Section 44._Criminal Psychology: A Manual for Judges, Practitioners, and Students

What lawyers have to consider in the transition from purely sensory

impressions to intellectual conceptions of these impressions, is the

possibility of later reproducing any observed object or event. Many

so-called scientific distinctions have, under the impulse of scientific

psychology, lost their status. Modern psychology does not see

sharply-drawn boundaries between perception and memory, and suggests

that the proper solution of the problem of perception is the solution of

the problem of knowledge.[189]

With regard to the relation of consciousness to perception we will make

the distinctions made by Fischer.[190] There are two spheres or regions

of consciousness: the region of sensation, and of external perception.

The former involves the inner structure of the organism, the latter

passes from the organism into the objective world. Consciousness has a

sphere of action in which it deals with the external world by means of

the motor nerves and muscles, and a sphere of perception which is the

business of the senses.

External perception involves three principal functions: apprehension,

differentiation, and combination. Perception in the narrower sense of

the term is the simple sensory conscious apprehension of some present

object stimulating our eyes. We discover by means of it what the object

is, its relation to ourselves and other things, its distance from us,

its name, etc.

What succeeds this apprehension is the most important thing for us

lawyers, i.e. _recognition_. Recognition indicates only that an object

has sufficiently impressed a mind to keep it known and identifiable. It

is indifferent what the nature of the recognized object is. According to

Hume the object may be an enduring thing (“non-interrupted and

non-dependent on mind”), or it may be identical with perception itself.

In the latter case the perception is considered as a logical judgment

like the judgment: “It is raining,” or the feeling that “it is raining,”

and there recognition is only the recognition of a perception. Now

judgments of this sort are what we get from witnesses, and what we have

to examine and evaluate. This must be done from two points of view.

First, from the point of view of the observer and collector of instances

who is seeking to discover the principle which governs them. If this is

not done the deductions that we make are at least unreliable, and in

most cases, false. As Mach says, “If once observation has determined all

the facts of any natural science, a new period begins for that science,

the period of deduction.” But how often do we lawyers distinguish these

two periods in our own work.[191]

The second point of importance is the presence of mistakes in the

observations. The essential mistakes are classified by Schiel under two

headings. Mistakes in observation are positive or negative, wrong

observation or oversight. The latter occurs largely through preconceived

opinions. The opponents of Copernicus concluded that the earth did not

move because otherwise a stone dropped from the top of a tower would

reach the ground a little to the west. If the adherents of Copernicus

had made the experiment they would have discovered that the stone does

fall as the theory requires. Similar oversights occur in the lawyer’s

work hundreds of times. We are impressed with exceptions that are made

by others or by ourselves, and give up some already tried approach

without actually testing the truth of the exception which challenges it.

I have frequently, while at work, thought of the story of some one of

the Georges, who did not like scholars and set the following problem to

a number of philosophers and physicists: “When I put a ten pound stone

into a hundred pound barrel of water the whole weighs a hundred and ten

pounds, but when I put a live fish of ten pounds into the barrel the

whole still weighs only a hundred pounds?” Each one of the scholars had

his own convincing explanation, until finally the king asked one of the

foot-men, who said that he would like to see the experiment tried before

he made up his mind. I remember a case in which a peasant was accused of

having committed arson for the sake of the insurance. He asserted that

he had gone into a room with a candle and that a long spider’s web which

was hanging down had caught fire from it accidentally and had inflamed

the straw which hung from the roof. So the catastrophe had occurred.

Only in the second examination did it occur to anybody to ask whether

spider’s web can burn at all, and the first experiment showed that that

was impossible.

Most experiences of this kind indicate that in recognizing events we

must proceed slowly, without leaping, and that we may construct our

notions only on the basis of knowledge we already possess. Saint Thomas

says, “Omnes cognitio fit secundum similitudinem cogniti in

cognoscente.” If this bit of wisdom were kept in mind in the examination

of witnesses it would be an easier and simpler task than usual. Only

when the unknown is connected with the known is it possible to

understand the former. If it is not done the witness will hardly be able

to answer. He nowhere finds support, or he seeks one of his own, and

naturally finds the wrong one. So the information that an ordinary

traveler brings home is mainly identical with what he carries away, for

he has ears and eyes only for what he expects to see. For how long a

time did the negro believe that disease pales the coral that he wears?

Yet if he had only watched it he would have seen how foolish the notion

was. How long, since Adam Smith, did people believe that extravagance

helps industry, and how much longer have people called Copernicus a fool

because they actually saw the sun rise and set. So J. S. Mill puts his

opinions on this matter. Benneke[192] adds, “If anybody describes to me

an animal, a region, a work of art, or narrates an event, etc., I get no

notion through the words I hear of the appearance of the subject. I

merely have a problem set me by means of the words and signs, in the

conception of the subject, and hence it depends for truth mainly upon

the completeness of earlier conceptions of similar things or events, and

upon the material I have imaginatively at hand. These are my perceptual

capital and my power of representation.”

It naturally is not necessary to ask whether a narrator has ever seen

the things he speaks of, nor to convince oneself in examination that the

person in question knows accurately what he is talking about. At the

same time, the examiner ought to be clear on the matter and know what

attitude to take if he is going to deal intelligibly with the other. I

might say that all of us, educated and uneducated, have apprehended and

remember definite and distinct images of all things we have seen, heard,

or learned from descriptions. When we get new information we simply

attach the new image to the old, or extinguish a part of the old and put

the new in its place, or we retain only a more or less vigorous breath

of the old with the new. Such images go far back; even animals possess

them. One day my small son came with his exciting information that his

guinea pig, well known as a stupid beast, could count. He tried to prove

this by removing the six young from their mother and hiding them so that

she could not see what happened to them. Then he took one of the six,

hid it, and brought the remaining five back to the old lady. She smelled

them one after the other and then showed a good deal of excitement, as

if she missed something. Then she was again removed and the sixth pig

brought back; when she was restored to her brood, she sniffed all six

and showed a great deal of satisfaction. “She could count at least six.”

Naturally the beast had only a fixed collective image of her brood, and

as one was missing the image was disturbed and incorrect. At the same

time, the image was such as is created by the combination of events or

circumstances. It is not far from the images of low-browed humanity and

differs only in degree from those of civilized people.

The fact that a good deal of what is said is incorrect and yet not

consciously untrue, depends upon the existence of these images and their

association with the new material. The speaker and the auditor have

different sets of images; the first relates the new material differently

from a second, and so of course they can not agree.[193] It is the

difficult task of the examiner so to adapt what is said as to make it

appropriate to the right images without making it possible for incorrect

interpretations to enter. When we have a well-known money-lender as

witness concerning some unspeakable deal, a street-walker concerning

some brawling in a peasant saloon, a clubman concerning a duel, a

game-warden concerning poaching, the set of images of each one of these

persons will be a bad foundation for new perceptions. On the other hand,

it will not be difficult to abstract from them correctly. But cases of

this sort are not of constant occurrence and the great trouble consists

in once for all discovering what memory-images were present before the

witness perceived the event in question. The former have a great

influence upon the perception of the latter.

In this connection it should not be forgotten that the retention of

these images is somewhat pedantic and depends upon unimportant things.

In the city hall of Graz there is a secretary with thirty-six sections

for the thirty-six different papers. The name of the appropriate journal

was written clearly over each section and in spite of the clearness of

the script the depositing and removing of the papers required certain

effort, inasmuch as the script had to be read and could not be

apprehended. Later the name of the paper was cut out of each and pasted

on the secretary instead of the script, and then, in spite of the

various curly and twisted letters, the habitual images of the titles

were easily apprehended and their removal and return became mechanical.

The customary and identical things are so habitual that they are

apprehended with greater ease than more distinct objects.

Inasmuch as we can conceive only on the basis of the constancy and

similarity of forms, we make these forms the essence of experience. On

the other hand, what is constant and similar for one individual is not

so for another, and essences of experience vary with the experiencer.

“When we behold a die of which we can see three sides at a time, seven

corners, and nine edges, we immediately induce the image or schema of a

die, and we make our further sense-perception accord with this schema.

In this way we get a series of schemas which we may substitute for one

another” (Aubert). For the same reason we associate in description

things unknown to the auditor, which we presuppose in him, and hence we

can make him rightly understand only if we have named some appropriate

object in comparison. Conversely, we have to remember that everybody

takes his comparison from his own experience, so that we must have had a

like experience if we are to know what is compared. It is disastrous to

neglect the private nature of this experience. Whoever has much to do

with peasants, who like to make use of powerful comparisons, must first

comprehend their essential life, if he is to understand how to reduce

their comparisons to correct meanings. And if he has done so he will

find such comparisons and images the most distinct and the most

intelligible.

Sense-perception has a great deal to do in apprehension and no one can

determine the boundary where the sense activity ends and the

intellectual begins. I do not recall who has made note of the

interesting fact that not one of twenty students in an Egyptian museum

knew why the hands of the figures of Egyptian wall pictures gave the

impression of being incorrect--nobody had observed the fact that all the

figures had two right hands.

I once paid a great deal of attention to card-sharping tricks and as I

acquired them, either of myself or from practised gamblers, I

demonstrated them to the young criminalists. For a long time I refused

to believe what an old Greek told me: “The more foolish and obvious a

trick is, the more certain it is; people never see anything.” The man

was right. When I told my pupils expressly, “Now I am cheating,” I was

able to make with safety a false coup, a false deal, etc. Nobody saw it.

If only one has half a notion of directing the eyes to some other thing,

a card may be laid on the lap, thrust into the sleeve, taken from the

pocket, and God knows what else. Now who can say in such a case whether

the sensory glance or the intellectual apprehension was unskilful or

unpractised? According to some authorities the chief source of error is

the senses, but whether something must not be attributed to that

mysterious, inexplicable moment in which sensory perception becomes

intellectual perception, nobody can say.

My favorite demonstration of how surprisingly little people perceive is

quite simple. I set a tray with a bottle of water and several glasses on

the table, call express attention to what is about to occur, and pour a

little water from the bottle into the glass. Then the stuff is taken

away and the astonishing question asked what have I done? All the

spectators reply immediately: you have poured water into a glass. Then I

ask further with what hand did I do it? How many glasses were there?

Where was the glass into which I poured the water? How much did I pour?

How much water was there in the glass? Did I really pour or just pretend

to? How full was the bottle? Was it certainly water and not, perhaps,

wine? Was it not red wine? What did I do with my hand after pouring the

water? How did I look when I did it? Did you not really see that I shut

my eyes? Did you not really see that I stuck my tongue out? Was I

pouring the water while I did it? Or before, or after? Did I wear a ring

on my hand? Was my cuff visible? What was the position of my fingers

while I held the glass? These questions may be multiplied. And it is as

astonishing as amusing to see how little correctness there is in the

answers, and how people quarrel about the answers, and what

extraordinary things they say. Yet what do we require of witnesses who

have to describe much more complicated matters to which their attention

had not been previously called, and who have to make their answers, not

immediately, but much later; and who, moreover, may, in the presence of

the fact, have been overcome by fear, astonishment, terror, etc.! I find

that probing even comparatively trained witnesses is rather too funny,

and the conclusions drawn from what is so learned are rather too

conscienceless.[194] Such introductions as: “But you will know,”--“Just

recall this one,”--“You wouldn’t be so stupid as not to have observed

whether,”--“But my dear woman, you have eyes,”--and whatever else may be

offered in this kindly fashion, may bring out an answer, but what real

worth can such an answer have?

One bright day I came home from court and saw a man step out of a

cornfield, remain a few instants in my field of vision, and then

disappear. I felt at once that the man had done something suspicious,

and immediately asked myself how he looked. I found I knew nothing of

his clothes, his dress, his beard, his size, in a word, nothing at all

about him. But how I would have punished a witness who should have known

just as little. We shall have, in the course of this examination,

frequently to mention the fact that we do not see an event in spite of

its being in the field of perception. I want at this point merely to

call attention to a single well-known case, recorded by Hofmann.[195] At

a trial a circumstantial and accurate attempt was made to discover

whether it was a significant alteration to bite a man’s ear off. The

court, the physician, the witnesses, etc., dealt with the question of

altering, until finally the wounded man himself showed what was meant,

because his other ear had been bitten off many years before,--but then

nobody had noticed that mutilated ear.

In order to know what another person has seen and apprehended we must

first of all know how he thinks, and that is impossible. We frequently

say of another that he must have thought this or that, or have hit upon

such and such ideas, but what the events in another brain may be we can

never observe. As Bois-Reymond says somewhere: “If Laplace’s ghost could

build a homunculus according to the Leibnitzian theory, atom by atom and

molecule by molecule, he might succeed in making it think, but not in

knowing how it thinks.” But if we know, at least approximately, the kind

of mental process of a person who is as close as possible to us in sex,

age, culture, position, experience, etc., we lose this knowledge with

every step that leads to differences. We know well what great influence

is exercised by the multiplicity of talents, superpositions, knowledge,

and apprehensions. When we consider the qualities of things, we

discover that we never apprehend them abstractly, but always concretely.

We do not see color but the colored object; we do not see warmth, but

something warm; not hardness, but something hard. The concept warm, as

such, can not be thought of by anybody, and at the mention of the word

each will think of some particular warm object; one, of his oven at

home; another, of a warm day in Italy; another of a piece of hot iron

which burnt him once. Then the individual does not pay constant court to

the same object. To-day he has in mind this concrete thing, to-morrow,

he uses different names and makes different associations. But every

concrete object I think of has considerable effect on the new

apprehension; and my auditor does not know, perhaps even I myself do

not, what concrete object I have already in mind. And although Berkeley

has already shown that color can not be thought of without space or

space without color, the task of determining the concrete object to

which the witness attaches the qualities he speaks of, will still be

overlooked hundreds of times.

It is further of importance that everybody has learned to know the

object he speaks about through repetition, that different relations have

shown him the matter in different ways. If an object has impressed

itself upon us, once pleasurably and once unpleasantly, we can not

derive the history and character of the present impression from the

object alone, nor can we find it merely in the synthetic memory

sensations which are due to the traces of the former coalescing

impressions. We are frequently unable, because of this coalescing of

earlier impressions, to keep them apart and to study their effect on

present impressions. Frequently we do not even at all know why this or

that impression is so vivid. But if we are ignorant with regard to what

occurs in ourselves, how much can we know about others?

Exner calls attention to the fact that it is in this direction

especially, that the “dark perceptions” play a great rôle. “A great part

of our intelligence depends on the ability of these ‘dark perceptions’

to rise without requiring further attention, into the field of

consciousness. There are people, e.g., who recognize birds in their

flight without knowing clearly what the characteristic flight for any

definite bird may be. Others, still more intelligent, know at what

intervals the flyers beat their wings, for they can imitate them with

their hands. And when the intelligence is still greater, it makes

possible a correct description in words.”

Suppose that in some important criminal case several people, of

different degrees of education and intelligence, have made observations.

We suppose that they all want to tell the truth, and we also suppose

that they have observed and apprehended their objects correctly. Their

testimonies, nevertheless, will be very different. With the degree of

intelligence rises the degree of effect of the “dark subconscious

perceptions.” They give more definite presentation and explanation of

the testimony; they turn bare assertions into well-ordered perceptions

and real representations. But we generally make the mistake of ascribing

the variety of evidence to varying views, or to dishonesty.

To establish the unanimity of such various data, or to find out whether

they have such unanimity, is not easy. The most comfortable procedure is

to compare the lesser testimonies with those of the most intelligent of

the witnesses. As a rule, anybody who has a subconscious perception of

the object will be glad to bring it out if he is helped by some form of

expression, but the danger of suggestion is here so great that this

assistance must be given only in the rarest of cases. The best thing is

to help the witness to his full evidence gradually, at the same time

taking care not to suggest oneself and thus to cause agreement of

several testimonies which were really different but only appeared to

look contradictory on account of the effect of subconscious perceptions.

The very best thing is to take the testimony as it comes, without

alteration, and later on, when there is a great deal of material and the

matter has grown clearer, to test the stuff carefully and to see whether

the less intelligent persons gave different testimonies through lack of

capacity in expression, or because they really had perceived different

things and had different things to say.

This is important when the witnesses examined are experts in the matter

in which they are examined. I am convinced that the belief that such

people must be the best witnesses, is false, at least as a

generalization. Benneke (loco cit.), has also made similar observations.

“The chemist who perceives a chemical process, the connoisseur a

picture, the musician a symphony, perceive them with more vigorous

attention than the layman, but the actual attention may be greater with

the latter.” For our own affair, it is enough to know that the judgment

of the expert will naturally be better than that of the layman; his

apprehension, however, is as a rule one-sided, not so far-reaching and

less uncolored. It is natural that every expert, especially when he

takes his work seriously, should find most interest in that side of an

event with which his profession deals. Oversight of legally important

matters is, therefore, almost inevitable. I remember how an eager young

doctor was once witness of an assault with intent to kill. He had seen

how in an inn the criminal had for some time threatened his victim with

a heavy porcelain match-tray. “The os parietale may here be broken,” the

doctor thought, and while he was thinking of the surgical consequences

of such a blow, the thing was done and the doctor had not seen how the

blow was delivered, whether a knife had been drawn by the victim, etc.

Similarly, during an examination concerning breaking open the drawer of

a table, the worst witness was the cabinet-maker. The latter was so much

interested in the foreign manner in which the portions of the drawer had

been cemented and in the curious wood, that he had nothing to say about

the legally important question of how the break was made, what the

impression of the damaging tool was, etc. Most of us have had such

experiences with expert witnesses, and most of us have also observed

that they often give false evidence because they treat the event in

terms of their own interest and are convinced that things must happen

according to the principles of their trades. However the event shapes

itself, they model it and alter it so much that it finally implies their

own apprehension.

“Subconscious perceptions,” somewhat altered, play another rôle,

according to Exner, in so-called orientation. If anybody is able to

orient himself, i.e., know where he is at any time and keep in mind the

general direction, it is important to be aware of the fact when he

serves as witness, for his information will, in consequence, take a

different form and assume a different value. Exner says of himself, that

he knows at each moment of his climb of the Marcus’ tower in what

direction he goes. As for me, once I have turned around, I am lost. Our

perceptions of location and their value would be very different if we

had to testify concerning relations of places, in court. But hardly

anybody will assure the court that in general he orients himself well or

ill.

As Exner says, “If, when walking, I suddenly stop in front of a house to

look at it, I am definitely in possession, also, of the feeling of its

distance from where I left the road--the unconscious perception of the

road beyond is here at work.” It might, indeed, be compared with pure

subconsciousness in which series of processes occur without our knowing

it.

But local orientation does not end with the feeling for place. It is at

work even in the cases of small memories of location, e.g., in learning

things by heart, in knowing on what page and on what line anything is

printed, in finding unobserved things, etc. These questions of

perception-orientation are important, for there are people all of whose

perceptions are closely related to their sense of location. Much may be

learned from such people by use of this specialty of theirs, while

oversight thereof may render them hopeless as witnesses. How far this

goes with some people--as a rule people with a sense of location are the

more intelligent--I saw some time ago when the Germanist Bernhardt

Seuffert told me that when he did not know how anything is spelled he

imagined its appearance, and when that did not help he wrote both the

forms between which he was vacillating and then knew which one was the

correct one. When I asked him whether the chirographic image appeared

printed or written and in what type, he replied significantly enough,

“As my writing-teacher wrote it.” He definitely localized the image on

his writing book of many years ago and read it off in his mind. Such

specialties must be remembered in examining witnesses.

In conclusion, there is a word to say concerning Cattell’s[196]

investigations of the time required for apprehension. The better a man

knows the language the more rapidly can he repeat and read its words. It

is for this reason that we believe that foreigners speak more rapidly

than we. Cattell finds this so indubitable, that he wants to use speed

as a test in the examinations in foreign languages.

The time used in order to identify a single letter is a quarter of a

second, the time to pronounce it one-tenth of a second. Colors and

pictures require noticeably more, not because they are not recognized,

but because it is necessary to think what the right name is. We are much