Section 37. (1) _General Considerations._

Just as the sense of sight is the most dignified of all our senses, it

is also the most important in the criminal court, for most witnesses

testify as to what they have seen. If we compare sight with the hearing,

which is next in the order of importance, we discover the well-known

fact that what is seen is much more certain and trustworthy than what is

heard. “It is better to see once than to hear ten times,” says the

universally-valid old maxim. No exposition, no description, no

complication which the data of other senses offer, can present half as

much as even a fleeting glance. Hence too, no sense can offer us such

surprises as the sense of sight. If I imagine the thunder of Niagara,

the voice of Lucca, the explosion of a thousand cartridges, etc., or

anything else that I have not heard, my imagination is certainly

incorrect, but it will differ from reality only in degree. It is quite

different with visual imagination. We need not adduce examples of

magnificence like the appearance of the pyramids, a tropical light; of a

famous work of art, a storm at sea, etc. The most insignificant thing

ever seen but variously pictured in imagination will be greeted at first

sight with the words: “But I imagined it quite different!” Hence the

tremendous importance of every local and material characteristic which

the criminal court deals with. Every one of us knows how differently he

has, as a rule, imagined the place of the crime to be; how difficult it

is to arrive at an understanding with the witness concerning some

unseen, local characteristic, and how many mistakes false images of the

unseen have caused. Whenever I ciceroned anybody through the Graz

Criminal Museum, I was continually assailed with “Does this or that look

so? But I thought it looked quite different!” And the things which evoke

these exclamations are such as the astonished visitors have spoken and

written about hundreds of times and often passed judgments upon. The

same situation occurs when witnesses narrate some observation. When the

question involves the sense of hearing some misunderstanding may be

popularly assumed. But the people know little of optical illusions and

false visual perceptions, though they are aware that incorrect auditions

are frequent matters of fact. Moreover, to the heard object a large

number of more or less certain precautionary judgments are attached. If

anybody, e.g., has _heard_ a shot, stealthy footsteps, crackling flames,

we take his experience always to be _approximate_. We do not do so when

he assures us he has _seen_ these things or their causes. Then we take

them--barring certain mistakes in observation,--to be indubitable

perceptions in which misunderstanding is impossible.

In this, again, is the basis for the distrust with which we meet

testimony concerning hearsay. For we feel uncertain in the mere absence

of the person whose conversation is reported, since his value can not be

determined. But a part of the mistrust lies in the fact that it is not

vision but the perennially half-doubted hearing that is in issue. Lies

are assigned mainly to words; but there are lies which are visual

(deceptions, maskings, illusions, etc.). Visual lies are, however, a

diminishing minority in comparison with the lies that are heard.

The certainty of the correctness of vision lies in its being tested with

the sense of touch,--i.e. in the adaptation of our bodily sense to

otherwise existing things. As Helmholtz says, “The agreement between our

visual perceptions and the external world, rests, at least in the most

important matters, on the same ground that all our knowledge of the

actual world rests on, upon the experience and the lasting test of their

correctness by means of experiments, i.e., of the movements of our

bodies.” This would almost make it seem that the supreme judge among the

senses is the touch. But that is not intended; we know well enough to

what illusions we are subject if we trust the sense of touch alone. At

the same time we must suppose that the question here is one of the

nature of the body, and this can be measured only by something similar,

i.e., by our own physical characteristics, but always under the control

of some other sense, especially the sense of sight.

The visual process itself consists, according to Fischer, “of a

compounded series of results which succeed each other with extraordinary

rapidity and are causally related. In this series the following elements

may principally be distinguished.

(1) The physico-chemical process.

(2) The physiologico-sensory.

(3) The psychological.

(4) The physiologico-motor.

(5) The process of perception.”

It is not our task to examine the first four elements. In order clearly

to understand the variety of perception, we have to deal with the last

only. I once tried to explain this by means of the phenomenon of

instantaneous photographs (cinematographs). If we examine one such

representing an instant in some quick movement, we will assert that we

never could have perceived it in the movement itself. This indicates

that our vision is slower than that of the photographic apparatus, and

hence, that we do not apprehend the smallest particular conditions, but

that we each time unconsciously compound a group of the smallest

conditions and construct in that way the so-called instantaneous

impressions. If we are to compound a great series of instantaneous

impressions in one galloping step, we must have condensed and compounded

a number of them in order to get the image that we see with our eyes as

instantaneous. We may therefore say that the least instantaneous image

we ever see with our eyes contains many parts which only the

photographic apparatus can grasp. Suppose we call these particular

instances a, b, c, d, e, f, g, h, i, j, k, l, m; it is self-evident that

the manner of their composition must vary with each individual. One man

may compound his elements in groups of three: a, b, c,--d, e, f,--g, h,

i, etc.; another may proceed in dyads: a, b,--c, d,--e, f,--g, h,--etc.;

a third may have seen an unobservable instant later, but constructs his

image like the first man: b, c, d,--l, m, n, etc.; a fourth works slowly

and rather inaccurately, getting: a, c, d,--f, h, i,--etc. Such

variations multiply, and when various observers of the same event

describe it they do it according to their different characteristics. And

the differences may be tremendous. Substitute numerals for letters and

the thing becomes clear. The relative slowness of our apprehension of

visual elements has the other consequence that we interpolate objects in

the lacunæ of vision _according to our expectations_. The best example

of this sort of thing would be the perception of assault and battery.

When ten people in an inn see how A raises a beer glass against B’s

head, five expect: “Now he’ll pound him,” and five others: “Now he’ll

throw it.” If the glass has reached B’s head none of the ten observers

have seen how it reached there, but the first five take their oath that

A pounded B with the glass, and the other five that he threw it at B’s

head. And all ten have really seen it, so firmly are they convinced of

the correctness of their swift judgment of expectation. Now, before we

treat the witness to some reproach like untruth, inattention, silliness,

or something equally nice, _we_ had better consider whether his story is

not true, and whether the difficulty might not really lie in the

imperfection of our own sensory processes. This involves partly what

Liebmann has called “anthropocentric vision,” i.e., seeing with man as

the center of things. Liebmann further asserts, “that we see things only

in perspective sizes, i.e., only from an angle of vision varying with

their approach, withdrawal and change of position, but in no sense as

definite cubical, linear, or surface sizes. The apparent size of an

object we call an angle of vision at a certain distance. But, what

indeed is the different, true size? We know only relations of

magnitude.” This description is important when we are dealing with

testimony concerning size. It seems obvious that each witness who speaks

of size is to be asked whence he had observed it, but at the same time a

great many unexpected errors occur, especially when what is involved is

the determination of the size of an object in the same plane. One need

only to recall the meeting of railway tracks, streets, alleys, etc., and

to remember how different in size, according to the point of view of the

witness, various objects in such places must appear. Everybody knows

that distant things seem smaller than near ones, but almost nobody knows

what the difference amounts to. For examples see Lotze, “Medical

Psychology,” Leipzig, 1852.

In addition we often think that the clearness of an object represents

its distance and suppose that the first alone determines the latter. But

the distinctness of objects, i.e., the perceptibility of a

light-impression, depends also upon the absolute brightness and the

differences in brightness. The latter is more important than is

supposed. Try to determine how far away you can see a key-hole when the

wall containing the door is in the shadow, and when there is a window

opposite the key-hole. A dark object of the size of a key-hole will not

be visible at one hundredth of the distance at which the key-hole is

perceived. Moreover, the difference in intensity is not alone in

consideration; the intensity of the object _with regard to its

background_ has yet to be considered. Aubert has shown that the accuracy

of the distinction is the same when a square of white paper is looked at

from an angle of 18´´, and when conversely a square of black paper on

white background is looked at from an angle of 35´´. “When we put a gray

paper in the sunshine, it may become objectively brighter than white

paper in shadow. But this does not prevent us from knowing one as gray

and the other as pure white. We separate the color of the object from

the intensity of the incident light.” But this is not always so simple,

inasmuch as we know in the case in hand which paper is gray and which

white, which is in the sunlight and which in the shadow. But if these

facts are not known mistakes often occur so that a man dressed in dark

clothes but in full light will be described as wearing lighter clothes

than one who wears light clothes in the shadow.

Differences of illumination reveal a number of phenomena difficult to

explain. Fechner calls attention to the appearance of stars: “At night

everybody sees the stars, in daylight not even Sirius or Jupiter is

seen. Yet the absolute difference between those places in the heavens

where the stars are and the environing places is just as great as in the

night--there is only an increase in illumination.” Of still greater

importance to us is the circumstance noted but not explained by

Bernstein. If, in daylight, we look into a basement room from outside,

we can perceive nothing, almost; everything is dark, even the windows

appear black. But in the evening, if the room is ever so slightly

illuminated, and we look into it from outside, we can see even small

articles distinctly. Yet there was much intenser light in the room in

question during the day than the single illumination of the night could

have provided. Hence, it is asserted, the difference in this case is a

standard one. In open day the eye is accustomed to the dominating

brightness of daylight, beside which the subdued illumination of the

room seems relatively dark. But in the evening one is in the dark, and

hence even the little light of a single candle is enough to enable one

to see. That this explanation is untrue is shown by the fact that the

phenomenon is not regulated even when the circumstances in question are

made identical. If, for example, you approach the window in daylight

with your eyes shut, lean your forehead against the pane and shut out

the light on the sides with your hands, and then open your eyes, you see

as little in the room as when you looked into it without performing this

ceremony. So again, if during the night you gazed at some near-by gas

lamp and then glanced into the room, there is only a few moments’

indistinctness at most, after that the single candle is enough. The

reason, then, must be different from the assigned one--but whatever it

is, we need only to maintain that immediate judgment concerning numerous

cases involving situations of this kind would be overhasty. It is often

said that a witness was able to see this or that under such and such

illumination, or that he was unable to see it, although he denies his

ability or inability. The only solution of such contradictions is an

experiment. The attempt must be made either by the judge or some

reliable third person, to discover whether, under the same conditions

of illumination, anything could be seen at the place in question or not.

As to _what_ may be seen in the distance, experiment again, is the best

judge. The human eye is so very different in each man that even the

acute examination into what is known of the visual image of the Pleiades

shows that the _average_ visual capacity of classic periods is no

different from our own, but still that there was great variety in visual

capacity. What enormous visual power is attributed to half-civilized and

barbarous peoples, especially Indians, Esquimos, etc.! Likewise among

our own people there are hunters, mountain guides, etc., who can see so

clearly in the distance that mere stories about it might be fables. In

the Bosnian campaign of 1878 we had a soldier who in numerous cases of

our great need to know the enemy’s position in the distance could

distinguish it with greater accuracy than we with our good

field-glasses. He was the son of a coal-miner in the Styrian mountains,

and rather a fool. Incidentally it may be added that he had an

incredible, almost animal power of orientation.

As we know little concerning far-sightedness, so also we are unable to

define what near-sighted people can see. Inasmuch as their vision does

not carry, they are compelled to make intellectual supplementations.

They observe the form, action, and clothes of people more accurately

than sharp-eyed persons, and hence recognize acquaintances at a greater

distance than the latter. Therefore, before an assertion of a

short-sighted man is doubted an experiment should be made, or at least

another trustworthy short-sighted person should be asked for his

opinion.

The background of objects, their movement and form have decided effects

on the difference in visual perception. It is an ancient observation

that lengthy objects like poles, wires, etc., are visible at

incomparably greater distances than, e.g., squares of the same length.

In examination it has been shown that the boundary of accurate

perception can hardly be determined. I know a place where under

favorable illumination taut, white and very thin telephone wires may be

seen at a distance of more than a kilometer. And this demands a very

small angle of vision.

Humboldt calls attention to the large number of “optical fables.” He

assures us that it is certainly untrue that the stars may be seen in

daylight from a deep well, from mines, or high mountains, although this

has been repeatedly affirmed since Aristotle.

The explanation of our power to see very thin, long objects at a very

great distance, is not our affair, but is of importance because it

serves to explain a number of similar phenomena spoken of by witnesses.

We have either incorrectly to deny things we do not understand, or we

have to accept a good deal that is deniable. We will start, therefore,

with the well-known fact that a point seen for a considerable time may

easily disappear from perception. This has been studied by Helmholtz and

others, and he has shown how difficult it is to keep a point within the

field of vision for only ten or twenty minutes. Aubert examines older

studies of the matter and concludes that this disappearance or confusion

of an object is peripheral, but that fixation of a small object is

always difficult. If we fix a distant point it is disappearing at every

instant so that an accurate perception is not possible; if however we

fix upon a long, thin body, e.g., a wire, it is unnecessary to fix a

single point and we may see the object with a wandering eye, hence more

clearly.

Helmholtz adds that weakly objective images disappear like a wet spot on

warm tin, at the moment a single point is fixed, as does e.g., a

landscape seen at night. This last acute observation is the basis of

many a testimony concerning the sudden disappearance of an object at

night. It has helped me in many an examination, and always to advantage.

In this connection the over-estimation of the moon’s illuminating power

is not to be forgotten. According to Helmholtz the power of the full

moon is not more than that of a candle twelve feet away. And how much

people claim to have seen by moonlight! Dr. Vincent[178] says that a man

may be recognized during the first quarter at from two to six meters, at

full moon at from seven to ten meters, and at the brightest full moon,

an intimate may be recognized at from fifteen to sixteen meters. This is

approximately correct and indicates how much moonlight is

over-estimated.

In addition to the natural differences of sight there are also those

artificially created. How much we may help ourselves by skilful

distinctions, we can recognize in the well-known and

frequently-mentioned business of reading a confused handwriting. We aim

to weaken our sense-perception in favor of our imagination, i.e. so to

reduce the clearness of the former as to be able to test upon it in some

degree a larger number of images. We hold the MS. away from us, look at

it askant, with contracted eyebrows, in different lights, and finally we

read it. Again, the converse occurs. If we have seen something with a

magnifying glass we later recognize details without its help. Definite

conditions may bring to light very great distinctions. A body close to

the face or in the middle distance looks different according as one eye

or both be used in examining it. This is an old story and explains the

queer descriptions we receive of such objects as weapons and the like,

which were suddenly held before the face of the deponent. In cases of

murderous assault it is certain that most uncanny stories are told,

later explained by fear or total confusion or intentional dishonesty,

but really to be explained by nothing more than actual optical

processes.

I do not believe that binocular vision is of much importance in the law;

I know of no case in ordinary vision where it matters whether one or

both eyes have been used. It is correct to assert that one side or the

other of a vertically held hand will be clearer if, before looking at it

with both eyes, you look at it with one or the other, but this makes

little difference to our purpose. It must be maintained that a part of

what we see is seen with one eye only,--if, e.g., I look at the sky and

cover one eye with my hand, a certain portion of the heaven disappears,

but I observe no alteration in the remaining portion. When I cover the

other eye, other stars disappear. Therefore, in binocular vision certain

things are seen with one eye only. This may be of importance when an

effect has been observed first with both eyes, then with one; raising

the question of the difference in observation--but such a question is

rare.

There are two additional things to consider. The first is the problem of

the influence of custom on increasing visual power in darkness. This

power is as a rule undervalued. No animal, naturally, can see anything

in complete darkness. But it is almost unbelievable how much can be seen

with a very little light. Here again, prisoners tell numerous stories

concerning their vision in subterranean prisons. One saw so well as to

be able to throw seven needles about the cell and then to find them

again. Another, the naturalist Quatremére-Disjonval, was able so

accurately to observe the spiders in his cell as to make the observation

the basis for his famous “Aranéologie.” Aubert tells of his having had

to stay in a room so dark as to make it necessary for others to feel

their way, but nevertheless being able to read books without detection

because the others could not see the books.

How quickly we get used to darkness and how much more we see after a

while, is well known. It is also certain that the longer you are in

darkness the more you see. You see more at the end of a day than after a

few hours, and at the end of a year, still more. The eye, perhaps,

changes in some degree for just this purpose. But a prolonged use of the

visual mechanism tends to hypertrophy--or atrophy, as the eyes of

deep-sea fishes show. It is well, in any event, to be careful about

contradicting the testimonies of patients who have long lived in the

dark, concerning what they have seen. The power to see in the dark is so

various that without examination, much injustice may be done. Some

people see almost nothing at twilight, others see at night as well as

cats. And in court these differences must be established and

experimentally verified.

The second important element is the innervation of the muscles in

consequence of movement merely seen. So Stricker points out, that the

sight of a man carrying a heavy load made him feel tension in the

muscles involved, and again, when he saw soldiers exercising, he almost

was compelled openly to act as they. In every case the muscular

innervation followed the visual stimulus.

This may sound improbable but, nevertheless, everybody to some degree

does the identical things. And at law the fact may be of importance in

cases of assault and battery. Since I learned it, I have repeatedly

observed in such cases, from harmless assault to murder, that people,

although they had not been seen to deal any blows, were often accused of

complicity simply because they were making suspicious movements that led

to the following inference: “They stuck their hands into their trousers

pocket looking for a knife, clenched their fists, looked as if they were

about to jump, swung their hands.” In many such cases it appeared that

the suspects were harmless spectators who were simply more obvious in

their innervation of the muscles involved in the assault they were

eagerly witnessing. This fact should be well kept in mind; it may

relieve many an innocent.

Criminal Psychology: A Manual for Judges, Practitioners, and Students · 第 4 / 79 章