Section 60. (a) General Study of Variety in Forms of Expression.

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.

Criminal Psychology: A Manual for Judges, Practitioners, and Students · 第 27 / 79 章