There is, however, another aspect of the matter which manifests itself
in an opposite way from voice and gesture. Lazarus calls attention to
the fact that the spectators at a fencing match can not prevent
themselves from imitative accompaniment of the actions of the fencers,
and that anybody who happens to have any swinging object in his hand
moves his hand here and there as they do. Stricker[76] makes similar
observations concerning involuntary movements performed while looking at
drilling or marching soldiers. Many other phenomena of the daily
life--as, for example, keeping step with some pedestrian near us, with
the movement of a pitcher who with all sorts of twistings of his body
wants to guide the ball correctly when it has already long ago left his
hand; keeping time to music and accompanying the rhythm of a wagon
knocking on cobblestones; even the enforcement of what is said through
appropriate gestures when people speak vivaciously--naturally belong to
the same class. So do nodding the head in agreement and shaking it in
denial; shrugging the shoulders with a declaration of ignorance. The
expression by word of mouth should have been enough and have needed no
reinforcement through conventional gestures, but the last are
spontaneously involuntary accompaniments.
On the other hand there is the converse fact that the voice may be
influenced through expression and gesture. If we fix an expression on
our features or bring our body into an attitude which involves passional
excitement we may be sure that we will be affected more or less by the
appropriate emotion. This statement, formulated by Maudsley, is
perfectly true and may be proved by anybody at any moment. It presents
itself to us as an effective corroboration of the so well-known
phenomenon of “talking-yourself-into-it.” Suppose you correctly imagine
how a very angry man looks: frowning brow, clenched fists, gritting
teeth, hoarse, gasping voice, and suppose you imitate. Then, even if you
feel most harmless and order-loving, you become quite angry though you
keep up the imitation only a little while. By means of the imitation of
lively bodily changes you may in the same way bring yourself into any
conceivable emotional condition, the outer expressions of which appear
energetically. It must have occurred to every one of us how often
prisoners present so well the excitement of passion that their
earnestness is actually believed; as for example, the anger of a
guiltless suspect or of an obviously needy person, of a man financially
ruined by his trusted servant, etc. Such scenes of passion happen daily
in every court-house and they are so excellently presented that even an
experienced judge believes in their reality and tells himself that such
a thing can not be imitated because the imitation is altogether too hard
to do and still harder to maintain. But in reality the presentation is
not so wonderful, and taken altogether, is not at all skilful; whoever
wants to manifest _anger_ must make the proper gestures (and that
requires no art) and when he makes the gestures the necessary conditions
occur and these stimulate and cause the correct manifestation of the
later gestures, while these again influence the voice. Thus without any
essential mummery the comedy plays itself out, self-sufficient, correct,
convincing. Alarming oneself is not performed by words, but by the
reciprocal influence of word and gesture, and the power of that
influence is observable in the large number of cases where, in the end,
people themselves believe what they have invented. If they are of
delicate spiritual equilibrium they even become hypochondriacs. Writing,
and the reading of writing, is to be considered in the same way as
gesticulation; it has the same alarming influence on voice and general
appearance as the other, so that it is relatively indifferent whether a
man speaks and acts or writes and thinks. This fact is well known to
everybody who has ever in his life written a really coarse letter.
Now this exciting gesticulation can be very easily observed, but the
observation must not come too late. If the witness is once quite lost in
it and sufficiently excited by the concomitant speeches he will make his
gestures well and naturally and the artificial and untrue will not be
discoverable. But this is not the case in the beginning; then his
gestures are actually not skilful, and at that point a definite force of
will and rather notable exaggerations are observable; the gestures go
further than the words, and that is a matter not difficult to recognize.
As soon as the recognition is made it becomes necessary to examine
whether a certain congruity invariably manifests itself between word and
gesture, inasmuch as with many people the above-mentioned lack of
congruity is habitual and honest. This is particularly the case with
people who are somewhat theatrical and hence gesticulate too much. But
if word and gesture soon conform one to another, especially after a
rather lively presentation, you may be certain that the subject has
skilfully worked himself into his alarm or whatever it is he wanted to
manifest. Quite apart from the importance of seeing such a matter
clearly the interest of the work is a rich reward for the labor
involved.
In close relation to these phenomena is the change of color to which
unfortunately great importance is often assigned.[77] In this regard
paling has received less general attention because it is more rare and
less suspicious. That it can not be simulated, as is frequently asserted
in discussions of simulation (especially of epilepsy), is not true,
inasmuch as there exists an especial physiological process which
succeeds in causing pallor artificially. In that experiment the chest is
very forcibly contracted, the glottis is closed and the muscles used in
inspiration are contracted. This matter has no practical value for us,
on the one hand, because the trick is always involved with lively and
obvious efforts, and on the other, because cases are hardly thinkable in
which a man will produce artificial pallor in the court where it can not
be of any use to him. The one possibility of use is in the simulation of
epilepsy, and in such a case the trick can not be played because of the
necessary falling to the ground.
Paling depends, as is well known, on the cramp of the muscles of the
veins, which contract and so cause a narrowing of their bore which
hinders the flow of blood. But such cramps happen only in cases of
considerable anger, fear, pain, trepidation, rage; in short, in cases of
excitement that nobody ever has reason to simulate. Paling has no value
in differentiation inasmuch as a man might grow pale in the face through
fear of being unmasked or in rage at unjust suspicion.
The same thing is true about blushing.[78] It consists in a sort of
transitory crippling of those nerves that end in the walls of small
arteries. This causes the relaxation of the muscle-fibers of the blood
vessels which are consequently filled in a greater degree with blood.
Blushing also may be voluntarily created by some individuals. In that
case the chest is fully expanded, the glottis is closed and the muscles
of expiration are contracted. But this matter again has no particular
value for us since the simulation of a blush is at most of use only when
a woman wants to appear quite modest and moral. But for that effect
artificial blushing does not help, since it requires such intense effort
as to be immediately noticeable. Blushing by means of external
assistance, e.g., inhaling certain chemicals, is a thing hardly anybody
will want to perform before the court.
With regard to guilt or innocence, blushing offers no evidence whatever.
There is a great troop of people who blush without any reason for
feeling guilty. The most instructive thing in this matter is
self-observation, and whoever recalls the cause of his own blushing will
value the phenomenon lightly enough. I myself belonged, not only as a
child, but also long after my student days, to those unfortunates who
grow fire-red quite without reason; I needed only to hear of some
shameful deed, of theft, robbery, murder, and I would get so red that a
spectator might believe that I was one of the criminals. In my native
city there was an old maid who had, I knew even as a boy, remained
single because of unrequited love of my grandfather. She seemed to me a
very poetical figure and once when her really magnificent ugliness was
discussed, I took up her cause and declared her to be not so bad. My
taste was laughed at, and since then, whenever this lady or the street
she lives in or even her furs (she used to have pleasure in wearing
costly furs) were spoken of, I would blush. And her age may be estimated
from her calf-love. Now what has occurred to me, often painfully,
happens to numbers of people, and it is hence inconceivable why forensic
value is still frequently assigned to blushing. At the same time there
are a few cases in which blushing may be important.
The matter is interesting even though we know nothing about the
intrinsic inner process which leads to the influence on the nervous
filaments. Blushing occurs all the world over, and its occasion and
process is the same among savages as among us.[79] The same events may
be observed whether we compare the flush of educated or uneducated.
There is the notion, which I believed for a long time, that blushing
occurs among educated people and is especially rare among peasants, but
that does not seem to be true. Working people, especially those who are
out in the open a good deal, have a tougher pigmentation and a browner
skin, so that their flush is less obvious. But it occurs as often and
under the same conditions as among others. It might be said for the same
reason that Gypsies never blush; and of course, that the blush may be
rarer among people lacking in shame and a sense of honor is conceivable.
Yet everybody who has much to do with Gypsies asserts that the blush may
be observed among them.
Concerning the relation of the blush to age, Darwin says that early
childhood knows nothing about blushing. It happens in youth more
frequently than in old age, and oftener among women than among men.
Idiots blush seldom, blind people and hereditary albinos, a great deal.
The somatic process of blushing is, as Darwin shows, quite remarkable.
Almost always the blush is preceded by a quick contraction of the
eyelids as if to prevent the rise of the blood in the eyes. After that,
in most cases, the eyes are dropped, even when the cause of blushing is
anger or vexation; finally the blush rises, in most cases irregularly
and in spots, at last to cover the skin uniformly. If you want to save
the witness his blush you can do it only at the beginning--during the
movement of the eyes--and only by taking no notice of it, by not looking
at him, and going right on with your remarks. This incidentally is
valuable inasmuch as many people are much confused by blushing and
really do not know what they are talking about while doing it. There is
no third thing which is the cause of the blush and of the confusion; the
blush itself is the cause of the confusion. This may be indubitably
confirmed by anybody who has the agreeable property of blushing and
therefore is of some experience in the matter. I should never dare to
make capital of any statement made during the blush. Friedreich calls
attention to the fact that people who are for the first time subject to
the procedure of the law courts blush and lose color more easily than
such as are accustomed to it, so that the unaccustomed scene also
contributes to the confusion. Meynert[80] states the matter explicitly:
“The blush always depends upon a far-reaching association-process in
which the complete saturation of the contemporaneously-excited nervous
elements constricts the orderly movement of the mental process, inasmuch
as here also the simplicity of contemporaneously-occurring activities of
the brain determines the scope of the function of association.” How
convincing this definition is becomes clear on considering the processes
in question. Let us think of some person accused of a crime to whom the
ground of accusation is presented for the first time, and to whom the
judge after that presents the skilfully constructed proof of his guilt
by means of individual bits of evidence. Now think of the mass of
thoughts here excited, even if the accused is innocent. The deed itself
is foreign to him, he must imagine that; should any relation to it (e.g.
presence at the place where the deed was done, interest in it, ownership
of the object, etc.) be present to his mind, he must become clear
concerning this relationship, while at the same time the possibilities
of excuse--alibi, ownership of the thing, etc.--storm upon him. Then
only does he consider the particular reasons of suspicion which he must,
in some degree, incarnate and represent in their dangerous character,
and for each of which he must find a separate excuse. We have here some
several dozens of thought-series, which start their movement at the same
time and through each other. If at that time an especially dangerous
apparent proof is brought, and if the accused, recognizing this danger,
blushes with fear, the examiner thinks: “Now I have caught the rascal,
for he’s blushing! Now let’s go ahead quickly, speed the examination and
enter the confused answer in the protocol!” And who believes the accused
when, later on, he withdraws the “confession” and asserts that he had
said the thing because they had mixed him up?
In this notion, “you blush, therefore you have lied; you did it!” lie
many sins the commission of which is begun at the time of admonishing
little children and ended with obtaining the “confessions” of the
murderous thief.
Finally, it is not to be forgotten that there are cases of blushing
which have nothing to do with psychical processes. Ludwig Meyer[81]
calls it “artificial blushing” (better, “mechanically developed
blushing”), and narrates the case of “easily-irritated women who could
develop a blush with the least touch of friction, e.g., of the face on a
pillow, rubbing with the hand, etc.; and this blush could not be
distinguished from the ordinary blush.” We may easily consider that such
lightly irritable women may be accused, come before the court without
being recognized as such, and, for example, cover their faces with their
hands and blush. Then the thing might be called “evidential.”
Section 12. (b) General Signs of Character.
Friedrich Gerstäcker, in one of his most delightful moods, says
somewhere that the best characteristicon of a man is how he wears his
hat. If he wears it perpendicular, he is honest, pedantic, and boresome.
If he wears it tipped slightly, he belongs to the best and most
interesting people, is nimble-witted and pleasant. A deeply tipped hat
indicates frivolity and obstinate imperious nature. A hat worn on the
back of the head signifies improvidence, easiness, conceit, sensuality
and extravagance; the farther back the more dangerous is the position of
the wearer. The man who presses his hat against his temples complains,
is melancholy, and in a bad way. It is now many years since I have read
this exposition by the much-traveled and experienced author, and I have
thought countless times how right he was, but also, how there may be
numberless similar marks of recognition which show as much as the
manner of wearing a hat. There are plenty of similar expositions to be
known; one man seeks to recognize the nature of others by their manner
of wearing and using shoes; the other by the manipulation of an
umbrella; and the prudent mother advises her son how the candidate for
bride behaves toward a groom lying on the floor, or how she eats
cheese--the extravagant one cuts the rind away thick, the miserly one
eats the rind, the right one cuts the rind away thin and carefully. Many
people judge families, hotel guests, and inhabitants of a city, and not
without reason, according to the comfort and cleanliness of their
privies.
Lazarus has rightly called to mind what is told by the pious Chr. von
Schmidt, concerning the clever boy who lies under a tree and recognizes
the condition of every passer-by according to what he says. “What fine
lumber,”--“Good-morning, carpenter,”--“What magnificent
bark,”--“Good-morning, tanner,”--“What beautiful
branches,”--“Good-morning, painter.” This significant story shows us how
easy it is with a little observation to perceive things that might
otherwise have been hidden. With what subtle clearness it shows how
effective is the egoism which makes each man first of all, and in most
cases exclusively, perceive what most concerns him as most prominent!
And in addition men so eagerly and often present us the chance for the
deepest insight into their souls that we need only to open our
eyes--seeing and interpreting is so childishly easy! Each one of us
experiences almost daily the most instructive things; e.g. through the
window of my study I could look into a great garden in which a house was
being built; when the carpenters left in the evening they put two blocks
at the entrance and put a board on them crosswise. Later there came each
evening a gang of youngsters who found in this place a welcome
playground. That obstruction which they had to pass gave me an
opportunity to notice the expression of their characters. One ran
quickly and jumped easily over,--that one will progress easily and
quickly in his life. Another approached carefully, climbed slowly up the
board and as cautiously descended on the other side--careful,
thoughtful, and certain. The third climbed up and jumped down--a deed
purposeless, incidental, uninforming. The fourth ran energetically to
the obstruction, then stopped and crawled boldly underneath--disgusting
boy who nevertheless will have carried his job ahead. Then, again, there
came a fifth who jumped,--but too low, remained hanging and tumbled; he
got up, rubbed his knee, went back, ran again and came over
magnificently--and how magnificently will he achieve all things in life,
for he has will, fearlessness, and courageous endurance!--he can’t sink.
Finally a sixth came storming along--one step, and board and blocks fell
together crashing, but he proudly ran over the obstruction, and those
who came behind him made use of the open way. He is of the people who go
through life as path-finders; we get our great men from among such.
Well, all this is just a game, and no one would dare to draw conclusions
concerning our so serious work from such observations merely. But they
can have a corroborative value if they are well done, when large
numbers, and not an isolated few, are brought together, and when
appropriate analogies are brought from appropriate cases. Such studies,
which have to be sought in the daily life itself, permit easy
development; if observations have been clearly made, correctly
apprehended, and if, especially, the proper notions have been drawn from
them, they are easily to be observed, stick in the memory, and come
willingly at the right moment. But they must then serve only as indices,
they must only suggest: “perhaps the case is the same to-day.” And that
means a good deal; a point of view for the taking of evidence is
established, not, of course, proof as such, or a bit of evidence, but a
way of receiving it,--perhaps a false one. But if one proceeds carefully
along this way, it shows its falseness immediately, and another
presented by memory shows us another way that is perhaps correct.
The most important thing in this matter is to get a general view of the
human specimen--and incidentally, nobody needs more to do this than the
criminalist. For most of us the person before us is only “A, suspected
of _x_.” But our man is rather more than that, and especially he was
rather more before he became “A suspected of _x_.” Hence, the greatest
mistake, and, unfortunately, the commonest, committed by the judge, is
his failure to discuss with the prisoner his more or less necessary
earlier life. Is it not known that every deed is an outcome of the total
character of the doer? Is it not considered that deed and character are
correlative concepts, and that the character by means of which the deed
is to be established cannot be inferred from the deed alone? “Crime is
the product of the physiologically grounded psyche of the criminal and
his environing external conditions.” (Liszt). Each particular deed is
thinkable only when a determinate character of the doer is brought in
relation with it--a certain character predisposes to determinate deeds,
another character makes them unthinkable and unrelatable with this or
that person. But who thinks to know the character of a man without
knowing his view of the world, and who talks of their world-views with
his criminals? “Whoever wants to learn to know men,” says Hippel,[82]
“must judge them according to their wishes,” and it is the opinion of
Struve:[83] “A man’s belief indicates his purpose.” But who of us asks
his criminals about their wishes and beliefs?
If we grant the correctness of what we have said we gain the conviction
that we can proceed with approximate certainty and conscientiousness
only if we speak with the criminal, not alone concerning the deed
immediately in question, but also searchingly concerning the important
conditions of his inner life. So we may as far as possible see clearly
what he is according to general notions and his particular
relationships.
The same thing must also be done with regard to an important witness,
especially when much depends upon his way of judging, of experiencing,
of feeling, and of thinking, and when it is impossible to discover these
things otherwise. Of course such analyses are often tiring and without
result, but that, on the other hand, they lay open with few words whole
broadsides of physical conditions, so that we need no longer doubt, is
also a matter of course. Who wants to leave unused a formula of
Schopenhauer’s: “We discover what we are through what we do?” Nothing is
easier than to discover from some person important to us what he does,
even though the discovery develops merely as a simple conversation about
what he has done until now and what he did lately. And up to date we
have gotten at such courses of life only in the great cases; in cases of
murder or important political criminals, and then only at externals; we
have cared little about the essential deeds, the smaller forms of
activity which are always the significant ones. Suppose we allow some
man to speak about others, no matter whom, on condition that he must
know them well. He judges their deeds, praises and condemns them, and
thinks that he is talking about them but is really talking about himself
alone, for in each judgment of the others he aims to justify and enhance
himself; the things he praises he does, what he finds fault with, he
does not; or at least he wishes people to believe that he does the
former and avoids the latter. And when he speaks unpleasantly about his
friends he has simply abandoned what he formerly had in common with
them. Then again he scolds at those who have gotten on and blames their
evil nature for it; but whoever looks more closely may perceive that he
had no gain in the same evil and therefore dislikes it. At the same
time, he cannot possibly suppress what he wishes and what he needs. Now,
whoever knows this fact, knows his motives, and to decide in view of
these with regard to a crime is seldom difficult. “Nos besoins sont nos
forces”--but superficial needs do not really excite us while what is an
actual need does. Once we are compelled, our power to achieve what we
want grows astoundingly. How we wonder at the great amount of power used
up, in the case of many criminals! If we know that a real need was
behind the crime, we need no longer wonder at the magnitude of the
power. The relation between the crime and the criminal is defined
because we have discovered his needs. To these needs a man’s pleasures
belong also; every man, until the practically complete loss of vigor,
has as a rule a very obvious need for some kind of pleasure. It is human
nature not to be continuously a machine, to require relief and pleasure.
The word pleasure must of course be used in the loosest way, for one man
finds his pleasure in sitting beside the stove or in the shadow, while
another speaks of pleasure only when he can bring some change in his
work. I consider it impossible not to understand a man whose pleasures
are known; his will, his power, his striving and knowing, feeling and
perceiving cannot be made clearer by any other thing. Moreover, it
happens that it is a man’s pleasures which bring him into court, and as
he resists or falls into them he reveals his character. The famous
author of the “Imitation of Christ,” Thomas à Kempis, whose book is,
saving the Bible, the most wide-spread on earth, says: “Occasiones
hominem fragilem non faciunt, sed, qualis sit, ostendunt.” That is a
golden maxim for the criminalist. Opportunity, the chance to taste, is
close to every man, countless times; is his greatest danger; for that
reason it was great wisdom in the Bible that called the devil, the
Tempter. A man’s behavior with regard to the discovered or sought-out
opportunity exhibits his character wholly and completely. But the chance
to observe men face to face with opportunity is a rare one, and that
falling-off with which we are concerned is often the outcome of such an
opportunity. But at this point we ought not longer to learn, but to
know; and hence our duty to study the pleasures of men, to know how
they behave in the presence of their opportunities.
There is another group of conditions through which you may observe and
judge men in general. The most important one is to know yourself as well
as possible, for accurate self-knowledge leads to deep mistrust with
regard to others, and only the man suspicious with regard to others is
insured, at least a little, against mistakes. To pass from mistrust to
the reception of something good is not difficult, even in cases where
the mistrust is well-founded and the presupposition of excellent motives
among our fellows is strongly fought. Nevertheless, when something
actually good is perceivable, one is convinced by it and even made
happy. But the converse is not true, for anybody who is too trusting
easily presupposes the best at every opportunity, though he may have
been deceived a thousand times and is now deceived again. How it happens
that self-knowledge leads to suspicion of others we had better not
investigate too closely--it is a fact.
Every man is characterized by the way he behaves in regard to his
promises. I do not mean keeping or breaking a promise, because nobody
doubts that the honest man keeps it and the scoundrel does not. I mean
the _manner_ in which a promise is kept and the _degree_ in which it is
kept. La Roche-Foucauld[84] says significantly: “We promise according to
our hopes, and perform according to our fears.” When in any given case
promising and hopes and performance and fears are compared, important
considerations arise,--especially in cases of complicity in crime.
When it is at all possible, and in most cases it is, one ought to
concern oneself with a man’s style,--the handwriting of his soul. What
this consists of cannot be expressed in a definite way. The style must
simply be studied and tested with regard to its capacity for being
united with certain presupposed qualities. Everybody knows that
education, bringing-up, and intelligence are indubitably expressed in
style, but it may also be observed that style clearly expresses softness
or hardness of a character, kindness or cruelty, determination or
weakness, integrity or carelessness, and hundreds of other qualities.
Generally the purpose of studying style may be achieved by keeping in
mind some definite quality presupposed and by asking oneself, while
reading the manuscript of the person in question, whether this quality
fuses with the manuscript’s form and with the individual tendencies and
relationships that occur in the construction of the thought. One
reading will of course not bring you far, but if the reading is repeated
and taken up anew, especially as often as the writer is met with or as
often as some new fact about him is established, then it is almost
impossible not to attain a fixed and valuable result. One gets then
significantly the sudden impression that the thing to be proved, having
the expression of which the properties are to be established, rises out
of the manuscript; and when that happens the time has come not to dawdle
with the work. Repeated reading causes the picture above-mentioned to
come out more clearly and sharply; it is soon seen in what places or
directions of the manuscript that expression comes to light--these
places are grouped together, others are sought that more or less imply
it, and soon a standpoint for further consideration is reached which
naturally is not evidential by itself, but has, when combined with
numberless others, corroborative value.
Certain small apparently indifferent qualities and habits are important.
There are altogether too many of them to talk about; but there are
examples enough of the significance of what is said of a man in this
fashion: “this man is never late,” “this man never forgets,” “this man
invariably carries a pencil or a pocket knife,” “this one is always
perfumed,” “this one always wears clean, carefully brushed
clothes,”--whoever has the least training may construct out of such
qualities the whole inner life of the individual. Such observations may
often be learned from simple people, especially from old peasants. A
great many years ago I had a case which concerned a disappearance. It
was supposed that the lost man was murdered. Various examinations were
made without result, until, finally, I questioned an old and very
intelligent peasant who had known well the lost man. I asked the witness
to describe the nature of his friend very accurately, in order that I
might draw from his qualities, habits, etc., my inferences concerning
his tendencies, and hence concerning his possible location. The old
peasant supposed that everything had been said about the man in question
when he explained that he was a person who never owned a decent tool.
This was an excellent description, the value of which I completely
understood only when the murdered man came to life and I learned to know
him. He was a petty lumberman who used to buy small wooded tracts in the
high mountains for cutting, and having cut them down would either bring
the wood down to the valley, or have it turned to charcoal. In the fact
that he never owned a decent tool, nor had one for his men, was
established his whole narrow point of view, his cramped miserliness,
his disgusting prudence, his constricted kindliness, qualities which
permitted his men to plague themselves uselessly with bad tools and
which justified altogether his lack of skill in the purchase of tools.
So I thought how the few words of the old, much-experienced peasant were
confirmed utterly--they told the whole story. Such men, indeed, who say
little but say it effectively, must be carefully attended to, and
everything must be done to develop and to understand what they mean.
But the judge requires attention and appropriate conservation of his own
observations. Whoever observes the people he deals with soon notices
that there is probably not one among them that does not possess some
similar, apparently unessential quality like that mentioned above. Among
close acquaintances there is little difficulty in establishing which of
their characteristics belong to that quality, and when series of such
observations are brought together it is not difficult to generalize and
to abstract from them specific rules. Then, in case of need, when the
work is important, one makes use of the appropriate rule with pleasure,
and I might say, with thanks for one’s own efforts.
One essential and often useful symbol to show what a man makes of
himself, what he counts himself for, is his use of the word _we_.
Hartenstein[85] has already called attention to the importance of this
circumstance, and Volkmar says: “The _we_ has a very various scope, from
the point of an accidental simultaneity of images in the same sensation,
representation or thought, to the almost complete circle of the family
_we_ which breaks through the _I_ and even does not exclude the most
powerful antagonisms; hatred, just like love, asserts its _we_.” What is
characteristic in the word _we_ is the opposition of a larger or smaller
group of which the _I_ is a member, to the rest of the universe. I say
_we_ when I mean merely my wife and myself, the inhabitants of my house,
my family, those who live in my street, in my ward, or in my city; I say
_we_ assessors, we central-Austrians, we Austrians, we Germans, we
Europeans, we inhabitants of the earth. I say we lawyers, we blonds, we
Christians, we mammals, we collaborators on a monthly, we old students’
society, we married men, we opponents of jury trial. But I also say _we_
when speaking of accidental relations, such as being on the same train,
meeting on the same mountain peak, in the same hotel, at the same
concert, etc. In a word _we_ defines all relationships from the
narrowest and most important, most essential, to the most individual and
accidental. Conceivably the we unites also people who have something
evil in common, who use it a great deal among themselves, and because of
habit, in places where they would rather not have done so. Therefore, if
you pay attention you may hear some suspect who denies his guilt, come
out with a we which confesses his alliance with people who do the things
he claims not to: _we_ pickpockets, _we_ house-breakers, _we_ gamblers,
inverts, etc.
It is so conceivable that man as a social animal seeks companionship in
so many directions that he feels better protected when he has a comrade,
when he can present in the place of his weak and unprotected _I_ the
stronger and bolder _we_; and hence the considerable and varied use of
the word. No one means that people are to be caught with the word; it is
merely to be used to bring clearness into our work. Like every other
honest instrument, it is an index to the place of the man before us.
Section 13. (c) Particular Character-signs.
It is a mistake to suppose that it is enough in most cases to study that
side of a man which is at the moment important--his dishonesty only, his
laziness, etc. That will naturally lead to merely one-sided judgment and
anyway be much harder than keeping the whole man in eye and studying him
as an entirety. Every individual quality is merely a symptom of a whole
nature, can be explained only by the whole complex, and the good
properties depend as much on the bad ones as the bad on the good ones.
At the very least the quality and quantity of a good or bad
characteristic shows the influence of all the other good and bad
characteristics. Kindliness is influenced and partly created through
weakness, indetermination, too great susceptibility, a minimum
acuteness, false constructiveness, untrained capacity for inference; in
the same way, again, the most cruel hardness depends on properties
which, taken in themselves, are good: determination, energy, purposeful
action, clear conception of one’s fellows, healthy egotism, etc. Every
man is the result of his nature and nurture, i.e. of countless
individual conditions, and every one of his expressions, again, is the
result of all of these conditions. If, therefore, he is to be judged, he
must be judged in the light of them all.
For this reason, all those indications that show us the man as a whole
are for us the most important, but also those others are valuable which
show him up on one side only. In the latter case, however, they are to
be considered only as an index which never relieves us from the need
further to study the nature of our subject. The number of such
individual indications is legion and no one is able to count them up and
ground them, but examples of them may be indicated.
We ask, for example, what kind of man will give us the best and most
reliable information about the conduct and activity, the nature and
character, of an individual? We are told: that sort of person who is
usually asked for the information--his nearest friends and
acquaintances, and the authorities. Before all of these nobody shows
himself as he is, because the most honest man will show himself before
people in whose judgment he has an interest at least as good as, if not
better than he is--that is fundamental to the general egoistic essence
of humanity, which seeks at least to avoid reducing its present welfare.
Authorities who are asked to make a statement concerning any person, can
say reliably only how often the man was punished or came otherwise in
contact with the law or themselves. But concerning his social
characteristics the authorities have nothing to say; they have got to
investigate them and the detectives have to bring an answer. Then the
detectives are, at most, simply people who have had the opportunity to
watch and interrogate the individuals in question,--the servants,
house-furnishers, porters, corner-loafers, etc. Why we do not question
the latter ourselves I cannot say; if we did we might know these people
on whom we depend for important information and might put our questions
according to the answers that we need. It is a purely negative thing
that an official declaration is nowadays not unfrequently presented to
us in the disgusting form of the gossip of an old hag. But in itself the
form of getting information about people through servants and others of
the same class is correct. One has, however, to beware that it is not
done simply because the gossips are most easily found, but because
_people show their weaknesses most readily before those whom they hold
of no account_. The latter fact is well known, but not sufficiently
studied. It is of considerable importance. Let us then examine it more
closely: Nobody is ashamed to show himself before an animal as he is, to
do an evil thing, to commit a crime; the shame will increase very little
if instead of the animal a complete idiot is present, and if now we
suppose the intelligence and significance of this witness steadily to
increase, the shame of appearing before him as one is increases in a
like degree. So we will control ourselves most before people whose
judgment is of most importance to us. The Styrian, Peter Rosegger, one
of the best students of mankind, once told a first-rate story of how the
most ultimate secrets of certain people became common talk although all
concerned assured him that nobody had succeeded in getting knowledge of
them. The news-agent was finally discovered in the person of an old,
humpy, quiet, woman, who worked by the day in various homes and had
found a place, unobserved and apparently indifferent, in the corner of
the sitting-room. Nobody had told her any secrets, but things were
allowed to occur before her from which she might guess and put them
together. Nobody had watched this disinterested, ancient lady; she
worked like a machine; her thoughts, when she noted a quarrel or anxiety
or disagreement or joy, were indifferent to all concerned, and so she
discovered a great deal that was kept secret from more important
persons. This simple story is very significant--we are not to pay
attention to gossips but to keep in mind that the information of persons
is in the rule more important and more reliable when the question under
consideration is indifferent to them than when it is important. We need
only glance at our own situation in this matter--what do we know about
our servants? What their Christian names are, because we have to call
them; where they come from, because we hear their pronunciation; how old
they are, because we see them; and those of their qualities that we make
use of. But what do we know of their family relationships, their past,
their plans, their joys or sorrows? The lady of the house knows perhaps
a little more because of her daily intercourse with them, but her
husband learns of it only in exceptional cases when he bothers about
things that are none of his business. Nor does madam know much, as
examination shows us daily. But what on the other hand do the servants
know about us? The relation between husband and wife, the bringing-up of
the children, the financial situation, the relation with cousins, the
house-friends, the especial pleasures, each joy, each trouble that
occurs, each hope, everything from the least bodily pain to the very
simplest secret of the toilette--they know it all. What can be kept from
them? The most restricted of them are aware of it, and if they do not
see more, it is not because of our skill at hiding, but because of their
stupidity. We observe that in these cases there is not much that can be
kept secret and hence do not trouble to do so.
There is besides another reason for allowing subordinate or indifferent
people to see one’s weaknesses. The reason is that we hate those who
are witnesses of a great weakness. Partly it is shame, partly vexation
at oneself, partly pure egoism, but it is a fact that one’s anger turns
instinctively upon those who have observed one’s degradation through
one’s own weakness. This is so frequently the case that the witness is
to be the more relied on the more the accused would seem to have
preferred that the witness had not seen him. Insignificant people are
not taken as real witnesses; they were there but they haven’t perceived
anything; and by the time it comes to light that they see at least as
well as anybody else, it is too late. One will not go far wrong in
explaining the situation with the much varied epigram of Tacitus:
“Figulus odit figulum.” It is, at least, through business-jealousy that
one porter hates another, and the reason for it lies in the fact that
two of a trade know each other’s weaknesses, that one always knows how
the other tries to hide his lack of knowledge, how deceitful
fundamentally every human activity is, and how much trouble everybody
takes to make his own trade appear to the other as fine as possible. If
you know, however, that your neighbor is as wise as you are, the latter
becomes a troublesome witness in any disagreeable matter, and if he is
often thought of in this way, he comes to be hated. Hence you must never
be more cautious than when one “figulus” gives evidence about another.
Esprit de corps and jealousy pull the truth with frightful force, this
way and that, and the picture becomes the more distorted because
so-called esprit de corps is nothing more than generalized selfishness.
Kant[86] is not saying enough when he says that the egoist is a person
who always tries to push his own _I_ forward and to make it the chief
object of his own and of everybody else’s attention. For the person who
merely seeks attention is only conceited; the egoist, however, seeks his
own advantage alone, even at the cost of other people, and when he shows
esprit de corps he desires the advantage of his corps because he also
has a share in that. In this sense one of a trade has much to say about
his fellow craftsmen, but because of jealousy, says too little--in what
direction, however, he is most likely to turn depends on the nature of
the case and the character of the witness.
In most instances it will be possible to make certain distinctions as to
when objectively too much and subjectively too little is said. That is
to say, the craftsman will exaggerate with regard to all general
questions, but with regard to his special fellow jealousy will establish
her rights. An absolute distinction may never be drawn, not even
subjectively. Suppose that A has something to say about his fellow
craftsman B, and suppose that certain achievements of B are to be
valued. If now A has been working in the same field as B he must not
depreciate too much the value of B’s work, since otherwise his own work
is in danger of the same low valuation. Objectively the converse is
true: for if A bulls the general efficiency of his trade, it doesn’t
serve his conceit, since we find simply that the competitor is in this
way given too high a value. It would be inadvisable to give particular
examples from special trades, but everybody who has before him one
“figulus” after another, from the lowest to the highest professions, and
who considers the statements they make about each other, will grant the
correctness of our contention. I do not, at this point, either, assert
that the matter is the same in each and every case, but that it is
generally so is indubitable.
There is still another thing to be observed. A good many people who are
especially efficient in their trades desire to be known as especially
efficient in some other and remote circle. It is historic that a certain
regent was happy when his very modest flute-playing was praised; a poet
was pleased when his miserable drawings were admired; a marshal wanted
to hear no praise of his victories but much of his very doubtful
declamation. The case is the same among lesser men. A craftsman wants to
shine with some foolishness in another craft, and “the philistine is
happiest when he is considered a devil of a fellow.” The importance of
this fact lies in the possibility of error in conclusions drawn from
what the subject himself tries to present about his knowledge and power.
With regard to the past it leads even fundamentally honest persons to
deception and lying.
So for example a student who might have been the most solid and harmless
in his class later makes suggestions that he was the wildest sport; the
artist who tried to make his way during his cubhood most bravely with
the hard-earned money of his mother is glad to have it known that he was
guilty as a young man of unmitigated nonsense; and the ancient dame who
was once the most modest of girls is tickled with the flattery of a
story concerning her magnificent flirtations. When such a matter is
important for us it must be received with great caution.
To this class of people who want to appear rather more interesting than
they are, either in their past or present, belong also those who
declare that everything is possible and who have led many a judge into
vexatious mistakes. This happens especially when an accused person tries
to explain away the suspicions against him by daring statements
concerning his great achievements (e.g.: in going back to a certain
place, or his feats of strength, etc.), and when witnesses are asked if
these are conceivable. One gets the impression in these cases that the
witnesses under consideration suppose that they belittle themselves and
their point of view if they think anything to be impossible. They are
easily recognized. They belong to the worst class of promoters and
inventors or their relations. If a man is studying how to pay the
national debt or to solve the social question or to irrigate Sahara, or
is inclined to discover a dirigible air-ship, a perpetual-motion
machine, or a panacea, or if he shows sympathy for people so inclined,
he is likely to consider everything possible--and men of this sort are
surprisingly numerous. They do not, as a rule, carry their plans about
in public, and hence have the status of prudent persons, but they betray
themselves by their propensity for the impossible in all conceivable
directions. If a man is suspected to be one of them, and the matter is
important enough, he may be brought during the conversation to talk
about some project or invention. He will then show how his class begins
to deal with it, with what I might call a suspicious warmth. By that
token you know the class. They belong to that large group of people who,
without being abnormal, still have passed the line which divides the
perfectly trustworthy from those unreliable persons who, with the best
inclination to tell the truth, can render it only as it is distorted by
their clouded minds.
These people are not to be confused with those specific men of power
who, in the attempt to show what they can do, go further than in truth
they should. There are indeed persons of talent who are efficient, and
know it, whether for good or evil, and they happen to belong both to the
class of the accused and of the witness. The former show this quality in
confessing to more than they are guilty of, or tell their story in such
a way as to more clearly demonstrate both their power and their conceit.
So that it may happen that a man takes upon himself a crime that he
shares with three accomplices or that he describes a simple larceny as
one in which force had to be used with regard to its object and even
with regard to the object’s owner; or perhaps he describes his flight or
his opponents’ as much more troublesome than these actually were or need
have been. The witness behaves in a similar fashion and shows his
defense against an attack for example, or his skill in discovery of his
goods, or his detection of the criminal in a much brighter light than
really belongs to it; he even may describe situations that were
superfluous in order to show what he can do. In this way the simplest
fact is often distorted. As suspects such people are particularly
difficult to deal with. Aside from the fact that they do more and
actually have done more than was necessary, they become unmanageable and
hard-mouthed through unjust accusations. Concerning these people the
statement made a hundred years ago by Ben David[87] still holds:
“Persecution turns wise people raw and foolish, and kindly and well
disposed ones cruel and evil-intentioned.” There are often well disposed
natures who, after troubles, express themselves in the manner described.
It very frequently happens that suspects, especially those under arrest,
alter completely in the course of time, become sullen, coarse,
passionate, ill-natured, show themselves defiant and resentful to even
the best-willed approach, and exhibit even a kind of courage in not
offering any defense and in keeping silent. Such phenomena require the
most obvious caution, for one is now dealing apparently with powerful
fellows who have received injustice. Whether they are quite guiltless,
whether they are being improperly dealt with, or for whatever reason the
proper approach has not been made, we must go back, to proceed in
another fashion, and absolutely keep in mind the possibility of their
being innocent in spite of serious evidence against them.
These people are mainly recognizable by their mode of life, their
habitual appearance, and its expression. Once that is known their
conduct in court is known. In the matter of individual features of
character, the form of life, the way of doing things is especially to be
observed. Many an effort, many a quality can be explained in no other
way. The simple declaration of Volkmar, “There are some things that we
want only because we had them once,” explains to the criminalist long
series of phenomena that might otherwise have remained unintelligible.
Many a larceny, robbery, possibly murder, many a crime springing from
jealousy, many sexual offenses become intelligible when one learns that
the criminal had at one time possessed the object for the sake of which
he committed the crime, and having lost it had tried with irresistible
vigor to regain it. What is extraordinary in the matter is the fact that
considerable time passes between the loss and the desire for recovery.
It seems as if the isolated moments of desire sum themselves up in the
course of time and then break out as the crime. In such cases the
explaining motive of the deed is never to be found except in the
criminal’s past.
The same relationship exists in the cases of countless criminals whose
crimes seem at bottom due to apparently inconceivable brutality. In all
such cases, especially when the facts do not otherwise make apparent the
possible guilt of the suspect, the story of the crime’s development has
to be studied. Gustav Struve asserts that it is demonstrable that young
men become surgeons out of pure cruelty, out of desire to see people
suffer pain and to cause pain. A student of pharmacy became a hangman
for the same reason and a rich Dutchman paid the butchers for allowing
him to kill oxen. If, then, one is dealing with a crime which points to
_extraordinary_ cruelty, how can one be certain about its motive and
history without knowing the history of the criminal?
This is the more necessary inasmuch as we may be easily deceived through
apparent motives. “Inasmuch as in most capital crimes two or more
motives work together, an ostensible and a concealed one,” says
Kraus,[88] “each criminal has at his command apparent motives which
encourage the crime.” We know well enough how frequently the thief
excuses himself on the ground of his need, how the criminal wants to
appear as merely acting in self-defense during robberies, and how often
the sensualist, even when he has misbehaved with a little child, still
asserts that the child had seduced him. In murder cases even, when the
murderer has confessed, we frequently find that he tries to excuse
himself. The woman who poisons her husband, really because she wants to
marry another, tells her story in such a way as to make it appear that
she killed him because he was extraordinarily bad and that her deed
simply freed the world of a disgusting object. As a rule the
psychological aspect of such cases is made more difficult, by the reason
that the subject has in a greater or lesser degree convinced himself of
the truth of his statements and finally believes his reasons for excuse
altogether or in part. And if a man believes what he says, the proof
that the story is false is much harder to make, because psychological
arguments that might be used to prove falsehood are then of no use. This
is an important fact which compels us to draw a sharp line between a
person who is obviously lying and one who does believe what he says. We
have to discover the difference, inasmuch as the self-developed
conviction of the truth of a story is never so deep rooted as the real
conviction of truth. For that reason, the person who has convinced
himself of his truth artificially, watches all doubts and objections
with much greater care than a man who has no doubt whatever in what he
says. The former, moreover, does not have a good conscience, and the
proverb says truly, “a bad conscience has a fine ear.” The man knows
that he is not dealing correctly with the thing and hence he observes
all objections, and the fact that he does so observe, can not be easily
overlooked by the examining officer.
Once this fine hearing distinguishes the individual who really believes
in the motive he plausibly offers the court, there is another indication
(obviously quite apart from the general signs of deceit) that marks him
further, and this comes to light when one has him speak about similar
crimes of others in which the ostensible motive actually was present. It
is said rightly, that not he is old who no longer commits youthful
follies but he that no longer forgives them, and so not merely he is bad
who himself commits evil but also he who excuses them in others. Of
course, that an accused person should defend the naked deed as it is
described in the criminal law is not likely for conceivable
reasons--since certainly no robbery-suspect will sing a paean about
robbers, but certainly almost anybody who has a better or a
better-appearing motive for his crime, will protect those who have been
guided by a similar motive in other cases. Every experiment shows this
to be the case and then apparent motives are easily enough recognized as
such.
(d) Somatic Character-Units.
Section 14. (1) _General Considerations._
When we say that the inner condition of men implies some outer
expression, it must follow that there are series of phenomena which
especially mold the body in terms of the influence of a state of mind on
external appearance, or conversely, which are significant of the
influence of some physical uniqueness on the psychical state, or of some
other psycho physical condition. As an example of the first kind one may
cite the well known phenomenon that devotees always make an impression
rather specifically feminine. As an example of the second kind is the
fact demonstrated by Gyurkovechky[89] that impotents exhibit
disagreeable characteristics. Such conditions find their universalizing
expression in the cruel but true maxim “Beware of the marked one.” The
Bible was the first of all to make mention of these evil stigmata. No
one of course asserts that the bearer of any bodily malformation is for
that reason invested with one or more evil qualities--“Non cum hoc, sed
propter hoc.” It is a general quality of the untrained, and hence the
majority of men, that they shall greet the unfortunate who suffers from
some bodily malformation not with care and protection, but with scorn
and maltreatment. Such propensities belong, alas, not only to adults,
but also to children, who annoy their deformed playfellows (whether
expressly or whether because they are inconsiderate), and continually
call the unhappy child’s attention to his deformity. Hence, there
follows in most cases from earliest youth, at first a certain
bitterness, then envy, unkindness, stifled rage against the fortunate,
joy in destruction, and all the other hateful similar qualities however
they may be named. In the course of time all of these retained bitter
impressions summate, and the qualities arising from them become more
acute, become habitual, and at last you have a ready-made person “marked
for evil.” Add to this the indubitable fact that the marked persons are
considerably wiser and better-instructed than the others. Whether this
is so by accident or is causally established is difficult to say; but
inasmuch as most of them are compelled just by their deformities to
deprive themselves of all common pleasures and to concern themselves
with their own affairs, once they have been fed to satiety with abuse,
scorn and heckling, the latter is the more likely. Under such
circumstances they have to think more, they learn more than the others
to train their wits, largely as means of defense against physical
attack. They often succeed by wit, but then, they can never be brought
into a state of good temper and lovableness when they are required to
defend themselves by means of sharp, biting and destructive wit.
Moreover, if the deformed is naturally not well-disposed, other dormant
evil tendencies develop in him, which might never have realized
themselves if he had had no need of them for purposes of
self-defense--lying, slander, intrigue, persecution by means of
unpermitted instruments, etc. All this finally forms a determinate
complex of phenomena which is undivorceably bound in the eyes of the
expert with every species of deformity: the mistrusting of the deaf man,
the menacing expression of the blind, the indescribable and therefore
extremely characteristic smiling of the hump-back are not the only
typical phenomena of this kind.
All this is popularly known and is abnormally believed in, so that we
often discover that the deformed are more frequently suspected of crime
than normal people. Suspicion turns to them especially when an unknown
criminal has committed a crime the accomplishment of which required a
particularly evil nature and where the deed of itself called forth
general indignation. In that case, once a deformed person is suspected,
grounds of suspicion are not difficult to find; a few collect more as a
rolling ball does snow. After that the sweet proverb: “Vox populi, vox
dei,” drives the unfortunate fellow into a chaos of evidential grounds
of suspicion which may all be reduced to the fact that he has red hair
or a hump. Such events are frightfully frequent.[90]
Section 15. (2) _Causes of Irritation._
Just as important as these phenomena are the somatic results of psychic
irritation. These latter clear up processes not to be explained by words
alone and often over-valued and falsely interpreted. Irritations are
important for two reasons: (1) as causes of crime, and (2) as signs of
identification in examination.
In regard to the first it is not necessary to show what crimes are
committed because of anger, jealousy, or rage, and how frequently terror
and fear lead to extremes otherwise inexplicable--these facts are partly
so well known, partly so very numerous and various, that an exposition
would be either superfluous or impossible. Only those phenomena will be
indicated which lie to some degree on the borderland of the observed and
hence may be overlooked. To this class belong, for example, anger
against the object, which serves as explanation of a group of so-called
malicious damages, such as arson, etc. Everybody, even though not
particularly lively, remembers instances in which he fell into great and
inexplicable rage against an object when the latter set in his way some
special difficulties or caused him pain; and he remembers how he created
considerable ease for himself by flinging it aside, tearing it or
smashing it to pieces. When I was a student I owned a very old, thick
Latin lexicon, “Kirschii cornu copia,” bound in wood covered with
pig-skin. This respectable book flew to the ground whenever its master
was vexed, and never failed profoundly to reduce the inner stress. This
“Kirschius” was inherited from my great-grandfather and it did not
suffer much damage. When, however, some poor apprentice tears the fence,
on a nail of which his only coat got a bad tear, or when a young
peasant kills the dog that barks at him menacingly and tries to get at
his calf, then we come along with our “damages according to so and so
much,” and the fellow hasn’t done any more than I have with my
“Kirschius.”[91] In the magnificent novel, “Auch Einer,” by F. T.
Vischer, there is an excellent portrait of the perversity of things; the
author asserts that things rather frequently hold ecumenical councils
with the devil for the molestation of mankind.
How far the perversity of the inanimate can lead I saw in a criminal
case in which a big isolated hay-stack was set on fire. A traveler was
going across the country and sought shelter against oncoming bad
weather. The very last minute before a heavy shower he reached a
hay-stack with a solid straw cover, crept into it, made himself
comfortable in the hay and enjoyed his good fortune. Then he fell
asleep, but soon woke again inasmuch as he, his clothes, and all the hay
around him was thoroughly soaked, for the roof just above him was
leaking. In frightful rage over this “evil perversity,” he set the stack
on fire and it burned to the ground.
It may be said that the fact of the man’s anger is as much a motive as
any other and should have no influence on the legal side of the
incident. Though this is quite true, we are bound to consider the crime
and the criminal as a unit and to judge them so. If under such
circumstances we can say that this unit is an outcome natural to the
character of mankind, and even if we say, perhaps, that we might have
behaved similarly under like circumstances, if we really cannot find
something absolutely evil in the deed, the criminal quality of it is
throughout reduced. Also, in such smaller cases the fundamental concept
of modern criminology comes clearly into the foreground: “not the crime
but the criminal is the object of punishment, not the concept but the
man is punished.” (Liszt).
The fact of the presence of a significant irritation is important for
passing judgment, and renders it necessary to observe with the most
thorough certainty how this irritation comes about. This is the more
important inasmuch as it becomes possible to decide whether the
irritation is real or artificial and imitated. Otherwise, however, the
meaning of the irritation can be properly valued only when its
development can be held together step by step with its causes. Suppose I
let the suspect know the reason of suspicion brought by his enemies,
then if his anger sensibly increases with the presentation of each new
ground, it appears much more natural and real than if the anger
increased in inexplicable fashion with regard to less important reasons
for suspicion and developed more slowly with regard to the more
important ones.
The collective nature of somatic phenomena in the case of great
excitement has been much studied, especially among animals, these being
simpler and less artificial and therefore easier to understand, and in
the long run comparatively like men in the expression of their emotions.
Very many animals, according to Darwin, erect their hair or feathers or
quills in cases of anxiety, fear, or horror, and nowadays, indeed,
involuntarily, in order to exhibit themselves as larger and more
terrible. The same rising of the hair even to-day plays a greater role
among men than is generally supposed. Everybody has either seen in
others or discovered in himself that fear and terror visibly raise the
hair. I saw it with especial clearness during an examination when the
person under arrest suddenly perceived with clearness, though he was
otherwise altogether innocent, in what great danger he stood of being
taken for the real criminal. That our hair rises in cases of fear and
horror without being visible is shown, I believe, in the well known
movement of the hand from forehead to crown. It may be supposed that the
hair rises at the roots invisibly but sensibly and thus causes a mild
tickling and pricking of the scalp which is reduced by smoothing the
head with the hand. This movement, then, is a form of involuntary
scratching to remove irritation. That such a characteristic movement is
made during examination may therefore be very significant under certain
circumstances. Inasmuch as the process is indubitably an influence of
the nerves upon the finer and thinner muscle-fibers, it must have a
certain resemblance to the process by which, as a consequence of fear,
horror, anxiety, or care, the hair more or less suddenly turns white.
Such occurrences are in comparatively large numbers historical; G.
Pouchet[92] counts up cases in which hair turned white suddenly, (among
them one where it happened while the poor sinner was being led to
execution). Such cases do not interest us because, even if the accused
himself turned grey over night, no evidence is afforded of guilt or
innocence. Such an occurrence can be evidential only when the hair
changes color demonstrably in the case of a witness. It may then be
certainly believed that he had experienced something terrible and aging.
But whether he had really experienced this, or merely believed that he
had experienced it, can as yet not be discovered, since the belief and
the actual event have the same mental and physical result.
Properly to understand the other phenomena that are the result of
significant irritation, their matrix, their aboriginal source must be
studied. Spencer says that fear expresses itself in cries, in hiding,
sobbing and trembling, all of which accompany the discovery of the
really terrible; while the destructive passions manifest themselves in
tension of the muscles, gritting of the teeth, extending the claws: all
weaker forms of the activity of killing. All this, aboriginally
inherited from the animals, occurs in rather less intense degrees in
man, inclusive of baring the claws, for exactly this movement may often
be noticed when somebody is speaking with anger and vexation about
another person and at the same time extends and contracts his fingers.
Anybody who does this even mildly and unnoticeably means harm to the
person he is talking about. Darwin indeed, in his acutely observing
fashion, has also called attention to this. He suggests that a man may
hate another intensely, but that so long as his anatomy is not affected
he may not be said to be enraged. This means clearly that the somatic
manifestations of inner excitement are so closely bound up with the
latter that we require the former whenever we want to say anything about
the latter. And it is true that we never say that a man was enraged or
only angry, if he remained physically calm, no matter how noisy and
explicit he might have been with words. This is evidence enough of the
importance of noticing bodily expression. “How characteristic,” says
Volkmar[93] “is the trembling and heavy breathing of fear, the glowering
glance of anger, the choking down of suppressed vexation, the stifling
of helpless rage, the leering glance and jumping heart of envy.” Darwin
completes the description of fear: The heart beats fast, the features
pale, he feels cold but sweats, the hair rises, the secretion of saliva
stops, hence follows frequent swallowing, the voice becomes hoarse,
yawning begins, the nostrils tremble, the pupils widen, the constrictor
muscles relax. Wild and very primitive people show this much more
clearly and tremble quite uncontrolled. The last may often be seen and
may indeed be established as a standard of culture and even of character
and may help to determine how far a man may prevent the inner irritation
from becoming externally noticeable. Especially he who has much to do
with Gypsies is aware how little these people can control themselves.
From this fact also spring the numerous anecdotes concerning the wild
rulers of uncultivated people, who simply read the guilt of the suspect
from his external behavior, or even more frequently were able to select
the criminal with undeceivable acuteness from a number brought before
them. Bain[94] narrates that in India criminals are required to take
rice in the mouth and after awhile to spit it out. If it is dry the
accused is held to be guilty--fear has stopped the secretion of
saliva--obstupui, stetetuntque comae, et vox faucibus haesit.
Concerning the characteristic influence of timidity see Paul
Hartenberg.[95]
Especially self-revealing are the outbreaks of anger against oneself,
the more so because I believe them always to be evidence of
consciousness of guilt. At least, I have never yet seen an innocent man
fall into a paroxysm of rage against himself, nor have I ever heard that
others have observed it, and I would not be able psychologically to
explain such a thing should it happen. Inasmuch as scenes of this kind
can occur perceivably only in the most externalized forms of anger, so
such an explosion is elementary and cannot possibly be confused with
another. If a man wrings his hands until they bleed, or digs his
finger-nails into his forehead, nobody will say that this is anger
against himself; it is only an attempt to do something to release
stored-up energy, to bring it to bear against somebody. People are
visibly angry against themselves only when they do such things to
themselves as they might do to other people; for example, beating,
smashing, pulling the hair, etc. This is particularly frequent among
Orientals who are more emotional than Europeans. So I saw a Gypsy run
his head against a wall, and a Jew throw himself on his knees, extend
his arms and box his ears with both hands so forcibly that the next day
his cheeks were swollen. But other races, if only they are passionate
enough, behave in a similar manner. I saw a woman, for example, tear
whole handfuls of hair from her head, a murdering thief, guilty of more
or fewer crimes, smash his head on the corner of a window, and a
seventeen year old murderer throw himself into a ditch in the street,
beat his head fiercely on the earth, and yell, “Hang me! Pull my head
off!”
The events in all these cases were significantly similar: the crime was
so skilfully committed as conceivably to prevent the discovery of the
criminal; the criminal denied the deed with the most glaring impudence
and fought with all his power against conviction--in the moment,
however, he realized that all was lost, he exerted his boundless rage
against himself who had been unable to oppose any obstacle to conviction
and who had not been cautious and sly enough in the commission of the
crime. Hence the development of the fearful self-punishment, which could
have no meaning if the victim had felt innocent.
Such expressions of anger against oneself often finish with fainting.
The reason of the latter is much less exhaustion through paroxysms of
rage than the recognition and consciousness of one’s own helplessness.
Reichenbach[96] once examined the reason for the fainting of people in
difficult situations. It is nowadays explained as the effect of the
excretion of carbonic acid gas and of the generated anthropotoxin;
another explanation makes it a nervous phenomenon in which the mere
recognition that release is impossible causes fainting, the loss of
consciousness. For our needs either account of this phenomenon will do
equally. It is indifferent whether a man notices that he cannot
voluntarily change his condition in a physical sense, or whether he
notices that the evidence is so convincing that he can not dodge it. The
point is that if for one reason or another he finds himself physically
or legally in a bad hole, he faints, just as people in novels or on the
stage faint when there is no other solution of the dramatic situation.
When anger does not lead to rage against oneself, the next lower stage
is laughter.[97] With regard to this point, Darwin calls attention to
the fact that laughter often conceals other mental conditions than those
it essentially stands for--anger, rage, pain, perplexity, modesty and
shame; when it conceals anger it is anger against oneself, a form of
scorn. This same wooden, dry laughter is significant, and when it arises
from the perception that the accused no longer sees his way out, it is
not easily to be confused with another form of laughter. One gets the
impression that the laughter is trying to tell himself, “That is what
you get for being bad and foolish!”
Section 16. (3) _Cruelty._
Under this caption must be placed certain conditions that may under
given circumstances be important. Although apparently without any
relations to each other they have the common property of being external
manifestations of mental processes.
In many cases they are explanations which may arise from the observation
of the mutative relations between cruelty, bloodthirstiness, and
sensuality. With regard to this older authors like Mitchell,[98]
Blumröder,[99] Friedreich,[100] have brought examples which are still of
no little worth. They speak of cases in which many people, not alone
men, use the irritation developed by greater or lesser cruelty for
sexual purposes: the torturing of animals, biting, pinching, choking the
partner, etc. Nowadays this is called sadism.[101] Certain girls narrate
their fear of some of their visitors who make them suffer unendurably,
especially at the point of extreme passion, by biting, pressing, and
choking. This fact may have some value in criminology. On the one hand,
certain crimes can be explained only by means of sexual cruelty, and on
the other, knowledge of his habits with this regard may, again, help
toward the conviction of a criminal. I recall only the case of
Ballogh-Steiner in Vienna, a case in which a prostitute was stifled. The
police were at that time hunting a man who was known in the quarter as
“chicken-man,” because he would always bring with him two fowls which he
would choke during the orgasm. It was rightly inferred that a man who
did that sort of thing was capable under similar circumstances of
killing a human being. Therefore it will be well, in the examination of
a person accused of a cruel crime, not to neglect the question of his
sexual habits; or better still, to be sure to inquire particularly
whether the whole situation of the crime was not sexual in nature.[102]
In this connection, deeds that lead to cruelty and murder often involve
forms of epilepsy. It ought therefore always to be a practice to consult
a physician concerning the accused, for cruelty, lust, and psychic
disorders are often enough closely related. About this matter Lombroso
is famous for the wealth of material he presents.
Section 17. (4) _Nostalgia._
The question of home-sickness is of essential significance and must not
be undervalued. It has been much studied and the notion has been reached
that children mainly (in particular during the period of puberty), and
idiotic and weak persons, suffer much from home-sickness, and try to
combat the oppressive feeling of dejection with powerful sense stimuli.
Hence they are easily led to crime, especially to arson. It is asserted
that uneducated people in lonesome, very isolated regions, such as
mountain tops, great moors, coast country, are particularly subject to
nostalgia. This seems to be true and is explained by the fact that
educated people easily find diversion from their sad thoughts and in
some degree take a piece of home with them in their more or less
international culture. In the same way it is conceivable that
inhabitants of a region not particularly individualized do not so easily
notice differences. Especially he who passes from one city to another
readily finds himself, but mountain and plain contain so much that is
contrary that the feeling of strangeness is overmastering. So then, if
the home-sick person is able, he tries to destroy his nostalgia through
the noisiest and most exciting pleasures; if he is not, he sets fire to
a house or in case of need, kills somebody--in short what he needs is
explosive relief. Such events are so numerous that they ought to have
considerable attention. Nostalgia should be kept in mind where no proper
motive for violence is to be found and where the suspect is a person
with the above-mentioned qualities. Then again, if one discovers that
the suspect is really suffering from home-sickness, from great
home-sickness for his local relations, one has a point from which the
criminal may be reached. As a rule such very pitiful individuals are so
less likely to deny their crime in the degree in which they feel unhappy
that their sorrow is not perceivably increased through arrest. Besides
that, the legal procedure to which they are subjected is a not
undesired, new and powerful stimulus to them.
When such nostalgiacs confess their deed they never, so far as I know,
confess its motive. Apparently they do not know the motive and hence
cannot explain the deed. As a rule one hears, “I don’t know why, I had
to do it.” Just where this begins to be abnormal, must be decided by the
physician, who must always be consulted when nostalgia is the ground for
a crime. Of course it is not impossible that a criminal in order to
excite pity should explain his crime as the result of unconquerable
home-sickness--but that must always be untrue because, as we have shown,
anybody who acts out of home-sickness, does not know it and can not tell
it.
Section 18. (5) _Reflex Movements._
Reflex actions are also of greater significance than as a rule they are
supposed to be. According to Lotze,[103] “reflex actions are not
limited to habitual and insignificant affairs of the daily life. Even
compounded series of actions which enclose the content even of a crime
may come to actuality in this way ... in a single moment in which the
sufficient opposition of some other emotional condition, the enduring
intensity of emotion directed against an obstacle, or the clearness of a
moving series of ideas is lacking. The deed may emerge from the image of
itself without being caused or accompanied by any resolve of the doer.
Hearings of criminals are full of statements which point to such a
realization of their crimes, and these are often considered
self-exculpating inventions, inasmuch as people fear from their truth a
disturbance or upsetting of the notions concerning adjudication and
actionability. The mere recognition of that psychological fact alters
the conventional judgment but little; the failure in these cases
consists in not having prevented that automatic transition of images
into actions, a transition essentially natural to our organism which
ought, however, like so many other things, to be subjected to power of
the will.” Reflex movements require closer study.[104] The most numerous
and generally known are: dropping the eyelids, coughing, sneezing,
swallowing, all involuntary actions against approaching or falling
bodies; then again the patellar reflex and the kremaster reflex, etc.
Other movements of the same kind were once known and so often practised
that they became involuntary.[105] Hence, for example, the foolish
question how a person believed to be disguised can be recognized as man
or woman. The well known answer is: let some small object fall on his
lap; the woman will spread her limbs apart because she is accustomed to
wear a dress in which she catches the object; the man will bring his
limbs together because he wears trousers and is able to catch the object
only in this way. There are so many such habitual actions that it is
difficult to say where actual reflexes end and habits begin. They will
be properly distinguished when the first are understood as single
detached movements and the last as a continuous, perhaps even
unconscious and long-enduring action. When I, for example, while
working, take a cigar, cut off the end, light it, smoke, and later am
absolutely unaware that I have done this, what has occurred is certainly
not a reflex but a habitual action. The latter does not belong to this
class in which are to be grouped only such as practically bear a
defensive character. As examples of how such movements may have
criminological significance only one’s own experience may be cited
because it is so difficult to put oneself at the point of view of
another. I want to consider two such examples. One evening I passed
through an unfrequented street and came upon an inn just at the moment
that an intoxicated fellow was thrown out, and directly upon me. At the
very instant I hit the poor fellow a hard blow on the ear. I regretted
the deed immediately, the more so as the assaulted man bemoaned his
misfortune, “inside they throw him out, outside they box his ears.”
Suppose that I had at that time burst the man’s ear-drum or otherwise
damaged him heavily. It would have been a criminal matter and I doubt
whether anybody would have believed that it was a “reflex action,”
though I was then, as to-day, convinced that the action was reflex. I
didn’t in the least know what was going to happen to me and what I
should do. I simply noticed that something unfriendly was approaching
and I met it with a defensive action in the form of an upper-cut on the
ear. What properly occurred I knew only when I heard the blow and felt
the concussion of my hand. Something similar happened to me when I was a
student. I had gone into the country hunting before dawn, when some one
hundred paces from the house, right opposite me a great ball rolled down
a narrow way. Without knowing what it was or why I did it I hit at the
ball heavily with an alpenstock I carried in my hand, and the thing
emerged as two fighting tomcats with teeth fixed in each other. One of
them was my beloved possession, so that I keenly regretted the deed, but
even here I had not acted consciously; I had simply smashed away because
something unknown was approaching me. If I had then done the greatest
damage I could not have been held responsible--_if_ my explanation were
allowed; but _that_ it would have been allowed I do not believe in this
case, either.
A closer examination of reflex action requires consideration of certain
properties, which in themselves cannot easily have criminal
significance, but which tend to make that significance clearer. One is
the circumstance that there are reflexes which work while you sleep.
That we do not excrete during sleep depends on the fact that the faeces
pressing in the large intestine generates a reflexive action of the
constrictors of the rectum. They can be brought to relax only through
especially powerful pressure or through the voluntary relaxation of
one’s own constrictors.
The second suggestive circumstance is the fact that even habitual
reflexes may under certain conditions, especially when a particularly
weighty different impression comes at the same time, not take place. It
is a reflex, for example, to withdraw the hand when it feels pain, in
spite of the fact that one is so absorbed with another matter as to be
unaware of the whole process; but if interest in this other matter is so
sufficiently fixed as to make one forget, as the saying goes, the whole
outer world, the outer impression of pain must have been very intense in
order to awaken its proper reflex. The attention may, however, not be
disturbed at all and yet the reflex may fail. If we suppose that a
reflex action is one brought about through the excitement of an afferent
sensory nerve which receives the stimulation and brings it to the center
from which the excitement is transferred to the motor series
(Landois[106]), we exclude the activity of the brain. But this exclusion
deals only with conscious activity and the direct transition through the
reflex center can happen successfully only because the brain has been
consciously at work innumerable times, so that it is coöperating in the
later cases also without our knowing it. When, however, the brain is
brought into play through some other particularly intense stimuli, it is
unable to contribute that unconscious cöoperation and hence the reflex
action is not performed. On this point I have, I believe, an instructive
and evidential example. One of my maids opened a match-box pasted with
paper at the corner by tearing the paper along the length of the box
with her thumb-nail. Apparently the box was over-filled or the action
was too rapidly made, for the matches flamed up explosively and the
whole box was set on fire. What was notable was the fact that the girl
threw the box away neither consciously nor instinctively; she shrieked
with fright and kept the box in her hand. At her cry my son rushed in
from another room, and only after he had shouted as loudly as possible,
“Throw it away, drop it,” did she do so. She had kept the burning thing
in her hand long enough to permit my son to pass from one room into
another, and her wound was so serious that it needed medical treatment
for weeks. When asked why she kept the burning box in her hand in spite
of really very terrible pain she simply declared that “she didn’t think
of it,” though she added that when she was told to throw the thing away
it just occurred to her that that would be the wisest of all things to
do. What happened then was obviously this: fear and pain so completely
absorbed the activity of the brain that it was not only impossible for
it consciously to do the right thing, it was even unable to assist in
the unconscious execution of the reflex.
This fact suggests that the sole activity of the spinal cord does not
suffice for reflexes, since if it did, those would occur even when the
brain is otherwise profoundly engaged. As they do not so occur the brain
also must be in play. Now this distinction is not indifferent for us;
for if we hold that the brain acts during reflexes we have to grant the
possibility of degrees in its action. Thus where brain activity is in
question, the problem of responsibility also arises, and we must hold
that wherever a reflex may be accepted as the cause of a crime the
subject of the degree of punishment must be taken exceptionally into
account. It is further to be noted that as a matter of official
consideration the problem of the presence of reflexes ought to be
studied, since it rarely occurs that a man says, “It was purely a reflex
action.” He says, perhaps, “I don’t know how it happened,” or, “I
couldn’t do otherwise,” or he denies the whole event because he really
was not aware how it happened. That the questions are here difficult,
both with regard to the taking of evidence, and with regard to the
judgment of guilt, is obvious,--and it is therefore indifferent whether
we speak of deficiency in inhibition-centers or of ill-will[107] and
malice.
Section 19. (6) _Dress._
It is easy to write a book on the significance of a man’s clothes as the
expression of his inner state. It is said that the character of a woman
is to be known from her shoe, but actually the matter reaches far beyond
the shoe, to every bit of clothing, whether of one sex or the other. The
penologist has more opportunity than any one else to observe how people
dress, to take notes concerning the wearer, and finally to correct his
impressions by means of the examination. In this matter one may lay down
certain axioms. If we see a man whose coat is so patched that the
original material is no longer visible but the coat nowhere shows a
hole; if his shirt is made of the very coarsest and equally patched
material but is clean; and if his shoes are very bad but are whole and
well polished, we should consider him and his wife as honest people,
without ever making an error. We certainly see very little wisdom in our
modern painfully attired “sports,” we suspect the suggestively dressed
woman of some little disloyalty to her husband, and we certainly expect
no low inclinations from the lady dressed with intelligent, simple
respectability. If a man’s general appearance is correct it indicates
refinement and attention to particular things. Anybody who considers
this question finds daily new information and new and reliable
inferences. Anyway, everybody has a different viewpoint in this matter,
a single specific detail being convincing to one, to another only when
taken in connection with something else, and to a third when connected
with still a third phenomenon. It may be objected that at least detailed
and prolonged observations are necessary before inferences should be
drawn from the way of dressing, inasmuch as a passing inclination,
economic conditions, etc., may exert no little influence by compelling
an individual to a specific choice in dress. Such influence is not
particularly deep. A person subject to a particular inclination may be
sufficiently self-exhibiting under given circumstances, and that he was
compelled by his situation to dress in one way rather than another is
equally self-evident. Has anybody seen an honest farm hand wearing a
worn-out evening coat? He may wear a most threadbare, out-worn
sheep-skin, but a dress-coat he certainly would not buy, even if he
could get it cheap, nor would he take it as a gift. He leaves such
clothes to others whose shabby elegance shows at a glance what they are.
Consider how characteristic are the clothes of discharged soldiers, of
hunters, of officials, etc. Who fails to recognize the dress of a real
clerical, of democrats, of conservative-aristocrats? Their dress is
everywhere as well defined as the clothing of Englishmen, Frenchmen,
Germans, and Americans, formed not by climatic conditions but by
national character in a specific and quite unalterable way. Conceit,
carelessness, cleanliness, greasiness, anxiety, indifference,
respectability, the desire to attract attention and to be original, all
these and innumerable similar and related qualities express themselves
nowhere so powerfully and indubitably as in the way people wear their
clothes. And not all the clothes together; many a time a single item of
dress betrays a character.
Section 20. (7) _Physiognomy and Related Subjects._
The science of physiognomy belongs to those disciplines which show a
decided variability in their value. In classical times it was set much
store by, and Socrates, Plato, Aristotle, and Pythagoras were keenly
interested in its doctrines. Later on it was forgotten, was studied in
passing when Baptista Porta wrote a book about human physiognomy, and
finally, when the works of Lavater and the closely related ones of Gall
appeared, the science came for a short time into the foreground.
Lavater’s well known monograph[108] excited great attention in his day
and brought its author enthusiastic admiration. How much Goethe was
interested in it is indicated in the popular book by Von der Hellen and
the exchange of letters between Goethe and Lavater. If Lavater had not
brought the matter into relation with his mystical and apodictic manner,
if he had made more observations and fewer assertions, his fame would
have endured longer and he would have been of some use to the science;
as it was it soon slipped from people’s minds and they turned to the
notorious phrenology of Gall. Gall, who to some degree had worked with
his friend Spurzheim, committed the same error in his works[109] as
Lavater, inasmuch as he lost himself in theories without scientific
basis, so that much that was indubitably correct and indicative in his
teaching was simply overlooked. His meaning was twice validated, once
when B. v. Cotta[110] and R. R. Noel[111] studied it intensively and
justly assigned him a considerable worth; the second tune when Lombroso
and his school invented the doctrine of criminal stigmata, the best of
which rests on the postulates of the much-scorned and only now studied
Dr. Gall. The great physiologist J. Müller declared: “Concerning the
general possibility of the principles of Gall’s system no a priori
objections can be made.” Only recently were the important problems of
physiognomy, if we except the remarkable work by Schack,[112]
scientifically dealt with. The most important and significant book is
Darwin’s,[113] then the system of Piderit[114] and Carus’s
“Symbolik,”[115] all of them being based upon the earlier fundamental
work of the excellent English anatomist and surgeon, Bell.[116] Other
works of importance are those of LeBrun, Reich, Mantegazza, Dr.
Duchenne, Skraup, Magnus, Gessmann, Schebest, Engel, Schneider, K.
Michel, Wundt, C. Lange, Giraudet, A. Mosso, A. Baer, Wiener, Lotze,
Waitz, Lelut, Monro, Heusinger, Herbart, Comte, Meynert, Goltz, Hughes,
Borée,[117] etc. The present status of physiognomics is, we must say, a
very subordinate one. Phrenology is related to physiognomics as the bony
support of the skull to its softer ones, and as a man’s physiognomy
depends especially upon the conformation of his skull, so physiognomics
must deal with the forms of the skull. The doctrine of the movement of
physiognomy is mimicry. But physiognomics concerns itself with the
features of the face taken in themselves and with the changes which
accompany the alterations of consciousness, whereas mimicry deals with
the voluntary alterations of expression and gesture which are supposed
to externalize internal conditions. Hence, mimicry interests primarily
actors, orators, and the ordinary comedians of life. Phrenology remains
the research of physicians, anthropologists and psychologists, so that
the science of physiognomy as important in itself is left to us lawyers.
Its value as a discipline is variously set. Generally it is asserted
that much, indeed, fails to be expressed by the face; that what does
show, shows according to no fixed rules; that hence, whatever may be
read in a face is derivable either instinctively by oneself or not at
all. Or, it may be urged, the matter can not be learned. Such
statements, as ways of disposing of things, occur regularly wherever
there is a good deal of work to do; people do not like to bother with
troublesome problems and therefore call them worthless. But whoever is
in earnest and is not averse to a little study will get much benefit
from intensive application to this discipline in relation to his
profession.
The right of physiognomies to the status of an independent science is to
some degree established in the oft-repeated dictum that whatever is
valid in its simplest outline must be capable of extension and
development. No man doubts that there are intelligent faces and foolish
ones, kind ones and cruel ones, and if this assertion is admitted as it
stands it must follow that still other faces may be distinguished so
that it is possible to read a certain number of spiritual qualities from
the face. And inasmuch as nobody can indicate the point at which this
reading of features must cease, the door is opened to examination,
observation and the collection of material. Then, if one bewares of
voluntary mistakes, of exaggeration and unfounded assertion, if one
builds only upon actual and carefully observed facts, an important and
well-grounded discipline must ensue.
The exceptionally acute psychiatrist Meynert shows[118] how
physiognomics depends on irradiation and parallel images. He shows what
a large amount of material having physiognomical contents we keep in
mind. Completely valueless as are the fixed forms by which mankind
judges the voluntary acts of its individual members, they point to the
universal conclusion that it is proper to infer from the voluntary acts
of a person whose features correspond to those of another the voluntary
acts of the other. One of Hans Virchow’s very detailed physiognomical
observations concerning the expression of interest in the eyes by means
of the pupil, has very considerable physiognomical value. The pupil, he
believes, is the gate through which our glance passes into the inner
life of our neighbor; the psychical is already close at hand with the
word “inner.” How this occurs, why rather this and not another muscle is
innervated in the development of a certain process, we do not know, but
our ignorance does not matter, since ultimately a man might split his
head thinking why we do not hear with our eyes and see with our ears.
But to some extent we have made observable progress in this matter. As
far back as 1840 J. Müller[119] wrote: “The reasons are unknown why
various psychoses make use of different groups of nerves or why certain
facial muscles are related to certain passions.” Gratiolet[120] thought
it necessary forty years ago to deny that muscles were developed merely
for the purpose of expression. Almost contemporaneously Piderit knew
that expressive muscular movements refer partly to imaginary objects and
partly to imaginary sense impressions. In this fact lies the key to the
meaning of all expressive muscular movements. Darwin’s epoch-making book
on the expressions of the emotions finally established the matter so
completely and firmly, that we may declare ourselves in possession of
enough material for our purpose to make it possible to carry our studies
further. The study of this book of Darwin’s I believe absolutely
necessary to each criminalist--for he meets in every direction,
expositions and explanations that are related to cases he has already
experienced in practice or is sure to experience. I present here only a
few of Darwin’s most important notes and observations in order to
demonstrate their utility for our purpose.
As subjects for study he recommends children because they permit forms
of expression to appear vigorously and without constraint; lunatics,
because they are subject to strong passions without control; galvanized
persons, in order to facilitate the muscles involved, and finally, to
establish the identity of expression among all races of men and beasts.
Of these objects only children are important for our purpose. The others
either are far removed from our sphere of activity, or have only
theoretic value. I should, however, like to add to the subjects of
observation another, viz., the simple unstudied persons, peasants and
such otherwise unspoiled individuals whom we may believe innocent of all
intention to play a comedy with us. We can learn much from such people
and from children. And it is to be believed that in studying them we are
studying not a special class but are establishing a generally valid
paradigm of the whole of mankind. Children have the same features as
adults, only clearer and simpler. For, suppose we consider any one of
Darwin’s dicta,--e.g., that in the expression of anger and indignation
the eyes shine, respiration becomes more rapid and intense, the nostrils
are somewhat raised, the look misses the opponent,--these so intensely
characteristic indices occur equally in the child and the adult. Neither
shows more or fewer, and once we have defined them in the child we have
done it for the adult also. Once the physiognomy of children and simple
people has been studied, the further study of different kinds of people
is no longer difficult; there is only the intentional and customary
masking of expression to look out for; for the rest, the already
acquired principles, mutandis mutatis, are to be used.
Darwin posits three general principles on which most expressions and
gestures are to be explained. They are briefly:
I. The principle of purposeful associated habits.
II. The principle of contradication.
III. The principle of the direct activity of the nervous system.
With regard to the first. When, in the course of a long series of
generations, any desire, experience, or disinclination, etc., has led to
some voluntary action, then, as often as the same or any analogous
associated experience is undergone, there will arise a tendency to the
realization of a similar action. This action may no longer have any use
but is inherited and generally becomes a mere reflex.
This becomes clearer when one notices how often habit facilitates very
complex action:--the habits of animals; the high steps of horses; the
pointing of pointers; the sucking of calves, etc. It is difficult for us
in falling to make opposite movements to stretching out the arms, even
in bed; we draw on our gloves unconsciously. Gratiolet says: “Whoever
energetically denies some point, etc., shuts his eyes; if he assents he
nods and opens his eyes wide. Whoever describes a terrible thing shuts
his eyes and shakes his head; whoever looks closely raises his
eye-brows. In the attempt to think the same thing is done or the
eye-brows are contracted--both make the glance keener. Thence follows
the reflex activity.”
With regard to the second. Dogs who are quarrelling with cats assume the
appearance of battle--if they are kindly-minded they do the opposite,
although this serves no purpose. M. Taylor[121] says, that the gesture
language of the Cistercians depends considerably on antithesis; e.g.,
shrugging the shoulders is the opposite of firmness, immovability.
With regard to the direct activity of the nervous system, examples are
paling, trembling (fear, terror, pain, cold, fever, horror, joy),
palpitation of the heart, blushing, perspiring, exertion of strength,
tears, pulling the hair, urinating, etc. With these subdivisions it will
be possible to find some thoroughfare and to classify every phenomenon.
We want to discuss a few more particulars in the light of Darwin’s
examples. He warns us, first of all, against seeing[122] certain muscle
movements as the result of emotional excitement, because they were
looked for. There are countless habits, especially among the movements
of the features, which happen accidentally or as the result of some
passing pain and which have no significance. Such movements are often of
the greatest clearness, and do not permit the unexperienced observer to
doubt that they have important meanings, although they have no relation
whatever to any emotional condition. Even if it is agreed only to depend
on changes of the whole face, already established as having a definite
meaning, there is still danger of making mistakes, because well
accredited facial conditions may occur in another way (as matters of
habit, nervous disturbances, wounds, etc.). Hence in this matter, too,
care and attention are required; for if we make use of any one of the
Darwinian norms, as, for example, that the eyes are closed when we do
not want to see a thing or when we dislike it, we still must grant that
there are people to whom it has become habitual to close their eyes
under other and even opposed conditions.
We must grant that, with the exception of such cases, the phenomena are
significant during examinations, as when we show the accused a very
effective piece of evidence, (e.g.: a comparison of hand-writings which
is evidential,) and he closes his eyes. The act is then characteristic
and of importance, particularly when his words are intended to contest
the meaning of the object in question. The contradiction between the
movement of his eyes and his words is then suggestive enough. The same
occurs when the accused is shown the various possibilities that lie
before him--the movement of the examination, the correlations and
consequences. If he finds them dangerous, he closes his eyes. So with
witnesses also; when one of them, e.g., deposes to more, and more
harmfully, than according to our own notion he can explain, he will
close his eyes, though perhaps for an instant only, if the inevitable
consequences of his deposition are expounded to him. If he closes his
eyes he has probably said too much, and the proper moment must not be
missed to appeal to his conscience and to prevent more exaggerated and
irresponsible assertions.
This form of closing the eyes is not to be confused with the
performances of persons who want to understand the importance of their
depositions and to collect their senses, or who desire to review the
story mentally and consider its certainty. These two forms of closing
the eyes are different: the first, which wants to shut out the
consequences of testimony, is much shorter; the latter longer, because
it requires a good deal of time to collect one’s senses and to consider
a problem. The first, moreover, is accompanied by a perceivable
expression of fear, while the latter is manifest only by its duration;
what is most important is a characteristic contemporary and perceivable
defensive movement of the hand, and this occurs only in the cases where
the desire is to exclude. This movement occurs even among very
phlegmatic persons, and hence is comparatively reliable; it is not made
by people who want undisturbedly to study a question and to that end
shut their eyes.
In a similar way there is significance in the sudden closing of the
mouth by either the accused or the witness. Resolution and the shutting
of the mouth are inseparable; it is as impossible to imagine a
vacillating, doubting person with lips closely pressed together, as a
firm and resolute person with open mouth. The reason implies Darwin’s
first law: that of purposeful associated habits. When a man firmly
resolves upon some deed the resolution begins immediately to express
itself in movements which are closely dependent upon bodily actions.
Even when I suddenly resolve to face some correctly-supposed
disagreeable matter, or to think about some joyless thing, a bodily
movement, and indeed quite an energetic one, will ensue upon the
resolution--I may push my chair back, raise my elbows, perhaps put my
head quickly between my hands, push the chair back again, and then begin
to look or to think. Such actions, however, require comparatively little
bodily exertion; much more follows on different types of resolutions--in
short, a firm resolution requires a series of movements immediately to
follow its being made. And if we are to move the muscles must be
contracted. And it is, of course, obvious that only those muscles can be
set in action which are, according to the immediate situation of the
body, free to move. If we are sitting down, for example, we can not
easily make our feet conform to the movement of a march forward; nor can
we do much with the thighs, hence the only muscles we can use are those
of the face and of the upper limbs. So then, the mouth is closed because
its muscles are contracted, and with equal significance the arms are
thrust outward sharply, the fist clenched, and the forearm bent. Anybody
may try the experiment for himself by going through the actions
enumerated and seeing whether he does not become filled with a sense of
resolution. It is to be especially observed, as has already been
indicated, that not only are mental states succeeded by external
movements, but imitated external movements of any kind awaken, or at
least plainly suggest, their correlated mental states.
If, then, we observe in any person before us the signs of resolution we
may certainly suppose that they indicate a turn in what he has said and
what he is going to say. If they be observed in the accused, then he has
certainly resolved to pass from denial to confession, or to stick to his
denial, or to confess or keep back the names of his accomplices, the
rendezvous, etc. Inasmuch as in action there is no other alternative
than saying or not saying so, it might be supposed that there is nothing
important in the foregoing statement; the point of importance lies,
however, in the fact that a _definite_ resolution has been reached of
which the court is aware and from which a departure will hardly be made.
Therefore, what follows upon the resolution so betrayed, we cannot
properly perceive; we know only that it in all likelihood consists of
what succeeds it, i.e. the accused either confesses to something, or has
resolved to say nothing. And that observation saves us additional labor,
for he will not easily depart from his resolution.
The case is analogous with regard to the witness who tells no truth or
only a part of the truth. He reveals the marks of resolution upon
deciding finally to tell the truth or to persist in his lying, and so,
whatever he does after the marks of resolution are noted, we are saved
unnecessary effort to make the man speak one way or another.
It is particularly interesting to watch for such expressions of
resolution in jurymen, especially when the decision of guilt or
innocence is as difficult as it is full of serious consequences. This
happens not rarely and means that the juryman observed is clear in his
own mind as to how he is going to vote. Whatever testimony may succeed
this resolution is then indifferent. The resolved juryman is so much the
less to be converted, as he usually either pays no more attention to the
subsequent testimony, or hears it in such prejudiced fashion that he
sees everything in his own way. In this case, however, it is not
difficult to tell what the person in question has decided upon. If the
action we now know follows a very damaging piece of testimony, the
defendant is condemned thereby; if it follows excusive testimony he is
declared innocent. Anybody who studies the matter may observe that these
manifestations are made by a very large number of jurymen with
sufficient clearness to make it possible to count the votes and predict
the verdict. I remember vividly in this regard a case that occurred many
years ago. Three men, a peasant and his two sons, were accused of having
killed an imbecile who was supposed to have boarded in their house. The
jury unanimously declared them guiltless, really because of failure, in
spite of much effort, to find the body of the victim. Later a new
witness appeared, the case was taken up again, and about a year after
the first trial, a second took place. The trial consumed a good many
days, in which the three defendants received a flood of anonymous
letters which called attention mostly to the fact that there was in such
and such a place an unknown imbecile woman who might be identical with
the ostensible murdered person. For that reason the defendant appealed
for a postponement of the trial or immediate liberation. The prosecutor
of the time fought the appeal but held that so far as the case went (and
it was pretty bad for the prosecution), the action taken with regard to
the appeal was indifferent. “The mills of the gods grind slowly,” he
concluded in his oration; “a year from now I shall appear before the
jury.” The expression of this rock-bound conviction that the defendants
were guilty, on the part of a man who, because of his great talent, had
tremendous influence on juries, caused an astounding impression. The
instant he said it one could see in most of the jurymen clearest signs
of absolute resolution and the defendants were condemned from that
moment.
Correlated with the signs of resolution are those of astonishment. “The
hands are raised in the air,” says Darwin, “and the palm is laid on the
mouth.” In addition the eyebrows are regularly raised, and people of not
too great refinement beat their foreheads and in many cases there occurs
a slight, winding movement of the trunk, generally toward the left. The
reason is not difficult to find. We are astonished when we learn
something which causes an inevitable change in the familiar course of
events. When this occurs the hearer finds it necessary, if events are
simple, properly to get hold of it. When I hear that a new Niebelungen
manuscript has been discovered, or a cure for leprosy, or that the South
Pole has been reached, I am astonished, but immediate conception on my
part is altogether superfluous. But that ancient time in which our
habitual movements came into being, and which has endured longer,
incomparably longer than our present civilization, knew nothing whatever
of these interests of the modern civilized human being. What astonished
people in those days were simple, external, and absolutely direct
novelties: that a flood was coming, that game was near the camp, that
inimical tribes had been observed, etc.--in short, events that required
immediate action. From this fact spring our significant movements which
must hence be perceivably related to the beginning of some necessary
action. We raise our hands when we want to jump up; we elevate our
eyebrows when we look up, to see further into the distance; we slap our
foreheads in order to stimulate the muscles of our legs, dormant because
of long sitting; we lay the palms of our hands on our mouths and turn
the trunk because we discover in the course of life rather more
disagreeable than pleasant things and hence we try to keep them out and
to turn away from them. And astonishment is expressed by any and all of
these contradictory movements.
In law these stigmata are significant when the person under examination
ought to be astonished at what is told him but for one reason or another
does not want to show his astonishment. This he may hide in words, but
at least one significant gesture will betray him and therefore be of
considerable importance in the case. So, suppose that we present some
piece of evidence from which we expect great results; if they do not
come we may perhaps have to take quite another view of the whole case.
It is hence important not to be fooled about the effect, and that can be
accomplished only through the observation of the witnesses’ gestures,
these being much more rarely deceptive than words.
Scorn manifests itself in certain nasal and oral movements. The nose is
contracted and shows creases. In addition you may count the so-called
sniffing, spitting, blowing as if to drive something away; folding the
arms, and raising the shoulders. The action seems to be related to the
fact that among savage people, at least, the representation of a
worthless, low and despicable person is brought into relation with the
spread of a nasty odor: the Hindoo still says of a man he scorns, “He is
malodorous.” That our ancestors thought similarly, the movement of the
nose, especially raising it and blowing and sniffing, makes evident. In
addition there is the raising of the shoulders as if one wanted to carry
the whole body out of a disgusting atmosphere--the conduct, here, is
briefly the conduct of the proud. If something of the sort is observable
in the behavior of a witness it will, as a rule, imply something good
about him: the accused denies thereby his identity with the criminal, or
he has no other way of indicating the testimony of some damaging
witness as slander, or he marks the whole body of testimony, with this
gesture, as a web of lies.
The case is similar when a witness so conducts himself and expresses
scorn. He will do the latter when the defendant or a false witness for
the defense accuses him of slander, when indelicate motives are ascribed
to him, or earlier complicity with the criminal, etc. The situations
which give a man opportunity to show that he despises anybody are
generally such as are to the advantage of the scorner. They are
important legally because they not only show the scorner in a good light
but also indicate that the scorn must be studied more closely. It is, of
course, naturally true that scorn is to a great degree simulated, and
for that reason the gestures in question must be attentively observed.
Real scorn is to be distinguished from artificial scorn almost always by
the fact that the latter is attended by unnecessary smiling. It is
popularly and correctly held that the smile is the weapon of the silent.
That kind of smile appears, however, only as defense against the less
serious accusations, or perhaps even more serious ones, but obviously
never when evil consequences attendant on serious accusations are
involved. If indubitable evil is in question, no really innocent person
smiles, for he scorns the person he knows to be lying and manifests
other gestures than the smile. Even the most confused individual who is
trying to conceal his stupidity behind a flat sort of laughter gives
this up when he is so slandered that he is compelled to scorn the liar;
only the simulator continues to smile. If, however, anybody has
practised the manifestation of scorn he knows that he is not to smile,
but then his pose becomes theatrical and betrays itself through its
exaggeration.
Not far from scorn are defiance and spite. They are characterized by
baring the canine teeth and drawing together the face in a frown when
turning toward the person upon whom the defiance or spite is directed. I
believe that this image has got to be variously filled out by the
additional fact that the mouth is closed and the breath several times
forced sharply through the nostrils. This arises from the combination of
resolution and scorn, these being the probable sources of defiance and
spite. As was explained in the discussion of resolution, the mouth is
bound to close; spite and defiance are not thinkable with open mouth.
Scorn, moreover, demands, as we have shown, this blowing, and if the
blowing is to be done while the mouth is closed it must be done through
the nose.
Derision and depreciation show the same expressions as defiance and
spite, but in a lesser degree. They all give the penologist a good deal
to do, and those defendants who show defiance and spite are not unjustly
counted as the most difficult we have to deal with. They require, above
all, conscientious care and patience, just indeed because not rarely
there are innocents among them. This is especially so when a person many
times punished is accused another time, perhaps principally because of
his record. Then the bitterest defiance and almost childish spite takes
possession of him against “persecuting” mankind, particularly if, for
the nonce, he is innocent. Such persons turn their spite upon the judge
as the representative of this injustice and believe they are doing their
best by conducting themselves in an insulting manner and speaking only a
few defiant words with the grimmest spite. Under such circumstances it
is not surprising that the inexperienced judge considers these
expressions as the consequences of a guilty conscience, and that the
spiteful person may blame himself for the results of his defiant
conduct. He therefore pays no more attention to the unfortunate. How
this situation may lead to an unjust sentence is obvious. But whether
the person in question is guilty or not guilty, it is the undeniable
duty of the judge to make especial efforts with such persons, for
defiance and spite are in most cases the result of embitterment, and
this again comes from the disgusting treatment received at the hands of
one’s fellows. And it is the judge’s duty at least not to increase this
guilt if he can not wipe it away. The only, and apparently the simplest,
way of dealing with such people is the patient and earnest discussion of
the case, the demonstration that the judge is ready carefully to study
all damaging facts, and even a tendency to refer to evidence of
innocence in hand, and a not over-energetic discussion of the man’s
possible guilt. In most cases this will not be useful at the beginning.
The man must have time to think the thing over, to conceive in the
lonely night that it is not altogether the world’s plan to ruin him.
Then when he begins to recognize that he will only hurt himself by his
spiteful silence if he is again and again examined he will finally be
amenable. Once the ice is broken, even those accused who at the
beginning showed only spite and defiance, show themselves the most
tractable and honest. The thing needful above all is patience.
Real rage, unfortunately, is frequent. The body is carried erect or
thrown forward, the limbs become stiff, mouth and teeth closely press
together, the voice becomes very loud or dies away or grows hoarse, the
forehead is wrinkled and the pupil of the eye contracted; in addition
one should count the change of color, the flush or deep pallor. An
opportunity to simulate real rage is rare, and anyway the
characteristics are so significant that a mistake in recognition can
hardly be made. Darwin says that the conviction of one’s own guilt is
from time to time expressed through a sparkling of the eyes, and through
an undefinable affectation. The last is well known to every penologist
and explicable in general psychological terms. Whoever knows himself to
be guiltless behaves according to his condition, naturally and without
constraint: hence the notion that naïve people are such as represent
matters as they are. They do not find anything suspicious in them
because they do not know about suspicious matters. But persons who know
themselves guilty and try not to show it, must attain their end through
artifice and imitation, and when this is not well done the affectation
is obvious.
There is also something in the guilty sparkle of the eye. The sparkle in
the eyes of beauty, the glance of joy, of enthusiasm, of rapture, is not
so poetical as it seems, inasmuch as it is no more than intensified
secretion of tears. The latter gets its increase through nervous
excitation, so that the guilty sparkle should also be of the same
nature. This may be considered as in some degree a flow of tears in its
first stages.
An important gesture is that of resignation, which expresses itself
especially as folding the hands in one’s lap. This is one of the most
obvious gestures, for “folding the hands in the lap” is proverbial and
means there is no more to be done. The gesture signifies, therefore,
“I’m not going to do any more, I can’t, I won’t.” Hence it must be
granted that the condition of resignation and its gesture can have no
significance for our own important problem, the problem of guilt,
inasmuch as the innocent as well as the guilty may become resigned, or
may reach the limit at which he permits everything to pass without his
interference. In the essence and expression of resignation there is the
abandonment of everything or of some particular thing, and in court,
what is abandoned is the hope to show innocence, and as the latter may
be real as well as merely pleaded, this gesture is a definite sign in
certain cases. It is to be noted among the relations and friends of a
defendant who, having done everything to save him, recognize that the
evidence of guilt is irrefutable. It is again to be noticed among
courageous lawyers who, having exerted all their art to save their
clients, perceive the failure of their efforts. And finally, the
defendants show it, who have clearly recognized the danger of their
case. I believe that it is not an empirical accident that the gesture of
resignation is made regularly by innocent persons. The guilty man who
finds himself caught catches at his head perhaps, looks toward heaven
gritting his teeth, rages against himself, or sinks into a dull apathy,
but the essential in resignation and all its accompanying movements is
foreign to him. Only that conforms to the idea of resignation which
indicates a surrender, the cession of some value that one has a claim
on--if a man has no claim to any given thing he can not resign it. In
the same way, a person without right to guiltlessness and recognition,
will instinctively not surrender it with the emotion of resignation, but
at most with despair or anger or rage. And it is for this reason that
the guilty do not exhibit gestures of resignation.
The contraction of the brow occurs in other cases besides those
mentioned. Before all it occurs when anything is dealt with intensively,
increasing with the increase of the difficulty of the subject. The
aboriginal source of this gesture lies in the fact that intensive
activities involve the need of acuter vision, and this is in some degree
acquired by the contraction of the skin of the forehead above the
eyebrows; for vision is clarified in this way. Intensive consideration
on the part of a defendant or a witness, and the establishment of its
reality or simulation, are significant in determining whether he himself
believes the truth of what is about to be explained. Let us suppose that
the issue involves proving an alibi on a certain definite, rather remote
day, and the defendant is required to think over his whereabouts on that
day. If he is in earnest with regard to the establishment of his alibi,
i.e. if he really was not there and did not do the thing, it will be
important for him to remember the day in question and to be able to name
the witnesses of his whereabouts then. Hence he will think intensively.
But if he has claimed an alibi dishonestly, as is frequent with
criminals, in order to make people conclude that nobody has the right to
demand where and for how long a time he was on such and such a day, then
there is no need of thinking closely about something that has not
happened. He exhibits in such cases a kind of thoughtfulness, which is
not, however, earnest and profound: and these two adjectives describe
_real_ consideration. The same observations are to be made in regard to
dishonest witnesses who, when pressed to think hard, only simulate doing
so. One is compelled at the very least to look closely after the witness
who simply imitates intensive thinking without showing the signs proper
to it. The suspicion of false testimony is then justifiable.
A rather different matter is that blank expression of the eyes which
only shows that its possessor is completely lost in his thoughts--this
has nothing to do with sharp recollection and demands above all things
being let alone or the belief of being so. In this case no
distinguishing gestures are made, though the forehead, mouth or chin may
be handled, only, however, when embarrassment occurs--i.e. when the man
observes that he is being watched, or when he discovers that he has
forgotten the presence of other people. It is supposed that this does
not occur in court, but it does happen not infrequently when, for
example, the judge, after some long discussion with the accused, is
about to dictate what has been said. If this takes rather a long time,
it may chance that the witness is no longer listening but is staring
vacantly into the distance. He is then reviewing his whole life or the
development and consequences of his deed. He is absorbed in a so-called
intuitive thought, in the reproduction of events. Intensive
consideration requires the combination of particulars and the making of
inferences; hence the form of thinking we have just been speaking of is
merely spiritual sight-seeing. It is when this takes place that
confessions are most easy to get, if only the judge keeps his eyes
properly open.
That contraction of the brow signifies a condition of disgust is well
known, but there is yet, as I believe, a still other use of this
contraction--i.e. its combination with a smile, indicating disbelief.
How this union occurred seems comparatively undiscoverable--perhaps it
results from the combination of the smile of denial with the frown of
sharp observation. But the gesture is, in any event, reliable, and may
not easily stand for anything but disbelief and doubt. Hence it is
always a mistake to believe that anybody who makes that expression
believes what he has heard. If you test it experimentally you will find
that when you make it you say involuntarily to yourself: “Well now, that
can’t be true,” or “Look here, that’s a whopper!” or something like
that. The expression occurs most frequently in confronting witnesses
with defendants and especially witnesses with each other.
The close relation of the contraction of the brow with its early stage,
a slight elevation of the eyebrows, is manifest in the fact that it
occurs under embarrassment--not very regularly but almost always upon
the perception of something foreign and inexplicable, or upon getting
twisted in one’s talk; in fact, upon all such conditions which require
greater physical and psychical clearness of vision, and hence the
shutting out of superfluous light. The expression may be important on
the face of a defendant who asserts,--e.g.--that he does not understand
an argument intended to prove his guilt. If he is guilty he obviously
knows what happened in the commission of the crime and thereby the
argument which reproduces it, and even if he assures the court a hundred
times that he does not understand it, he is either trying to show
himself innocent or wants to gain time for his answer. If he is innocent
it may be that he really does not understand the argument because he is
unaware of the actual situation. Hence he will frown and listen
attentively at the very beginning of the argument. The guilty person
perhaps also aims to appear enormously attentive, but he does not
contract his brow, because he does not need to sharpen his glance; he
knows the facts accurately enough without it. It is important for the
penologist to know whether a man has in the course of his life undergone
much anxiety and trouble, or whether he has lived through it carelessly.
Concerning these matters Darwin points out that when the inner ends of
the eyebrows are raised certain muscles have to be contracted (i.e. the
circular ones which contract the eyebrows and the pyramidal muscle of
the nose, which serve both to pull down and contract the eyelids). The
contraction is accomplished through the vigorous drawing together of the
central bundle of muscles at the brow. These muscles, by contracting,
raise the inner ends of the brow, and since the muscles which contract
the eyebrows bring them together at the same time, their inner ends are
folded in great lumpy creases. In this way short oblique, and short
perpendicular furrows are made. Now this, few people can do without
practice; many can never perform it voluntarily, and it is more frequent
among women and children than among men. It is important to note that it
is always a sign of spiritual pain, not physical. And curiously enough
it is as a rule related with drawing down the corners of the mouth.
Further to study the movements of the features will require an
examination into the reasons for the action of these, and not other
muscles, as accompaniments of the psychical states. Piderit holds it is
due to the fact that the motor nerves which supply these muscles rise
right next to the purely psychical centers and hence these muscles are
the supports of the organs of sense. The latter is no doubt correct, but
the first statement is rather doubtful. In any event it is evident that
the features contain an exceptionally large number of fine muscles with
especially rich motor capacity, and hence move together and in
accordance with the psychical conditions. It may be that the other
muscles of the body have also a share in this but that we fail to
perceive the fact. Such movements, however, have not been essential.
We may take it as a general rule that all joyous and uplifting emotions
(even astonishment) are succeeded by the raising of the skin of the
forehead, the nostrils, the eyes, the eyelids, while sad and oppressing
emotions have the contrary effect. This simple and easy rule renders
immediately intelligible many an otherwise obscure expression which we
find important but concerning the meaning of which we are in doubt. The
development of a movement in any face goes, according to Harless,[123]
in this fashion: “The superior motor nerve is the oculomotorius. The
stimulation reaches this one first--the mildest alteration of emotion
betrays itself most rapidly in the look, the movement and condition of
the pupil of the eye. If the impulse is stronger it strikes the roots of
the motor end of the trigeminus and the movement of the muscles of
mastication occur; then the intensified affection spreads through the
other features.” Nobody will, of course, assert that even a completely
developed physiognomical science will help us over all our difficulties,
but with a little attention it can help us to a considerable degree.
This help we do need, as La Rochefoucauld points out, with even
contemporary correctness, “It is easier to know men than to know a
particular man.”
Section 21. (8) _The Hand._
The physiognomy of the hand stands close to that of the face in
significance and is in some relations of even greater importance,
because the expression of the hand permits of no, or very slight,
simulation. A hand may be rendered finer or coarser, may be rendered
light or dark, the nails may be cared for or allowed to develop into
claws. The appearance of the hand may be altered, but not its
physiognomy or character. Whoever creases his face in the same way for a
thousand times finally retains the creases and receives from them a
determinate expression even if this does not reveal his inner state; but
whoever does the same thing a thousand times with his hand does not
thereby impress on it a means of identification. The frequent Tartuffian
rolling of the eyes finally gives the face a pious or at least pietistic
expression, but fold your hands in daily prayer for years and nobody
would discover it from them. It seems, however, of little use to know
that human hands can not be disguised, if they are little or not at all
differentiated; but as it happens they are, next to the face, the most
extremely and profoundly differentiated of human organs; and a general
law teaches us that different effects are produced by different causes,
and that from the former the latter may be inferred. If then we observe
the infinite variety of the human hand we have to infer an equally
infinite variety of influences, and inasmuch as we cannot trace these
influences any further we must conclude that they are to be explained
causally by the infinite variety of psychical states.
Whoever studies the hand psychologically gains in the course of time a
great deal of faith in what the hand tells him. And finally he doubts it
only when chirognomy conflicts with physiognomy. If in such cases it is
observed that the hand is more likely to be correct than the face, and
that inferences from the hand more rarely show themselves to be false,
one is reminded of the dictum of Aristotle, “The hand is the organ of
organs, the instrument of instruments in the human body.” If this is
correct, the favored instrument must be in the closest kind of relation
with the psyche of the owner, but if this relation exists there must be
an interaction also. If the hand contained merely its physical
structure, Newton would never have said, “Other evidence lacking, the
thumb would convince me of God’s existence.”
How far one ought to establish fundamental propositions in this matter,
I can not easily say. Perhaps it would be scientifically most correct to
be satisfied for the time with collecting the carefully and keenly
observed material and getting the anatomists, who are already in need of
material for professional investigations, to take the matter up; in
collecting photographs of hands belonging to persons whose characters
are well known and in getting a sufficient number of properly equipped
persons to make the collection. If we had enough material to draw
fundamental principles from, much that has been asserted by Bell, Carus,
D’Arpentigny, Allen, Gessmann, Liersch, Landsberg,[124] etc., might be
proved and tested. But their statements are still subject to
contradiction because their fundamental principles are not sufficient
for the development of a system. Probably nobody will doubt some of the
more common statements; all will grant with Winkelmann that a beautiful
hand is in keeping with a beautiful soul; or with Balzac that people of
considerable intellect have handsome hands, or in calling the hand man’s
second face. But when specific co-ordinations of the hand are made these
meet with much doubt. So for example, Esser[125] calls the _elementary_
hand essentially a work hand, the _motor_ essentially a masculine hand,
having less soul and refinement of character than will and
purposefulness. So again the _sensitive_ hand implies generally a
sanguine character, and the _psychic_ hand presents itself as the
possession of beautiful souls and noble spirits.
However true this classification may be, the establishment and
description of the various significatory signs is very difficult,
especially because the forms named rarely appear in clear and sharply
defined subdivisions. The boundaries are fluid, like the characters
themselves, and where the properties of one group pass almost directly
into the other, both description and recognition are difficult. If,
then, we can not depend upon a systematic, and at present remote
treatment, we still may depend on well-founded observations which appear
as reliable presuppositions in the light of their frequent repetition.
Not essentially psychological but of importance for the criminalist are
the inferences we may draw from Herbert Spencer’s assertion that people
whose ancestors have worked with their hands possess heavy hands.
Conversely, people whose ancestors have not worked hard with their hands
possess small and fine hands. Hence the small delicate hands of Jews,
the frequent perfection of form and invariable smallness of the hands of
Gypsies, who have inherited their hands from high-cast Hindoos, and the
so-called racial hands of real aristocrats. That hard work, even
tumbling, piano playing, etc., should alter the form of a hand is
self-evident, since muscles grow stronger with practice and the skin
becomes coarser and drawn through friction, sharp wind and insufficient
care. As is well known, physical properties are hereditary and
observable in any study of races; is it any wonder that a skilled glance
at a man’s hand may uncover a number of facts concerning the
circumstances of his life? Nobody doubts that there are raw, low,
sensual, fat hands. And who does not know the suffering, spiritual,
refined, and delicate hand? Hands cannot of course be described and
distinguished according to fixed classification, and no doubt Hellenbach
was right when he said, “Who can discover the cause of the magic charm
which lies in one out of a hundred thousand equally beautiful hands?”
And this is remarkable because we are not fooled through a well cared
for, fine and elegant hand. Everybody, I might say, knows the convincing
quality that may lie in the enormous leathery fist of a peasant. For
that, too, is often harmoniously constructed, nicely articulated,
appears peaceful and trustworthy. We feel that we have here to do with a
man who is honest, who presents himself and his business as they are,
who holds fast to whatever he once gets hold of, and who understands and
is accustomed to make his words impressive. And we gain this conviction,
not only through the evidence of honest labor, performed through years,
but also through the stability and determination of the form of his
hands. On the other hand, how often are we filled with distrust at the
sight of a carefully tended, pink and white hand of an elegant
gentleman--whether because we dislike its condition or its shape, or
because the form of the nails recalls an unpleasant memory, or because
there is something wrong about the arrangement of the fingers, or
because of some unknown reason. We are warned, and without being
hypnotised, regularly discover that the warning is justified. Certain
properties are sure to express themselves: coldness, prudence, hardness,
calm consideration, greed, are just as indubitable in the hand as
kindness, frankness, gentleness, and honesty.
The enchantment of many a feminine hand is easily felt. The surrender,
the softness, the concession, the refinement and honesty of many a woman
is so clear and open that it streams out, so to speak, and is
perceivable by the senses.
To explain all this, to classify it scientifically and to arrange it
serially, would be, nowadays at least, an unscientific enterprise. These
phenomena pass from body to body and are as reliable as inexplicable.
Who has never observed them, and although his attention has been called
to them, still has failed to notice them, need not consider them, but
persons believing in them must be warned against exaggeration and haste.
The one advice that can be given is to study the language of the hand
before officially ignoring it; not to decide immediately upon the value
of the observations one is supposed to have made, but to handle them
cautiously and to test them with later experiences. It is of especial
interest to trace the movement of the hand, especially the fingers. I
do not mean those movements which are external, and co-ordinate with the
movements of the arm; those belong to mimicry. I mean those that begin
at the wrist and therefore occur in the hand only. For the study of
those movements the hand of childhood is of little use, being altogether
too untrained, unskilled, and neutral. It shows most clearly the
movement of the desire to possess, of catching hold and drawing toward
oneself, generally toward the mouth, as does the suckling child its
mother’s breast. This movement, Darwin has observed even among kittens.
The masculine hand is generally too heavy and slow, clearly to exhibit
the more refined movements; these are fully developed only in the
feminine, particularly in the hands of vivacious, nervous, and
spiritually excitable women. The justice who observes them may read more
than he can in their owner’s words. The hand lies in the lap apparently
inert, but the otherwise well concealed anger slowly makes a fist of it,
or the fingers bend characteristically forward as if they wished to
scratch somebody’s eyes out. Or they cramp together in deep pain, or the
balls of the four other fingers pass with pleasure over the ball of the
thumb, or they move spasmodically, nervously, impatiently and fearfully,
or they open and close with characteristic enjoyment like the paws of
cats when the latter feel quite spry.
Closer observation will show that toes reveal a great deal, particularly
among women who wear rather fine shoes and hence can move their feet
with greater ease. In anger, when they cannot, because it would be
suggestive, stamp their feet, the women press their toes closely to the
ground. If they are embarrassed they turn the sole of their shoe
slightly inwards and make small curves with the point on the ground.
Impatience shows itself through alternating and swinging pressure of
heel and toe, repeated with increasing rapidity; defiance and demand
through raising the toes in such a way that the sole is directly forward
and the foot rests only on the heel. Sensuality is always indicated when
the foot is put forward and the shin bone lightly stretched out, when
all the toes are drawn in toward the sole just as the cat does when she
feels good. What women do not say in words and do not express in their
features and do not indicate in the movement of their hands, they say
with their feet; the inner experience _must_ express itself externally
and the foot most betrays it.
In conclusion it ought to be kept in mind that the hands of all those
people who claim to be hard workers but who really try to live without
work, i.e. thieves, gamblers, etc., ought to be carefully examined.
Concerning the value of graphology see my “Manual for Examining Judges.”
Title B. The Conditions for Defining Theories.
Topic I. THE MAKING OF INFERENCES.
Section 22.
The study of the human soul as psychology, has for its subject the whole
stream of conscious life and for its aim the discovery of the occurrence
and relation of the laws of human thought. Now whether these relations
imply the coherence of the objects thought about or not, so long as
logic is dealing with the laws according to which thoughts must be
correlated in order to attain to objectively valid knowledge, all
questions that deal with the formal aspect of thinking do not enter the
field of psychological investigation. The general psychological problem
is to describe the actual psychic events as they occur, to analyze them
into their simplest elements, and inasmuch as it is this purely
pragmatic application of psychology to the problem of inference that
concerns us, we need to deal only with that law which defines the
combination of images and with the question,--how the spirit achieves
this combination. The material aspect of this question is therefore
psychological. The legal importance of the problem lies in the very
potent fact that inferences and theories are often constructed which are
formally or logically absolutely free of error, yet psychologically full
of errors that no logic whatever could correct. We have, therefore, to
consider at least the most important conditions which determine the
manner of our inferences.
The right which lawyers possess of studying these questions, so far as
they lie in our field, is of modern establishment. According to
Hillebrand[126] the theory of knowledge has to-day broken up into
individual theories, involving the certain needs of special fields of
knowledge. The place of the epistomologists, who are professionals and
beyond the pale of individual disciplines, is now taken by the
representatives of those disciplines and each works expressly on his own
epistomological problem. Our especial problem is the drawing of
inferences from the material presented to us or brought together by our
efforts, just as in other disciplines. If we set ourselves the task of
determining the procedure when subjecting the fundamental principles of
our work to revision and examining their utility, we merely ask whether
the process is voluntary or according to fixed laws; and having cleared
up that point we ask what influence psychological conditions exercise on
the situation. It is, indeed, said that thinking is a congenital
endowment, not to be learned from rules. But the problem is not teaching
the inferrer to think; the problem is the examination of how inferences
have been made by another and what value his inferences may have for our
own conclusions. And our own time, which has been bold enough to lay
this final conclusion in even the most important criminal cases, in the
hands of laymen, this time is doubly bound at least to prepare all
possible control for this work, to measure what is finally taken as
evidence with the finest instruments possible, and to present to the
jury only what has been proved and repeatedly examined.
It might almost seem as if the task the jury trial sets the judge has
not been clearly perceived. A judge who thinks he has performed it when
he has cast before the jury the largest possible mass of testimony, more
or less reviewed, and who sees how people, who perhaps for the first
time in their lives, are involved in a court of law, who perhaps see a
criminal for the first time, and are under these circumstances the
arbiters of a man’s fate,--a judge who sees all this and is satisfied,
is not effective in his work. Nowadays more than ever, it is for the
judge to test all evidence psychologically, to review what is only
apparently clear, to fill out lacunae, and to surmount difficulties,
before he permits the material brought together in a very few hours to
pass into the jury’s hands. According to Hillebrand, much that seems
“self-evident” shows itself dependent on definite experience attained in
the process of hundreds of repetitions in the daily life; the very
impression of self-evidence is frequently produced by a mere chance
instinct about what should be held for true. Hume has already shown how
the most complex and abstract concepts are derived from sensation. Their
relation must be studied, and only when we can account for every psychic
process with which we have to concern ourselves, is our duty properly
fulfilled.
Section 23. (2) Proof.
Mittermaier[127] holds that “as a means of testimony in the legal sense
of that term every possible source must be examined which may suffice
the judge according to law. And from such examination only may the
requisite certainties be attained from which the judge is to assume as
determined, facts relevant to his judgment.” Only the phrase “according
to law” needs explanation, inasmuch as the “source” of reasons and
certainties must satisfy the legal demands not only formally but must
sustain materially every possible test, whether circumstantial or
logico-psychologic. If, for example, the fundamental sources should be a
combination of (1) a judicial examination of premises
(lokalaugenschein), (2) testimony of witnesses, and (3) a partial
confession, the requirements of the law would be satisfied if the
protocol, (1), were written or made according to prescribed forms, if a
sufficient number of properly summoned witnesses unanimously confirmed
the point in question, and if finally the confession were made and
protocoled according to law. Yet, though the law be satisfied, not only
may the conclusion be wholly false but every particular part of the
evidence may be perfectly useless, without the presence anywhere of
intentional untruth. The personal examination may have been made by a
judge who half the time, for some sufficiently cogent reason, had a
different conception of the case than the one which later appeared to be
true. It need not have been necessary that there should be mixed
therewith false information of witnesses, incorrect observation, or such
other mistakes. There need only have been a presupposition, accepted at
the beginning of the examination, when the examination of the premises
took place, as to the visible condition of things; and this might have
given apparent justification to doubtful material and have rendered it
intelligible, only to be shown later as false. The so-called “local
examination” however, is generally supposed to be “objective.” It is
supposed to deal only with circumstantial events, and it does not occur
to anybody to modify and alter it when it is certainly known that at
another point the situation has taken an altogether different form. The
objectivity of the local examination is simply non-existent, and if it
were really objective, i.e., contained merely dry description with so
and so many notations of distances and other figures, it would be of no
use. Every local examination, to be of use, must give an accurate
picture of the mental process of him who made it. On the one hand it
must bring vividly to the mind of the reader, even of the sentencing
judge, what the situation was; on the other, it must demonstrate what
the examiner thought and represented to himself in order that the
reader, who may have different opinions, may have a chance to make
corrections. If I, for example, get the impression that a fire was made
through carelessness, and that somebody lost his life on account of it,
and if I made my local examination with this presupposition in mind, the
description will certainly seem different from that made under the
knowledge that the fire was intentional and made to kill. At trial the
description of local conditions will be read and entered as important
testimony. It satisfies the law if it is taken according to form, has
the correct content, and is read as prescribed. But for our conscience
and in truth this manuscript can be correct only when it is logically
and psychologically presented revised according to the viewpoint its
writer would have had if he had been in possession of all the facts in
possession of the reader. This work of reconstruction belongs to the
most difficult of our psychological tasks--but it must be performed
unless we want to go on superficially and without conscience.
The judgment and interpretation of the testimony of witnesses, (2),
demand similar treatment. I am legally right if I base my judgment on
the testimony of witnesses (provided there are enough of them and they
are properly subpoenaed) if nothing suggestive is offered against their
testimony, if they do not contradict each other, and especially if there
are no contradictions in the testimony of any single individual. This
inner contradiction is rather frequent, and the inattention with which
the protocols, as a rule, are read, and the scanty degree in which the
testimony is tested logically and psychologically, are shown clearly by
the fact that the inner contradictions are not observed and worked over
more frequently. As evidence of this, let us consider a few cases that
are generally told as extravagant jokes. Suppose that a man dreamed that
his head was cut off and that that dream so affected him that he died of
apoplexy--yet not everybody asks how the dream was discovered. In a like
manner people hear with disgust that somebody who has lost his arm, in
despair cut off his other arm with an axe in order more easily to get
assistance, and yet they do not ask “how.” Or again when somebody is
asked if he knows the romance “The Emperor Joseph and The Beautiful
Railway-signal-man’s Daughter,” the anachronism of the title does not
occur to him, and nobody thinks of the impossibilities of the vivid
description of a man walking back and forth, with his hands behind his
back, reading a newspaper.
Much testimony contains similar, if not so thorough-going
contradictions. If they are credited in spite of this fact the silly
believer may be blamed, but he is justified in the eyes of the law if
the above-mentioned legal conditions were satisfied. Hence, the
frightfully frequent result: “Whether the witness’s deposition is true,
is a matter for his own conscience; eventually he may be arrested for
perjury, but he has made his statements and I judge accordingly.” What
is intended with such a statement is this: “I hide behind the law, I am
permitted to judge in such a case in such a way, and nobody can blame
me.” But it is correct to assert that in such cases there is really no
evidence, there is only a form of evidence. It can be actually
evidential only when the testimony is tested logically and
psychologically, and the ability and willingness of the witness to tell
the truth is made clear. Of course it is true, as Mittermaier says, that
the utterance of witnesses is tested by its consistency with other
evidence, but that is neither the only test nor the most valid, for
there is always the more important internal test, in the first place;
and in the second place, it is not conclusive because the comparison may
reveal only inconsistency, but can not establish which of the
conflicting statements is correct. Correctness can be determined only
through testing the single statements, the willingness and ability of
each witness, both in themselves and in relation to all the presented
material.
Let us take now the third condition of our suppositions case, i.e.
partial confession. It is generally self-evident that the value of the
latter is to be judged according to its own nature. The confession must
be accepted as a means of proof, not as proof, and this demands that it
shall be consistent with the rest of the evidence, for in that way only
can it become proof. But it is most essential that the confession shall
be internally tested, i.e. examined for logical and psychological
consistency. This procedure is especially necessary with regard to
certain definite confessions.
(a) Confessions given without motive.
(b) Partial confessions.
(c) Confessions implying the guilt of another.
(a) Logic is, according to Schiel[128] the science of evidence--not of
finding evidence but of rendering evidence evidential. This is
particularly true with regard to confessions, if we substitute
psychology for logic. It is generally true that many propositions hold
so long only as they are not doubted, and such is the case with many
confessions. The crime is confessed; he who confesses to it is always a
criminal, and no man doubts it, and so the confession stands. But as
soon as doubt, justified or unjustified, occurs, the question takes
quite a different form. The confession has first served as proof, but
now psychological examination alone will show whether it can continue to
serve as proof.
The most certain foundation for the truth of confession in any case is
the establishment of a clear motive for it--and that is rarely present.
Of course the motive is not always absent because we do not immediately
recognize it, but it is not enough to suppose that the confession does
not occur without a reason. That supposition would be approximately
true, but it need not be true. If a confession is to serve evidentially
the motive must be clear and indubitable. Proof of its mere existence is
insufficient; we must understand the confession in terms of all the
factors that caused it. The process of discovering these factors is
purely logical and generally established indirectly by means of an
apagogue. This is essentially the proof by negation, but it may serve in
connection with a disjunctive judgment which combines possible
alternatives as a means of confirmation. We are, then, to bring together
all conceivable motives and study the confession with regard to them. If
all, or most of them, are shown to be impossible or insufficient, we
have left only the judgment of one or more conclusions, and with this we
have an essentially psychological problem. Such a problem is seldom
simple and easy, and as there is no possibility of contradiction, the
danger is nowhere so great of making light of the matter. “What is
reasserted is half proved.” That is a comfortable assertion, and leads
to considerable incorrectness. A confession is only established in truth
when it is construed psychologically, when the whole inner life of the
confessor and his external conditions are brought into relation with it,
and the remaining motives established as at least possible. And this
must be done to avoid the reproach of having condemned some confessor
without evidence, for a confession having no motive may be untrue, and
therefore not evidential.
(b) _Partial confessions_ are difficult, not only because they make it
harder to prove the evidence for what is not confessed, but also because
what is confessed appears doubtful in the light of what is not. Even in
the simplest cases where the reason for confession and silence seems to
be clear, mistakes are possible. If, for example, a thief confesses to
having stolen only what has been found in his possession but denies the
rest, it is fairly probable that he hopes some gain from the evidence in
which there appears to be no proof of his having stolen what has not
been found upon him. But though this is generally the case, it might
occur that the thief wants to assume the guilt of another person, and
hence naturally can confess only to what he is accused of, inasmuch as
he either has insufficient or no evidence whatever of his guilt for the
rest of the crime.
Another fairly clear reason for partial confession, is shown in the
confession to a certain degree of malicious intent, as the denial of the
intent to kill. If this is made by a person who may be supposed to know
the legal situation, either because of earlier experience or for other
reasons, there is sufficient justification for doubting the honesty of
his confession. Most of such cases belong to the numerous class in which
the defendant confesses to a series of facts or a number of things, and
denies a few of them without any apparent reason; he may confess to a
dozen objects used in an assault and simply refuse to discuss two
probably quite insignificant ones. If such a case comes up for judgment
to the full bench, half the judges say that since he has stolen twelve
he must have taken the other two, and the other half say that since he
has confessed to twelve he would have confessed to the other two if he
had taken them. Generally speaking, both sides are right; one inference
is as justified as the other. As a rule, such cases do not repay a great
deal of troublesome examination, inasmuch as the question of A’s having
stolen twelve or fourteen objects can little affect either his guilt or
his sentence. But it is to be remembered that it is never indifferent
whether a man pleads guilty or not guilty, and later on, especially in
another case, it may be quite the reverse of indifferent whether a man
is condemned because of a matter indifferent to-day. Suppose that the
denied theft was of a worthless but characteristic thing, e.g. an old
prayer-book. If now the thief is again suspected of a robbery which he
denies and the theft is again that of an old prayer-book, then it is not
indifferent as a matter of proof whether the man was condemned for
stealing a prayer-book or not. If he was so condemned, there will
already be remarks about, “a certain passion for old prayer-books,” and
the man will be suspected of the second theft.
In regard to the possession of stolen goods, such a sentence may have
similar significance. I recall a case in which several people were
sentenced for the theft of a so-called fokos (a Hungarian cane with a
head like an ax). Later a fokos was used in murder in the same region
and the first suspicion of the crime was attached to the thief, who
might, because of his early crime, have been in possession of a fokos.
Now suppose that the man had confessed to theft of everything but the
fokos, and that he had been condemned on the basis of the confession,
the fact would be of far-reaching significance in the present case. Of
course it is not intended that the old case is to be tried again before
the new. That would be a difficult job after the lapse of some time, and
in addition, would be of little use, for everybody recalls the old
judgment anyway and supposes that the circumstances must have been such
as to show the man guilty. If a man is once sentenced for something he
has not confessed to, the stigma remains no matter how the facts may be
against it.
Experience has shown that the victims of theft count everything stolen
that they do not discover at the first glance. And it might have been
lost long before the theft, or have been stolen at an earlier or a later
time. For this reason it often happens that servants, and even the
children of the house or other frequenters, take the robbery as an
opportunity for explaining the disappearance of things they are
responsible for or steal afresh and blame it upon “the thief.” The
quantity stolen is generally exaggerated, moreover, in order to excite
universal sympathy and perhaps to invoke help. In general, we must hold
that there is no psychological reason that a confessor should deny
anything the confession of which can bring him no additional harm. The
last point must be carefully treated, for it requires taking the
attitude of the accused and not of the examiner. It is the former’s
information and view-point that must be studied, and it often contains
the most perverted view-points; e.g., one man denies out of mere
obstinacy because he believes that his guilt is increased by this or
that fact. The proposition: who has stolen one thing, has also stolen
the rest, has slight justification.
(c) If a denying fellow-criminal is accused by a confession, the
interpretation of the latter becomes difficult. First of all, the pure
kernel of the confession must be brought to light, and everything set
aside that might serve to free the confessor and involve the other in
guilt. This portion of the work is comparatively the easiest, inasmuch
as it depends upon the circumstances of the crime. It is more difficult
to determine what degree of crime the confessor attached to himself by
accusing also the other man, because clearness can be reached in such a
case only by working out the situation from beginning to end in two
directions; first, by studying it without reference to the
fellow-criminal, second, with such reference. The complete elimination
of the additional circumstance is exceedingly troublesome because it
requires the complete control of the material and because it is always
psychologically difficult so to exclude an event already known in its
development and inference as to be able to formulate a theory quite
without reference to it.
If this is really accomplished and some positive fact is established in
the self-accusation, the question becomes one of finding the value seen
by the confessor in blaming himself together with his fellow. Revenge,
hatred, jealousy, envy, anger, suspicion, and other passions will be the
forces in which this value will be found. One man brings his ancient
comrade into jeopardy in revenge for the latter’s injustice in the
division of the booty, or in deliberate anger at the commission of some
dangerous stupidity in a burglary. Again, it often happens that he or
she, through jealousy, accuses her or him in order that the other may be
also imprisoned, and so not become disloyal. Business jealousy, again,
is as influential as the attempt to prevent another from disposing of
some hidden booty, or from carrying out by himself some robbery planned
in partnership. These motives are not always easy to discover but are
conceivable. There are also cases, not at all rare, in which the
ordinary man is fully lacking in comprehension of “the substitute
value,” which makes him confess the complicity of his fellow. I am going
to offer just one example, and inasmuch as the persons concerned are
long since dead, will, by way of exception, mention their names and the
improbability of their stories. In 1879 an old man, Blasius Kern, was
found one morning completely snowed over and with a serious wound in the
head. There was no possible suspicion of robbery as motive of the
murder, inasmuch as the man was on his way home drunk, as usual, and it
was supposed that he had fallen down and had smashed his skull. In 1881
a young fellow, Peter Seyfried, came to court and announced that he had
been hired by Blasius Kern’s daughter, Julia Hauck, and her husband
August Hauck, to kill the old fellow, who had become unendurable through
his love of drink and his endless quarrelsomeness; and accordingly he
had done the deed. He had been promised an old pair of trousers and
three gulden, but they had given him the trousers, not the money, and as
all his attempts to collect payment had failed he divulged the secret of
the Hauck people. When I asked him if he were unaware that he himself
was subject to the law he said, “I don’t care; the others at least will
also be punished;--why haven’t they kept their word.” And this lad was
very stupid and microcephalic, but according to medico-legal opinion,
capable of distinguishing between right and wrong. His statements proved
themselves true to the very last point.
So significantly weak as this in fundamental reliability, very few
confessions will appear to be, but the reasons for confessions,
difficult both to find and to judge, are many indeed. The only way to
attain certainty is through complete and thorough-going knowledge of all
the external conditions, but primarily through sound psychological
insight into the nature of both the confessor and those he accuses.
Evidently the first is by far the more important: what he is beneath the
surface, his capacities, passions, intentions, and purposes, must all be
settled if any decision is to be arrived at as to the advantage accruing
to a man by the accusation of others. For example, the passionate
character of some persons may indicate beyond a doubt that they might
find pleasure in suffering provided they could cause suffering to others
at that price. Passion is almost always what impels men, and what
passion in particular lies behind a confession will be revealed partly
by the crime, partly by the relation of the criminals one to the other,
partly by the personality of the new victim. If this passion was strong
enough to deal, if I may use the term, anti-egoistically, it can be
discovered only through the study of its possessor. It may be
presupposed that everybody acts according to his own advantage--the
question asks merely what this advantage is in the concrete, and whether
he who seeks it, seeks it prudently. Even the satisfaction of revenge
may be felt as an advantage if it is more pleasurable than the pain
which follows confession--the matter is one of relative weight and is
prudently sought as the substitution of an immediate and petty advantage
for a later and greater one.
Another series of procedures is of importance in determining proof,
where circumstances are denied which have no essential relation to the
crime. They bring the presentation of proof into a bypath so that the
essential problem of evidence is left behind. Then if the denied
circumstance is established as a fact it is falsely supposed that the
guilt is so established. And in this direction many mistakes are
frequently made. There are two suggestive examples. Some years ago there
lived in Vienna a very pretty bachelor girl, a sales-person in a very
respectable shop. One day she was found dead in her room. Inasmuch as
the judicial investigation showed acute arsenic poisoning, and as a
tumbler half full of sweetened water and a considerable quantity of
finely powdered arsenic was found on her table, these two conditions
were naturally correlated. From the neighbors it was learned that the
dead girl had for some time been intimate with an unknown gentleman who
visited her frequently, but whose presence was kept as secret as
possible by both. This gentleman, it was said, had called on the girl on
the evening before her death. The police inferred that the man was a
very rich merchant, residing in a rather distant region, who lived
peaceably with his much older wife and therefore kept his illicit
relations with the girl secret. It was further established at the
autopsy that the girl was pregnant, and so the theory was formed that
the merchant had poisoned his mistress and in the examination this deed
was set down against him. Now, if the man had immediately confessed that
he knew the dead girl, and stood in intimate relation with her and that
he had called on her the last evening; if he had asserted perhaps that
she was in despair about her condition, had quarreled with him and had
spoken of suicide, etc., then suicide would unconditionally have had to
be the verdict. In any event, he never could have been accused, inasmuch
as there was no additional evidence of poisoning. But the man conceived
the unfortunate notion of denying that he knew the dead girl or had any
relations with her, or that he had ever, even on that last evening,
called on her. He did this clearly because he did not want to confess a
culpable relation to public opinion, especially to his wife. And the
whole question turned upon this denied circumstance. The problem of
evidence was no longer, “Has he killed her,” but “Did he carry on an
intimacy with her.” Then it was proved beyond reasonable doubt through a
long series of witnesses that his visits to the girl were frequent, that
he had been there on the evening before her death, and that there could
be no possible doubt as to his identity. That settled his fate and he
was sentenced to death. If we consider the case psychologically we have
to grant that his denial of having been present might have for motive as
much the fact that he had poisoned the girl, as that he did not want to
admit the relation at the beginning. Later on, when he completely
understood the seriousness of his situation, he thought a change of
front too daring and hoped to get on better by sticking to his story.
Now, as we have seen, what was proved was the fact that he knew and
visited the girl; what he was sentenced for was the murder of the girl.
A similar case, particularly instructive in its development, and
especially interesting because of the significant study (of the
suggestibility of witnesses) of Dr. Von Schrenck-Notzing and Prof.
Grashey, kept the whole of Munich in excitement some years ago. A widow,
her grown-up daughter, and an old servant were stifled and robbed in
their home. The suspicion of the crime fell upon a brick-layer who had
once before made a confession concerning another murder and of whom it
was known that some time before the deed was done he had been building a
closet into the house of the three murdered women. Through various
combinations of the facts the supposition was reached that the mason got
entry into the house on the pretense of examining whether or not the
work he had done on the closet had caused any damage, and had then
committed the thieving murder. Now here again, if the mason had said:
“Yes, I was without a job, wanted to get work, entered the house under
the assigned pretense, and appeared to see about the closet and had
myself paid for the apparently repaired improvement, left the three
women unharmed, and they must only after that have been killed,”--if he
had said this, his condemnation would have been impossible, for all the
other testimony was of subordinate importance. Now suppose the man was
innocent, what could he have thought: “I have already been examined once
in a murder case, I found myself in financial difficulties, I still am
in such difficulties--if I admit that I was at the place of the crime at
the time the crime was committed, I will get into serious trouble, which
I won’t, if I deny my presence.” So he really denied having been in the
house or in the street for some time, and inasmuch as this was shown by
many witnesses to be untrue, his presence at the place where the crime
was committed was identified with the unproved fact that he had
committed it, and he was condemned.
I do not assert that either one or the other of these persons was
condemned guiltlessly, or that such “side issues” have no value and
ought not to be proved. I merely point out that caution is necessary in
two directions. First of all, these side issues must not be identified
with the central issue. Their demonstration is only preparatory work,
the value of which must be established cautiously and without prejudice.
It may be said that the feeling of satisfaction with what has been done
causes jurists frequently to forget what must yet be done, or to
undervalue it. Further, a psychological examination must seek out the
motives which led or might have led the accused to deny some point not
particularly dangerous to him. In most cases an intelligible ground for
such action can be discovered, and if the psychologically prior
conditions are conceived with sufficient narrowness to keep us from
assuming unconditional guilt, we are at least called upon to be
careful.
This curious danger of identification of different issues as the aim of
presentation of evidence, occurs much more frequently and with
comparatively greater degree in the cases of individual witnesses who
are convinced of the principal issue when a side issue is proved.
Suppose a witness is called on to identify a man as somebody who had
stabbed him in a serious assault, and that he has also to explain
whether the quarrel he had had with this man a short time ago was of
importance. If the suspect is desirous of having the quarrel appear as
harmless, and the wounded person asserts that the quarrel was serious,
the latter will be convinced, the moment his contention may be viewed as
true, that his opponent was really the person who had stabbed him. There
is, of course, a certain logical justification for this supposition, but
the psychological difficulty with it is the fact that this case, like
many others, involves the identification of what is inferred with what
is perceived. It is for this reason that the mere fact of arrest is to
most people a conviction of guilt. The witness who had first identified
A as only the probable criminal becomes absolutely convinced of it when
A is presented to him in stripes, even though he knows that A has been
arrested on his own testimony alone. The appearance and the surroundings
of the prisoner influence many, and not merely uneducated people,
against the prisoner, and they think, involuntarily, “If he were not the
one, they would not have him here.”
Section 24. (b) Causation.[129]
If we understand by the term cause the axiom that every change has an
occasion, hence that every event is bound up with a number of conditions
which when lacking in whole or in part would prevent the appearance of
the event, while their presence would compel its appearance, then the
whole business of the criminalist is the study of causes. He must indeed
study not only whether and how crime and criminal are causally related,
but also how their individual elements are bound to each other and to
the criminal; and finally, what causation in the criminal, considered
with regard to his individual characteristics, inevitably led to the
commission of the crime. The fact that we deal with the problem of cause
brings us close to other sciences which have the same task in their own
researches; and this is one of the reasons for the criminalist’s
necessary concern with other disciplines. Of course no earnest
criminalist can pursue other studies for their own sake, he has no time;
but he must look about him and study the methods used in other sciences.
In the other sciences we learn method, but not as method, and that is
all that we need. And we observe that the whole problem of method is
grounded on causation. Whether empirically or aprioristically does not
matter. We are concerned solely with causation.
In certain directions our task is next to the historians’ who aim to
bring men and events into definite causal sequence. The causal law is
indubitably the ideal and only instructive instrument in the task of
writing convincing history, and it is likewise without question that the
same method is specifically required in the presentation of evidence.
Thus: “This is the causal chain of which the last link is the crime
committed by A. Now I present the fact of the crime and include only
those events which may be exclusively bound up with A’s criminality--and
the crime appears as committed. Now again, I present the fact of the
crime and exclude all those events which can without exception be
included only if A is not a criminal--and there is no crime.”[130]
Evidently the finding of causes involves, according to the complexities
of the case, a varying number of subordinate tasks which have to be
accomplished for each particular incident, inasmuch as each suspicion,
each statement _pro_ or _con_ has to be tested. The job is a big one but
it is the only way to absolute and certain success, provided there is no
mistake in the work of correlating events. As Schell says: “Of all the
observed identities of effect in natural phenomena only one has the
complete strength of mathematical law--the general law of causation. The
fact that everything that has a beginning has a cause is as old as human
experience.” The application of this proposition to our own problem
shows that we are not to turn the issue in any unnecessary direction,
once we are convinced that every phenomenon has its occasion. We are, on
the contrary, to demonstrate this occasion and to bring it into
connection with every problem set by the testimony at any moment. In
most cases the task, though not rigidly divided, is double and its
quality depends upon the question whether the criminal was known from
the beginning or not. The duality is foremost, and lasts longest if
only the deed itself is known, and if the judge must limit himself
entirely to its sole study in order to derive from it its objective
situation.
The greatest mistakes in a trial occur when this derivation of the
objective situation of the crime is made unintelligently, hastily or
carelessly, and conversely the greatest successes are due to its correct
rendering. But such a correct rendering is no more than the
thorough-going use of the principle of causality. Suppose a great crime
has been committed and the personality of the criminal is not revealed
by the character of the crime. The mistake regularly made in such a case
is the immediate and superficial search for the personality of the
criminal instead of what should properly proceed--the study of the
causal conditions of the crime. For the causal law does not say that
everything which occurs, taken as a whole and in its elements, has one
ground--that would be simply categorical emptiness. What is really
required is an efficient and satisfying cause. And this is required not
merely for the deed as a whole but for every single detail. When causes
are found for all of these they must be brought together and correlated
with the crime as described, and then integrated with the whole series
of events.
The second part of the work turns upon the suspicion of a definite
person when his own activity is interpolated as a cause of the crime.
Under some conditions again, the effect of the crime on the criminal has
to be examined, i.e., enrichment, deformation, emotional state, etc. But
the evidence of guilt is established only when the crime is accurately
and explicitly described as the inevitable result of the activity of the
criminal and his activity only. This systematic work of observing and
correlating every instant of the supposed activities of the accused
(once the situation of the crime is defined as certainly as possible),
is as instructive as it is promising of success. It is the one activity
which brings us into touch with bare perception and its reproduction.
“All inference with regard to facts appears to depend upon the relation
of cause to effect; by virtue of this relation alone may we rely upon
the evidence of our memories and our senses.”[131] Hume illustrates this
remark with the following example: If a clock or some other machine is
found on a desert island, the conclusion is drawn that men are or were
on the island. The application is easy enough. The presence of a clock,
the presence of a three-cornered wound is perceived by the senses--that
men were there, that the wound was made with a specific kind of
instrument, is a causal inference. Simple as this proposition of Hume’s
is, it is of utmost importance in the law because of the permanent and
continually renewed problems: What is the effect in _this_ case? What is
the cause? Do they belong together? Remembering that these questions
make our greatest tasks and putting them, even beyond the limit of
disgust, will save us from grave errors.
There is another important condition to which Hume calls attention and
which is interpreted by his clever disciple Meinong. It is a fact that
without the help of previous experience no causal nexus can be referred
to an observation, nor can the presence of such be discovered in
individual instances. It may be postulated only. A cause is essentially
a complex in which every element is of identical value. And this
circumstance is more complicated than it appears to be, inasmuch as it
requires reflection to distinguish whether only one or more observations
have been made. Strict self-control alone and accurate enumeration and
supervision will lead to a correct decision as to whether one or ten
observations have been made, or whether the notion of additional
observations is not altogether illusory.
This task involves a number of important circumstances. First of all
must be considered the manner in which the man on the street conceives
the causal relation between different objects. The notion of causality,
as Schwarz[132] shows, is essentially foreign to the man on the street.
He is led mainly by the analogy of natural causality with that of human
activity and passivity, e.g., the fire is active with regard to water,
which simply must sizzle passively. This observation is indubitably
correct and significant, but I think Schwarz wrong to have limited his
description to ordinary people; it is true also of very complex natures.
It is conceivable that external phenomena shall be judged in analogy
with the self, and inasmuch as the latter often appears to be purely
active, it is also supposed that those natural phenomena which appear to
be especially active are really so.
In addition, many objects in the external world with which we have a
good deal to do, and are hence important, do as a matter of fact really
appear to be active--the sun, light, warmth, cold, the weather, etc., so
that we assign activity and passivity only according to the values the
objects have for us. The ensuing mistake is the fact that we overlook
the alternations between activity and passivity, or simply do not make
the study such alternations require; yet the correct apportionment of
action and reaction is, for us, of greatest importance. In this regard,
moreover, there is always the empty problem as to whether two things may
stand in causal relation,--empty, because the answer is always yes. The
scientific and practical problem is as to whether there exists an actual
causal nexus. The same relation occurs in the problem of reciprocal
influences. No one will say, for example, that any event exercises a
reciprocal influence on the sun, but apart from such relatively few
cases it would not only be supposed that A is the cause of the effect B,
but also that B might have reciprocally influenced A. Regard for this
possibility may save one from many mistakes.
One important source of error with regard to cause and effect lies in
the general and profound supposition that the cause must have a certain
similarity to the effect. So Ovid, according to J. S. Mill, has Medea
brew a broth of long-lived animals; and popular superstitions are full
of such doctrine. The lung of a long-winded fox is used as a cure for
asthma, the yarrow is used to cure jaundice, agaricos is used for
blisters, aristolochia (the fruit of which has the form of a uterus) is
used for the pains of child-birth, and nettle-tea for nettle-rash. This
series may be voluntarily increased when related to the holy patron
saints of the Catholic Church, who are chosen as protectors against some
especial condition or some specific difficulty because they at one time
had some connection with that particular matter. So the holy Odilia is
the patron saint for diseases of the eye, not because she knew how to
cure the eyes, but because her eyes were put out with needles. The thief
Dismas is the patron of the dying because we know nothing about him save
that he died with Christ. St. Barbara, who is pictured together with a
tower in which she was imprisoned, and which was supposed to be a powder
house, has become the patron saint of artillery. In the same manner St.
Nicholas is, according to Simrock, the patron of sailors because his
name resembles Nichus, Nicor, Nicker, which is the name of the
unforgotten old German sea-deity.
Against such combinations, external and unjustified, not even the most
educated and skilful is safe. Nobody will doubt that he is required to
make considerable effort in his causal interpretation because of the
sub-conscious influence of such similarities. The matter would not be so
dangerous, all in all, because such mistakes may be easily corrected and
the attention of people may be called to the inadequacy of such
causation--but the reason for this kind of correlations is rarely
discovered. Either people do not want to tell it because they
instinctively perceive that their causal interpretation cannot be
justified, or they cannot even express it because the causal relation
had been assumed only subconsciously, and they are hence unaware of the
reasons for it and all the more convinced that they are right. So for
example, an intelligent man told me that he suspected another of a
murder because the latter’s mother died a violent death. The witness
stuck to his statement: “the man who had once had something to do with
killing must have had something to do with this killing.” In a similar
manner, a whole village accused a man of arson because he was born on
the night on which a neighboring village burned down. Here, however,
there was no additional argument in the belief that his mother had
absorbed the influence of the fire inasmuch as the latter was told that
there had been a fire only after the child was born. “He once had
something to do with fire,” was the basis of the judgment, also in this
case.
There are innumerable similar examples which, with a large number of
habitual superstitious presuppositions, make only false causality.
Pearls mean tears because they have similar form; inasmuch as the cuckoo
may not without a purpose have only two calls at one time and ten or
twenty at another, the calls must mean the number of years before death,
before marriage, or of a certain amount of money, or any other countable
thing. Such notions are so firmly rooted in the peasantry and in all of
us, that they come to the surface, whether consciously or unconsciously,
and influence us more than we are accustomed to suppose they do.
Whenever anybody assures us that he is able to assert absolutely, though
not altogether prove a thing, this assurance may be variously grounded,
but not rarely it is no more than one of these false correlations.
Schopenhauer has said, that “motivation is causality seen from
within,”--and one may add conversely that causality is motivation seen
from without. What is asserted must be motivated, and that is done by
means of causality--if no real ultimate cause is found a false,
superficial and insufficient one is adopted, inasmuch as we ever strive
to relate things causally, in the knowledge that, otherwise, the world
would be topsy-turvy. “Everywhere,” says Stricker, “we learn that men
who do not associate their experiences according to right cause are
badly adapted to their environment; the pictures of artists are
disliked, the laborer’s work does not succeed; the tradesman loses his
money, and the general his battle.” And we may add, “The criminalist his
case.” For whoever seeks the reason for a lost case certainly will find
it in the ignorance of the real fact and in the incorrect coördination
of cause and effect. The most difficult thing in such coördination is
not that it has to be tested according to the notion one has for himself
of the chain of events; the difficulty lies in the fact that the point
of view and mental habits of the man who is suspected of the effects
must be adopted. Without this the causal relations as they are arrived
at by the other can never be reached, or different results most likely
ensue.
The frequency of mistakes like those just mentioned is well known. They
affect history. Even La Rochefoucauld was of the opinion that the great
and splendid deeds which are presented by statesmen as the outcome of
far-reaching plans are, as a rule, merely the result of inclination and
passion. This opinion concerns the lawyer’s task also, for the lawyer is
almost always trying to discover the moving, great, and unified plan of
each crime, and in order to sustain such a notion, prefers to perfect a
large and difficult theoretic construction, rather than to suppose that
there never was a plan, but that the whole crime sprang from accident,
inclination, and sudden impulse. The easiest victims in this respect are
the most logical and systematic lawyers; they merely presuppose, “I
would not have done this” and forget that the criminal was not at all so
logical and systematic, that he did not even work according to plan, but
simply followed straying impulses.
Moreover, a man may have determined his causal connections correctly,
yet have omitted many things, or finally have made a voluntary stop at
some point in his work, or may have carried the causal chain
unnecessarily far. This possibility has been made especially clear by J.
S. Mill, who showed that the immediately preceding condition is never
taken as cause. When we throw a stone into the water we call the cause
of its sinking its gravity, and not the fact that it has been thrown
into the water. So again, when a man falls down stairs and breaks his
foot, in the story of the fall the law of gravity is not mentioned; it
is taken for granted. When the matter is not so clear as in the
preceding examples, such facts are often the cause of important
misunderstandings. In the first case, where the immediately preceding
condition is _not_ mentioned, it is the inaccuracy of the expression
that is at fault, for we see that at least in scientific form, the
efficient cause is always the immediately preceding condition. So the
physician says, “The cause of death was congestion of the brain in
consequence of pressure resulting from extravasation of the blood.” And
he indicates only in the second line that the latter event resulted from
a blow on the head. In a similar manner the physicist says that the
board was sprung as a consequence of the uneven tension of the fibers;
he adds only later that this resulted from the warmth, which again is
the consequence of the direct sunlight that fell on the board. Now the
layman had in both cases omitted the proximate causes and would have
said in case 1, “The man died because he was beaten on the head,” and in
case 2, “The board was sprung because it lay in the sun.” We have,
therefore, to agree to the surprising fact that the layman skips more
intermediaries than the professional, but only because either he is
ignorant of or ignores the intervening conditions. Hence, he is also in
greater danger of making a mistake through omission.
Inasmuch as the question deals only with the scarcity of correct
knowledge of proximate causes, we shall set aside the fact that lawyers
themselves make such mistakes, which may be avoided only by careful
self-training and cautious attention to one’s own thoughts. But we have
at the same time to recognize how important the matter is when we
receive long series of inferences from witnesses who give expression
only to the first and the last deduction. If we do not then examine and
investigate the intermediary links and their justification, we deserve
to hear extravagant things, and what is worse, to make them, as we do,
the foundation of further inference. And once this is done no man can
discover where the mistake lies.
If again an inference is omitted as self-evident (cf. the case of
gravity, in falling down stairs) the source of error and the difficulty
lies in the fact that, on the one hand, not everything is as
self-evident as it seems; on the other, that two people rarely
understand the same thing by “self-evident,” so that what is
self-evident to one is far from so to the other. This difference becomes
especially clear when a lawyer examines professional people who can
imagine offhand what is in no sense self-evident to persons in other
walks of life. I might cite out of my own experience, that the physicist
Boltzmann, one of the foremost of living mathematicians, was told once
upon a time that his demonstrations were not sufficiently detailed to be
intelligible to his class of non-professionals, so that his hearers
could not follow him. As a result, he carefully counted the simplest
additions or interpolations on the blackboard, but at the same time
integrated them, etc., in his head, a thing which very few people on
earth can do. It was simply an off-hand matter for this genius to do
that which ungenial mortals can not.
This appears in a small way in every second criminal case. We have only
to substitute the professionals who appear as witnesses. Suppose, e.g.,
that a hunter is giving testimony. He will omit to state a group of
correlations; with regard to things which are involved in his trade, he
will reach his conclusion with a single jump. Then we reach the fatal
circle that the witness supposes that we can follow him and his
deductions, and are able to call his attention to any significant error,
while we, on the other hand, depend on his professional knowledge, and
agree to his leaping inferences and allow his conclusions to pass as
valid without knowing or being able to test them.
The notion of “specialist” or “professional” must be applied in such
instances not only to especial proficients in some particular trade, but
also to such people as have by accident merely, any form of specialized
knowledge, e.g., knowledge of the place in which some case had occurred.
People with such knowledge present many a thing as self-evident that can
not be so to people who do not possess the knowledge. Hence, peasants
who are asked about some road in their own well known country reply that
it is “straight ahead and impossible to miss” even when the road may
turn ten times, right and left.
Human estimates are reliable only when tested and reviewed at each
instant; complicated deductions are so only when deduction after
deduction has been tested, each in itself. Lawyers must, therefore,
inevitably follow the rule of requiring explication of each step in an
inference--such a requirement will at least narrow the limits of error.
The task would be much easier if we were fortunate enough to be able to
help ourselves with experiments. As Bernard[133] says, “There is an
absolute determinism in the existential conditions of natural phenomena,
as much in living as in non-living bodies. If the condition of any
phenomenon is recognized and fulfilled the phenomenon must occur
whenever the experimenter desires it.” But such determination can be
made by lawyers in rare cases only, and to-day the criminalist who can
test experimentally the generally asserted circumstance attested by
witnesses, accused, or experts, is a rarissima avis. In most cases we
have to depend on our experience, which frequently leaves us in
difficulties if we fail thoroughly to test it. Even the general law of
causation, that every effect has its cause, is formulated, as Hume
points out, only as a matter of habit. Hume’s important discovery that
we do not observe causality in the external world, demonstrates only the
difficulty of the interpretation of causality. The weakness of his
doctrine lies in his assertion that the knowledge of causality may be
obtained through habit because we perceive the connection of similars,
and the understanding, through habit, deduces the appearance of the one
from that of the other. These assertions of the great thinker are
certainly correct, but he did not know how to ground them. Hume teaches
the following doctrine:
The proposition that causes and effects are recognized, not by the
understanding but because of experience, will be readily granted if we
think of such things as we may recollect we were once altogether
unacquainted with. Suppose we give a man who has no knowledge of physics
two smooth marble plates. He will never discover that when laid one upon
the other they are hard to separate. Here it is easily observed that
such properties can be discovered only through experience. Nobody,
again, has the desire to deceive himself into believing that the force
of burning powder or the attraction of a magnet could have been
discovered a priori. But this truth does not seem to have the same
validity with regard to such processes as we observed almost since
breath began. With regard to them, it is supposed that the
understanding, by its own activity, without the help of experience can
discover causal connections. It is supposed that anybody who is suddenly
sent into the world will be able at once to deduce that a billiard ball
will pass its motion on to another by a push.
But that this is impossible to derive a priori is shown through the fact
that elasticity is not an externally recognizable quality, so that we
may indeed say that perhaps no effect can be recognized unless it is
experienced at least once. It can not be deduced a priori that contact
with water makes one wet, or that an object responds to gravity when
held in the hand, or that it is painful to keep a finger in the fire.
These facts have first to be experienced either by ourselves or some
other person. Every cause, Hume argues therefore, is different from its
effect and hence can not be found in the latter, and every discovery or
representation of it a priori must remain voluntary. All that the
understanding can do is to simplify the fundamental causes of natural
phenomena and to deduce the individual effects from a few general
sources, and that, indeed, only with the aid of analogy, experience, and
observation.
But then, what is meant by trusting the inference of another person, and
what in the other person’s narrative is free from inference? Such trust
means, to be convinced that the other has made the correct analogy, has
made the right use of experience, and has observed events without
prejudice. That is a great deal to presuppose, and whoever takes the
trouble of examining however simple and short a statement of a witness
with regard to analogy, experience, and observation, must finally
perceive with fear how blindly the witness has been trusted. Whoever
believes in knowledge a priori will have an easy job: “The man has
perceived it with his mind and reproduced it therewith; no objection may
be raised to the soundness of his understanding; ergo, everything may be
relied upon just as he has testified to it.” But he who believes in the
more uncomfortable, but at least more conscientious, skeptical doctrine,
has, at the minimum, some fair reason for believing himself able to
trust the intelligence of a witness. Yet he neither is spared the task
of testing the correctness of the witness’s analogy, experience and
observation.
Apriorism and skepticism define the great difference in the attitude
toward the witness. Both skeptic and apriorist have to test the desire
of the witness to lie, but only the skeptic needs to test the witness’s
ability to tell the truth and his possession of sufficient understanding
to reproduce correctly; to examine closely his innumerable inferences
from analogy, experience and observation. That only the skeptic can be
right everybody knows who has at all noticed how various people differ
in regard to analogies, how very different the experiences of a single
man are, both in their observation and interpretation. To distinguish
these differences clearly is the main task of our investigation.
There are two conditions to consider. One is the strict difference
between what is causally related and its accidental concomitants,--a
difference with regard to which experience is so often misleading, for
two phenomena may occur together at the same time without being causally
connected. When a man is ninety years old and has observed, every week
in his life, that in his part of the country there is invariably a
rainfall every Tuesday, this observation is richly and often tested, yet
nobody will get the notion of causally connecting Tuesday and rain--but
only because such connection would be regarded as generally foolish. If
the thing, however, may be attributed to coincidence with a little more
difficulty, then it becomes easier to suppose a causal connection; e.g.,
as when it rains on All-souls day, or at the new moon. If the accidental
nature of the connection is still less obvious, the observation becomes
a much-trusted and energetically defended meteorological law. This
happens in all possible fields, and not only our witnesses but we
ourselves often find it very difficult to distinguish between causation
and accident. The only useful rule to follow is to presuppose accident
wherever it is not indubitably and from the first excluded, and
carefully to examine the problem for whatever causal connection it may
possibly reveal. “Whatever is united in any perception must be united
according to a general rule, but a great deal more may be present
without having any causal relation.”
The second important condition was mentioned by Schopenhauer:[134] “As
soon as we have assigned causal force to any great influence and thereby
recognized that it is efficacious, then its intensification in the face
of any resistance according to the intensity of the resistance will
produce finally the appropriate effect. Whoever cannot be bribed by ten
dollars, but vacillates, will be bribed by twenty-five or fifty.”
This simple example may be generalized into a golden rule for lawyers
and requires them to test the effect of any force on the accused at an
earlier time in the latter’s life or in other cases,--i.e., the early
life of the latter can never be studied with sufficient care. This study
is of especial importance when the question is one of determining the
culpability of the accused with regard to a certain crime. We have then
to ask whether he had the motive in question, or whether the crime could
have been of interest to him. In this investigation the problem of the
necessary intensity of the influence in question need not, for the time,
be considered; only its presence needs to be determined. That it may
have disappeared without any demonstrable special reason is not
supposable, for inclinations, qualities, and passions are rarely lost;
they need not become obvious so long as opportunity and stimulus are
absent, and they may be in some degree suppressed, but they manifest
themselves as soon as--Schopenhauer’s twenty-five or fifty dollars
appear. The problem is most difficult when it requires the conversion of
certain related properties, e.g., when the problem is one of suspecting
a person of murderous inclination, and all that can be shown in his
past life is the maltreatment of animals. Or again, when cruelty has to
be shown and all that is established is great sensuality. Or when there
is no doubt about cruelty and the problem is one of supposing intense
avarice. These questions of conversion are not especially difficult, but
when it must be explained to what such qualities as very exquisite
egoism, declared envy, abnormal desire for honor, exaggerated conceit,
and great idleness may lead to, the problem requires great caution and
intensive study.
Section 25. (c) Skepticism.
Hume’s skepticism is directly connected with the subject of the
preceding chapter, but wants still a few words for itself. Though it is
not the lawyer’s problem to take an attitude with regard to
philosophical skepticism, his work becomes essentially easier through
the study of Hume’s doctrines.
According to these, all we know and infer, in so far as it is
unmathematical, results from experience, and our conviction of it and
our reasoning about it, means by which we pass the bounds of
sense-perception, depend on sensation, memory and inference from
causation. Our knowledge of the relation of cause and effect results
also from experience, and the doctrine, applied to the work of the
criminalist, may be formulated as follows: “Whatever we take as true is
not an intellectual deduction, but an empirical proposition.” In other
words, our presuppositions and inferential knowledge depend only upon
those innumerable repetitions of events from which we postulate that the
event recurred in the place in question. This sets us the problem of
determining whether the similar cases with which we compare the present
one really are similar and if they are known in sufficiently large
numbers to exclude everything else.
Consider a simple example. Suppose somebody who had traveled all through
Europe, but had never seen or heard of a negro, thought about the
pigmentation of human beings: neither all his thinking nor the
assistance of all possible scientific means can lead him to the
conclusion that there are also black people--that fact he can only
discover, not think out. If he depends only on experience, he must
conclude from the millions of examples he has observed that all human
beings are white. His mistake consists in the fact that the immense
number of people he has seen belong to the inhabitants of a single zone,
and that he has _failed to observe_ the inhabitants of other regions.
In our own cases we need no examples, for I know of no inference which
was not made in the following fashion: “The situation was so in a
hundred cases, it must be so in this case.” We rarely ask whether we
know enough examples, whether they were the correct ones, and whether
they were exhaustive. It will be no mistake to assert that we lawyers do
this more or less consciously on the supposition that we have an immense
collection of suggestive a priori inferences which the human
understanding has brought together for thousands of years, and hence
believe them to be indubitably certain. If we recognize that all these
presuppositions are compounds of experience, and that every experience
may finally show itself to be deceptive and false; if we recognize how
the actual progress of human knowledge consists in the addition of one
hundred new experiences to a thousand old ones, and if we recognize that
many of the new ones contradict the old ones: if we recognize the
consequence that there is no reason for the mathematical deduction from
the first to the hundred-and-first case, we shall make fewer mistakes
and do less harm. In this regard, Hume[135] is very illuminative.
According to Masaryk,[136] the fundamental doctrine of Humian skepticism
is as follows: “If I have had one and the same experience ever so often,
i.e., if I have seen the sun go up 100 times, I expect to see it go up
the 101st time the next day, but I have no guarantee, no certainty, no
evidence for this belief. Experience looks only to the past, not to the
future. How can I then discover the 101st sunrise in the first 100
sunrises? Experience reveals in me the habit to expect similar effects
from similar circumstances, but the intellect has no share in this
expectation.”
All the sciences based on experience are uncertain and without logical
foundation, even though their results, as a whole and in the mass, are
predictable. Only mathematics offers certainty and evidence. Therefore,
according to Hume, sciences based on experience are unsafe because the
recognition of causal connection depends on the facts of experience and
we can attain to certain knowledge of the facts of experience only on
the ground of the evident relation of cause and effect.
This view was first opposed by Reid, who tried to demonstrate that we
have a clear notion of necessary connection. He grants that this notion
is not directly attained either from external or internal experience,
but asserts its clearness and certainty in spite of that fact. Our mind
has the power to make its own concepts and one such concept is that of
necessary connection. Kant goes further and says that Hume failed to
recognize the full consequences of his own analysis, for the notion of
causality is not the only one which the understanding uses to represent
a priori the connection of objects. And hence, Kant defines
psychologically and logically a whole system of similar concepts. His
“Critique of Pure Reason” is intended historically and logically as the
refutation of Hume’s skepticism. It aims to show that not only
metaphysics and natural science have for their basis “synthetic
judgments a priori,” but that mathematics also rests on the same
foundation.
Be that as it may, our task is to discover the application of Hume’s
skepticism to our own problems in some clear example. Let us suppose
that there are a dozen instances of people who grew to be from 120 to
140 years old. These instances occur among countless millions of cases
in which such an age was not reached. If this small proportion is
recognized, it justifies the postulate that nobody on earth may attain
to 150 years. But now it is known that the Englishman Thomas Parr got to
be 152 years old, and his countryman Jenkins was shown, according to the
indubitable proofs of the Royal Society, to be 157 years old at least
(according to his portrait in a copper etching he was 169 years old).
Yet as this is the most that has been scientifically proved I am
justified in saying that nobody can grow to be 200 years old.
Nevertheless because there are people who have attained the age of 180
to 190 years, nobody would care to assert that it is absolutely
impossible to grow so old. The names and histories of these people are
recorded and their existence removes the great reason against this
possibility.
We have to deal, then, only with greater or lesser possibilities and
agree with the Humian idea that under similar conditions frequency of
occurrence implies repetition in the next instance. Contrary evidence
may be derived from several so-called phenomena of alternation. E. g.,
it is a well known fact that a number in the so-called Little Lottery,
which has not been drawn for a long time, is sure finally to be drawn.
If among 90 numbers the number 27 has not turned up for a long time its
appearance becomes more probable with every successive drawing. All the
so-called mathematical combinations of players depend on this
experience, which, generalized, might be held to read: the oftener any
event occurs (as the failure of the number 27 to be drawn) the less is
the probability of its recurrence (i.e., it becomes more probable that
27 will be drawn)--and this seems the contrary of Hume’s proposition.
It may at first be said that the example ought to be put in a different
form, i.e., as follows: If I know that a bag contains marbles, the color
of which I do not know, and if I draw them one by one and always find
the marble I have drawn to be white, the probability that the bag
contains only white ones grows with every new drawing that brings a
white marble to light. If the bag contains 100 marbles and 99 have been
drawn out, nobody would suppose that the last one would be red--for the
repetition of any event increases the probability of its occurrence.
This formulation proves nothing, inasmuch as a different example does
not contradict the one it is intended to substitute. The explanation is
rather as follows: In the first case there is involved the norm of equal
possibilities, and if we apply the Humian principle of increase of
probability through repetition, we find it effective in explaining the
example. We have known until now always that the numbers in the Little
Lottery are drawn equally, and with approximate regularity,--i.e., none
of the single numbers is drawn for a disproportionately long time. And
as this fact is invariable, we may suppose that every individual number
would appear with comparative regularity. But this explanation is in
accord with Hume’s doctrine.
The doctrine clarifies even astonishing statistical miracles. We know,
e.g., that every year there come together in a certain region a large
number of suicides, fractures of arms and legs, assaults, unaddressed
letters, etc. When, now, we discover that the number of suicides in a
certain semester is significantly less than the number in the same
semester of another year, we will postulate that in the next half-year a
comparatively larger number of suicides will take place so that the
number for the whole year will become approximately equal. Suppose we
say: “There were in the months of January, February, March, April, May
and June an average of x cases. Because we have observed the average to
happen six times, we conclude that it will not happen in the other
months but that instead, x+y cases will occur in those months, since
otherwise the average annual count will not be attained.” This would be
a mistaken abstraction of the principle of equal distribution from the
general Humian law, for the Humian law applied to this case indicates:
“For a long series of years we have observed that in this region there
occur annually so and so many suicides; we conclude therefore that in
this year also there will occur a similar number of suicides.”
The principle of equal distribution presents itself therefore as a
subordinate rule which must not be separated from the principal law. It
is, indeed, valid for the simplest events. When I resolve to walk in x
street, which I know well, and when I recall whether to-day is Sunday or
a week day, what time it is and what the weather is like, I know quite
accurately how the street will look with regard to the people that may
be met there, although a large number of these people have chosen the
time accidentally and might as well have passed through another street.
If, for once, there were more people in the street, I should immediately
ask myself what unusual event had taken place.
One of my cousins who had a good deal of free time to dispose of, spent
it for several months, with the assistance of his comrade, in counting
the number of horses that passed daily, in the course of two hours, by a
café they frequented. The conscientious and controlled count indicated
that every day there came one bay horse to every four. If then, on any
given day, an incommensurably large number of brown, black, and tawny
horses came in the course of the first hour, the counters were forced to
infer that in the next 60 minutes horses of a different color must come
and that a greater number of bays must appear in order to restore the
disturbed equilibrium. Such an inference is not contradictory to the
Humian proposition. At the end of a series of examinations the counters
were compelled to say, “Through so many days we have counted one bay to
every four horses; we must therefore suppose that a similar relationship
will be maintained the next day.”
So, the lawyer, too, must suppose, although we lawyers have nothing to
do with figures, that he knows nothing a priori, and must construct his
inferences entirely from experience. And hence we must agree that our
premises for such inferences are uncertain, and often subject to
revision, and often likely, in their application to new facts, to lead
to serious mistakes, particularly if the number of experiences from
which the next moment is deduced, are too few; or if an unknown, but
very important condition is omitted.
These facts must carefully be kept in mind with reference to the
testimony of experts. Without showing ourselves suspicious, or desirous
of confusing the professional in his own work, we must consider that the
progress of knowledge consists in the collection of instances, and
anything that might have been normal in 100 cases, need not in any sense
be so when 1000 cases are in question. Yesterday the norm may have been
subject to no exception; to-day exceptions are noted; and to-morrow the
exception has become the rule.
Hence, rules which have no exceptions grow progressively rarer, and
wherever a single exception is discovered the rule can no longer be held
as normative. Thus, before New Holland was discovered, all swans were
supposed to be white, all mammals incapable of laying eggs; now we know
that there are black swans and that the duck-bill lays eggs. Who would
have dared to assert before the discovery of the X-ray that light can
penetrate wood, and who, especially, has dared to make generalizations
with regard to the great inventions of our time which were not
afterwards contradicted by the facts? It may be that the time is not too
far away in which great, tenable and unexceptionable principles may be
posited, but the present tendency is to beware of generalizations, even
so far as to regard it a sign of scientific insight when the composition
of generally valid propositions is made with great caution. In this
regard the great physicians of our time are excellent examples. They
hold: “whether the phenomenon A is caused by B we do not know, but
nobody has ever yet seen a case of A in which the precedence of B could
not be demonstrated.” Our experts should take the same attitude in most
cases. It might be more uncomfortable for us, but certainly will be
safer; for if they do not take that attitude we are in duty bound to
presuppose in our conclusions that they have taken it. Only in this
wise, by protecting ourselves against apparently exceptionless general
rules, can our work be safely carried on.
This becomes especially our duty where, believing ourselves to have
discovered some generally valid rule, we are compelled to draw
conclusions without the assistance of experts. How often have we
depended upon our understanding and our “correct” a priori method of
inference, where that was only experience,--and such poor experience! We
lawyers have not yet brought our science so far as to be able to make
use of the experience of our comrades with material they have reviewed
and defined in writing. We have bothered a great deal about the
exposition of some legal difficulty, the definition of some judicial
concept, but we have received little instruction or tradition concerning
mankind and its passions. Hence, each one has to depend on his own
experience, and that is supposed to be considerable if it has a score
of years to its back, and is somewhat supplemented by the experience, of
others. In this regard there are no indubitable rules; everybody must
tell himself, “I have perhaps never experienced this fact, but it may be
that a thousand other people have seen it, and seen it in a thousand
different ways. How then, and whence, my right to exclude every
exception?”
We must never forget that every rule is shattered whenever any single
element of the situation is unknown, and that happens very easily and
frequently. Suppose that I did not have full knowledge of the nature of
water, and walked on terra firma to the edge of some quiet, calm pool.
When now I presume: water has a body, it has a definite density, it has
consistency, weight, etc., I will also presume that I may go on walking
over its surface just as over the surface of the earth,--and that,
simply because I am ignorant of its fluidity and its specific gravity.
Liebman[137] summarizes the situation as follows. The causal nexus, the
existential and objective relation between lightning and thunder, the
firing of powder and the explosion, are altogether different from the
logical nexus, i.e. the mere conceptual connection between antecedent
and consequent in deduction. This constitutes the well known kernel of
Humian skepticism. We must keep in mind clearly that we never can know
with certainty whether we are in possession of all the determining
factors of a phenomenon, and hence we must adhere to the only
unexceptionable rule: _Be careful about making rules that admit of no
exceptions_. There is still another objection to discuss, i.e. the
mathematical exception to Humian skepticism. It might be held that
inasmuch as the science of justice is closely related in many ways to
mathematics, it may permit of propositions a priori. Leibnitz already
had said, “The mathematicians count with numbers, the lawyers with
ideas,--fundamentally both do the same thing.” If the relationship were
really so close, general skepticism about phenomenal sciences could not
be applied to the legal disciplines. But we nowadays deal not with
concepts merely, and in spite of all obstruction, Leibnitz’s time has
passed and the realities of our profession, indeed its most important
object, the human being itself, constitute an integrating part of our
studies. And the question may be still further raised whether
mathematics is really so exempt from skepticism. The work of Gauss,
Lobatschewski, Bolyai, Lambert, would make the answer negative.
Let us, for once, consider what significance mathematical postulates
have. When Pythagoras discovered his proposition in such a way that he
first drew a right-angled triangle and then built a square on each of
the sides, and finally measured the area of each and compared them, he
must at first have got the notion that that also might be merely
accidental. If he had made the construction 10 or 100 times with various
triangles and these had resulted always identically, only then might he
have been justified in saying that he had apparently discovered a
theorem. But then his process was just as thoroughly experiential as
that of a scientist who says that a bird has never yet been observed to
give birth to living young, and that hence all birds lay eggs.
But Pythagoras did not proceed in this experiential manner in the
discovery of his theorem. He constructed and he counted, and when he did
that he acted on postulates: “If this is a right-angled triangle and if
that be a square, so,”--and this is just what is done in every science.
The general propositions are, “If the relations remain the same as
formerly the moon must rise to-morrow at such and such a time.” “If this
step in a deduction is not false, if it is well grounded at this point,
if it really refers to x, it follows....” In his procedures the
criminalist does exactly the same thing. What he must be skeptical about
is the postulates from which he starts.
Section 26. (d) The Empirical Method in the Study of Cases.
Properly to bound our discussion of Humian skepticism, a few words have
to be said concerning the empirical method of the sciences. We will call
those laws purely empirical which, in the study of nature, yield
regularities that are demonstrated by observation and experiment, but
upon which little or no reliance is placed with regard to cases which
differ considerably from the observed. The latter is done because no
reason is seen for the existence of such laws. The empirical rule is,
therefore, no final law, but is capable of explaining, especially when
true, e.g., the succession of a certain condition of weather from
certain meteorological signs, the improvement of species through
crossing, the fact that some alloys are harder than their components,
and so on. Or, to choose examples from our own field, jurisprudence may
assert as empirical law that a murderer is a criminal who has gone
unpunished for his earlier crimes; that all gamblers show such
significant resemblances; that the criminal who has soiled his hands
with blood in some violent crime was accustomed to wipe them on the
underside of a table; that the slyest person generally perpetrates some
gross stupidity after committing a serious crime, and so renders
discovery simpler; that lust and cruelty have a certain relation; that
superstition plays a great rôle in crime, etc.
It is of exceeding importance to establish such purely empiric laws in
our science, which has done little with such matters because, owing to
scanty research into most of them, we need these laws. We know
approximately that this and that have come to light so and so often, but
we have not reduced to order and studied systematically the cases before
us, and we dare not call this knowledge natural law because we have
subjected it to no inductive procedure. “The reference of any fact
discovered by experience to general laws or rules we call induction. It
embraces both observation and deduction.” Again, it may be defined as
“the generalization or universalization of our experiences; and
inference that a phenomenon occurring x times will invariably occur when
the essential circumstances remain identical. The earliest investigators
started with the simplest inductions,--that fire burns, that water flows
downward,--so that new, simple truths were continually discovered. This
is the type of scientific induction and it requires further, the
addition of certainty and accuracy.”[138]
The foregoing might have been written expressly for us lawyers, but we
have to bear in mind that we have not proceeded in our own
generalizations beyond “fire burns, water flows downward.” And such
propositions we have only derived from other disciplines. Those derived
from our own are very few indeed, and to get more we have very far to
go. Moreover, the laws of experience are in no way so certain as they
are supposed to be, even when mathematically conceived. The empirical
law is established that the sum of the three angles of a triangle is
equal to two right angles. And yet nobody, ever since the science of
surveying has been invented, has succeeded in discovering 180 degrees in
any triangle. Now then, when even such things, supposed ever since our
youth to be valid, are not at all true, or true theoretically only, how
much more careful must we be in making inferences from much less certain
rules, even though we have succeeded in using them before in many
analogous cases? The activity of a criminalist is of far too short
duration to permit him to experience any more than a very small portion
of the possibilities of life, and suggestions from foreign sources are
very rare. The situation is different in other disciplines. “Our
experience,” says James Sully,[139] “enables us to express a number of
additional convictions. We can predict political changes and scientific
developments, and can conceive of the geographical conditions at the
north pole.” Other disciplines are justified to assert such additional
propositions, but is ours? A man may have dealt for years with thieves
and swindlers, but is he justified in deducing from the inductions made
in his experience, the situation of the first murderer he deals with? Is
he right in translating things learned by dealing with educated people
to cases where only peasants appear? In all these cases what is needed
in making deductions is great caution and continual reminder to be very
careful, for our work here still lacks the proper material. In addition
we have to bear in mind that induction is intimately related to analogy.
According to Lipps[140] the ground of one is the ground of the other;
they both rest on the same foundation. “If I am still in doubt whether
the fact on which a moment ago I depended as the sufficient condition
for a judgment may still be so regarded, the induction is uncertain. It
is unjustified when I take for sufficiently valid something that as a
matter of fact ought not to be so taken.” If we bear in mind how much we
are warned against the use of analogy, how it is expressly excluded in
the application of certain criminal laws, and how dangerous the use of
every analogy is, we must be convinced that the use for our cases of
both induction and analogy, is always menace. We have at the same time
to bear in mind how much use we actually make of both; even our general
rules--e.g., concerning false testimony,--bias, revertibility, special
inclinations, etc.--and our doctrines concerning the composition and
indirection of testimony, even our rules concerning the value of
witnesses and confessions, all these depend upon induction and analogy.
We pass by their use in every trial from case to case. A means so
frequently and universally used must, however, be altogether reliable,
or be handled with the greatest care. As it is not the first it must be
handled in the second way.
We have yet to indicate the various ways in which induction may be used.
Fick has already called attention to the astounding question concluding
Mill’s system of logic: Why, in many cases, is a single example
sufficient to complete induction, while in other cases myriads of
unanimous instances admitting of no single known or suspected exception,
make only a small step toward the establishment of a generally valid
judgment?
This question is of enormous significance in criminal cases because it
is not easy to determine in any particular trial whether we have to deal
with a situation of the first sort where a single example is evidential,
or a situation of the second sort where a great many examples fail to be
evidential. On this difficulty great mistakes depend, particularly
mistakes of substitution of the first for the second. We are satisfied
in such cases with a few examples and suppose ourselves to have proved
the case although nothing whatever has been established.
We must see first of all if it is of any use to refer the difficulty of
the matter to the form in which the question is put, and to say: The
difficulty results from the question itself. If it be asked, “Are any of
the thousand marbles in the bag white marbles?” the question is
determined by the first handful, if the latter brings to light a single
white marble. If, however, the problem is phrased so: Does the bag
contain white marbles _only_? then, although 999 marbles might already
have been drawn from the receptacle, it can not be determined that the
last marble of the 1000 is white. In the same way, if people assert that
the form of the question determines the answer, it does not follow that
the form of the question is itself determined or distinguished inasmuch
as the object belongs to the first or the second of the above named
categories.
A safe method of distinction consists in calling the first form of the
question positive and the second negative. The positive refers to a
single unit; the negative to a boundless unit. If then I ask: Are there
any white marbles whatever in the bag? the answer is rendered
affirmative by the discovery of a single white marble. But if the
question is phrased: Are there _only_ white marbles in the bag? merely
its form is positive but its intent is negative. To conform the manner
of the question to its intent, it would be necessary to ask: Are there
no other colors than white among the marbles in the bag? And inasmuch as
the negative under given circumstances is in many ways boundless, the
question admits of no answer until the last marble has been brought to
light. If the total number of marbles is unlimited the question can
receive no complete inductive answer in mathematical form; it can be
solved only approximately. So again, if one asks: Are there any purely
blue birds? the answer is affirmative as soon as a single completely
blue bird is brought to light. But if the question is: Do not also
striped birds exist? no answer is possible until the very last bird on
earth is exhibited. In that way only could the possibility be excluded
that not one of the terrestrial fowls is striped. As a matter of fact we
are satisfied with a much less complete induction. So we say: Almost the
whole earth has been covered by naturalists and not one of them reports
having observed a striped bird; hence there would be none such even in
the unexplored parts of the earth. This is an inductive inference and
its justification is quite another question.
The above mentioned distinction may be made still clearer if instead of
looking back to the form of the question, we study only the answer. We
have then to say that positive statements are justified by the existence
of a single instance, negative assertions only by the complete
enumeration of all possible instances and never at all if the instances
be boundless. That the negative proof always requires a series of
demonstrations is well known; the one thing which may be firmly believed
is the fact that the problem, whether a single example is sufficient, or
a million are insufficient, is only a form of the problem of affirmative
and negative assertions.
So then, if I ask: Has A ever stolen anything? it is enough to record
one judgment against him, or to bring one witness on the matter in order
to establish that A committed theft at least once in his life. If,
however, it is to be proved that the man has never committed a theft,
his whole life must be reviewed point by point, and it must be shown
that at no instant of it did he commit larceny. In such cases we are
content with much less. We say first of all: We will not inquire whether
the man has never stolen. We will see merely whether he was never
punished for theft. But here, too, we must beware and not commit
ourselves to inquiring of all the authorities in the world, but only of
a single authority, who, we assume, ought to know whether A was punished
or not. If we go still further, we say that inasmuch as we have not
heard from any authorities that the man was ever punished for stealing,
we suppose that the man was never punished on that ground; and inasmuch
as we have not examined anybody who had seen A steal, we preferably
suppose that he has never stolen. This is what we call satisfactory
evidence, and with the poor means at our disposal it must suffice.
In most cases we have to deal with mixed evidence, and frequently it has
become habitual to change the problem to be solved according to our
convenience, or at least to set aside some one thing. Suppose that the
issue deals with a discovered, well-retained footprint of a man. We then
suspect somebody and compare the sole of his shoe with the impression.
They fit in length and width, in the number of nails and in all the
other possible indices, and we therefore assert: It is the footprint of
the suspect, for “whose footprint?” is the problem we are troubling
ourselves to solve. In truth we have only shown that the particular
relations, in the matter of length, breadth, number of nails, etc.,
agree, and hence we regard the positive part of the evidence as
sufficient and neglect the whole troublesome negative part, which might
establish the fact that at the time and in the region in question,
nobody was or could be whose foot could accurately fit that particular
footprint. Therefore we have not proved but have only calculated the
probability that at the time there might possibly not have been another
person with a shoe of similar length, breadth and number of nails. The
probability becomes naturally less as fewer details come to hand. The
difficulty lies in finding where such probability, which stands for at
least an assumption, must no longer be considered. Suppose, now, that
neither shoe-nails nor patches, nor other clear clews can be proved and
only length and width agree. If the agreement of the clews were really a
substantiation of the proof by evidence, it would have to suffice as
positive evidence; but as has been explained, the thing proved is not
the point at issue, but another point.
The negative portion of the evidence will naturally be developed with
less accuracy. The proof is limited to the assertion that such shoes as
were indicated in the evidence were very rarely or never worn in that
region, also that no native could have been present, that the form of
the nails allowed inference of somebody from foreign regions, one of
which might be the home of the suspect, etc. Such an examination shows
that what we call evidence is only probability or possibility.
Another form which seems to contradict the assertion that negative
propositions are infinite is positive evidence in the shape of negation.
If we give an expert a stain to examine and ask him whether it is a
blood stain, and he tells us: “It is not a blood stain,” then this
single scientifically established assertion proves that we do not have
to deal with blood, and hence “negative” proof seems brought in a single
instance. But as a matter of fact we deal here with an actually positive
proof, for the expert has given us the deduced proposition, not the
essential assertion. He has found the stain to be a rust stain or a
tobacco stain, and hence he may assert and deduce that it is not blood.
Even were he a skeptic, he would say, “We have not yet seen the blood of
a mammal in which the characteristic signs for recognition were not
present, and we have never yet recognized a body without the blood
pertaining to it, and hence we may say, we are not dealing with blood
because all of us found the characteristics of the stain to be what we
have been until now accustomed to call the characteristics of rust
stain.”
We have still to touch upon the difference between logical connection
and experience. If I say, “This mineral tastes salty, therefore it is
soluble in water,” the inference depends upon logical relationships, for
my intent is: “If I perceive a salty taste, it has to be brought to the
nerves of taste, which can be done only by the combination of the
mineral with the saliva, hence by its solution in the saliva. But if it
is soluble in saliva it must also be soluble in water.” If I say on the
other hand, “This mineral tastes salty, has a hardness of 2, a specific
gravity of 2.2, and consequently it crystallizes hexagonally,”--this
statement depends on experience, for what I really say is: “I know first
of all, that a mineral which has the qualities mentioned must be rock
salt; for at the least, we know of no mineral which has these qualities
and is not rock salt, and which in the second place crystallizes
hexagonally as rock salt does,--a way which, at least, we find rock salt
never to have missed.” If we examine the matter still more closely we
become convinced that in the first case only the formal and logical
side, in the second the experiential aspect predominates. The premises
of both cases are purely matters of experience and the formal question
of inference is a matter of logic. Only,--at one time the first
question, at another the second comes more obviously into the
foreground. Although this matter appears self-evident it is not
indifferent. It is well known that whenever we are powerfully influenced
by one thing, things of little intensity are either not experienced at
all or only to a very small degree, and are therefore neglected. This is
a fact which may indeed be shown mathematically, for infinity plus one
equals infinity. When, therefore, we undergo great pain or great joy,
any accompanying insignificant pain or any pleasure will be barely felt,
just as the horses who drag a very heavy wagon will not notice whether
the driver walking beside them adds his coat to the load (cf. Weber’s
law). Hence, when we criminalists study a difficult case with regard to
the question of proof, there are two things to do in order to test the
premises for correctness according to the standards of our other
experiences, and to draw logically correct inferences from these
premises. If it happens that there are especial difficulties in one
direction while by some chance those in the other are easily removed, it
becomes surprising how often the latter are entirely ignored. And hence,
the adjustment of inferences is naturally false even when the great
difficulties of the first type are removed correctly. Therefore, if the
establishment of a fact costs a good deal of pains and means the
expenditure of much time, the business of logical connection appears so
comparatively easy that it is made swiftly and--wrongly.
Mistakes become, at least according to my experience, still more
frequent when the difficulty is logical and not empirical. As a matter
of honesty, let me say that we criminalists are not trained logicians,
however necessary it is that we shall be such, and most of us are
satisfied with the barren remainder of what we learned long ago in the
Gymnasium and have since forgotten. The difficulties which occur in the
more important logical tasks are intelligible when compared with the
lesser difficulties; and when one of these larger problems is by good
fortune rightly solved, the effort and the work required by the solution
make it easy to forget asking whether the premises are correct; they are
assumed as self-evident. Hence, in the review of the basis for judgment,
it is often discovered that the logical task has been performed with
care, with the expenditure of much time, etc., only to be based upon
some apparently unessential presupposition which contradicts all
experience and is hence materially incorrect. Consequence,--the
inference is wrong since the premise was wrong, and the whole work has
gone for nothing. Such occurrences convince one that no judge would have
been guilty of them if the few difficulties concerning the fact in
question were not, because treated in the light of the effort required
by the logical work, quite neglected. Nor does this occur unconsciously,
or as a consequence of a sort of lapse of memory concerning the meaning
or the importance of an empirical problem, it also happens at least half
consciously by way of a characteristic psychic process which everybody
may identify in his own experience: i.e., the idea occurs, in some
degree subconsciously, that the overgreatness of the work done in one
direction ought to be corrected by the inadequacy of the work done in
the other direction. And this happens in lawyer’s work often, and being
frequently justifiable, becomes habitual. If I, for example, have
examined ten unanimous witnesses concerning the same event and have
completely demonstrated the status of the case, I ought, in examining
the last two witnesses, who are perhaps no longer needed but have been
summoned and appear, certainly to proceed in a rapid manner. This
justifiable neglect is then half unconsciously transferred to other
procedures where there is possible no equalization of the hypertrophy of
work in one direction with the dwarfing of it in another, and where the
mistake causes the result to be wrong. However I may have been bothered
by the multiplication of ten groups of factors and whatever accuracy I
may have applied to a task can not permit me to relax my attention in
the addition of the individual results. If I do I am likely to commit an
error and the error renders all the previous labor worthless.
Indeed, it may be asserted that all logic is futile where the premises
or a single premise may be wrong. I expect, in truth, that the
procedures here described will be doubted to be even possible, but
doubters are recommended to examine a few cases for the presence of this
sort of thing.
Section 27. (e) Analogy.
Analogy is the least negligible of all methods of induction because it
rests at bottom on the postulate that one thing which has a number of
qualities in common with another will agree with that other in one or
more _additional_ qualities. In cases of analogy, identity is never
asserted; indeed, it is excluded, while a certain parallelism and
agreement in specific points are assumed, i.e., introduced tacitly as a
mutatis mutandis. Consider Lipps’s examples. He calls analogy the
transfer of judgment or the transition from similar to similar, and he
adds that the value of such a process is very variable. If I have
perceived x times that flowers of a certain color have perfume, I am
inclined to expect perfume from flowers of the same color in x+1 cases.
If I have observed x times that clouds of a certain structure are
followed by rain I shall expect rain in the x+1st case. The first
analogy is worthless because there is no relation between color and
perfume; the second is of great value because such a relation does exist
between rain and clouds.
Simply stated, the difference between these two examples does not
consist in the existence of a relationship in the one case and the
absence of a relationship in the other; it consists in the fact that in
the case of the flowers the relationship occurs now and then but is not
permanently knowable. It is possible that there is a natural law
controlling the relation between color and odor, and if that law were
known there would be no question of accident or of analogy, but of law.
Our ignorance of such a law, in spite of the multiplicity of instances,
lies in the fact that we are concerned only with the converse
relationships and not with the common cause of perfume and color.
Suppose I see on the street a large number of people with winter
over-coats and a large number of people with skates in their hands, I
would hardly ask whether the coats are conditioned or brought out by the
skates or the skates by the coats. If I do not conclude that the cold
weather is the condition both of the need of over-coats and the utility
of skates, I will suppose that there is some unintelligible reflexive
relation between over-coats and skates. If I observe that on a certain
day every week there regularly appear many well-dressed people and no
workingmen on the street, if I am ignorant of the fact that Sunday is
the cause of the appearance of the one and the disappearance of the
other, I shall try in vain to find out how it happens that the working
people are crowded out by the well-dressed ones or conversely.
The danger of analogy lies in the fact that we prefer naturally to
depend on something already known, and that the preference is the
greater in proportion to our feeling of the strangeness and ominousness
of the particular intellectual or natural regions in which we find
ourselves. I have already once demonstrated[141] how disquieting it is
to notice, during the examination of the jury, that the jurymen who ask
questions try to find some relation to their own trades even though this
requires great effort, and seek to bring the case they are asking about
under the light of their particular profession. So, however irrelevant
the statement of a witness may be, the merchant juryman will use it to
explain Saldo-Conti, the carpenter juryman to explain carpentry, the
agriculturist to notice the farming of cattle, and then having set the
problem in his own field construct the most daring analogies, for use in
determining the guilt of the accused. And we lawyers are no better. The
more difficult and newer a case is the more are we inclined to seek
analogies. We want supports, for we do not find firm natural laws, and
in our fear we reach out after analogies, not of course in law, because
that is not permitted, but certainly in matters of fact. Witness X has
given difficult testimony in a certain case. We seek an analogy in
witness Y of an older case, and we observe the present issue thus
analogically, without the least justification. We have never yet seen
drops of blood on colored carpets, yet we believe in applying our
experience of blood stains on clothes and boots analogically. We have
before us a perfectly novel deed rising from perverted sexual
impulse--and we presuppose that the accused is to be treated altogether
analogously to another in a different case, although indeed the whole
event was different.
Moreover the procedure, where the analogy is justified, is complex.
“With insight,” says Trendelenburg, “did the ancients regard analogy as
important. The power of analogy lies in the construction and induction
of a general term which binds the subconcept with regard to which a
conclusion is desired, together with the individual object which is
compared with the first, and which is to appear as a mediating concept
but can not. This new general term is not, however, the highest concept
among the three termini of the conclusion; it is the middle one and is
nothing else than the terminus medius of the first figure.” This clear
statement shows not only how circumstantial every conclusion from
analogy is, but also how little it achieves. There is hardly any doubt
of the well-known fact that science has much to thank analogy for, since
analogy is the simplest and easiest means for progress in thought. If
anything is established in any one direction but progress is desired in
another, then the attempt is made to adapt what is known to the
proximate unknown and to draw the possible inference by analogy.
Thousands upon thousands of analogies have been attempted and have
failed,--but no matter; one successful one became a hypothesis and
finally an important natural law. In our work, however, the case is
altogether different, for we are not concerned with the construction of
hypotheses, we are concerned with the discovering of truth, or with the
recognition that it cannot be discovered.
The only place where our problems permit of the use of analogy is in the
making of so-called constructions, i.e., when we aim to clarify or to
begin the explanation of a case which is at present unintelligible, by
making some assumption. The construction then proceeds in analogy to
some already well known earlier case. We say: “Suppose the case to have
been so and so,” and then we begin to test the assumption by applying it
to the material before us, eliminating and constructing progressively
until we get a consistent result. There is no doubt that success is
frequently attained in this way and that it is often the only way in
which a work may be begun. At the same time, it must be recognized how
dangerous this is, for in the eagerness of the work it is easy to forget
that so far, one is working only according to analogy by means of an
assumption still to be proved. This assumption is in such cases
suddenly considered as something already proved and is counted as such
with the consequence that the result must be false. If you add the
variability in value of analogy, a variability not often immediately
recognized, the case becomes still worse. We have never been on the
moon, have therefore apparently no right to judge the conditions
there--and still we know--only by way of analogy--that if we jumped into
the air there we should fall back to the ground. But still further: we
conclude again, by analogy, that there are intelligent beings on Mars;
if, however, we were to say how these people might look, whether like us
or like cubes or like threads, whether they are as large as bees or ten
elephants, we should have to give up because we have not the slightest
basis for analogy.
In the last analysis, analogy depends upon the recurrence of similar
conditions. Therefore we tacitly assume when we judge by analogy that
the similarity of conditions contains an equivalence of ultimately valid
circumstance. The certainty of analogy is as great as the certainty of
this postulate, and its right as great as the right of this postulate.
If, then, the postulate is little certain, we have gained nothing and
reach out into the dark; if its certainty is great we no longer have an
analogy, we have a natural law. Hence, Whately uses the term analogy as
an expression for the similarity of relation, and in this regard the use
of analogy for our real work has no special significance. Concerning
so-called false analogies and their importance cf. J. Schiel’s Die
Methode der induktiven Forschung (Braunschweig 1865]).
Section 28. (f) Probability.
Inasmuch as the work of the criminal judge depends upon the proof of
evidence, it is conceivable that the thing for him most important is
that which has evidential character or force.[142] A sufficient
definition of evidence or proof does not exist because no bounds have
been set to the meaning of “Proved.” All disciplines furnish examples of
the fact that things for a long time had probable validity, later
indubitable validity; that again some things were considered proved and
were later shown to be incorrect, and that many things at one time
wobbly are in various places, and even among particular persons,
supposed to be at the limits of probability and proof. Especially
remarkable is the fact that the concept of _the proved_ is very various
in various sciences, and it would be absorbing to establish the
difference between what is called proved and what only probable in a
number of given examples by the mathematician, the physicist, the
chemist, the physician, the naturalist, the philologist, the historian,
the philosopher, the lawyer, the theologian, etc. But this is no task
for us and nobody is called upon to determine who knows what “Proved”
means. It is enough to observe that the differences are great and to
understand why we criminalists have such various answers to the
question: Is this proved or only probable? The varieties may be easily
divided into groups according to the mathematical, philosophic,
historical or naturalistic inclinations of the answerer. Indeed, if the
individual is known, what he means by “proved” can be determined
beforehand. Only those minds that have no especial information remain
confused in this regard, both to others, and to themselves.
Sharply to define the notion of “proved” would require at least to
establish its relation to usage and to say: What we desire leads us to
an _assumption_, what is possible gives us _probability_, what appears
certain, we call _proved_. In this regard the second is always, in some
degree, the standard for the first (desires, e.g., cause us to act; one
becomes predominant and is fixed as an assumption which later on becomes
clothed with a certain amount of reliability by means of this fixation).
The first two fixations, the assumption and the probability, have in
contrast to their position among other sciences only a heuristic
interest to us criminalists. Even assumptions, when they become
hypotheses, have in various disciplines a various value, and the
greatest lucidity and the best work occur mainly in the quarrel about an
acutely constructed hypothesis.
_Probability_ has a similar position in the sciences. The scholar who
has discovered a new thought, a new order, explanation or solution,
etc., will find it indifferent whether he has made it only highly
probable or certain. He is concerned only with the idea, and a scholar
who is dealing with the idea for its own sake will perhaps prefer to
bring it to a great probability rather than to indubitable certainty,
for where conclusive proof is presented there is no longer much interest
in further research, while probability permits and requires further
study. But our aim is certainty and proof only, and even a high degree
of probability is no better than untruth and can not count. In passing
judgment and for the purpose of judgment a high degree of probability
can have only corroborative weight, and then it is probability only when
taken in itself, and proof when taken with regard to the thing it
corroborates. If, for example, it is most probable that X was recognized
at the place of a crime, and if at the same time his evidence of alibi
has failed, his footmarks are corroborative; so are the stolen goods
which have been seen in his possession, and something he had lost at the
place of the crime which is recognized as his property, etc. In short,
when all these indices are in themselves established only as highly
probable, they give under certain circumstances, when taken together,
complete certainty, because the coincidence of so many high
probabilities must be declared impossible if X were not the criminal.
In all other cases, as we have already pointed out, _assumption_ and
probability have only a heuristic value for us lawyers. With the
assumption, we must of course count; many cases can not be begun without
the assistance of assumption. Every only half-confused case, the process
of which is unknown, requires first of all and as early as possible the
application of some assumption to its material. As soon as the account
is inconsistent the assumption must be abandoned and a fresh one and yet
again a fresh one assumed, until finally one holds its own and may be
established as probable. It then remains the center of operation, until
it becomes of itself a proof or, as we have explained, until so many
high probabilities in various directions have been gathered, that, taken
in their order, they serve evidentially. A very high degree of
probability is sufficient in making complaints; but sentencing requires
“certainty,” and in most cases the struggle between the prosecution and
the defense, and the doubt of the judge, turns upon the question of
probability as against proof.[143]
That probability is in this way and in a number of relations, of great
value to the criminalist can not appear doubtful. Mittermaier defines
its significance briefly: “Probability naturally can never lead to
sentence. It is, however, important as a guide for the conduct of the
examiner, as authorizing him to take certain measures; it shows how to
attach certain legal processes in various directions.”
Suppose that we review the history of the development of the theory of
probability. The first to have attempted a sharp distinction between
demonstrable and probable knowledge was Locke. Leibnitz was the first to
recognize the importance of the theory of probability for inductive
logic. He was succeeded by the mathematician Bernoulli and the
revolutionist Condorcet. The theory in its modern form was studied by
Laplace, Quetelet, Herschel, von Kirchmann, J. von Kries, Venn, Cournot,
Fick, von Bortkiewicz, etc. The concept that is called probability
varies with different authorities. Locke[144] divides all fundamentals
into demonstrative and probable. According to this classification it is
probable that “all men are mortal,” and that “the sun will rise
to-morrow.” But to be consistent with ordinary speech the fundamentals
must be classified as evidence, certainties, and probabilities. By
certainties I understand such fundamentals as are supported by
experience and leave no room for doubt or consideration--everything
else, especially as it permits of further proof, is more or less
probable.
Laplace[145] spoke move definitely--“Probability depends in part on our
ignorance, in part on our knowledge....
“The theory of probability consists in the reduction of doubts of the
same class of a definite number of equally possible cases in such a way
that we are equally undetermined with regard to their existence, and it
further consists in the determination of the number of those cases which
are favorable to the result the probability of which is sought. The
relation of this number to the number of all possible cases is the
measure of the probability. It is therefore a fraction the numerator of
which is derived from the number of cases favorable to the result and
the denominator from the number of all possible cases.” Laplace,
therefore, with J. S. Mill, takes probability to be a low degree of
certainty, while Venn[146] gives it an objective support like truth. The
last view has a great deal of plausibility inasmuch as there is
considerable doubt whether an appearance is to be taken as certain or as
only probable. If this question is explained, the assertor of certainty
has assumed some objective foundation which is indubitable at least
subjectively. Fick represents the establishment of probability as a
fraction as follows: “The probability of an incompletely expressed
hypothetical judgment is a real fraction proved as a part of the whole
universe of conditions upon which the realization of the required result
necessarily depends.
“According to this it is hardly proper to speak of the probability of
any result. Every individual event is either absolutely necessary or
impossible. The probability is a quality which can pertain only to a
hypothetical judgment.”[147]
That it is improper to speak of the probability of a result admits of no
doubt, nor will anybody assert that the circumstance of to-morrow’s rain
is in itself probable or improbable--the form of expression is only a
matter of usage. It is, however, necessary to distinguish between
conditioned and unconditioned probability. If I to-day consider the
conditions which are attached to the ensuing change of weather, if I
study the temperature, the barometer, the cloud formation, the amount of
sunlight, etc., as conditions which are related to to-morrow’s weather
as its forerunners, then I must say that to-morrow’s rain is probable to
such or such a degree. And the correctness of my statement depends upon
whether I know the conditions under which rain must appear, more or less
accurately and completely, and whether I relate those conditions
properly. With regard to unconditioned probabilities which have nothing
to do with the conditions of to-day’s weather as affecting to-morrow’s,
but are simply observations statistically made concerning the number of
rainy days, the case is quite different. The distinction between these
two cases is of importance to the criminalist because the substitution
of one for the other, or the confusion of one with the other, will cause
him to confuse and falsely to interpret the probability before him.
Suppose, e.g., that a murder has happened in Vienna, and suppose that I
declare immediately after the crime and in full knowledge of the facts,
that according to the facts, i.e., according to the conditions which
lead to the discovery of the criminal, there is such and such a degree
of probability for this discovery. Such a declaration means that I have
calculated a conditioned probability. Suppose that on the other hand, I
declare that of the murders occurring in Vienna in the course of ten
years, so and so many are unexplained with regard to the personality of
the criminal, so and so many were explained within such and such a
time,--and consequently the probability of a discovery in the case
before us is so and so great. In the latter case I have spoken of
unconditioned probability. Unconditioned probability may be studied by
itself and the event compared with it, but it must never be counted on,
for the positive cases have already been reckoned with in the
unconditioned percentage, and therefore should not be counted another
time. Naturally, in practice, neither form of probability is frequently
calculated in figures; only an approximate interpretation of both is
made. Suppose that I hear of a certain crime and the fact that a
footprint has been found. If without knowing further details, I cry out:
“Oh! Footprints bring little to light!” I have thereby asserted that the
statistical verdict in such cases shows an unfavorable percentage of
unconditional probability with regard to positive results. But suppose
that I have examined the footprint and have tested it with regard to the
other circumstances, and then declared: “Under the conditions before us
it is to be expected that the footprint will lead to results”--then I
have declared, “According to the conditions the conditioned probability
of a positive result is great.” Both assertions may be correct, but it
would be false to unite them and to say, “The conditions for results are
very favorable in the case before us, but generally hardly anything is
gained by means of footprints, and hence the probability in this case is
small.” This would be false because the few favorable results as against
the many unfavorable ones have already been considered, and have already
determined the percentage, so that they should not again be used.
Such mistakes are made particularly when determining the complicity of
the accused. Suppose we say that the manner of the crime makes it highly
probable that the criminal should be a skilful, frequently-punished
thief, i.e., our probability is conditioned. Now we proceed to
unconditioned probability by saying: “It is a well-known fact that
frequently-punished thieves often steal again, and we have therefore two
reasons for the assumption that X, of whom both circumstances are true,
was the criminal.” But as a matter of fact we are dealing with only one
identical probability which has merely been counted in two ways. Such
inferences are not altogether dangerous because their incorrectness is
open to view; but where they are more concealed great harm may be done
in this way.
A further subdivision of probability is made by Kirchmann.[148] He
distinguished:
(1) General probability, which depends upon the causes or consequences
of some single uncertain result, and derives its character from them. An
example of the dependence on causes is the collective weather prophecy,
and of dependence on consequences is Aristotle’s dictum, that because we
see the stars turn the earth must stand still. Two sciences especially
depend upon such probabilities: history and law, more properly the
practice and use of criminal law. Information imparted by men is used
in both sciences; this information is made up of effects and hence the
occurrence is inferred from as cause.
(2) Inductive probability. Single events which must be true, form the
foundation, and the result passes to a valid universal. (Especially made
use of in the natural sciences, e.g., in diseases caused by bacilli; in
case X we find the appearance A and in diseases of like cause Y and Z,
we also find the appearance A. It is therefore probable that all
diseases caused by bacilli will manifest the symptom A.)
(3) Mathematical Probability. This infers that A is connected either
with B or C or D, and asks the degree of probability. I. e.: A woman is
brought to bed either with a boy or a girl: therefore the probability
that a boy will be born is one-half.
Of these forms of probability the first two are of equal importance to
us, the third rarely of value, because we lack arithmetical cases and
because probability of that kind is only of transitory worth and has
always to be so studied as to lead to an actual counting of cases. It is
of this form of probability that Mill advises to know, before applying a
calculation of probability, the necessary facts, i.e., the relative
frequency with which the various events occur, and to understand clearly
the causes of these events. If statistical tables show that five of
every hundred men reach, on an average, seventy years, the inference is
valid because it expresses the existent relation between the causes
which prolong or shorten life.
A further comparatively self-evident division is made by Cournot, who
separates subjective probability from the possible probability
pertaining to the events as such. The latter is objectively defined by
Kries[149] in the following example:
“The throw of a regular die will reveal, in the great majority of cases,
the same relation, and that will lead the mind to suppose it objectively
valid. It hence follows, that the relation is changed if the shape of
the die is changed.” But how “this objectively valid relation,” i.e.,
substantiation of probability, is to be thought of, remains as unclear
as the regular results of statistics do anyway. It is hence a question
whether anything is gained when the form of calculation is known.
Kries says, “Mathematicians, in determining the laws of probability,
have subordinated every series of similar cases which take one course
or another as if the constancy of general conditions, the independence
and chance equivalence of single events, were identical throughout.
Hence, we find there are certain simple rules according to which the
probability of a case may be calculated from the number of successes in
cases observed until this one and from which, therefore, the probability
for the appearance of all similar cases may be derived. These rules are
established without any exception whatever.” This statement is not
inaccurate because the general applicability of the rules is brought
forward and its use defended in cases where the presuppositions do not
agree. Hence, there are delusory results, e.g., in the calculation of
mortality, of the statements of witnesses and judicial deliverances.
These do not proceed according to the schema of the ordinary play of
accident. The application, therefore, can be valid only if the constancy
of general conditions may be reliably assumed.
But this evidently is valid only with regard to unconditioned
probability which only at great intervals and transiently may influence
our practical work. For, however well I may know that according to
statistics every xth witness is punished for perjury, I will not be
frightened at the approach of my xth witness though he is likely,
according to statistics, to lie. In such cases we are not fooled, but
where events are confused we still are likely to forget that
probabilities may be counted only from great series of figures in which
the experiences of individuals are quite lost.
Nevertheless figures and the conditions of figures with regard to
probability exercise great influence upon everybody; so great indeed,
that we really must beware of going too far in the use of figures. Mill
cites a case of a wounded Frenchman. Suppose a regiment made up of 999
Englishmen and one Frenchman is attacked and one man is wounded. No one
would believe the account that this one Frenchman was the one wounded.
Kant says significantly: “If anybody sends his doctor 9 ducats by his
servant, the doctor certainly supposes that the servant has either lost
or otherwise disposed of one ducat.” These are merely probabilities
which depend upon habits. So, it may be supposed that a handkerchief has
been lost if only eleven are found, or people may wonder at the doctor’s
ordering a tablespoonful every five quarters of an hour, or if a job is
announced with $2487 a year as salary.
But just as we presuppose that wherever the human will played any part,
regular forms will come to light, so we begin to doubt that such forms
will occur where we find that accident, natural law, or the unplanned
coöperation of men were determining factors. If I permit anybody to
count up accidentally concurrent things and he announces that their
number is one hundred, I shall probably have him count over again. I
shall be surprised to hear that somebody’s collection contains exactly
1000 pieces, and when any one cites a distance of 300 steps I will
suppose that he had made an approximate estimation but had not counted
the steps. This fact is well known to people who do not care about
accuracy, or who want to give their statements the greatest possible
appearance of correctness; hence, in citing figures, they make use of
especially irregular numbers, e.g. 1739, 7/8, 3.25%, etc. I know a case
of a vote of jurymen in which even the proportion of votes had to be
rendered probable. The same jury had to pass that day on three small
cases. In the first case the proportion was 8 for, 4 against, the second
case showed the same proportion and the third case the same. But when
the foreman observed the proportion he announced that one juryman must
change his vote because the same proportion three times running would
appear too improbable! If we want to know the reason for our superior
trust in irregularity in such cases, it is to be found in the fact that
experience shows nature, in spite of all her marvelous orderliness in
the large, to be completely free, and hence irregular in little things.
Hence, as Mill shows in more detail, we expect no identity of form in
nature. We do not expect next year to have the same order of days as
this year, and we never wonder when some suggestive regularity is broken
by a new event. Once it was supposed that all men were either black or
white, and then red men were discovered in America. Now just exactly
such suppositions cause the greatest difficulties, because we do not
know the limits of natural law. For example, we do not doubt that all
bodies on earth have weight. And we expect to find no exception to this
rule on reaching some undiscovered island on our planet; all bodies will
have weight there as well as everywhere else. But the possibility of the
existence of red men had to be granted even before the discovery of
America. Now where is the difference between the propositions: All
bodies have weight, and, All men are either white or black? It may be
said circularly the first is a natural law and the second is not. But
why not? Might not the human body be so organized that according to the
natural law it would be impossible for red men to exist? And what
accurate knowledge have we of pigmentation? Has anybody ever seen a
green horse? And is the accident that nobody has ever seen one to
prevent the discovery of green horses in the heart of Africa? May,
perhaps, somebody not breed green horses by crossings or other
experiments? Or is the existence of green horses contrary to some
unknown but invincible natural law? Perhaps somebody may have a green
horse to-morrow; perhaps it is as impossible as water running up hill.
To know whether anything is natural law or not always depends upon the
grade and standing of our immediate experience--and hence we shall never
be able honestly to make any universal proposition. The only thing
possible is the greatest possible accurate observation of probability in
all known possible cases, and of the probability of the discovery of
exceptions. Bacon called the establishment of reliable assumptions,
counting up without meeting any contradictory case. But what gives us
the law is the manner of counting. The untrained mind accepts facts as
they occur without taking the trouble to seek others; the trained mind
seeks the facts he needs for the premises of his inference. As Mill
says, whatever has shown itself to be true without exception may be held
universal so long as no doubtful exception is presented, and when the
case is of such a nature that a real exception could not escape our
observation.
This indicates how we are to interpret information given by others. We
hear, “Inasmuch as this is always so it may be assumed to be so in the
present case.” Immediate acceptance of this proposition would be as
foolhardy as doubt in the face of all the facts. The proper procedure is
to examine and establish the determining conditions, i.e., who has
counted up this “always,” and what caution was used to avoid the
overlooking of any exception. The real work of interpretation lies in
such testing. We do not want to reach the truth with one blow, we aim
only to approach it. But the step must be taken and we must know how
large it is to be, and know how much closer it has brought us to the
truth. And this is learned only through knowing who made the step and
how it was made. Goethe’s immortal statement, “Man was not born to solve
the riddle of the universe, but to seek out what the problem leads to in
order to keep himself within the limits of the conceivable,” is valid
for us too.
Our great mistake in examining and judging often lies in our setting too
much value upon individual circumstances, and trying to solve the
problem with those alone, or in not daring to use any given circumstance
sufficiently. The latter represents that stupidity which is of use to
scientific spirits when they lack complete proof of their points, but
is dangerous in practical affairs. As a rule, it is also the consequence
of the failure to evaluate what is given, simply because one forgets or
is too lazy to do so. Proper action in this regard is especially
necessary where certain legal proceedings have to occur which are
entitled to a definite degree of probability without requiring
certainty, i.e., preliminary examinations, arrests, investigations of
the premises, etc. No law says how much probability is in such cases
required. To say how much is impossible, but it is not unwise to stick
to the notion that the event must appear true, if not be proved true,
i.e., nothing must be present to destroy the appearance of truth. As
Hume says, “Whenever we have reason to trust earlier experiences and to
take them as standards of judgment of future experiences, these reasons
may have probability.”
The place of probability in the positive determination of the order of
modern criminal procedure is not insignificant. When the law determines
upon a definite number of jurymen or judges, it is probable that this
number is sufficient for the discovery of the truth. The system of
prosecution establishes as a probability that the accused is the
criminal. The idea of time-lapse assumes the probability that after the
passage of a certain time punishment becomes illusory, and prosecution
uncertain and difficult. The institution of experts depends on the
probability that the latter make no mistakes. The warrant for arrest
depends on the probability that the accused behaved suspiciously or
spoke of his crime, etc. The oath of the witness depends on the
probability that the witness will be more likely to tell the truth under
oath, etc.
Modern criminal procedure involves not only probabilities but also
various types of possibility. Every appeal has for its foundation the
possibility of an incorrect judgment; the exclusion of certain court
officials is based on the possibility of prejudice, or at least on the
suspicion of prejudice; the publicity of the trial is meant to prevent
the possibility of incorrectness; the revision of a trial depends on the
possibility that even legal sentences may be false, and the institution
of the defendant lawyer depends upon the possibility that a person
without defense may receive injustice. All the formalities of the action
of the court assume the possibility that without them improprieties may
occur, and the institution of seizing letters and messages for evidence,
asserts only the possibility that the latter contain things of
importance, etc.
When the positive dicta of the law deal with possibility and
probability in questions of great importance the latter become
especially significant.
We have yet to ask what is meant by “rule” and what its relation is to
probability. Scientifically “rule” means law subjectively taken and is
of equal significance with the guiding line for one’s own conduct,
whence it follows that there are only rules of art and morality, but no
rules of nature. Usage does not imply this interpretation. We say that
as a rule it hails only in the daytime; by way of exception, in the
night also; the rule for the appearance of whales indicates that they
live in the Arctic Ocean; a general rule indicates that bodies that are
especially soluble in water should dissolve more easily in warm than in
cold water, but salt dissolves equally well in both. Again we say: As a
rule the murderer is an unpunished criminal; it is a rule that the
brawler is no thief and vice versa; the gambler is as a rule a man of
parts, etc. We may say therefore, that regularity is equivalent to
customary recurrence and that whatever serves as rule may be expected as
probable. If, i.e., it be said, that this or that happens as a rule, we
may suppose that it will repeat itself this time. It is not permissible
to expect more, but it frequently happens that we mistake rules
permitting exceptions for natural laws permitting none. This occurs
frequently when we have lost ourselves in the regular occurrences for
which we are ourselves responsible and suppose that because things have
been seen a dozen times they must always appear in the same way. It
happens especially often when we have heard some phenomenon described in
other sciences as frequent and regular and then consider it to be a law
of nature. In the latter case we have probably not heard the whole
story, nor heard general validity assigned to it. Or again, the whole
matter has long since altered. Lotze wrote almost half a century ago,
that he had some time before made the statistical observation that the
great positive discoveries of exact physiology have an average life of
about four years. This noteworthy statement indicates that great
positive discoveries are set up as natural laws only to show themselves
as at most regular phenomena which have no right to general validity.
And what is true of physiology is true of many other sciences, even of
the great discoveries of medicine, even legal medicine. This, therefore,
should warn against too much confidence in things that are called
“rules.” False usage and comfortable dependence upon a rule have very
frequently led us too far. Its unreliability is shown by such maxims as
“Three misses make a rule” or “Many stupidities taken together give a
golden rule of life,” or “To-day’s exception is to-morrow’s rule,” or
the classical perversion: “The rule that there are no rules without
exception is a rule without exception, hence, there is one rule without
exception.”
The unreliability of rules is further explained by their rise from
generalization. We must not generalize, as Schiel says, until we have
shown that if there are cases which contradict our generalizations we
know those contradictions. In practice approximate generalizations are
often our only guides. Natural law is too much conditioned, cases of it
too much involved, distinctions between them too hard to make, to allow
us to determine the existence of a natural phenomenon in terms of its
natural characteristics as a part of the business of our daily life. Our
own age generalizes altogether too much, observes too little, and
abstracts too rapidly. Events come quickly, examples appear in masses,
and if they are similar they tend to be generalized, to develop into a
rule, while the exceptions which are infinitely more important are
unobserved, and the rule, once made, leads to innumerable mistakes.
Section 29. (g) Chance.
The psychological significance of what we call chance depends upon the
concept of chance and the degree of influence that we allow it to
possess in our thinking. What is generally called chance, and what is
called chance in particular cases, will depend to a significant degree
upon the nature of the case. In progressive sciences the laws increase
and the chance-happenings decrease; the latter indeed are valid only in
particular cases of the daily life and in the general business of it. We
speak of chance or accident when events cross which are determined in
themselves by necessary law, but the law of the crossing of which is
unknown. If, e.g., it is observed that where there is much snow the
animals are white, the event must not be attributed to accident, for the
formation of snow in high mountains or in the north, and its long stay
on the surface of the earth develop according to special natural laws,
and the colors of animals do so no less--but that these two orderly
series of facts should meet requires a third law, or still better, a
third group of laws, which though unknown some time ago, are now known
to every educated person.
For us lawyers chance and the interpretation of it are of immense
importance not only in bringing together evidence, but in every case of
suspicion, for the problem always arises whether a causal relation may
be established between the crime and the suspect, or whether the
relation is only accidental. “Unfortunate coincidence”--“closely related
connection of facts”--“extraordinary accumulation of reason for
suspicion,”--all these terms are really chance mistaken for causation.
On the knowledge of the difference between the one and the other depends
the fate of most evidence and trials. Whoever is fortunate enough in
rightly perceiving what chance is, is fortunate in the conduct of his
trial.
Is there really a theory of chance? I believe that a direct treatment of
the subject is impossible. The problem of chance can be only
approximately explained when all conceivable chance-happenings of a
given discipline are brought together and their number reduced by
careful search for definite laws. Besides, the problem demands the
knowledge of an extremely rich casuistry, by means of which, on the one
hand, to bring together the manifoldness of chance events, and on the
other to discover order. Enough has been written about chance, but a
systematic treatment of it must be entirely theoretical. So
Windelband’s[150] excellent and well-ordered book deals with relations
(chance and cause, chance and law, chance and purpose, chance and
concept) the greatest value of which is to indicate critically the
various definitions of the concept of chance. Even though there is no
definition which presents the concept of chance in a completely
satisfactory manner, the making of such definitions is still of value
because one side of chance is explained and the other is thereby seen
more closely. Let us consider a few of these and other definitions.
Aristotle says that the accidental occurs, παρἁ φὑσν, according to
nature. Epicurus, who sees the creation of the world as a pure accident,
holds it to occur τἁ μἑν ἁπὁ τὑχης, τἁ δἑ παρ’ἡμὡν. Spinoza believes
nothing to be contingent save only according to the limitations of
knowledge; Kant says that conditioned existence as such, is called
accidental; the unconditioned, necessary. Humboldt: “Man sees those
things as accident which he can not explain genetically.” Schiel:
“Whatever may not be reduced back to law is called accidental.”
Quetelet: “The word chance serves officiously to hide our ignorance.”
Buckle derives the idea of chance from the life of nomadic tribes, which
contains nothing firm and regulated. According to Trendelenburg chance
is that which could not be otherwise. Rosenkranz says: Chance is a
reality which has only the value of possibility, while Fischer calls
chance the individualized fact, and Lotze identifies it with everything
that is not valid as a natural purpose. For Windelband “chance consists,
according to usage, in the merely factual but not necessary transition
from a possibility to an actuality. Chance is the negation of necessity.
It is a contradiction to say: ‘This happened by accident,’ for the word
‘by’ expressed a cause.”
A. Höfler[151] says most intelligently, that the contradiction of the
idea of chance by the causal law may be easily solved by indicating the
especial relativity of the concept. (Accidental with regard to one, but
otherwise appearing as a possible causal series).
The lesson of these definitions is obvious. What we call chance plays a
great role in our legal work. On our recognizing a combination of
circumstances as accidental the result of the trial in most cases
depends, and the distinction between accident and law depends upon the
amount of knowledge concerning the events of the daily life especially.
Now the use of this knowledge in particular cases consists in seeking
out the causal relation in a series of events which are adduced as
proof, and in turning accident into order. Or, in cases where the law
which unites or separates the events can not be discovered, it may
consist in the very cautious interpretation of the combination of events
on the principle _simul cum hoc non est propter hoc_.
Section 30.(h) Persuasion and Explanation.
How in the course of trial are people convinced? The criminalist has as
presiding officer not only to provide the truth which convinces; it is
his business as state official to convince the defendant of the
correctness of the arguments adduced, the witness of his duty to tell
the truth. But he again is often himself convinced by a witness or an
accused person--correctly or incorrectly. Mittermaier[152] calls
conviction a condition in which our belief-it-is-true depends on full
satisfactory grounds of which we are aware. But this state of conviction
is a goal to be reached and our work is not done until the convincing
material has been provided. Seeking the truth is not enough. Karl Gerock
assures us that no philosophical system offers us the full and finished
truth, but there is a truth for the idealist, and to ask Pilate’s blasé
question is, as Lessing suggests, rendering the answer impossible. But
this shows the difference between scientific and practical work; science
may be satisfied with seeking truth, but we must possess truth. If it
were true that truth alone is convincing, there would not be much
difficulty, and one might be content that one is convinced only by what
is correct. But this is not the case. Statistically numbers are supposed
to prove, but actually numbers prove according to their uses. So in the
daily life we say facts are proofs when it would be more cautious to
say: facts are proofs according to their uses. It is for this reason
that sophistical dialectic is possible. Arrange the facts in one way and
you reach one result, arrange the facts another way and you may reach
the opposite. Or again, if you study the facts in doubtful cases
honestly and without prejudice you find how many possible conclusions
may be drawn, according to their arrangement. We must, of course, not
have in mind that conviction and persuasion which is brought about by
the use of many words. We have to consider only that adduction of facts
and explanation, simple or complex, in a more or less skilful,
intentional or unintentional manner, by means of which we are convinced
at least for a moment. The variety of such conviction is well known to
experience.
“The naïveté of the first glance often takes the prize from scholarship.
All hasty, decisive judgment betrays, when it becomes habitual,
superficiality of observation and impiety against the essential
character of particular facts. Children know as completely determined
and certain a great deal which is doubtful to the mature man” (V.
Volkmar).
So, frequently, the simplest thing we are told gets its value from the
manner of telling, or from the person of the narrator. And inasmuch as
we ourselves are much more experienced and skilful in arranging and
grouping facts than are our witnesses and the accused, it often happens
that we persuade these people and that is the matter which wants
consideration.
Nobody will assert that it will occur to any judge to persuade a witness
to anything which he does not thoroughly believe, but we know how often
we persuade ourselves to some matter, and nothing is more conceivable
than that we might like to see other people agree with us about it. I
believe that the criminalist, because, let us say, of his power, as a
rule takes his point of view too lightly. Every one of us, no doubt, has
often begun his work in a small and inefficient manner, has brought it
along with mistakes and scantiness and when finally he has reached a
somewhat firm ground, he has been convinced by his failures and mistakes
of his ignorance and inadequacy. Then he expected that this conviction
would be obvious also to other people whom he was examining. But this
obviousness is remarkably absent, and all the mistakes, cruelties, and
miscarriages of justice, have not succeeded in robbing it of the dignity
it possesses in the eyes of the nation. Perhaps the goodwill which may
be presupposed ought to be substituted for the result, but it is a fact
that the layman presupposes much more knowledge, acuteness, and power in
the criminalist than he really possesses. Then again, it is conceivable
that a single word spoken by the judge has more weight than it should
have, and then when a real persuasion--evidently in the best sense of
the word--is made use of, it _must_ be influential. I am certain that
every one of us has made the frightful observation that by the end of
the examination the witness has simply taken the point of view of the
examiner, and the worst thing about this is that the witness still
thinks that he is thinking in his own way.
The examiner knows the matter in its relation much better, knows how to
express it more beautifully, and sets pretty theories going. The
witness, to whom the questions are suggestive, becomes conceited, likes
to think that he himself has brought the matter out so excellently, and
therefore is pleased to adopt the point of view and the theories of the
examiner who has, in reality, gone too far in his eagerness. There is
less danger of this when educated people are examined for these are
better able to express themselves; or again when women are examined for
these are too obstinate to be persuaded, but with the great majority the
danger is great, and therefore the criminalist can not be told too often
how necessary it is that he shall meet his witness with the least
conceivable use of eloquence.
Forensic persuasion is of especial importance and has been considered so
since classical days, whether rightly, is another question. The orations
of state prosecutors and lawyers for the defense, when made before
scholarly judges, need not be held important. If individuals are ever
asked whether they were persuaded or made doubtful by the prosecutor or
his opponent they indicate very few instances. A scholarly and
experienced judge who has not drawn any conclusions about the case until
the evidence was all in need hardly pay much attention to the pleaders.
It may indeed be that the prosecution or defense may belittle or
intensify one or another bit of evidence which the bench might not have
thought of; or they may call attention to some reason for severity or
mercy. But on the one hand if this is important it will already have
been touched in the adduction of evidence, and on the other hand such
points are generally banal and indifferent to the real issue in the
case. If this be not so it would only indicate that either we need a
larger number of judges, or even when there are many judges that one
thing or another may be overlooked.
But with regard to the jury the case is quite different; it is easily
influenced and more than makes up for the indifference of the bench.
Whoever takes the trouble to study the faces of the jury during trial,
comes to the conclusion that the speeches of the prosecution and defense
are the most important things in the trial, that they absorb most of the
attention of the jury, and that the question of guilt or innocence does
not depend upon the number and weight of the testimony but upon the more
or less skilful interpretation of it. This is a reproach not to the jury
but to those who demand from it a service it can not render. It is first
necessary to understand how difficult the conduct of a trial is. In
itself the conduct of a jury trial is no art, and when compared with
other tasks demanded of the criminalist may be third or fourth in
difficulty. What is difficult is the determination of the chronological
order in which to present evidence, i.e., the drawing of the brief. If
the brief is well drawn, everything develops logically and
psychologically in a good way and the case goes on well; but it is a
great and really artistic task to draw this brief properly. There are
only two possibilities. If the thing is not done, or the brief is of no
use, the case goes on irrelevantly, illogically and unintelligibly and
the jury can not understand what is happening. If the trick is turned,
however, then like every art it requires preparation and intelligence.
And the jury do not possess these, so that the most beautiful work of
art passes by them without effect. They therefore must turn their
attention, to save what can be saved, upon the orations of the
prosecution and defense. These reproduce the evidence for them in some
intelligible fashion and the verdict will be innocence or guilt
according to the greater intelligence of one or the other of the
contending parties. Persuasiveness at its height, Hume tells us, leaves
little room for intelligence and consideration. It addresses itself
entirely to the imagination and the affections, captures the
well-inclined auditors, and dominates their understanding. Fortunately
this height is rarely reached. In any event, this height, which also
dominates those who know the subject, will always be rare, yet the jury
are not people of knowledge and hence dominations ensue, even through
attempts at persuasiveness which have attained no height whatever. Hence
the great danger.
The only help against this is in the study by the presiding justice, not
as lawyer but as psychologist, of the faces of the jury while the
contending lawyers make their addresses. He must observe very narrowly
and carefully every influence exercised by the speeches, which is
irrelevant to the real problem, and then in summing up call it to the
attention of the jury and bring them back to the proper point of view.
The ability to do this is very marvelous, but it again is an exceedingly
difficult performance.
Nowadays persuadability is hardly more studied but anybody who has
empirically attained some proficiency in it has acquired the same tricks
that are taught by theory. But these must be known if they are to be met
effectively. Hence the study of the proper authors can not be too much
recommended. Without considering the great authors of the classical
period, especially Aristotle and Cicero, there are many modern ones who
might be named.
Section 31. (i) Inference and Judgment.
The judgment to be discussed in the following section is not the
judgment of the court but the more general judgment which occurs in any
perception. If we pursue our tasks earnestly we draw from the simplest
cases innumerable inferences and we receive as many inferences from
those we examine. The correctness of our work depends upon the truth of
both. I have already indicated how very much of the daily life passes as
simple and invincible sense-perception even into the determination of a
sentence, although it is often no more than a very complicated series of
inferences each of which may involve a mistake even if the perception
itself has been correct. The frequency with which an inference is made
from sense-perception is the more astonishing inasmuch as it exceeds all
that the general and otherwise valid law of laziness permits. In fact,
it contradicts that law, though perhaps it may not do so, for a hasty
inference from insufficient premises may be much more comfortable than
more careful observation and study. Such hasty inference is made even
with regard to the most insignificant things. In the course of an
investigation we discover that we have been dealing only with inferences
and that our work therefore has been for nothing. Then again, we miss
that fact, and our results are false and their falsehood is rarely
sought in these petty mistakes. So the witness may have “seen” a watch
in such and such a place when in reality he has only heard a noise that
he took for the ticking of a watch and hence _inferred_ that there had
really been a watch, that he had seen it, and finally _believed_ that
he had seen it. Another witness asserts that X has many chickens; as a
matter of fact he has heard two chickens cluck and infers a large
number. Still another has seen footprints of cattle and speaks of a
herd, or he knows the exact time of a murder because at a given time he
heard somebody sigh, etc. There would be little difficulty if people
told us how they had inferred, for then a test by means of careful
questions would be easy enough--but they do not tell, and when we
examine ourselves we discover that we do exactly the same thing and
often believe and assert that we have seen or heard or smelt or felt
although we have only inferred these things.[153] Here belong all cases
of correct or partly correct inference and of false inference from false
sense-perception. I recall the oft-cited story in which a whole judicial
commission smelt a disgusting odor while a coffin was being exhumed only
to discover that it was empty. If the coffin, for one reason or another,
had not been opened all those present would have taken oath that they
had an indubitable perception although the latter was only inferred from
its precedent condition.
Exner[154] cites the excellent example in which a mother becomes
frightened while her child cries, not because the cry as such sounds so
terrible as because of its combination with the consciousness that it
comes from her own child and that something might have happened to it.
It is asserted, and I think rightly, that verbal associations have a
considerable share in such cases. As Stricker[155] expresses it, the
form of any conceptual complex whatever, brings out its appropriate
word. If we see the _thing_ watch, we get the _word_ watch. If we see a
man with a definite symptom of consumption the word tuberculosis occurs
at once. The last example is rather more significant because when the
whole complex appears mistakes are more remote than when merely one or
another “safe” symptom permits the appearance of the word in question.
What is safe to one mind need not be so to another, and the notion as to
the certainty of any symptom changes with time and place and person.
Mistakes are especially possible when people are so certain of their
“safe” symptoms that they do not examine how they inferred from them.
This inference, however, is directly related to the appearance of the
word. Return to the example mentioned above, and suppose that A has
discovered a “safe” symptom of consumption in B and the word
tuberculosis occurs to him. But the occurrence does not leave him with
the word merely, there is a direct inference “B has tuberculosis.” We
never begin anything with the word alone, we attach it immediately to
some fact and in the present case it has become, as usual, a judgment.
The thought-movement of him who has heard this judgment, however, turns
backward and he supposes that the judge has had a long series of
sense-perceptions from which he has derived his inference. And in fact
he has had only one perception, the reliability of which is often
questionable.
Then there is the additional difficulty that in every inference there
are leaps made by each inferer according to his character and training.
And the maker does not consider whether the other fellow can make
similar leaps or whether his route is different. E. g., when an English
philosopher says, “We really ought not to expect that the manufacture of
woolens shall be perfected by a nation which knows no astronomy,”--we
are likely to say that the sentence is silly; another might say that it
is paradoxical and a third that it is quite correct, for what is missing
is merely the proposition that the grade of culture made possible by
astronomy is such as to require textile proficiency also. “In
conversation the simplest case of skipping is where the conclusion is
drawn directly from the minor premise. But many other inferences are
omitted, as in the case of real thinking. In giving information there is
review of the thinking of other people; women and untrained people do
not do this, and hence the disconnectedness of their conversation.”[156]
In this fact is the danger in examining witnesses, inasmuch as we
involuntarily interpolate the missing details in the skipping
inferences, but do it according to our own knowledge of the facts.
Hence, a test of the correctness of the other man’s inference becomes
either quite impossible or is developed coarsely. In the careful
observation of leaping inferences made by witnesses--and not merely by
women and the uneducated--it will be seen that the inference one might
oneself make might either have been different or have proceeded in a
different way. If, then, all the premises are tested a different result
from that of the witness is obtained. It is well known how identical
premises permit of different conclusions by different people.
In such inferences certain remarkable things occur which, as a rule,
have a given relation to the occupation of the witness. So, e.g., people
inclined to mathematics make the greatest leaps, and though these may be
comparatively and frequently correct, the danger of mistake is not
insignificant when the mathematician deals in his mathematical fashion
with unmathematical things.
Another danger lies in the testimony of witnesses who have a certain
sense of form in representation and whose inferential leaps consists in
their omitting the detailed expression and in inserting the notion of
form instead. I learned of this notable psychosis from a bookkeeper of a
large factory, who had to provide for the test of numberless additions.
It was his notion that if we were to add two and three are five, and six
are eleven, and seven are eighteen we should never finish adding, and
since the avoidance of mistakes requires such adding we must so contrive
that the image of two and three shall immediately call forth the image
of five. Now this mental image of five is added with the actual six and
gives eleven, etc. According to this we do not add, we see only a series
of images, and so rapidly that we can follow with a pencil but slowly.
And the images are so certain that mistake is impossible. “You know how
9 looks? Well, just as certainly we know what the image of 27 and 4 is
like; the image of 31 occurs without change.”
This, as it happens, is a procedure possible only to a limited type, but
this type occurs not only among bookkeepers. When any one of such
persons unites two events he does not consider what may result from such
a union; he sees, if I may say so, only a resulting image. This image,
however, is not so indubitably certain as in the case of numbers; and it
may take all kinds of forms, the correctness of which is not altogether
probable. E. g., the witness sees two forms in the dark and the flash of
a knife and hears a cry. If he belongs to the type under discussion he
does not consider that he might have been so frightened by the flashing
knife as to have cried out, or that he had himself proceeded to attack
with a stick and that the other fellow did the yelling, or that a stab
or cut had preceded the cry--no, he saw the image of the two forms and
the knife and he heard the cry and these leap together into an image,
i.e., one of the forms has a cut above his brow. And these leaps occur
so swiftly and with such assurance that the witness in question often
believes himself to have seen what he infers and swears to it.
There are a great many similar processes at the bottom of impressions
that depend only upon swift and unconscious inference. Suppose, e.g.,
that I am shown the photograph of a small section of a garden, through
which a team is passing. Although I observe the image of only a small
portion of the garden and therefore have no notion of its extent, still,
in speaking of it, I shall probably speak of a very big garden. I have
inferred swiftly and unconsciously that in the fact that a wagon and
horses were present in the pictured portion of the garden, is implied
great width of road, for even gardens of average size do not have such
wide roads as to admit wagons; the latter occurring only in parks and
great gardens. Hence my conclusion: the garden must be very big. Such
inferences[157] are frequent, whence the question as to the source and
the probability of the witness’s information, whether it is positive or
only an impression. Evidently such an impression may be correct. It will
be correct often, inasmuch as impressions occur only when inferences
have been made and tested repeatedly. But it is necessary in any case to
review the sequence of inferences which led to this impression and to
examine their correctness. Unfortunately the witness is rarely aware
whether he has perceived or merely inferred.
Examination is especially important when the impression has been made
after the observation of a few marks or only a single one and not very
essential one at that. In the example of the team the impression may
have been attained by inference, but frequently it will have been
attained through some unessential, purely personal, determinative
characteristic. “Just as the ancient guest recognizes his friend by
fitting halves of the ring, so we recognize the object and its
constitution from one single characteristic, and hence the whole vision
of it is vivified by that characteristic.”[158]
All this is very well if no mistakes are made. When Tertullian said,
“Credo quia impossibile est,” we will allow honesty of statement to this
great scholar, especially as he was speaking about matters of religion,
but when Socrates said of the works of Heraclitus the Obscure: “What I
understand of it is good; I think that what I do not understand is also
good”--he was not in earnest. Now the case of many people who are not as
wise as Tertullian and Socrates is identical with theirs. Numerous
examinations of witnesses made me think of Tertullian’s maxim, for the
testimonies presented the most improbable things as facts. And when they
even explained the most unintelligible things I thought: “And what you
do not understand is also good.”
This belief of uncultured people in their own intelligence has been most
excellently portrayed by Wieland in his immortal “Abderites.” The fourth
philosopher says: “What you call the world is essentially an infinite
series of worlds which envelop one another like the skin of an onion.”
“Very clear,” said the Abderites, and thought they understood the
philosopher because they knew perfectly well what an onion looked like.
The inference which is drawn from the comprehension of one term in a
comparison to the comprehension of the other is one of the most
important reasons for the occurrence of so many misunderstandings. The
example, as such, is understood, but its application to the assertion
and the question whether the latter is also made clear by the example
are forgotten. This explains the well known and supreme power of
examples and comparisons, and hence the wise of all times have used
comparisons in speaking to the poor in spirit. Hence, too, the great
effect of comparisons, and also the numerous and coarse
misunderstandings and the effort of the untrained and unintelligent to
clarify those things they do not understand by means of comparisons.
Fortunately they have, in trying to explain the thing to other people,
the habit of making use of these difficultly discovered comparisons so
that the others, if they are only sufficiently observant, may succeed in
testing the correctness of the inference from one term in a comparison
to the other. We do this frequently in examining witnesses, and we
discover that the witness has made use of a figure to clarify some
unintelligible point and that he necessarily understands it since it
lies within the field of his instruments of thought. But what is
compared remains as confused to him as before. The test of it,
therefore, is very tiring and mainly without results, because one rarely
succeeds in liberating a man from some figure discovered with
difficulty. He always returns to it because he understands it, though
really not what he compares. But what is gained in such a case is not
little, for the certainty that, so revealed, the witness does not
understand the matter in hand, easily determines the value of his
testimony.
The fullness of the possibilities under which anything may be asserted
is also of importance in this matter. The inference that a thing is
impossible is generally made by most people in such wise that they first
consider the details of the eventualities they already know, or
immediately present. Then, when these are before them, they infer that
the matter is quite impossible--and whether one or more different
eventualities have missed of consideration, is not studied at all. Our
kindly professor of physics once told us: “To-day I intended to show you
the beautiful experiments in the interference of light--but it can not
be observed in daylight and when I draw the curtains you raise
rough-house. The demonstration is therefore impossible and I take the
instruments away.” The good man did not consider the other eventuality,
that we might be depended upon to behave decently even if the curtains
were drawn.
Hence the rule that a witness’s assertion that a thing is impossible
must never be trusted. Take the simplest example. The witness assures us
that it is impossible for a theft to have been committed by some
stranger from outside. If you ask him why, he will probably tell you:
“Because the door was bolted and the windows barred.” The eventuality
that the thief might have entered by way of the chimney, or have sent a
child between the bars of the window, or have made use of some peculiar
instrument, etc., are not considered, and would not be if the question
concerning the ground of the inference had not been put.
We must especially remember that we criminalists “must not dally with
mathematical truth but must seek historical truth. We start with a mass
of details, unite them, and succeed by means of this union and test in
attaining a result which permits us to judge the existence and the
characteristics of past events.” The material of our work lies in the
mass of details, and the manner and reliability of its presentation
determines the certainty of our inferences.
Seen more closely the winning of this material may be described as Hume
describes it:[159] “If we would satisfy ourselves, therefore, concerning
the nature of that evidence which assures us of matters of fact, we must
inquire how we arrive at the knowledge of cause and effect. I shall
venture to affirm as a general proposition which admits of no exception,
that the knowledge of this relation is not, in any instance, attained by
reasonings a priori; but arises entirely from experience, when we find
that any particular objects are constantly conjoined with each other;
... nor can our reason, unassisted by experience, ever draw any
inference concerning real existence and matter of fact.”
In the course of his explanation Hume presents two propositions,
(1) I have found that such an object has always been attended with such
an effect.
(2) I foresee that other objects which are in appearance similar, will
be attended with similar effects.
He goes on: “I shall allow, if you please, that the one proposition may
justly be inferred from the other; I know in fact that it always is
inferred. But if you insist that the inference is made by a chain of
reasoning, I desire you to produce that chain of reasoning. The
connection between these propositions is not intuitive. There is
required a medium which may enable the mind to draw such an inference,
if, indeed, it be drawn by reasoning and argument. What the medium is, I
must confess, passes my comprehension; and it is incumbent on those to
produce it who assert that it exists, and is the origin of all our
conclusions concerning matters of fact.”
If we regard the matter more closely we may say with certainty: This
medium exists not as a substance but as a transition. When I speak in
the proposition of “such an object,” I already have “similar” in mind,
inasmuch as there is nothing absolutely like anything else, and when I
say in the first proposition, “such an object,” I have already passed
into the assertion made in the second proposition.
Suppose that we take these propositions concretely:
(1) I have discovered that bread made of corn has a nourishing effect.
(2) I foresee that other apparently similar objects, e.g., wheat, will
have a like effect.
I could not make various experiments with the same corn in case (1). I
could handle corn taken as such from one point of view, or considered as
such from another, i.e., I could only experiment with very similar
objects. I can therefore make these experiments with corn from
progressively remoter starting points, or soils, and finally with corn
from Barbary and East Africa, so that there can no longer be any
question of identity but only of similarity. And finally I can compare
two harvests of corn which have less similarity than certain species of
corn and certain species of wheat. I am therefore entitled to speak of
identical or similar in the first proposition as much as in the second.
One proposition has led into another and the connection between them has
been discovered.
The criminological importance of this “connection” lies in the fact that
the correctness of our inferences depends upon its discovery. We work
continuously with these two Humian propositions, and we always make our
assertion, first, that some things are related as cause and effect, and
we join the present case to that because we consider it similar. If it
is really similar, and the connection of the first and the second
proposition are actually correct, the truth of the inference is
attained. We need not count the unexplained wonders of numerical
relations in the result. D’Alembert asserts: “It seems as if there were
some law of nature which more frequently prevents the occurrence of
regular than irregular combinations; those of the first kind are
mathematically, but not physically, more probable. When we see that high
numbers are thrown with some one die, we are immediately inclined to
call that die false.” And John Stuart Mill adds, that d’Alembert should
have set the problem in the form of asking whether he would believe in
the die if, after having examined it and found it right, somebody
announced that ten sixes had been cast with it.
We may go still further and assert that we are generally inclined to
consider an inference wrong which indicates that accidental matters have
occurred in regular numerical relation. Who believes the hunter’s story
that he has shot 100 hares in the past week, or the gambler’s that he
has won 1000 dollars; or the sick man’s, that he was sick ten times? It
will be supposed at the very least that each is merely indicating an
approximately round sum. Ninety-six hares, 987 dollars, and eleven
illnesses will sound more probable. And this goes so far that during
examinations, witnesses are shy of naming such “improbable ratios,” if
they at all care to have their testimony believed. Then again, many
judges are in no wise slow to jump at such a number and to demand an
“accurate statement,” or even immediately to decide that the witness is
talking only “about.” How deep-rooted such views are is indicated by the
circumstance that bankers and other merchants of lottery tickets find
that tickets with “pretty numbers” are difficult to sell. A ticket of
series 1000, number 100 is altogether unsalable, for such a number “can
not possibly be sold.” Then again, if one has to count up a column of
accidental figures and the sum is 1000, the correctness of the sum is
always doubted.
Here are facts which are indubitable and unexplained. We must therefore
agree neither to distrust so-called round numbers, nor to place
particular reliance on quite irregular figures. Both should be examined.
It may be that the judgment of the correctness of an inference is made
analogously to that of numbers and that the latter exercise an influence
on the judgment which is as much conceded popularly as it is actually
combated. Since Kant, it has been quite discovered that the judgment
that fools are in the majority must lead through many more such truths
in judging--and it is indifferent whether the judgment dealt with is
that of the law court or of a voting legislature or mere judgments as
such.
Schiel says, “It has been frequently asserted that a judgment is more
probably correct according to the number of judges and jury.” Quite
apart from the fact that the judge is less careful, makes less effort,
and feels less responsibility when he has associates, this is a false
inference from an enormous average of cases which are necessarily remote
from any average whatever. And when certain prejudices or weaknesses of
mind are added, the mistake multiplies. Whoever accurately follows, if
he can avoid getting bored, the voting of bodies, and considers by
themselves individual opinions about the subject, they having remained
individual against large majorities and hence worthy of being subjected
to a cold and unprejudiced examination, will learn some rare facts. It
is especially interesting to study the judgment of the full bench with
regard to a case which has been falsely judged; surprisingly often only
a single individual voice has spoken correctly. This fact is a warning
to the judge in such cases carefully to listen to the individual opinion
and to consider that it is very likely to deserve study just because it
is so significantly in the minority.
The same thing is to be kept in mind when a thing is asserted by a large
number of witnesses. Apart from the fact that they depend upon one
another, that they suggest to one another, it is also easily possible,
especially if any source of error is present, that the latter shall have
influenced all the witnesses.
Whether a judgment has been made by a single judge or is the verdict of
any number of jurymen is quite indifferent since the correctness of a
judgment does not lie in numbers. Exner says, “The degree of probability
of a judgment’s correctness depends upon the richness of the field of
the associations brought to bear in establishing it. The value of
knowledge is judicially constituted in this fact, for it is in essence
the expansion of the scope of association. And the value is proportional
to the richness of the associations between the present fact and the
knowledge required.” This is one of the most important of the doctrines
we have to keep in mind, and it controverts altogether those who suppose
that we ought to be satisfied with the knowledge of some dozens of
statutes, a few commentaries, and so and so many precedents.
If we add that “every judgment is an identification and that in every
judgment we assert that the content represented is identical in spite of
two different associative relationships,”[160] it must become clear what
dangers we undergo if the associative relationships of a judge are too
poor and narrow. As Mittermaier said seventy years ago: “There are
enough cases in which the weight of the evidence is so great that all
judges are convinced of the truth in the same way. But in itself what
determines the judgment is the essential character of him who makes it.”
What he means by essential character has already been indicated.
We have yet to consider the question of the value of inferences made by
a witness from his own combinations of facts, or his descriptions. The
necessity, in such cases, of redoubled and numerous examinations is
often overlooked. Suppose, for example, that the witness does not know a
certain important date, but by combining what he does know, infers it to
have been the second of June, on which day the event under discussion
took place. He makes the inference because at the time he had a call
from A, who was in the habit of coming on Wednesdays, but there could be
no Wednesday after June seventh because the witness had gone on a long
journey on that day, and it could not have been May 26 because this day
preceded a holiday and the shop was open late, a thing not done on the
day A called. Nor, moreover, could the date have been May 20, because it
was very warm on the day in question, and the temperature began to rise
only after May 20. In view of these facts the event under discussion
must have occurred upon June 2nd and only on that day.
As a rule, such combinations are very influential because they appear
cautious, wise and convincing. They impose upon people without
inclination toward such processes. More so than they have a right to,
inasmuch as they present little difficulty to anybody who is accustomed
to them and to whom they occur almost spontaneously. As usually a thing
that makes a great impression upon us is not especially examined, but is
accepted as astounding and indubitable, so here. But how very necessary
it is carefully to examine such things and to consider whether the
single premises are sound, the example in question or any other example
will show. The individual dates, the facts and assumptions may easily be
mistaken, and the smallest oversight may render the result false, or at
least not convincing.
The examination of manuscripts is still more difficult. What is written
has a certain convincing power, not only on others but on the writer,
and much as we may be willing to doubt and to improve what has been
written immediately or at most a short time ago, a manuscript of some
age has always a kind of authority and we give it correctness cheaply
when that is in question. In any event there regularly arises in such a
case the problem whether the written description is quite correct, and
as regularly the answer is a convinced affirmative. It is impossible to
give any general rule for testing such affirmation. Ordinarily some
clearness may be attained by paying attention to the purpose of the
manuscript, especially in order to ascertain its sources and the
personality of the writer. There is much in the external form of the
manuscript. Not that especial care and order in the notes are
particularly significant; I once published the accounts of an old
peasant who could neither read nor write, and his accounts with a
neighbor were done in untrained but very clear fashion, and were
accepted as indubitable in a civil case. The purposiveness, order, and
continuity of a manuscript indicate that it was not written after the
event; and are therefore, together with the reason for having written it
and obviously with the personality of the writer, determinative of its
value.
Section 32.(j) Mistaken Inferences.
It is true, as Huxley says, that human beings would have made fewer
mistakes if they had kept in mind their tendency to false judgments
which depend upon extraordinary combinations of real experiences. When
people say: I felt, I heard, I saw this or that, in 99 cases put of 100
they mean only that they have been aware of some kind of sensation the
nature of which they determine in a judgment. Most erroneous inferences
ensue in this fashion. They are rarely formal and rarely arise by virtue
of a failure to use logical principles; their ground is the inner
paucity of a premise, which itself is erroneous because of an erroneous
perception or conception.[161] As Mill rightly points out, a large
portion of mankind make mistakes because of tacit assumptions that the
order of nature and the order of knowledge are identical and that things
must exist as they are thought, so that when two things can not be
thought together they are supposed not to exist together, and the
inconceivable is supposed to be identical with the non-existent. But
what they do not succeed in conceiving must not be confused with the
absolutely inconceivable. The difficulty or impossibility of conceiving
may be subjective and conditional, and may prevent us from understanding
the relation of a series of events only because some otherwise
proximate condition is unknown or overlooked. Very often in criminal
cases when I can make no progress in some otherwise simple matter, I
recall the well known story of an old peasant woman who saw the tail of
a horse through an open stable door and the head of another through
another door several yards away, and because the colors of both head and
tail were similar, was moved to cry out: “Dear Lord, what a long horse!”
The old lady started with the presupposition that the rump and the head
of the two horses belonged to one, and could make no use of the obvious
solution of the problem of the inconceivably long horse by breaking it
in two.
Such mistakes may be classified under five heads.[162]
(1) Aprioristic mistakes. (Natural prejudices).
(2) Mistakes in observation.
(3) Mistakes in generalization. (When the facts are right and the
inferences wrong).
(4) Mistakes of confusion. (Ambiguity of terms or mistakes by
association).
(5) Logical fallacies.
All five fallacies play important rôles in the lawyer’s work.
We have very frequently to fight natural prejudices. We take certain
classes of people to be better and others to be worse than the average,
and without clearly expressing it we expect that the first class will
not easily do evil nor the other good. We have prejudices about some one
or another view of life; some definition of justice, or point of view,
although we have sufficient opportunity to be convinced of their
incorrectness. We have a similar prejudice in trusting our human
knowledge, judgment of impressions, facts, etc., far too much, so far
indeed, that certain relations and accidents occurring to any person we
like or dislike will determine his advantage or disadvantage at our
hands.
Of importance under this heading, too, are those inferences which are
made in spite of the knowledge that the case is different; the power of
sense is more vigorous than that of reflection. As Hartmann expresses
it: “The prejudices arising from sensation, are not conscious judgments
of the understanding but instinctively practical postulates, and are,
therefore, very difficult to destroy, or even set aside by means of
conscious consideration. You may tell yourself a thousand times that the
moon at the horizon is as big as at the zenith--nevertheless you see it
smaller at the zenith.” Such fixed impressions we meet in every
criminal trial, and if once we have considered how the criminal had
committed a crime we no longer get free of the impression, even when we
have discovered quite certainly that he had no share in the deed. The
second type of fallacy--mistakes in observation--will be discussed later
under sense perception and similar matters.
Under mistakes of generalization the most important processes are those
of arrangement, where the environment or accompanying circumstances
exercise so determinative an influence that the inference is often made
from them alone and without examination of the object in question. The
Tanagra in the house of an art-connoisseur I take to be genuine without
further examination; the golden watch in the pocket of a tramp to be
stolen; a giant meteor, the skeleton of an iguana, a twisted-looking
Nerva in the Royal Museum of Berlin, I take to be indubitably original,
and indubitably imitations in the college museum of a small town. The
same is true of events: I hear a child screeching in the house of the
surly wife of the shoemaker so I do not doubt that she is spanking it;
in the mountains I infer from certain whistles the presence of chamois,
and a single long drawn tone that might be due to anything I declare to
have come from an organ, if a church is near by.
All such processes are founded upon experience, synthesis, and, if you
like, prejudices. They will often lead to proper conclusions, but in
many cases they will have the opposite effect. It is a frequently
recurring fact that in such cases careful examination is most of all
necessary, because people are so much inclined to depend upon “the
first, always indubitably true impression.” The understanding has
generalized simply and hastily, without seeking for justification.
The only way of avoiding great damage is to extract the fact in itself
from its environment and accompanying circumstance, and to study it
without them. The environment is only a means of proof, but no proof,
and only when the object or event has been validated in itself may we
adduce one means of proof after another and modify our point of view
accordingly. Not to do so, means always to land upon false inferences,
and what is worse, to find it impossible upon the recognition of an
error later on, to discover at what point it has occurred. By that time
it has been buried too deep in the heap of our inferential system to be
discoverable.
The error of confusion Mill reduces especially to the unclear
representation of _what_ proof is, i.e., to the ambiguity of words. We
rarely meet such cases, but when we do, they occur after we have
compounded concepts and have united rather carelessly some symbol with
an object or an event which ought not to have been united, simply
because we were mistaken about its importance. A warning example may be
found in the inference which is made from the sentence given a criminal
because of “identical motive.” The Petitio, the Ignorantia, etc., belong
to this class. The purely logical mistakes or mistakes of syllogism do
not enter into these considerations.
Section 33. (k) Statistics of the Moral Situation.
Upon the first glance it might be asserted that statistics and
psychology have nothing to do with each other. If, however, it is
observed that the extraordinary and inexplicable results presented by
statistics of morals and general statistics influence our thought and
reflection unconditionally, its importance for criminal psychology can
not be denied. Responsibility, abundance of criminals, their
distribution according to time, place, personality, and circumstances,
the regularity of their appearance, all these have so profound an
influence upon us both essentially and circumstantially that even our
judgments and resolutions, no less than the conduct and thought of other
people whom we judge, are certainly altered by them.[163] Moreover,
probability and statistics are in such close and inseparable connection
that we may not make use of or interpret the one without the other.
Eminent psychological contributions by Münsterberg show the importance
the statistical problems have for psychology. This writer warns us
against the over-valuation of the results of the statistics of morality,
and believes that its proper tendencies will be discovered only much
later. In any event the real value of statistical synthesis and
deduction can be discovered only when it is closely studied. This is
particularly true with regard to criminal conditions. The works of many
authors[164] teach us things that would not otherwise be learned, and
they would not be dealt with here if only a systematic study of the
works themselves could be of use. We speak here only of their importance
for our own discipline. Nobody doubts that there are mysteries in the
figures and figuring of statistics. We admit honestly that we know no
more to-day than when Paul de Decker discussed Quetelet’s labors in
statistics of morality in the Brussels Academy of Science, and confessed
what a puzzle it was that human conduct, even in its smallest
manifestations, obeyed in their totality constant and immutable laws.
Concerning this curious fact Adolf Wagner says: “If a traveler had told
us something about some people where a statute determines exactly how
many persons per year shall marry, die, commit suicide, and crimes
within certain classes,--and if he had announced furthermore that these
laws were altogether obeyed, what should we have said? And as a matter
of fact the laws are obeyed all the world over.”[165]
Of course the statistics of morality deal with quantities not qualities,
but in the course of statistical examination the latter are met with.
So, e.g., examinations into the relation of crime to school-attendance
and education, into the classes that show most suicides, etc., connect
human qualities with statistical data. The time is certainly not far off
when we shall seek for the proper view of the probability of a certain
assumption with regard to some rare crime, doubtful suicide,
extraordinary psychic phenomena, etc., with the help of a statistical
table. This possibility is made clearer when the inconceivable constancy
of some figures is considered. Suppose we study the number of suicides
since 1819 in Austria, in periods of eight years. We find the following
figures, 3000, 5000, 6000, 7000, 9000, 12000, 15000--i.e., a regular
increase which is comparable to law.[166] Or suppose we consider the
number of women, who, in the course of ten continuous years in France,
shot themselves; we find 6, 6, 7, 7, 6, 6, 7; there is merely an
alternation between 6 and 7. Should not we look up if in some one year
eight or nine appeared? Should not we give some consideration to the
possibility that the suicide is only a pretended one? Or suppose we
consider the number of men who have drowned themselves within the same
time: 280, 285, 292, 276, 257, 269, 258, 276, 278, 287,--Wagner says
rightly of such figures “that they contain the arithmetical relation of
the mechanism belonging to a moral order which ought to call out even
greater astonishment than the mechanism of stellar systems.”
Still more remarkable are the figures when they are so brought together
that they may be seen as a curve. It is in this way that Drobisch brings
together a table which distributes crime according to age. Out of a
thousand crimes committed by persons between the ages of:
+-------------------+----------+----------+
| | AGAINST | AGAINST |
| | PROPERTY | PERSONS |
+-------------------+----------+----------+
|Less than 16 years | 2 | 0.53 |
| 16-21 | 105 | 28 |
| 21-25 | 114 | 50 |
| 25-30 | 101 | 48 |
| 30-35 | 93 | 41 |
| 35-40 | 78 | 31 |
| 40-45 | 63 | 25 |
| 45-50 | 48 | 19 |
| 50-55 | 34 | 15 |
| 55-60 | 24 | 12 |
| 60-65 | 19 | 11 |
| 65-70 | 14 | 8 |
| 70-80 | 8 | 5 |
|More than 80 | 2 | 2 |
+-------------------+----------+----------+
Through both columns a definite curve may be drawn which grows steadily
and drops steadily. Greater mathematical certainty is almost
unthinkable. Of similar great importance is the parallelization of the
most important conditions. When, e.g., suicides in France, from 1826 to
1870 are taken in series of five years we find the figures 1739, 2263,
2574, 2951, 3446, 3639, 4002, 4661, 5147; if now during that period the
population has increased from 30 to only 36 millions other determining
factors have to be sought.[167]
Again, most authorities as quoted by Gutberlet,[168] indicate that most
suicides are committed in June, fewest in December; most at night,
especially at dawn, fewest at noon, especially between twelve and two
o’clock. The greatest frequency is among the half-educated, the age
between sixty and seventy, and the nationality Saxon (Oettingen).
The combination of such observations leads to the indubitable conclusion
that the results are sufficiently constant to permit making at least an
assumption with regard to the cases in hand. At present, statistics say
little of benefit with regard to the individual; J. S. Mill is right in
holding that the death-rate will help insurance companies but will tell
any individual little concerning the duration of his life. According to
Adolf Wagner, the principal statistical rule is: The law has validity
when dealing with great numbers; the constant regularity is perceivable
only when cases are very numerous; single cases show many a variation
and exception. Quetelet has shown the truth of this in his example of
the circle. “If you draw a circle on the blackboard with thick chalk,
and study its outline closely in small sections, you will find the
coarsest irregularities; but if you step far back and study the circle
as a whole, its regular, perfect form becomes quite distinct.” But the
circle must be drawn carefully and correctly, and one must not give way
to sentimentality and tears when running over a fly’s legs in drawing.
Emil du Bois-Reymond[169] says against this: “When the postmaster
announces that out of 100,000 letters a year, exactly so and so many
come unaddressed, we think nothing of the matter--but when Quetelet
counts so and so many criminals to every 100,000 people our moral sense
is aroused since it is painful to think that we are not criminals simply
because somebody else has drawn the black spot.” But really there is as
little regrettable in this fact as in the observation that every year so
and so many men break their legs, and so and so many die--in those cases
also, a large number of people have the good fortune not to have broken
their legs nor to have died. We have here the irrefutable logic of facts
which reveals nothing vexatious.
On the other hand, there is no doubt that our criminal statistics, to be
useful, must be handled in a rather different fashion. We saw, in
studying the statistics of suicide, that inferences with regard to
individual cases could be drawn only when the material had been studied
carefully and examined on all sides. But our criminological statistic is
rarely examined with such thoroughness; the tenor of such examination is
far too bureaucratic and determined by the statutes and the process of
law. The criminalist gives the statistician the figures but the latter
can derive no significant principles from them. Consider for once any
official report on the annual results in the criminal courts in any
country. Under and over the thousands and thousands of figures and rows
of figures there is a great mass of very difficult work which has been
profitable only in a very small degree. I have before me the four
reports of a single year which deal with the activities of the Austrian
courts and criminal institutions, and which are excellent in their
completeness, correctness, and thorough revision. Open the most
important,--the results of the administration of criminal law in the
various departments of the country,--and you find everything
recorded:--how many were punished here and how many there, what their
crimes were, the percentage of condemned according to age, social
standing, religion, occupation, wealth, etc.; then again you see endless
tables of arrests, sentences, etc., etc. Now the value of all this is to
indicate merely whether a certain regularity is discoverable in the
procedure of the officials. Material psychologically valuable is rare.
There is some energetic approximation to it in the consideration of
culture, wealth, and previous sentences, but even these are dealt with
most generally, while the basis and motive of the death-sentence is
barely indicated. We can perceive little consideration of motives with
regard to education, earlier life, etc., in their relation to
sentencing. Only when statistics will be made to deal actually and in
every direction with qualities and not merely with quantities will they
begin to have a really scientific value.
Topic II. KNOWLEDGE.
Section 34.
Criminal law, like all other disciplines, must ask under what conditions
and when we are entitled to say “we know.” The answer is far from being
perennially identical, though it might have been expected that the
conviction of knowledge would be ever united with identical conditions.
The strange and significant difference is determined by the question
whether the verdict, “we know,” will or will not have practical
consequences. When we discuss some question like the place of a certain
battle, the temperature of the moon, or the appearance of a certain
animal in the Pliocene, we first assume that there is a true answer;
reasons for and against will appear, the former increase in number, and
suddenly we discover in some book the assurance that, “We know the
fact.” That assurance passes into so and so many other books; and if it
is untrue, no essential harm can be done.
But when science is trying to determine the quality of some substance,
the therapeutic efficiency of some poison, the possibilities of some
medium of communication, the applicability of some great national
economic principle like free trade, then it takes much more time to
announce, “We know that this is so and not otherwise.” In this case one
sees clearly that tremendous consequences follow on the practical
interpretation of “we know,” and therefore there is in these cases quite
a different taxation of knowledge from that in cases where the practical
consequences are comparatively negligible.
Our work is obviously one of concrete practical consequences. It
contains, moreover, conditions that make imperfect knowledge equivalent
to complete ignorance, for in delivering sentence every “no” may each
time mean, “We know that he has not done it” or again, “We know that it
is not altogether certain that he has done it.” Our knowledge in such
cases is limited to the recognition of the confusion of the subject, and
knowledge in its widest sense is the consciousness of some definite
content; in this case, confusion. Here, as everywhere, knowledge is not
identical with truth; knowledge is only subjective truth. Whoever knows,
has reasons for considering things true and none against so considering
them. Here, he is entitled to assume that all who recognize his
knowledge will justify it. But, when even everybody justifies his
knowledge, it can be justified only in its immediacy; to-morrow the
whole affair may look different. For this reason we criminalists assert
much less than other investigators that we seek the truth; if we presume
to such an assertion, we should not have the institutions of equity,
revision, and, in criminal procedure, retrial. Our knowledge, when named
modestly, is only the innermost conviction that some matter is so and so
according to human capacity, and “such and such a condition of things.”
Parenthetically, we agree that “such and such a condition of things” may
alter with every instant and we declare ourselves ready to study the
matter anew if the conditions change. We demand material, but relative
truth.
One of the acutest thinkers, J. R. von Mayer, the discoverer of the
working principle of “conservation of energy,” says, “the most
important, if not the only rule for real natural science is this: Always
to believe that it is our task to know the phenomena before we seek
explanation of higher causes. If a fact is once known in all its
aspects, it is thereby explained and the duty of science fulfilled.” The
author did not have us dry-souled lawyers in mind when he made this
assertion, but we who modestly seek to subordinate our discipline to
that of the correct one of natural science, must take this doctrine
absolutely to heart. Every crime we study is a fact, and once we know it
in all its aspects and have accounted for every little detail, we have
explained it and have done our duty.
But the word explain does not lead us very far. It is mainly a matter of
reducing the mass of the inexplicable to a minimum and the whole to its
simplest terms. If only we succeed in this reduction! In most cases we
substitute for one well-known term, not another still better one, but a
strange one which may mean different things to different people. So
again, we explain one event by means of another more difficult one. It
is unfortunate that we lawyers are more than all others inclined to make
unnecessary explanations, because our criminal law has accustomed us to
silly definitions which rarely bring us closer to the issue and which
supply us only with a lot of words difficult to understand instead of
easily comprehensible ones. Hence we reach explanations both impossible
and hard to make, explanations which we ourselves are often unwilling to
believe. And again we try to explain and to define events which
otherwise would have been understood by everybody and which become
doubtful and uncertain because of the attempt. The matter becomes
especially difficult when we feel ourselves unsure, or when we have
discovered or expect contradiction. Then we try to convince ourselves
that we know something, although at the beginning we were clearly enough
aware that we knew nothing. We must not forget that our knowledge can
attain only to ideas of things. It consists alone in the perception of
the relation and agreement, or in the incompatibility and contradiction
of some of our ideas. Our task lies exactly in the explication of these
impressions, and the more thoroughly that is done the greater and more
certain is the result. But we must never trust our own impressions
merely. “When the theologian, who deals with the supersensible, has said
all that, from his point of view, he can say, when the jurist, who
represents those fundamental laws which are the result of social
experience, has considered all reasons from his own point of view, the
final authority in certain cases must be the physician who is engaged in
studying the life of the body.”
I get this from Maudsley,[170] and it leads us to keep in mind that
_our_ knowledge is very one-sided and limited, and that an event is
known only when all have spoken who possess especial knowledge of its
type. Hence, every criminalist is required to found his knowledge upon
that of the largest possible number of experts and not to judge or
discuss any matter which requires especial information without having
first consulted an expert with regard to it. Only the sham knows
everything; the trained man understands how little the mind of any
individual may grasp, and how many must coöperate in order to explain
the very simplest things.
The complexity of the matter lies in the essence of the concept “to
be.” We use the word “to be” to indicate the intent of all perceived and
perceivable. “‘To be’ and ‘to know’ are identical in so far as they have
identical content, and the content may be known?”[171]
PART II.
OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION: THE MENTAL ACTIVITY OF
THE EXAMINEE.
TITLE A. GENERAL CONDITIONS.
Topic I. OF SENSE-PERCEPTION.