Section 36. (a) General Considerations.

The criminalist studies the physiological psychology[172] of the senses

and their functions, in order to ascertain their nature, their influence

upon images and concepts, their trustworthiness, their reliability and

its conditions, and the relation of perception to the object. The

question applies equally to the judge, the jury, the witness, and the

accused. Once the essence of the function and relation of

sense-perception is understood, its application in individual cases

becomes easy.

The importance of sense-perception need not be demonstrated. “If we

ask,” says Mittermaier, “for the reason of our conviction of the truth

of facts even in very important matters, and the basis of every judgment

concerning existence of facts, we find that the evidence of the senses

is final and seems, therefore, the only true source of certainty.”

There has always, of course, been a quarrel as to the objectivity and

reliability of sense-perception. That the senses do not lie, “not

because they are always correct, but because they do not judge,” is a

frequently quoted sentence of Kant’s; the Cyrenaics have already

suggested this in asserting that pleasure and pain alone are

indubitable. Aristotle narrows the veracity of sensation to its

essential content, as does Epicurus. Descartes, Locke and Leibnitz have

suggested that no image may be called, as mere change of feeling, true

or false. Sensationalism in the work of Gassendi, Condillac, and

Helvetius undertook for this reason the defense of the senses against

the reproach of deceit, and as a rule did it by invoking the

infallibility of the sense of touch against the reproach of the

contradictions in the other senses. Reid went back to Aristotle in

distinguishing specific objects for each sense and in assuming the truth

of each sense within its own field.

That these various theories can be adjusted is doubtful, even if, from a

more conservative point of view, the subject may be treated

quantitatively. The modern quantification of psychology was begun by

Herbart, who developed a mathematical system of psychology by

introducing certain completely unempirical postulates concerning the

nature of representation and by applying certain simple premises in all

deductions concerning numerical extent. Then came Fechner, who assumed

the summation of stimuli. And finally these views were determined and

fixed by the much-discussed Weber’s Law, according to which the

intensity of the stimulus must increase in the proportion that the

intensity of the sensation is to increase; i.e., if a stimulus of 20

units requires the addition of 3 before it can be perceived, a stimulus

of 60 units would require the addition of 9. This law, which is of

immense importance to criminalists who are discussing the

sense-perceptions of witnesses, has been thoroughly and conclusively

dealt with by A. Meinong.[173]

“Modern psychology takes qualities perceived externally to be in

themselves subjective but capable of receiving objectivity through our

relation to the outer world.... The qualitative character of our sensory

content produced by external stimuli depends primarily on the

organization of our senses. This is the fundamental law of perception,

of modern psychology, variously expressed, but axiomatic in all

physiological psychology.”[174] In this direction Helmholtz[175] has

done pioneer work. He treats particularly the problem of optics, and

physiological optics is the study of perception by means of the sense of

sight. We see things in the external world through the medium of light

which they direct upon our eyes. The light strikes the retina, and

causes a sensation. The sensation brought to the brain by means of the

optic nerve becomes the condition of the representation in consciousness

of certain objects distributed in space.... We make use of the sensation

which the light stimulates in the mechanism of the optic nerve to

construct representations concerning the existence, form, and condition

of external objects. Hence we call images perceptions of sight. (Our

sense-perception, according to this theory, consists, therefore,

entirely of sensations; the latter constitute the stuff or the content

from which the other is constructed). Our sensations are effects caused

in our organs, externally, and the manifestation of such an effect

depends essentially upon the nature of the apparatus which has been

stimulated.

There are certain really known inferences, e.g., those made by the

astronomer from the perspective pictures of the stars to their positions

in space. These inferences are founded upon well-studied knowledge of

the principles of optics. Such knowledge of optics is lacking in the

ordinary function of seeing; nevertheless it is permissible to conceive

the psychical function of ordinary perception as unconscious inferences,

inasmuch as this name will completely distinguish them from the commonly

so-called conscious inferences.

The last-named condition is of especial importance to us. We need

investigation to determine the laws of the influence of optical and

acoustical knowledge upon perception. That these laws are influential

may be verified easily. Whoever is ignorant, e.g., that a noise is

reflected back considerably, will say that a wagon is turning from the

side from which the noise comes, though if he knows the law, if he knows

that fact, his answer would be reversed. So, as every child knows that

the reflection of sound is frequently deceptive, everybody who is asked

in court will say that he believes the wagon to be on the right side

though it might as well have been on the left. Again, if we were unaware

that light is otherwise refracted in water than in air we could say that

a stick in the water has been bent obtusely, but inasmuch as everybody

knows this fact of the relation of light to water, he will declare that

the stick appears bent but really is straight.

From these simplest of sense-perceptions to the most complicated, known

only to half a dozen foremost physicists, there is an infinite series of

laws controlling each stage of perception, and for each stage there is a

group of men who know just so much and no more. We have, therefore, to

assume that their perceptions will vary with the number and manner of

their accomplishments, and we may almost convince ourselves that each

examinee who has to give evidence concerning his sense-perception should

literally undergo examination to make clear his scholarly status and

thereby the value of his testimony. Of course, in practice this is not

required. First of all we judge approximately a man’s nature and nurture

and according to the impression he makes upon us, thence, his

intellectual status. This causes great mistakes. But, on the other hand,

the testimony is concerned almost always with one or several physical

events, so that a simple relational interrogation will establish

certainly whether the witness knows and attends to the physical law in

question or not. But anyway, too little is done to determine the means a

man uses to reach a certain perception. If instantaneous contradictions

appear, there is little damage, for in the absence of anything certain,

further inferences are fortunately made in rare cases only. But when the

observation is that of one person alone, or even when more testify but

have accidentally the same amount of knowledge and hence have made the

same mistake, and no contradiction appears, we suppose ourselves to

possess the precise truth, confirmed by several witnesses, and we argue

merrily on the basis of it. In the meantime we quite forget that

contradictions are our salvation from the trusting acceptance of

untruth--and that the absence of contradiction means, as a rule, the

absence of a starting point for further examination.

For this reason and others modern psychology requires us to be cautious.

Among the others is the circumstance that perceptions are rarely pure.

Their purity consists in containing nothing else than perception; they

are mixed when they are connected with imaginations, judgments, efforts,

and volitions. How rarely a perception is pure I have already tried to

show; judgments almost always accompany it. I repeat too, that owing to

this circumstance and our ignorance of it, countless testimonies are

interpreted altogether falsely. This is true in many other fields. When,

for example, A. Fick says: “The condition we call sensation occurs in

the consciousness of the subject when his sensory nerves are

stimulated,” he does not mean that the nervous stimulus in itself is

capable of causing the condition in question. This one stimulus is only

a single tone in the murmur of countless stimuli, which earlier and at

the same time have influenced us and are different in their effect on

each man. Therefore, that single additional tone will also be different

in each man. Or, when Bernstein says that “Sensation, i.e., the

stimulation of the sensorium and the passage of this stimulation to the

brain, does not in itself imply the perception of an object or an event

in the external world,” we gather that the objectivity of the perception

works correctively not more than one time out of many. So here again

everything depends upon the nature and nurture of the subject.

Sensations are, according to Aubert, still more subjective. “They are

the specific activity of the sense organs, (not, therefore, passive as

according to Helmholtz, but active functions of the sense organs).

Perception arises when we combine our particular sensations with the

pure images of the spirit or the schemata of the understanding,

especially with the pure image of space. The so-called ejection or

externalization of sensations occurs only as their scheme and relation

to the unity of their object.”

So long as anything is conceived as passive it may always recur more

identically than when it is conceived as active. In the latter case the

individuality of the particular person makes the perception in a still

greater degree individual, and makes it almost the creature of him who

perceives. Whether Aubert is right or not is not our task to discover,

but if he is right then sense-perception is as various as is humanity.

The variety is still further increased by means of the comprehensive

activity which Fischer[176] presupposes. “Visual perception has a

comprehensive or compounding activity. We never see any absolute simple

and hence do not perceive the elements of things. We see merely a

spatial continuum, and that is possible only through comprehensive

activity--especially in the case of movement in which the object of

movement and the environment must both be perceived.” But each

individual method of “comprehension” is different. And it is uncertain

whether this is purely physical, whether only the memory assists (so

that the attention is biased by what has been last perceived), whether

imagination is at work or an especial psychical activity must be

presupposed in compounding the larger elements. The fact is that men may

perceive an enormous variety of things with a single glance. And

generally the perceptive power will vary with the skill of the

individual. The narrowest, smallest, most particularizing glance is that

of the most foolish; and the broadest, most comprehensive, and comparing

glance, that of the most wise. This is particularly noticeable when the

time of observation is short. The one has perceived little and generally

the least important; the other has in the same time seen everything from

top to bottom and has distinguished between the important and the

unimportant, has observed the former rather longer than the latter, and

is able to give a better description of what he has seen. And then, when

two so different descriptions come before us, we wonder at them and say

that one of them is untrue.[177]

The speed of apperception has been subjected to measurement by Auerbach,

Kries, Baxt, von Tigerstedt and Bergqvist, Stern, Vaschide, Vurpass,

etc. The results show 0.015 to 0.035 seconds for compounded images.

Unfortunately, most of these experiments have brought little unanimity

in the results and have not compared, e.g., the apperception-times of

very clever people with those of very slow and stupid ones. In the

variety of perception lies the power of presentation (in our sense of

the term). In the main other forces assist in this, but when we consider

how the senses work in combination we must conclude that they determine

their own forms. “If we are to say that sense experience instructs us

concerning the manifoldness of objects we may do so correctly if we add

the scholium that many things could not be mentioned without synthesis.”

So Dörner writes. But if we approach the matter from another side, we

see how remarkable it is that human perceptions can be compared at all.

Hermann Schwarz says “According to the opinion of the physicists we know

external events directly by means of the organs, the nerves of which

serve passively to support consciousness in the perception of such

events. On the contrary, according to the opinion of most physiologists,

the nerve fibers are active in the apprehension of external events, they

modify it, alter it until it is well nigh unrecognizable, and turn it

over to consciousness only after the original process has undergone

still another transformation into new forms of mechanical energy in the

ganglion cells of the outer brain. This is the difference between the

physical theory of perception and the physiological.”

In this connection there are several more conditions pertaining to

general sense-perception. First of all there is that so-called

vicariousness of the senses which substitutes one sense for another, in

representation. The _actual_ substitution of one sense by another as

that of touch and sight, does not belong to the present discussion. The

substitution of sound and sight is only apparent. E. g., when I have

several times heard the half-noticed voice of some person without seeing

him, I will imagine a definite face and appearance which _are_ pure

imagination. So again, if I hear cries for help near some stream, I see

more or less clearly the form of a drowning person, etc. It is quite

different in touching and seeing; if I touch a ball, a die, a cat, a

cloth, etc., with my eyes closed, then I may so clearly see the color of

the object before me that I might be really seeing it. But in this case

there is a real substitution of greater or lesser degree.

The same vicariousness occurs when perception is attributed to one sense

while it properly belongs to another. This happens particularly at such

times when one has not been present during the event or when the

perception was made while only half awake, or a long time ago, and

finally, when a group of other impressions have accompanied the event,

so that there was not time enough, if I may say so, properly to register

the sense impression. So, e.g., some person, especially a close friend,

may have been merely heard and later quite convincingly supposed to have

been seen. Sensitive people, who generally have an acuter olfactory

sense than others, attach to any perceived odor all the other

appropriate phenomena. The vicariousnesses of visual sensations are the

most numerous and the most important. Anybody who has been pushed or

beaten, and has felt the blows, will, if other circumstances permit and

the impulse is strong enough, be convinced that he has seen his

assaulter and the manner of the assault. Sometimes people who are shot

at will claim to have seen the flight of the ball. And so again they

will have seen in a dark night a comparatively distant wagon, although

they have only heard the noise it made and felt the vibration. It is

fortunate that, as a rule, such people try to be just in answering to

questions which concern this substitution of one sense-perception for

another. And such questions ought to be urgently put. That a false

testimony can cause significant errors is as obvious as the fact that

such substitutions are most frequent with nervous and imaginative

persons.

Still more significant is that characteristic phenomenon, to us of

considerable importance, which might be called retrospective

illumination of perception. It consists in the appearance of a

sense-perception under conditions of some noticeable interruption, when

the stimulus does not, as a rule, give rise to that perception. I cite a

simple example in which I first observed this fact. Since I was a child

there had been in my bed-room a clock, the loud ticking of which habit

of many years prevented my hearing. Once, as I lay awake in bed, I heard

it tick suddenly three times, then fall silent and stop. The occurrence

interested me, I quickly got a light and examined the clock closely. The

pendulum still swung, but without a sound; the time was right. I

inferred that the clock must have stopped going just a few minutes

before. And I soon found out why: the clock is not encased and the

weight of the pendulum hangs free. Now under the clock there always

stood a chair which this time had been so placed as to be inclined

further backward. The weight followed that inclination and so the

silence came about.

I immediately made an experiment. I set the clock going again, and again

held the weight back. The last beats of the pendulum were neither

quicker nor slower, nor louder or softer than any others, before the

sudden stoppage of the clock. I believe the explanation to be as

follows: As customary noises especially are unheard, I did not hear the

pendulum of the clock. But its sudden stopping disturbed the balance of

sound which had been dominating the room. This called attention to the

cause of the disturbance, i.e., the ticking which had ceased, and hence

perception was intensified _backwards_ and I heard the last ticks, which

I had not perceived before, one after another. The latent stimulus

caused by the ticking worked backward. My attention was naturally

awakened only _after_ the last tick, but my perception was consecutive.

I soon heard of another case, this time, in court. There was a shooting

in some house and an old peasant woman, who was busy sewing in the room,

asserted that she had just before the shooting heard a _few_ steps in

the direction from which the shot must have come. Nobody would agree

that there was any reason for supposing that the person in question

should have made his final steps more noisily than his preceding ones.

But I am convinced that the witness told the truth. The steps of the new

arrival were perceived subconsciously; the further disturbance of the

perception hindered her occupation and finally, when she was frightened

by the shot, the upper levels of consciousness were illuminated and the

noises which had already reached the subconsciousness passed over the

threshold and were consciously perceived.

I learned from an especially significant case, how the same thing could

happen with regard to vision. A child was run over and killed by a

careless coachman. A pensioned officer saw this through the window. His

description was quite characteristic. It was the anniversary of a

certain battle. The old gentleman, who stood by the window thinking

about it and about his long dead comrades, was looking blankly out into

the street. The horrible cry of the unhappy child woke him up and he

really began to see. Then he observed that he had in truth seen

everything that had happened _before_ the child was knocked over--i.e.,

for some reason the coachman had turned around, turning the horses in

such a way at the same time that the latter jumped sidewise upon the

frightened child, and hence the accident. The general expressed himself

correctly in this fashion: “I saw it all, but I did not perceive and

know that I saw it until _after_ the scream of the child.” He offered

also in proof of the correctness of his testimony, that he, an old

cavalry officer, would have had to see the approaching misfortune if he

had consciously seen the moving of the coachman, and then he would have

had to be frightened. But he knew definitely that he was frightened only

when the child cried out--he could not, therefore, have consciously

perceived the preceding event. His story was confirmed by other

witnesses.

This psychological process is of significance in criminal trials,

inasmuch as many actionable cases depend upon sudden and unexpected

events, where retrospective illumination may frequently come in. In such

cases it is most important to determine what actually has been

perceived, and it is never indifferent whether we take the testimony in

question as true or not.

With regard to the senses of criminals, Lombroso and Ottolenghi have

asserted that they are duller than those of ordinary people. The

assertion is based on a collection made by Lombroso of instances of the

great indifference of criminals to pain. But he has overlooked the fact

that the reason is quite another thing. Barbarous living and barbarous

morals are especially dulling, so that indifference to pain is a

characteristic of all barbarous nations and characters. Inasmuch as

there are many criminals among barbarous people, barbarity, criminality

and indifference to pain come together in a large number of cases. But

there is nothing remarkable in this, and a direct relation between crime

and dullness of the senses can not be demonstrated.

(b) The Sense of Sight.

Criminal Psychology: A Manual for Judges, Practitioners, and Students · 第 3 / 79 章