Men being different in nature and bringing-up on the one hand, and
language, being on the other, a living organism which varies with its
soil, i.e., with the human individual who makes use of it, it is
inevitable that each man should have especial and private forms of
expression. These forms, if the man comes before us as witness or
prisoner, we must study, each by itself. Fortunately, this study must be
combined with another that it implies, i.e., the character and nature of
the individual. The one without the other is unthinkable. Whoever aims
to study a man’s character must first of all attend to his ways of
expression, inasmuch as these are most significant of a man’s qualities,
and most illuminating. A man is as he speaks. It is not possible, on the
other hand, to study modes of expression in themselves. Their
observation requires the study of a group of other conditions, if the
form of speech is to be explained, or its analysis made even possible.
Thus, one is involved in the other, and once you know clearly the tricks
of speech belonging to an individual, you also have a clear conception
of his character and conversely. This study requires, no doubt,
considerable skill. But that is at the command of anybody who is devoted
to the lawyer’s task.
Tylor is correct in his assertion, that a man’s speech indicates his
origin much less than his bringing-up, his education, and his power.
Much of this fact is due to the nature of language as a living growth
and moving organism which acquires new and especial forms to express new
and especial events in human life. Geiger[241] cites the following
example of such changes in the meaning of words. “Mriga” means in
Sanscrit, “wild beast;” in Zend it means merely “bird,” and the
equivalent Persian term “mrug” continues to mean only “bird,” so that
the barnyard fowls, song-birds, etc., are now called “mrug.” Thus the
first meaning, “wild animal” has been transmuted into its opposite,
“tame animal.” In other cases we may incorrectly suppose certain
expressions to stand for certain things. We say, “to bake bread, to bake
cake, to bake certain meats,” and then again, “to roast apples, to roast
potatoes, to roast certain meats.” We should laugh if some foreigner
told us that he had “roasted” bread.
These forms of expression have, as yet, no relation to character, but
they are the starting-point of quite characteristic modes which
establish themselves in all corporations, groups, classes, such as
students, soldiers, hunters, etc., as well as among the middle classes
in large cities. Forms of this kind may become so significant that the
use of a single one of them might put the user in question into
jeopardy. I once saw two old gentlemen on a train who did not know each
other. They fell into conversation and one told the other that he had
seen an officer, while jumping from his horse, trip over his sword and
fall. But instead of the word sword he made use of the old
couleur-student slang word “speer,” and the other old boy looked at him
with shining eyes and cried out “Well, brother, what color?”
Still more remarkable is the mutation and addition of new words of
especially definite meaning among certain classes. The words become more
modern, like so much slang.
The especial use of certain forms is individual as well as social. Every
person has his private usage. One makes use of “certainly,” another of
“yes, indeed,” one prefers “dark,” another “darkish.” This fact has a
double significance. Sometimes a man’s giving a word a definite meaning
may explain his whole nature. How heartless and raw is the statement of
a doctor who is telling about a painful operation, “The patient sang!”
In addition, it is frequently necessary to investigate the connotation
people like to give certain words, otherwise misunderstandings are
inevitable. This investigation is, as a rule, not easy, for even when it
is simple to bring out what is intended by an expression, it is still
quite as simple to overlook the fact that people use peculiar
expressions for ordinary things. This occurs particularly when people
are led astray by the substitution of similars and by the repetition of
such a substitution. Very few persons are able to distinguish between
identity and similarity; most of them take these two characters to be
equivalent. If A and B are otherwise identical, save that B is a little
bigger, so that they appear similar, there is no great mistake if I hold
them to be equivalent and substitute B for A. Now I compare B with C, C
with D, D with E, etc., and each member of the series is progressively
bigger than its predecessor. If now I continue to repeat my first
mistake, I have in the end substituted for A the enormously bigger E and
the mistake has become a very notable one. I certainly would not have
substituted E for A at the beginning, but the repeated substitution of
similars has led me to this complete incommensurability.
Such substitutions occur frequently during the alterations of meanings,
and if you wish to see how some remarkable signification of a term has
arisen you will generally find it as a progression through gradually
remoter similarities to complete dissimilarity. All such extraordinary
alterations which a word has undergone in the course of long usage, and
for which each linguistic text-book contains numerous examples, may,
however, develop with comparative speed in each individual speaker, and
if the development is not traced may lead, in the law-court, to very
serious misunderstandings.
Substitutions, and hence, sudden alterations, occur when the material of
language, especially in primitive tongues, contains only simple
differentiations. So Tylor mentions the fact, that the language of the
West African Wolofs contains the word “da_goú_,” to go, “_dá_gou,” to
stride proudly; “dágana,” to beg dejectedly; “dagána,” to demand. The
Mpongwes say, “mì tonda,” I love, and “mi tônda,” I do not love. Such
differentiations in tone our own people make also, and the mutation of
meaning is very close. But who observes it at all?
Important as are the changes in the meanings of words, they fall short
beside the changes of meaning of the conception given in the mode of
exposition. Hence, there are still greater mistakes, because a single
error is neither easily noticeable nor traceable. J. S. Mill says,
justly, that the ancient scientists missed a great deal because they
were guided by linguistic classification. It scarcely occurred to them
that what they assigned abstract names to really consisted of several
phenomena. Nevertheless, the mistake has been inherited, and people who
nowadays name abstract things, conceive, according to their
intelligence, now this and now that phenomenon by means of it. Then they
wonder at the other fellow’s not understanding them. The situation being
so, the criminalist is coercively required, whenever anything abstract
is named, first of all to determine accurately what the interlocutor
means by his word. In these cases we make the curious discovery that
such determination is most necessary among people who have studied the
object profoundly, for a technical language arises with just the persons
who have dealt especially with any one subject.
As a rule it must be maintained that time, even a little time, makes an
essential difference in the conception of any object. Mittermaier, and
indeed Bentham, have shown what an influence the interval between
observation and announcement exercises on the form of exposition. The
witness who is immediately examined may, perhaps, say the same thing
that he would say several weeks after--but his presentation is
different, he uses different words, he understands by the different
words different concepts, and so his testimony becomes altered.
A similar effect may be brought about by the conditions under which the
evidence is given. Every one of us knows what surprising differences
occur between the statements of the witness made in the silent office of
the examining justice and his secretary, and what he says in the open
trial before the jury. There is frequently an inclination to attack
angrily the witnesses who make such divergent statements. Yet more
accurate observation would show that the testimony is essentially the
same as the former but that the manner of giving it is different, and
hence the apparently different story. The difference between the members
of the audience has a powerful influence. It is generally true that
reproductive construction is intensified by the sight of a larger number
of attentive hearers, but this is not without exception. In the words
“attentive hearers” there is the notion that the speaker is speaking
interestingly and well, for otherwise his hearers would not be
attentive, and if anything is well done and is known to be well done,
the number of the listeners is exciting, inasmuch as each listener is
reckoned as a stimulating admirer. This is invariably the case. If
anybody is doing a piece of work under observation he will feel pleasant
when he knows that he is doing it well, but he will feel disturbed and
troubled if he is certain of his lack of skill. So we may grant that a
large number of listeners increases reproductive constructivity, but
only when the speaker is certain of his subject and of the favor of his
auditors. Of the latter, strained attention is not always evidence. When
a scholar is speaking of some subject chosen by himself, and his
audience listens to him attentively, he has chosen his subject
fortunately, and speaks well; the attention acts as a spur, he speaks
still better, etc. But this changes when, in the course of a great trial
which excites general interest, the witness for the government appears.
Strained attention will also be the rule, but it does not apply to him,
it applies to the subject. He has not chosen his topic, and no
recognition for it is due him--it is indifferent to him whether he
speaks ill or well. The interest belongs only to the subject, and the
speaker himself receives, perhaps, the undivided antipathy, hatred,
disgust, or scorn, of all the listeners. Nevertheless, attention is
intense and strained, and inasmuch as the speaker knows that this does
not pertain to him or his merits, it confuses and depresses him. It is
for this reason that so many criminal trials turn out quite contrary to
expectation. Those who have seen the trial only, and were not at the
prior examination, understand the result still less when they are told
that “nothing” has altered since the prior examination--and yet much has
altered; the witnesses, excited or frightened by the crowd of listeners,
have spoken and expressed themselves otherwise than before until, in
this manner, the whole case has become different.
In a similar fashion, some fact may be shown in another light by the
manner of narration used by a particular witness. Take, as example, some
energetically influential quality like humor. It is self-evident that
joke, witticism, comedy, are excluded from the court-room, but if
somebody has actually introduced real, genuine humor by way of the dry
form of his testimony, without having crossed in a single word the
permissible limit, he may, not rarely, narrate a very serious story so
as to reduce its dangerous aspect to a minimum. Frequently the testimony
of some funny witness makes the rounds of all the newspapers for the
pleasure of their readers. Everybody knows how a really humorous person
may so narrate experiences, doubtful situations of his student days,
unpleasant traveling experiences, difficult positions in quarrels, etc.,
that every listener must laugh. At the same time, the events told of
were troublesome, difficult, even quite dangerous. The narrator does not
in the least lie, but he manages to give his story the twist that even
the victim of the situation is glad to laugh at.[242] As Kräpelin says,
“The task of humor is to rob a large portion of human misfortune of its
wounding power. It does so by presenting to us, with our fellows as
samples, the comedy of the innumerable stupidities of human life.”
Now suppose that a really humorous witness tells a story which involves
very considerable consequences, but which he does not really end with
tragic conclusions. Suppose the subject to be a great brawl, some really
crass deception, some story of an attack on honor, etc. The attitude
toward the event is altered with one turn, even though it would seem to
have been generated progressively by ten preceding witnesses and the new
view of the matter makes itself valid at least mildly in the delivery of
the sentence. Then whoever has not heard the whole story understands the
results least of all.
In the same way we see really harmless events turned into tragedies by
the testimony of a black-visioned, melancholy witness, without his
having used, in this case or any other, a single untrue word. In like
manner the bitterness of a witness who considers his personal
experiences to be generally true, may color and determine the attitude
of some, not at all serious, event. Nor is this exaggeration. Every man
of experience will, if he is only honest enough, confirm the fact, and
grant that he himself was among those whose attitude has been so
altered; I avoid the expression--“duped.”
It is necessary here, also, to repeat that the movements of the hands
and other gestures of the witnesses while making their statements will
help much to keep the correct balance. Movements lie much less
frequently than words.[243]
Another means of discovering whether a witness is not seduced by his
attitude and his own qualities is the careful observation of the
impression his narrative makes on himself. Stricker has controlled the
conditions of speech and has observed that so long as he continued to
bring clearly described complexes into a causal relation, _satisfactory
to him_, he could excite his auditors; as soon as he spoke of a relation
which _did not_ satisfy him the attitude of the audience altered. We
must invert this observation; we are the auditors of the witness and
must observe whether his own causal connections satisfy him. So long as
this is the case, we believe him. When it fails to be so he is either
lying, or he himself knows that he is not expressing himself as he ought
to make us correctly understand what he is talking about.