I should like to add to what precedes, that senility presents fact and
judgment together. In a certain sense every age and person does so and,
as I have repeatedly said, it would be foolish to assert that we have
the right to demand only facts from witnesses. Setting aside the
presence of inferences in most sense-perceptions, every exposition
contains, without exception, the judgment of its subject-matter, though
only, perhaps, in a few dry words. It may lie in some choice expression,
in the tone, in the gesture but it is there, open to careful
observation. Consider any simple event, e.g., two drunkards quarreling
in the street. And suppose we instruct any one of many witnesses to tell
us only the facts. He will do so, but with the introductory words, “It
was a very ordinary event,” “altogether a joke,” “completely harmless,”
“quite disgusting,” “very funny,” “a disgusting piece of the history of
morals,” “too sad,” “unworthy of humanity,” “frightfully dangerous,”
“very interesting,” “a real study for hell,” “just a picture of the
future,” etc. Now, is it possible to think that people who have so
variously characterized the same event will give an identical
description of the mere fact? They have seen the event in accordance
with their attitude toward life. One has seen nothing; another this;
another that; and, although the thing might have lasted only a very
short time, it made such an impression that each has in mind a
completely different picture which he now reproduces.[291] As Volkmar
said, “One nation hears in thunder the clangor of trumpets, the
hoof-beats of divine steeds, the quarrels of the dragons of heaven;
another hears the mooing of the cow, the chirp of the cricket, the
complaint of the ancestors; still another hears the saints turn the
vault of heaven, and the Greenlander, even the quarrel of bewitched
women concerning a dried skin.” And Voltaire says, “If you ask the devil
what beauty is, he will tell you that beauty is a pair of horns, four
hoofs, and a tail.” Yet, when we ask a witness what is beautiful, we
think that we are asking for a brute fact, and expect as reliable an
answer as from a mathematician. We might as well ask for cleanliness
from a person who thinks he has set his house in order by having swept
the dirt from one corner to another.
To compare the varieties of intellectual attitude among men generally,
we must start with sense-perception, which, combined with mental
perception, makes a not insignificant difference in each individual.
Astronomers first discovered the existence of this difference, in that
they showed that various observers of contemporaneous events do not
observe at the same time. This fact is called “the personal equation.”
Whether the difference in rate of sense-perception, or the difference of
intellectual apprehension, or of both together, are here responsible, is
not known, but the proved distinction (even to a second) is so much the
more important, since events which succeed each other very rapidly may
cause individual observers to have quite different images. And we know
as little whether the slower or the quicker observer sees more
correctly, as we little know what people perceive more quickly or more
slowly. Now, inasmuch as we are unable to test individual differences
with special instruments, we must satisfy ourselves with the fact that
there are different varieties of conception, and that these may be of
especial importance in doubtful cases, such as brawls, sudden attacks,
cheating at cards, pocket-picking, etc.
The next degree of difference is in the difference of observation.
Schiel says that the observer is not he who sees the thing, but who sees
of what parts it is made. The talent for such vision is rare. One man
overlooks half because he is inattentive or is looking at the wrong
place; another substitutes his own inferences for objects, while another
tends to observe the quality of objects, and neglects their quantity;
and still another divides what is to be united, and unites what is to be
separated. If we keep in mind what profound differences may result in
this way, we must recognize the source of the conflicting assertions by
witnesses. And we shall have to grant that these differences would
become incomparably greater and more important if the witnesses were not
required to talk of the event immediately, or later on, thus
approximating their different conceptions to some average. Hence we
often discover that when the witnesses really have had no chance to
discuss the matter and have heard no account of it from a third person,
or have not seen the consequences of the deed, their discussions of it
showed distinct and essential differences merely through the lack of an
opportunity or a standard of correction. And we then suppose that a part
of what the witnesses have said is untrue, or assume that they were
inattentive, or blind.
Views are of similar importance.[292] Fiesto exclaims, “It is scandalous
to empty a full purse, it is impertinent to misappropriate a million,
but it is unnamably great to steal a crown. The shame decreases with the
increase of the sin.” Exner holds that the ancients conceived Oedipus
not as we do; they found his misfortune horrible; we find it unpleasant.
These are poetical criminal cases presented to us from different points
of view; and we nowadays understand the same action still more
differently, and not only in poetry, but in the daily life. Try, for
example, to get various individuals to judge the same formation of
clouds. You may hear the clouds called flower-stalks with spiritual
blossoms, impoverished students, stormy sea, camel, monkey, battling
giants, swarm of flies, prophet with a flowing beard, dunderhead, etc.
We have coming to light, in this accidental interpretation of fact, the
speaker’s view of life, his intimacies, etc. This emergence is as
observable in the interpretation also of the ordinary events of the
daily life. There, even if the judgments do not vary very much, they are
still different enough to indicate quite distinct points of view. The
memory of the curious judgment of one cloud-formation has helped me many
a time to explain testimonies that seemed to have no possible
connection.
_Attitude or feeling_--this indefinable factor exercises a great
influence on conception and interpretation. It is much more wonderful
than even the march of events, or of fate itself. Everybody knows what
attitude (stimmung) is. Everybody has suffered from it, everybody has
made some use of it, but nobody can altogether define it. According to
Fischer, attitude consists in the compounded feelings of all the inner
conditions and changes of the organism, expressed in consciousness.
This would make attitude a sort of vital feeling, the resultant of the
now favorable, now unfavorable functioning of our organs. The
description is, however, not unexceptionable, inasmuch as single,
apparently insignificant influences upon our senses may create or alter
our attitudes for a long time without revealing its effect on any organ
or its integration with the other mental states. I know how merely good
or bad weather determines attitude, how it may be helped immediately by
a good cigar, and how often we may pass a day, joyous or dejected, only
to discover that the cause is a good or a bad dream of the foregoing
night. Especially instructive in this regard was a little experience of
mine during an official journey. The trouble which brought me out was an
ordinary brawl between young peasants, one of whom was badly cut up and
was to be examined. Half-way over, we had to wait at a wayside inn where
I expected a relieving gendarme. A quarter of an hour after the stop,
when we renewed the journey, I found myself overcome by unspeakable
sadness, and this very customary brawl seemed to me especially
unpleasant. I sympathized with the wounded boy, his parents, his
opponents, all strangers to me, and I bewrayed the rawness of mankind,
its love for liquor, etc. This attitude was so striking that I began to
seek its cause. I found it, first of all, in the dreary region,--then in
the cup of hot coffee that I had drunk in the restaurant, which might
possibly have been poisonous;--finally, it occurred to me that the
hoof-beats of the horses were tuned to a very saddening minor chord. The
coachman in his hurry had forgotten to take bells with him, and in order
to avoid violating police regulations he had borrowed at the inn another
peal, and my sad state dated from the moment I heard it. I banished the
sound and immediately I found myself enjoying the pretty scenery.
I am convinced that if I had been called to testify in my sad state, I
would have told the story otherwise than normally. The influence of
music upon attitude is very well known. The unknown influence of
external conditions also makes a difference on attitude. “If you are
absorbed in thought,” says Fechner, “you notice neither sunshine nor the
green of the meadows, etc., and still you are in a quite different
emotional condition from that which would possess you in a dark room.”
The attitude we call indifference is of particular import. It appears,
especially, when the ego, because of powerful impressions, is concerned
with itself; pain, sadness, important work, reflection, disease, etc.
In this condition we depreciate or undervalue the significance of
everything that occurs about us. Everything is brought into relation to
our personal, immediate condition, and is from the point of view of our
egoism, more or less indifferent. It does not matter whether this
attitude of indifference occurs at the time of perception or at the time
of restatement during the examination. In either case, the fact is
robbed of its hardness, its significance, and its importance; what was
white or black, is described as gray.
There is another and similar attitude which is distinguished by the fact
that we are never quite aware of it but are much subject to it.
According to Lipps[293] and Lotze,[294] there is to be observed in
neurotic attitudes a not rare and complete indifference to feeling, and
in consciousness an essential lack of feeling-tone in perception. Our
existence, our own being, seems to us, then, to be a foreign thing,
having little concern with us--a story we need not earnestly consider.
That in such condition little attention is paid to what is going on
around us seems clear enough. The experiences are shadowy and
superficial; they are indifferent and are represented as such only. This
condition is very dangerous in the law court, because, where a
conscientious witness will tell us that, e.g., at the time of the
observation or the examination he was sick or troubled, and therefore
was incorrect, a person utterly detached in the way described does not
tell the judge of his condition, probably because he does not know
anything about it.
There are certain closely-related mental and physical situations which
lead to quite a different view. Those who are suffering physically,
those who have deeply wounded feelings, and those who have been reduced
by worry, are examined in the same way as normal people, yet they need
to be measured by quite a different standard. Again, we are sometimes
likely to suppose great passions that have long since passed their
period, to be as influential as they were in their prime. We know that
love and hate disappear in the distance, and that love long dead and a
long-deferred hatred tend to express themselves as a feeling of mildness
and forgiveness which is pretty much the same in spite of its diverse
sources. If the examiner knows that a great passion, whether of hate or
of love, exists, he thinks he is fooled when he finds a full, calm and
objective judgment instead of it. It seems impossible to him, and he
either does not believe the probably accurate witness, or colors his
testimony with that knowledge.
Bodily conditions are still more remarkable in effecting differences in
point of view. Here no sense-illusion is presented since no change
occurs in sense-perception; the changes are such that arise after the
perception, during the process of judgment and interpretation. We might
like an idea when lying down that displeases us when we stand up.
Examination shows that this attitude varies with the difference in the
quantity of blood in the brain in these two positions, and this fact may
explain a whole series of phenomena. First of all, it is related to
plan-making and the execution of plans. Everybody knows how, while lying
in bed, a great many plans occur that seem good. The moment you get up,
new considerations arise, and the half-adopted plan is progressively
abandoned. Now this does not mean anything so long as nothing was
undertaken in the first situation which might be binding for the
resolution then made. For example, when two, lying in bed, have made a
definite plan, each is later ashamed before the other to withdraw from
it. So we often hear from criminals that they were sorry about certain
plans, but since they were once resolved upon, they were carried out.
Numbers of such phenomena, many of them quite unbelievable in
appearance, may be retroduced to similar sources.
A like thing occurs when a witness, e.g., reflects about some event
while he is in bed. When he thinks of it again he is convinced, perhaps,
that the matter really occurred in quite another way than he had newly
supposed it to. Now he may convince himself that the time at which he
made the reflections was nearer the event, and hence, those reflections
must have been the more correct ones--in that case he sticks to his
first story, although that might have been incorrect. Helmholtz[295] has
pointed to something similar: “The colors of a landscape appear to be
much more living and definite when they are looked at obliquely, or when
they are looked at with the head upside down, than when they are looked
at with the head in its ordinary position. With the head upside down we
try correctly to judge objects and know that, e.g., green meadows, at a
certain distance, have a rather altered coloration. We become used to
that fact, discount the change and identify the green of distant objects
with the shade of green belonging to near objects. Besides, we see the
landscape from the new position as a flat image, and incidentally we see
clouds in right perspective and the landscape flat, like clouds when we
see them in the ordinary way.” Of course, everybody knows this. And of
course, in a criminal case such considerations will hardly ever play
any rôle. But, on the other hand, it is also a matter of course that the
reason for these differences might likewise be the reason for a great
many others not yet discovered, and yet of great significance to
criminalists.
Such is the situation with regard to comparison. Schiel laid much
emphasis on the fact that two lines of unequal length seem equal when
they diverge, although their difference is recognized immediately if
they are parallel, close together, and start from the same level. He
says that the situation is similar in all comparison. If things may be
juxtaposed they can be compared; if not, the comparison is bound to be
bad. There is no question of illusion here, merely of convenience of
manipulation. Juxtaposition is frequently important, not for the
practical convenience of comparison, but because we must know whether
the witness has discovered the right juxtaposition. Only if he has, can
his comparison have been good. To discover whether he has, requires
careful examination.
Conception and interpretation are considerably dependent on the interest
which is brought to the object examined. There is a story of a child’s
memory of an old man, which was not a memory of the _whole_ man, but
only of a green sleeve and a wrinkled hand presenting a cake of
chocolate. The child was interested only in the chocolate, and hence,
understood it and its nearest environment--the hand and the sleeve. We
may easily observe similar cases. In some great brawl the witness may
have seen only what was happening to his brother. The numismatist may
have observed only a bracelet with a rare coin in a heap of stolen
valuables. In a long anarchistic speech the witness may have heard only
what threatened his own welfare. And so on. The very thing looks
different if, for whatever reason, it is uninteresting or intensely
interesting. A color is quite different when it is in fashion, a flower
different when we know it to be artificial, the sun is brighter at home,
and home-grown fruit tastes better. But there is still another group of
specific influences on our conceptions and interpretations, the examples
of which have been increasing unbrokenly. One of these is the variety in
the significance of words. Words have become symbols of concepts, and
simple words have come to mean involved mathematical and philosophical
ideas. It is conceivable that two men may connote quite different things
by the word “symbol.” And even in thinking and construing, in making use
of perceived facts, different conceptions may arise through presenting
the fact to another with symbols, that to him, signify different things.
The difference may perhaps not be great, but when it is taken in
connection with the associations and suggestions of the word used, small
mistakes multiply and the result is quite different from what it might
have been if another meaning had been the starting-point. The use of
foreign words, in a sense different from that used by us, may lead us
far astray. It must be borne in mind that the meaning of the foreign
word frequently does not coincide with the sense it has in the
dictionary. Hence, it is dangerous in adducing evidence to use foreign
expressions when it is important to adhere strictly to a single meaning.
Taine says, correctly: “Love and amour, girl and jeune fille, song and
chanson, are not identical although they are substituted for one
another.” It is, moreover, pointed out that children, especially, are
glad to substitute and alter ideas for which one word stands, so that
they expand or contract its meaning haphazard. Bow-wow may first mean a
dog, then a horse, then all animals, and a child who was once shown a
fir tree in the forest said it wasn’t a fir tree, for fir trees come
only at Christmas.
This process is not confined to children. At one time or another we hear
a word. As soon as we hear it we connect it with an idea. This
connection will rarely be correct, largely because we have heard the
word for the first time. Later, we get our idea from events in which
this word occurs, of course, in connection with the object we
instantaneously understand the word to mean. In time we learn another
word, and word and meaning have changed, correctly or incorrectly. A
comparison of these changes in individuals would show how easy both
approximations and diversifications in meaning are. It must follow that
any number of misunderstandings can develop, and many an alteration in
the conception of justice and decency, considered through a long period,
may become very significant in indicating the changes in the meaning of
words. Many a time, if we bear thoroughly in mind the mere changes in
the meaning of the word standing for a doubtful fact, we put ourselves
in possession of the history of morals. Even the most important quarrels
would lapse if the quarreling persons could get emotionally at the
intent of their opponent’s words.
In this connection questions of honor offer a broad field of examples.
It is well known that German is rich in words that show personal
dislikes, and also, that the greater portion of these words are harmless
in themselves. But one man understands this, the other that, when he
hears the words, and finally, German is in the curious position of being
the cause of the largest number of attacks on honor and of cases of
slander in the world. Where the Frenchman laughs and becomes witty, the
German grows sullen, insulting, and looks for trouble. The French call
sensitiveness to insignificant and worthless things, the German way of
quarreling (faire querelle d’allemand). Many a slander case in court is
easily settled by showing people the value of the word. Many who
complained that they were called a creature, a person, etc., went away
satisfied as soon as the whole meaning of the words had been explained
to them.
In conclusion, just a word concerning the influence of time on
conception. Not the length of past time, but the value of the time-span
is what is important in determining an event. According to Herbart,
there is a form of temporal repetition, and time is the form of
repetition. If he is right it is inevitable that time, fast-moving or
slow-moving, must influence the conception of events. It is well-known
that monotony in the run of time makes it seem slow, while time full of
events goes swiftly, but appears long in memory, because a large number
of points have to be thought through. Münsterberg shows that we have to
stop at every separate point, and so time seems, in memory, longer. But
this is not universally valid. Aristotle had already pointed out that a
familiar road appears to be shorter than an unfamiliar one, and this is
contradictory to the first proposition. So, a series of days flies away
if we spend them quietly and calmly in vacation in the country. Their
swiftness is surprising. Then when something of importance occurs in our
life and it is directly succeeded by a calm, eventless period, this
seems very long in memory, although it should have seemed long when it
occurred, and short in the past. These and similar phenomena are quite
unexplained, and all that can be said after numerous experiments is,
that we conceive short times as long, and long times as short. Now, we
may add the remarkable fact that most people have no idea of the
duration of very small times, especially of the minute. Ask any
individual to sit absolutely quiet, without counting or doing anything
else, and to indicate the passing of each minute up to five. He will say
that the five minutes have passed at the end of never more than a minute
and a half. So witnesses in estimating time will make mistakes also, and
these mistakes, and other nonsense, are written into the protocols.
There are two means of correction. Either have the witness determine the
time in terms of some familiar form, i.e., a paternoster, etc., or give
him the watch and let him observe the second hand. In the latter case he
will assert that his ten, or his five, or his twenty minutes were, at
most, no more than a half or a whole minute.
The problem of time is still more difficult when the examination has to
be made with regard to the estimation of still longer periods--weeks,
months, or years. There is no means of making any test. The only thing
that experience definitely shows is, that the certainty of such
estimates depends on their being fixed by distinct events. If anybody
says that event A occurred four or five days before event B, we may
believe him if, e.g., he adds, “For when A occurred we began to cut
corn, and when B occurred we harvested it. And between these two events
there were four or five days.” If he can not adduce similar judgments,
we must never depend upon him, for things may have occurred which have
so influenced his conception of time that he judges altogether falsely.
It often happens in such cases that defective estimates, made in the
course of lengthy explanations, suddenly become points of reference, and
then, if wrong, are the cause of mistakes. Suppose that a witness once
said that an event occurred four years ago. Much later an estimation of
the time is undertaken which shows that the hasty statement sets the
event in 1893. And then all the most important conclusions are merely
argued from that. It is best, as is customary in such cases, to test the
uncertainty and incorrectness of these estimates of time on oneself. It
may be assumed that the witness, in the case in question, is likely to
have made a better estimate, but it may equally be assumed that he has
not done so. In short, the conception of periods of time can not be
dealt with too cautiously.