In a certain sense a large part of the criminalist’s work is nothing
more than a battle against lies. He has to discover the truth and must
fight the opposite. He meets this opposite at every step. The accused,
often one who has confessed completely, many of the witnesses, try to
get advantage of him, and frequently he has to struggle with himself
when he perceives that he is working in a direction which he can not
completely justify. Utterly to vanquish the lie, particularly in our
work, is of course, impossible, and to describe its nature exhaustively
is to write a natural history of mankind. We must limit ourselves to the
consideration of a definite number of means, great and small, which will
make our work easier, will warn us of the presence of deception, and
will prevent its playing a part. I have attempted to compile forms of it
according to intent, and will here add a few words.[334]
That by the lie is meant the intentional deliverance of a conscious
untruth for the purpose of deception is as familiar as the variety of
opinion concerning the permissibility of so-called necessary lies, of
the pious, of the pedagogic, and the conventional. We have to assume
here the standpoint of absolute rigorism, and to say with Kant,[335]
“The lie in its mere form is man’s crime against his own nature, and is
a vice which must make a man disreputable in his own eyes.” We can not
actually think of a single case in which we find any ground for lying.
For we lawyers need have no pedagogical duties, nor are we compelled to
teach people manners, and a situation in which we may save ourselves by
lying is unthinkable. Of course, we will not speak all we know; indeed,
a proper silence is a sign of a good criminalist, but we need never lie.
The beginner must especially learn that the “good intention” to serve
the case and the so-called excusing “eagerness to do one’s duty,” by
which little lies are sometimes justified, have absolutely no worth. An
incidental word as if the accomplice had confessed; an expression
intending to convey that you know more than you do; a perversion of some
earlier statement of the witness, and similar “permissible tricks,” can
not be cheaper than the cheapest things. Their use results only in one’s
own shame, and if they fail, the defense has the advantage. The lost
ground can never be regained.[336]
Nor is it permissible to lie by gestures and actions any more than by
words. These, indeed, are dangerous, because a movement of the hand, a
reaching for the bell, a sudden rising, may be very effective under
circumstances. They easily indicate that the judge knows more about the
matter than he really does, or suggest that his information is greater,
etc. They make the witness or defendant think that the judge is already
certain about the nature of the case; that he has resolved upon
important measures, and other such things. Now movements of this kind
are not recorded, and in case the denial of blame is not serious, a
young criminalist allows himself easily to be misled by his desire for
efficiency. Even accident may help. When I was examining justice I had
to hear the testimony of a rather weak-minded lad, who was suspected of
having stolen and hidden a large sum of money. The lad firmly and
cleverly denied his guilt. During the examination a comrade entered who
had something official to tell me, and inasmuch as I was in the midst of
dictation he wanted to wait until the end of the sentence. Happening to
see two swords that had just been brought from a student duel, he took
one in his hand and examined the hilt, the point and the blade. The
defendant hardly saw this action before he got frightened, raised his
hands, ran to the sword-examiner, crying “I confess, I confess! I took
the money and hid it in the hollow hickory tree.”
This event was rather funny. Another, however, led, I will not say to
self-reproach, but to considerable disquiet on my part. A man was
suspected of having killed his two small children. As the bodies were
not found I undertook a careful search of his home, of the oven, of the
cellar, the drains, etc. In the latter we found a great deal of animal
entrails, apparently rabbits. As at the time of this discovery I had no
notion of where they belonged, I took them, and in the meantime had them
preserved in alcohol. The great glass receptacle which contained them
stood on my writing table when I had the accused brought in to answer
certain questions about one or two suspicious matters we had discovered.
He looked anxiously at the glass, and said suddenly, “Since you have got
it all, I must confess.” Almost reflexly I asked, “Where are the
corpses?” and he immediately answered that he had hidden them in the
environs of the city, where they were found. Clearly, the glass
containing the intestines had led him to the notion that the bodies were
found and in part preserved here, and when I asked him where they were
he did not observe how illogical the question would be if the bodies had
really been found. The whole thing was a matter of accident, but I still
have the feeling that the confession was not properly obtained; that I
should have thought of the effect of the glass and should have provided
against it before the accused was brought before me.
In the daily life such an open procedure is, of course, impossible, and
if the circumstances were to be taken for what they seem we should
frequently make mistakes. Everybody knows, e.g., how very few happy
marriages there are. But how do we know it? Only because the fortune of
close observation always indicates that the relation is in no way so
happy as one would like it to be. And externally? Has anybody ever seen
in even half-educated circles a street quarrel between husband and wife?
How well-mannered they are in society, and how little they show their
disinclination for each other. And all this is a lie in word and deed,
and when we have to deal with it in a criminal case we judge according
to the purely external things that we and others have observed. Social
reasons, deference for public opinion which must often be deceived, the
feeling of duty toward children, not infrequently compel deception of
the world. The number of fortunate marriages is mainly
overestimated.[337]
We see the same thing with regard to property, the attitude of parents
and children, the relation between superiors and inferiors, even in the
condition of health,--conduct in all these cases does not reveal the
true state of affairs. One after another, people are fooled, until
finally the world believes what it is told and the court hears the
belief sworn to as absolute truth. It is, perhaps, not too much to say
that we are far more deceived by appearances than by words. Public
opinion should least of all impose on us. And yet it is through public
opinion that we learn the external relations of the people who come
before us. It is called vox populi and is really rot. The phrases, “they
say,” “everybody knows,” “nobody doubts,” “as most neighbors agree,” and
however else these seeds of dishonesty and slander may be
designated--all these phrases must disappear from our papers and
procedure. They indicate only appearances--only what people _wanted_ to
have seen. They do not reveal the real and the hidden. Law too
frequently makes normative use of the maxim that the bad world says it
and the good one believes it. It even constructs its judgments thereby.
Not infrequently the uttered lies must be supported by actions. It is
well-known that we seem merry, angry, or friendly only when we excite
these feelings by certain gestures, imitations and physical attitudes.
Anger is not easily simulated with an unclenched fist, immovable feet,
and uncontracted brow. These gestures are required for the appearance of
real anger. And how very real it becomes, and how very real all other
emotions become because of the appropriate gestures and actions, is
familiar. We learn, hence, that the earnest assertor of his innocence
finally begins to believe in it a little, or altogether. And lying
witnesses still more frequently begin to hold their assertions to be
true. As these people do not show the common marks of the lie their
treatment is extraordinarily difficult.
It is, perhaps, right to accuse our age of especial inclination for that
far-reaching lie which makes its perpetrator believe in his own
creation. Kiefer[338] cites examples of such “self-deceiving liars.”
What drives one to despair is the fact that these people are such clever
liars that they make a game of the business. It is a piece of luck that
these lies, like every lie, betray themselves by the characteristic
intensity with which they seek to assume the appearance of truth. This
important mark of the lie can not be too clearly indicated. The number
and vigor of lies must show that we more frequently fail to think of
their possibility than if they did not exist at all. A long time ago I
read an apparently simple story which has helped me frequently in my
criminalistic work. Karl was dining with his parents and two cousins,
and after dinner said at school, “There were fourteen of us at table
to-day.” “How is it possible?” “Karl has lied again.” How frequently
does an event seem inexplicable, mysterious, puzzling. But if you think
that here perhaps, “Karl has lied again,” you may be led to more
accurate observation and hence, to the discovery of some hiatus by means
of which the whole affair may be cleared up.
But frequently contradictions are still more simply explained by the
fact that they are not contradictions, and by the fact that we see them
as such through inadequate comprehension of what has been said, and
ignorance of the conditions. We often pay too much attention to lies and
contradictions. There is the prejudice that the accused is really the
criminal, and that moves us to give unjustified reasons for little
accidental facts, which lead afterwards to apparent contradictions. This
habit is very old.
If we inquire when the lie has least influence on mankind we find it to
be under emotional stress, especially during anger, joy, fear, and on
the death-bed.[339] We all know of various cases in which a man, angry
at the betrayal of an accomplice, happy over approaching release, or
terrified by the likelihood of arrest, etc., suddenly declares, “Now I
am going to tell the truth.” And this is a typical form which introduces
the subsequent confession. As a rule the resolution to tell the truth
does not last long. If the emotion passes, the confession is regretted,
and much thought is given to the withdrawal of a part of the confession.
If the protocols concerning the matter are very long this regret is
easily observable toward the end.
That it is not easy to lie during intoxication is well known.[340] What
is said on the death-bed may always, especially if the confessor is
positively religious, be taken to be true. It is known that under such
circumstances the consciousness of even mentally disturbed people and
idiots becomes remarkably clear, and very often astonishing
illuminations result. If the mind of the dying be already clouded it is
never difficult to determine the fact, inasmuch as particularly such
confessions are distinguished by the great simplicity and clearness of
the very few words used.