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Criminal Psychology
A MANUAL FOR
JUDGES, PRACTITIONERS, AND STUDENTS
BY HANS GROSS, J. U. D.
_Professor of Criminal Law at the University of
Graz, Austria. Formerly Magistrate of the
Criminal Court at Czernovitz, Austria_
Translated from the Fourth German Edition
BY HORACE M. KALLEN, PH. D.
_Assistant and Lecturer in Philosophy in Harvard University_
WITH AN INTRODUCTION BY JOSEPH JASTROW, PH.D. PROFESSOR OF PSYCHOLOGY IN THE UNIVERSITY OF WISCONSIN
PUBLICATION NO. 13: PATTERSON SMITH REPRINT SERIES IN CRIMINOLOGY, LAW ENFORCEMENT, AND SOCIAL PROBLEMS _Montclair, New Jersey_
GENERAL INTRODUCTION TO THE
MODERN CRIMINAL SCIENCE SERIES.
AT the National Conference of Criminal Law and Criminology, held in Chicago, at Northwestern University, in June, 1909, the American Institute of Criminal Law and Criminology was organized; and, as a part of its work, the following resolution was passed:
``_Whereas_, it is exceedingly desirable that important treatises on criminology in foreign languages be made readily accessible in the English language, _Resolved_, that the president appoint a committee of five with power to select such treatises as in their judgment should be translated, and to arrange for their publication.''
The Committee appointed under this Resolution has made careful investigation of the literature of the subject, and has consulted by frequent correspondence. It has selected several works from among the mass of material. It has arranged with publisher, with authors, and with translators, for the immediate undertaking and rapid progress of the task. It realizes the necessity of educating the professions and the public by the wide diffusion of information on this subject. It desires here to explain the considerations which have moved it in seeking to select the treatises best adapted to the purpose.
For the community at large, it is important to recognize that criminal science is a larger thing than criminal law. The legal profession in particular has a duty to familiarize itself with the principles of that science, as the sole means for intelligent and systematic improvement of the criminal law.
Two centuries ago, while modern medical science was still young,
medical practitioners proceeded upon two general assumptions:
one as to the cause of disease, the other as to its treatment. As
to the cause of disease,--disease was sent by the inscrutable will
of God. No man could fathom that will, nor its arbitrary operation.
As to the treatment of disease, there were believed to be
a few remedial agents of universal efficacy. Calomel and bloodletting,
for example, were two of the principal ones. A larger or
<p vi>
smaller dose of calomel, a greater or less quantity of bloodletting,
--this blindly indiscriminate mode of treatment was regarded as
orthodox for all common varieties of ailment. And so his calomel
pill and his bloodletting lances were carried everywhere with him
by the doctor.
Nowadays, all this is past, in medical science. As to the causes of disease, we know that they are facts of nature,--various, but distinguishable by diagnosis and research, and more or less capable of prevention or control or counter-action. As to the treatment, we now know that there are various specific modes of treatment for specific causes or symptoms, and that the treatment must be adapted to the cause. In short, the individualization of disease, in cause and in treatment, is the dominant truth of modern medical science.
The same truth is now known about crime; but the understanding and the application of it are just opening upon us. The old and still dominant thought is, as to cause, that a crime is caused by the inscrutable moral free will of the human being, doing or not doing the crime, just as it pleases; absolutely free in advance, at any moment of time, to choose or not to choose the criminal act, and therefore in itself the sole and ultimate cause of crime. As to treatment, there still are just two traditional measures, used in varying doses for all kinds of crime and all kinds of persons,-- jail, or a fine (for death is now employed in rare cases only). But modern science, here as in medicine, recognizes that crime also (like disease) has natural causes. It need not be asserted for one moment that crime is a disease. But it does have natural causes,-- that is, circumstances which work to produce it in a given case. And as to treatment, modern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machinelike, but must be adapted to the causes, and to the man as affected by those causes. Common sense and logic alike require, inevitably, that the moment we predicate a specific cause for an undesirable effect, the remedial treatment must be specifically adapted to that cause.
Thus the great truth of the present and the future, for criminal science, is the individualization of penal treatment,--for that man, and for the cause of that man's crime.
Now this truth opens up a vast field for re-examination. It
means that we must study all the possible data that can be causes
of crime,--the man's heredity, the man's physical and moral
<p vii>
make-up, his emotional temperament, the surroundings of his
youth, his present home, and other conditions,--all the influencing
circumstances. And it means that the effect of different methods
of treatment, old or new, for different kinds of men and of causes,
must be studied, experimented, and compared. Only in this way
can accurate knowledge be reached, and new efficient measures
be adopted.
All this has been going on in Europe for forty years past, and in limited fields in this country. All the branches of science that can help have been working,--anthropology, medicine, psychology, economics, sociology, philanthropy, penology. The law alone has abstained. The science of law is the one to be served by all this. But the public in general and the legal profession in particular have remained either ignorant of the entire subject or indifferent to the entire scientific movement. And this ignorance or indifference has blocked the way to progress in administration.
The Institute therefore takes upon itself, as one of its aims, to inculcate the study of modern criminal science, as a pressing duty for the legal profession and for the thoughtful community at large. One of its principal modes of stimulating and aiding this study is to make available in the English language the most useful treatises now extant in the Continental languages. Our country has started late. There is much to catch up with, in the results reached elsewhere. We shall, to be sure, profit by the long period of argument and theorizing and experimentation which European thinkers and workers have passed through. But to reap that profit, the results of their experience must be made accessible in the English language.
The effort, in selecting this series of translations, has been to
choose those works which best represent the various schools of
thought in criminal science, the general results reached, the points
of contact or of controversy, and the contrasts of method--having
always in view that class of works which have a more than local
value and could best be serviceable to criminal science in our country.
As the science has various aspects and emphases--the anthropological,
psychological, sociological, legal, statistical, economic,
pathological--due regard was paid, in the selection, to a representation
of all these aspects. And as the several Continental countries
have contributed in different ways to these various aspects,--France,
Germany, Italy, most abundantly, but the others each its share,--
the effort was made also to recognize the different contributions as
far as feasible.
<p viii>
The selection made by the Committee, then, represents its judgment of the works that are most useful and most instructive for the purpose of translation. It is its conviction that this Series, when completed, will furnish the American student of criminal science a systematic and sufficient acquaintance with the controlling doctrines and methods that now hold the stage of thought in Continental Europe. Which of the various principles and methods will prove best adapted to help our problems can only be told after our students and workers have tested them in our own experience. But it is certain that we must first acquaint ourselves with these results of a generation of European thought.
In closing, the Committee thinks it desirable to refer the members of the Institute, for purposes of further investigation of the literature, to the ``Preliminary Bibliography of Modern Criminal Law and Criminology'' (Bulletin No. 1 of the Gary Library of Law of Northwestern University), already issued to members of the Conference. The Committee believes that some of the AngloAmerican works listed therein will be found useful.
COMMITTEE ON TRANSLATIONS.
_Chairman_, WM. W. SMITHERS,
_Secretary of the Comparative Law Bureau of the American Bar Association, Philadelphia, Pa_.
ERNST FREUND,
_Professor of Law in the University of Chicago_. MAURICE PARMELEE,
_Professor of Sociology in the State University of Kansas_. ROSCOE POUND,
_Professor of Law in the University of Chicago_. ROBERT B. SCOTT,
_Professor of Political Science in the State University of
Wisconsin_.
JOHN H. WIGMORE,
_Professor of Law in Northwestern University, Chicago_.
INTRODUCTION TO THE ENGLISH VERSION.
WHAT Professor Gross presents in this volume is nothing less
than an applied psychology of the judicial processes,--a critical
survey of the procedures incident to the administration of justice
with due recognition of their intrinsically psychological character,
and yet with the insight conferred by a responsible experience with
a working system. There is nothing more significant in the history
of institutions than their tendency to get in the way of the very
purposes which they were devised to meet. The adoration of measures
seems to be an ineradicable human trait. Prophets and reformers
ever insist upon the values of ideals and ends--the spiritual
meanings of things--while the people as naturally drift to the
worship of cults and ceremonies, and thus secure the more superficial
while losing the deeper satisfactions of a duty performed. So
restraining is the formal rigidity of primitive cultures that the
mind of man hardly moves within their enforced orbits. In complex
societies the conservatism, which is at once profitably conservative
and needlessly obstructing, assumes a more intricate,
a more evasive, and a more engaging form. In an age for which
machinery has accomplished such heroic service, the dependence
upon mechanical devices acquires quite unprecedented dimensions.
It is compatible with, if not provocative of, a mental indolence,--
an attention to details sufficient to operate the machinery, but a
disinclination to think about the principles of the ends of its operation.
There is no set of human relations that exhibits more distinctively
the issues of these undesirable tendencies than those
which the process of law adjusts. We have lost utterly the older
sense of a hallowed fealty towards man-made law; we are not
suffering from the inflexibility of the Medes and the Persians. We
manufacture laws as readily as we do steam-rollers and change their
patterns to suit the roads we have to build. But with the profit of
our adaptability we are in danger of losing the underlying sense of
purpose that inspires and continues to justify measures, and to
lose also a certain intimate intercourse with problems of theory and
philosophy which is one of the requisites of a professional equipment
<p x>
and one nowhere better appreciated than in countries loyal to
Teutonic ideals of culture. The present volume bears the promise
of performing a notable service for English readers by rendering
accessible an admirable review of the data and principles germane
to the practices of justice as related to their intimate conditioning
in the psychological traits of men.
The significant fact in regard to the procedures of justice is that
they are of men, by men, and for men. Any attempt to eliminate
unduly the human element, or to esteem a system apart from its
adaptation to the psychology of human traits as they serve the
ends of justice, is likely to result in a machine-made justice and a
mechanical administration. As a means of furthering the plasticity
of the law, of infusing it with a large human vitality--a movement
of large scope in which religion and ethics, economics and
sociology are worthily cooperating--the psychology of the party
of the first part and the party of the second part may well be considered.
The psychology of the judge enters into the consideration
as influentially as the psychology of the offender. The manysidedness
of the problems thus unified in a common application is
worthy of emphasis. There is the problem of evidence: the ability
of a witness to observe and recount an incident, and the distortions
to which such report is liable through errors of sense, confusion of
inference with observation, weakness of judgment, prepossession,
emotional interest, excitement, or an abnormal mental condition.
It is the author's view that the judge should understand these
relations not merely in their narrower practical bearings, but in
their larger and more theoretical aspects which the study of psychology
as a comprehensive science sets forth. There is the allied
problem of testimony and belief, which concerns the peculiarly
judicial qualities. To ease the step from ideas to their expression,
to estimate motive and intention, to know and appraise at their
proper value the logical weaknesses and personal foibles of all kinds
and conditions of offenders and witnesses,--to do this in accord
with high standards, requires that men as well as evidence shall be
judged. Allied to this problem which appeals to a large range of
psychological doctrine, there is yet another which appeals to a
yet larger and more intricate range,--that of human character and
condition. Crimes are such complex issues as to demand the systematic
diagnosis of the criminal. Heredity and environment,
associations and standards, initiative and suggestibility, may all
be condoning as well as aggravating factors of what becomes a
<p xi>
``case.'' The peculiar temptations of distinctive periods of life,
the perplexing intrusion of subtle abnormalities, particularly when
of a sexual type, have brought it about that the psychologist has
extended his laboratory procedures to include the study of such
deviation; and thus a common set of findings have an equally pertinent
though a different interest for the theoretical student of
relations and the practitioner. There are, as well, certain special
psychological conditions that may color and quite transform the
interpretation of a situation or a bit of testimony. To distinguish
between hysterical deception and lying, between a superstitious
believer in the reality of an experience and the victim of an
actual hallucination, to detect whether a condition of emotional
excitement or despair is a cause or an effect, is no less a psychological
problem than the more popularly discussed question of compelling
confession of guilt by the analysis of laboratory reactions. It may
well be that judges and lawyers and men of science will continue to
differ in their estimate of the aid which may come to the practical
pursuits from a knowledge of the relations as the psychologist
presents them in a non-technical, but yet systematic analysis. Professor
Gross believes thoroughly in its importance; and those who
read his book will arrive at a clearer view of the methods and issues
that give character to this notable chapter in applied psychology.
The author of the volume is a distinguished representative of the
modern scientific study of criminology, or ``criminalistic'' as he
prefers to call it. He was born December 26th, 1847, in Graz (Steiermark),
Austria, pursued his university studies at Vienna and Graz,
and qualified for the law in 1869. He served as ``Untersuchungsrichter''
(examining magistrate) and in other capacities, and received
his first academic appointment as professor of criminal law
at the University of Czernowitz. He was later attached to the German
University at Prague, and is now professor in the University
of Graz. He is the author of a considerable range of volumes bearing
on the administration of criminal law and upon the theoretical
foundations of the science of criminology. In 1898 he issued his
``Handbuch fur Untersuchungsrichter, als System der Kriminalistik,''
a work that reached its fifth edition in 1908, and has been
translated into eight foreign languages. From 1898 on he has been
the editor of the ``Archiv f<u:>r Kriminalanthropologie und Kriminalistik,''
of which about twenty volumes have appeared. He is a
frequent contributor to this journal, which is an admirable representative
of an efficient technical aid to the dissemination of interest
<p xii>
in an important and difficult field. It is also worthy of mention
that at the University of Graz he has established a Museum of
Criminology, and that his son, Otto Gross, is well known as a
specialist in nervous and mental disorders and as a contributor to
the psychological aspects of his specialty. The volume here presented
was issued in 1897; the translation is from the second and
enlarged edition of 1905. The volume may be accepted as an authoritative
exposition of a leader in his ``Fach,'' and is the more acceptable
for purposes of translation, in that the wide interests of the writer
and his sympathetic handling of his material impart an unusually
readable quality to his pages.
JOSEPH JASTROW.
MADISON, WISCONSIN,
DECEMBER, 1910.
AUTHOR'S PREFACE TO THE AMERICAN EDITION.
THE present work was the first really objective Criminal Psychology which dealt with the mental states of judges, experts, jury, witnesses, etc., as well as with the mental states of criminals. And a study of the former is just as needful as a study of the latter. The need has fortunately since been recognized and several studies of special topics treated in this book--e. g. depositions of witnesses, perception, the pathoformic lie, superstition, probability, sensory illusions, inference, sexual differences, etc.--have become the subjects of a considerable literature, referred to in our second edition.
I agreed with much pleasure to the proposition of the American Institute of Criminal Law and Criminology to have the book translated. I am proud of the opportunity to address Americans and Englishmen in their language. We of the German countries recognize the intellectual achievements of America and are well aware how much Americans can teach us.
I can only hope that the translation will justify itself by its usefulness to the legal profession.
HANS GROSS.
TRANSLATOR'S NOTE.
THE present version of Gross's Kriminal Psychologie differs from the original in the fact that many references not of general psychological or criminological interest or not readily accessible to English readers have been eliminated, and in some instances more accessible ones have been inserted. Prof. Gross's erudition is so stupendous that it reaches far out into texts where no ordinary reader would be able or willing to follow him, and the book suffers no loss from the excision. In other places it was necessary to omit or to condense passages. Wherever this is done attention is called to it in the notes. The chief omission is a portion of the section on dialects. Otherwise the translation is practically literal. Additional bibliography of psychological and criminological works likely to be generally helpful has been appended.
{NOTE: the TOC below is raw OCR and needs fixed} CONTENTS.
PAGE GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE SERIES . . . . . . . . . . . . . V
INTRODUCTION TO THE ENGLISH VERSION . . . . . ix
AUTHOR'S PREFACE TO THE AMERICAN EDITION . . . . xiii
TRANSLATOR'S NOTE . . . . . . . . . . . xiv
INTRODUCTION . . . . . . . . . . . . . 1
PART I. THE SUBJECTIVE CONDITIONS OF EVIDENCE
(THE MENTAL ACTIVITIES OF THE JUDGE) . . 7
TITLE A. CONDITIONS OF TAKING EVIDENCE . . . 7
Topic 1. METHOD . . . . . . . . . . 7 <SE> 1 (a) General Considerations . . . . . . . 7 <SE> 2 (b) The Method of Natural Science . . . . . 9
Topic 2. PSYCHOLOGIC LESSONS . . . . . 14 <SE> 3 (a) General Considerations . . . . . . . 14 <SE> 4 (b) Integrity of Witnesses . . . . . . . 16 <SE> 5 (c) Correctness of Testimony . . . . . . . 18
<SE> 6 (d) Presuppositions of Evidence-Taking . . . . 20 <SE> 7 (e) Egoism . . . . . . . . . . 25 <SE> 8 (J) Secrets . . . . . . . . . . . 28 <SE> 9 (9) Interest . . . . . . . . . . . 37
Topic 3. PHENOMENOLOGY: The Outward Expression
of Mental States . . . . . . . . . . 41 <SE> 10 . . . . . . . . . . . . . 41 <SE> 11 (a) General External Conditions . . . . . . 42
<SE> 12 (b) General Signs of Character . . . . . . 53 <SE> 13 (c) Particular Character-signs . . . . . . 61
(d) Somatic Character-Units . . . . . . 69 <SE> 14 (1) General Considerations . . . . . 69 <SE> 15 (2) Causes of Irritation . . . . . . 71 <SE> 16 (3) Cruelty . . . . . . . . 76 <SE> 17 (4) Nostalgia . . . . . . . . 77
<SE> 18 (5) Reflex Movements . . . . . . 78
<SE> 19 (6) Dress . . . . . . . . . 82
<p xviii>
PAGE
<SE> 20 (7) Physiognomy and Related Subjects . . 83 <SE> 21 (8) The Hand . . . . . . . . 100
TITLE B. THE CONDITIONS FOB DEFINING THEORIES . 105
Topic I. THE MAKING OF INFERENCES . . . 105 <SE> 22 . . . . . . . . . . . . . 105 <SE> 23 (a) Proof . . . . . . . . . . . 106 <SE> 24 (b) Causation . . . . . . . . . . 117 <SE> 25 (c) Scepticism . . . . . . . . . . 129 <SE> 26 (d) The Empirical Method in the Study of Cases . . 136 <SE> 27 (e) Analogy . . . . . . . . . . 144 <SE> 28 (f) Probability. . . . . . . . . . 147 <SE> 29 (9) Chance . . . . . . . . . 159 <SE> 30 (h) Persuasion and Explanation . . . . . . 161 <SE> 31 (i) Inference and Judgment . . . . . . . 165 <SE> 32 O Mistaken Inferences . .. . . . . . . 176 <SE> 33 (k) Statistics of the Moral Situation . . . . . 179
Topic 2. KNOWLEDGE . . . . . . . . . 183 <SE> 34 . . . . . . . . . . . . . 183
PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION
(THE MENTAL ACTIVITY OF THE EXAMINEE) . . 187
TITLE A. GENERA1: CONDITIONS . . . . . . . 187
Topic I. OF SENSE PERCEPTION . . . . . 187
<SE>35 . . . . . . . . . . . . . 187
36 (a) GeneralConsiderations . . . . . . . 187
(b) The Sense of Sight . . . . . . . . 196
<SE> 37 (1) General Considerations . . . . . 196
<SE> 38 (2) Color-vision . . . . . . . 204
<SE> 39 (3) The Blind Spot . . . . . . . 207
<SE> 40 (e) The Sense of Hearing . . . . . . . 208
<SE> 41 (d) The Sense of Taste . . . . . . . . 212
<SE> 42 (e) The Sense of Smell . . . . . . . . 213
<SE> 43 (f) The Sense of Touch . . . . . . . . 215
Topic a. PERCEPTION AND CONCEPTION . . . 221
<SE> 44 . . . . . . . . . . . . 221
Topic 3. IMAGINATION . . . . . . . . 232
<SE> 45 . . . . . . . . . . . . . 232
Topic 4. INTELLECTUAL PROCESSES . . . . 238
<SE> 46 (a) General Considerations . . . . . . . 238
<SE> 47 (b) The Mechanism of Thinking . . . . . . 243
<SE> 48 (c) The Subconscious . . . . . . . . 215
~ 49 (d) Subjective Conditions . . . . . . . 248
CONTENTS xix
PAGE
Topic 5. THE ASSOCIATION OF IDEAS . .. 254 <SE> 50 . . . . . . . . . . . .. 254 Topic 6. RECOLLECTION AND MEMORY . .. 258
51 . . . . . . . . . . . . . 258
<SE> 52 (a) The Essence of Memory . . . . . . . 259
53 (b) The Forms of Reproduction . . . . . . 263
~ 54 (c) The Peculiarities of Reproduction . . . . . 268
<SE> 55 (d) Illusions of Memory . . . . . . . 275
<SE> 56 (e) Mnemotechnique . . . . . . . . 279 Topic 7. THE WILL . . . . . . . . . 281 <SE> 57 . . . . . . . . . . . . . 281 Topic 8. EMOTION. . . . . . . . . . 283 ~ 58 . . . . . . . . . . . . . 288
Topic 9. THE FORMS OF GIVING TESTIMONY . . 287
<SE> 59 . . . . . . . . 287
60 (a) General Study of Variety in Forms of Expression . 288
61 (b) Dialect Forms . . . . . . . . . 293
<SE> 62 (c) Incorrect Forms . . . . . . . . 296
TITLE B. DIFFERENTIATING CONDITIONS OF GIVING
TESTIMONY . . . . . . . .. 300
Topic I. GENERAL DIFFERENCES . . . .. 300
(a) Woman . . . . . . . . .300
<SE> 63 1. General Considerations . . . .. 300
<SE> 64 2. Difference between Man and Women .. 307
3. Sexual Peouliaritiea . . . . . . 311
65 (a) General . . . . . . . 311
<SE> 66 (b) Menatruation . . . . . 311
67 (c) Pregnancy . . . . . . 317
68 (d) Erotic . . . . . . 319
~ 69 (e) Submerged Sexual Factors . . 322
4. Particular Feminine Qualities . . . . 332
70 (a) Intelligenee . . . . . . 332
~ 71 1. Conception . . . . . 333
<SE> 72 2. Judgment . . . . . 335
73 3. Quarrels with Women . . . 337
74 (b) Honesty . . . . . . 340
75 (c) Love, Hate and Friendship . . 350
76 (d) Emotional Disposition and Related
Subjects . . . . . 359
77 (e) Weakness . . . . . . 361
78 (b) Children. . . . . . . . . . 364
<SE> 79 1. General Considerations . . . . . 364
<SE> 80 2. Chfldren as Witnesses . . . . . 366
~ 81 3. Juvenile Delinquency . . . . . . 369
XX CONTENTS
<SE> 82 (c) Senility . . . . . . . . . . 372
583 (d) Differences in Conception . . . . . . 375
<SE> 84 (e) Nature and Nurture . . . . . . . 384
<SE> 85 1. The Influence of Nurture . . . . . 385
<SE> 86 2. The Viewa of the Uneducated . . . . 388
<SE> 87 3. Onesided Education . . . . . . 391
<SE> 88 4. Inclination . . . . . . . . 393
<SE> 89 5. Other Differences . . . . . . 395
<SE> 90 6. Intelligence and Stupidity . . 398
Topic 2. ISOLATED INFLUENCES . . . . . 406
<SE> 91 (a) IIabit . . . . . . . . . . . 406
<SE> 92 (b) Heredity . . . . . . . . . . 410
<SE> 93 (c) Prepossession . . . . . . . . . 412
<SE> 94 (d) Imitation and the Crowd. . . . . . . 415
595 (e) Passion and Emotion . . . . . . 416
96 (f) Honor . . . . . . . . . . . 421
|97 (9) Superstition . . . . . . . . . 422
Topic 3. MISTAKES . . . . . . . . . 422
(a) Mistakes of the Senses . . . . . . . 422
98 (1) General Considerations . . . . . 422
99 (2) Optical Illusions . . . . . . 427
100 (3) Auditory Illusions . . . . . . 493
<SE> 101 (4) Illusions of Touch . . . . . . 449
<SE> 102 (5) Illusions of the Sense of Taste . . . 452
<SE> 103 (6) The Illusiona of the Olfactory Sense . . 453
104 (b) Hallucinations and Illusions . . . . . 454
105 (c) Imaginative Ideas . . . . . . . . 459
(d) Misunderstandings . . . . . . . . 467
~ 106 1. Verbal Misunderatandings . . . . 467
<SE> 107 2. Other Misunderstandings . . . . 470
(e) The Lie . . . . 474
<SE> 108 1. General Considerations . . . . . 474
~ 109 2. The Pathoformic Lie . . . . . 479
Topic 4. ISOLATED SPECIAL CONDITIONS . . 480
110 (a) Sleep and Dream ù . . . 480
111 (b) Intoxication . . . . . . . 484
~ 112 (c) Suggestion . . . . . . 491
APPENDIX A. BIBLIOGRAPHY, INCLIJDING TEXTS MORE EABILY
WITHIN REACH OF ENOEISH READERB . . 493
APPENDIX B. WORKS ON PSYCHOLOOY OF GENERAL INTEREST 500 INDEX . . . . . . . . . . . . . . 503
CRIMINAL PSYCHOLOGY.
INTRODUCTION.
OF all disciplines necessary to the criminal justice in addition to the knowledge of law, the most important are those derived from psychology. For such sciences teach him to know the type of man it is his business to deal with. Now psychological sciences appear in various forms. There is a native psychology, a keenness of vision given in the march of experience, to a few fortunate persons, who see rightly without having learned the laws which determine the course of events, or without being even conscious of them. Of this native psychological power many men show traces, but very few indeed are possessed of as much as criminalists intrinsically require. In the colleges and pre-professional schools we jurists may acquire a little scientific psychology as a ``philosophical propaedeutic,'' but we all know how insufficient it is and how little of it endures in the business of life. And we had rather not reckon up the number of criminalists who, seeing this insufficiency, pursue serious psychological investigations.
One especial psychological discipline which was apparently created for our sake is the psychology of law, the development of which, in Germany, Volkmar[1] recounts. This science afterward developed, through the instrumentality of Metzger[2] and Platner,[3] as criminal psychology. From the medical point of view especially, Choulant's collection of the latter's, ``Quaestiones,'' is still valuable. Criminal psychology was developed further by Hoffbauer,[4] Grohmann,[5]
[1] W. Volkmann v. Volkmar: Lehrbuch der Psychologie (2 vols.). C<o:>then 1875
[2] J. Metzger: ``Gerichtlich-medizinische Abhandhingen.'' K<o:>nigsberg 1803
[3] Ernst Platner: Questiones medicinae forensic, tr. German by Hederich
[4] J. C. Hoffbauer Die Psychologie in ibren Hauptanwendungen auf die Rechtspflege. Halle 1823.
[5] G. A. Grohmann: Ideen zu einer physiognomisehen Anthropologie. Leipzig 1791.
<p 2>
Heinroth,[1] Sehaumann,[2] M<u:>nch,[3] Eckartshausen,[4] and others. In
Kant's time the subject was a bone of contention between faculties,
Kant representing in the quarrel the philosophic, Metzger, Hoffbauer,
and Fries,[5] the medical faculties. Later legal psychology was simply
absorbed by psychiatry, and thereby completely subsumed among the
medical disciplines, in spite of the fact that Regnault,[6] still later,
attempted to recover it for philosophy, as is pointed out in Friedreich's[7]
well-known text-book (cf. moreover V. Wilbrand's[8] text-book).
Nowadays, criminal psychology, as represented by Kraus,[9] KrafftEbing,
[10] Maudsley,[11] Holtzendorff,[12] Lombroso,[13] and others has become
a branch of criminal anthropology. It is valued as the doctrine
of motives in crime, or, according to Liszt, as the investigation of the
psychophysical condition of the criminal. It is thus only a part of the
subject indicated by its name.[14] How utterly criminal psychology has
become incorporated in criminal anthropology is demonstrated by the
works of N<a:>cke,[15] Kurella,[16] Bleuler,[17] Dallemagne,[18] Marro,[19] Ellis,[20]
Baer,[21] Koch,[22] Maschka,[23] Thomson,[24] Ferri,[25] Bonfigli,[26] Corre,[27] etc.
[1] Johann Heinroth: Grundzuge der Kriminalpsychologie. Berlin 1833.
[2] Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792.
[3] M<u:>nch: <U:>ber den Einfluss der Kriminalpsychologie auf Pin System der Kriminal-Rechts. N<u:>rnberg 1790.
[4] Eckartshausen. <U:>ber die Notwendigkeit psychologiseher Kenntnisse bei Beurteilung von Verbreehern. M<u:>nchen, 1791.
[5] J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820.
[6] E. Regnault: Das gerichtliche Urteil der <A:>rzte <u:>ber psychologische Zustande. C<o:>ln, 1830.
[7] J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg 1832.
[8] Wilbrand: Gerichtliche Psychologie. 1858.
[9] Kraus: Die Psychologie des Verbrechens. T<u:>bingen, 1884.
[10] v. Krafft-Ebing: Die zweifelhaften Geisteszust<a:>nde. Erlangen 1873.
[11] Maudsley: Physiology and Pathology of the Mind.
[12] v. Holtzendorff--articles in ``Rechtslexikon.''
[13] Lombroso: L'uomo delinquente, ete.
[14] Asehaffenburg: Articles in Zeitscheift f. d. gesamten Strafreehtwissensehaften, especially in. XX, 201.
[15] Dr. P. N<a:>cke: <U:>ber Kriminal Psychologie, in the above-mentioned
Zeitschrift, Vol. XVII.
Verbrechen und Wahnsinn beim Weibe. Vienna, Leipsig, 1884.
Moral Insanity: <A:>rztliche Sachverst<a:>ndigen-Zeitung, 1895;
Neurologisches Zentralblatt, Nos. 11 and 16. 1896
[16] Kurella: Naturgesehichte des Verbreehers. Stuttgart 1893.
[17] Blenler: Der geborene Verbrecher. Munchen 1896.
[18] Dallemagne. Kriminalanthropologie. Paris 1896.
19] Marro: I caratteri dei deliquenti. Turin 1887. I carcerati. Turin 1885.
[20] Havelock Ellis: The Criminal. London 1890.
[21] A. Baer: Der Verbrecher Leipzig 1893.
[22] Koch. Die Frage nach dem geborenen Verbrecher. Ravensberg 1894.
[23] Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). T<u:>bingen 1883.
[24] Thomson. Psychologie der Verbrecher.
[25] Ferri: Gerichtl. Psychologie. Mailand 1893.
[26] Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892.
[27] Corre: Les Criminels. Paris 1889.
<p 3>
Literally, criminal psychology should be _that form of psychology used in dealing with crime_; not merely, the psychopathology of criminals, the natural history of the criminal mind. But taken even literally, this is not all the psychology required by the criminalist. No doubt crime is an objective thing. Cain would actually have slaughtered Abel even if at the time Adam and Eve were already dead. But for us each crime exists only as we perceive it,--as we learn to know it through all those media established for us in criminal procedure. But these media are based upon sense-perception, upon the perception of the judge and his assistants, i. e.: upon witnesses, accused, and experts. Such perceptions must be psychologically validated. The knowledge of the principles of this validation demands again a special department of general psychology--even such a _pragmatic applied psychology as will deal with all states of mind that might possibly be involved in the determination and judgment of crime_. It is the aim of this book to present such a psychology. ``If we were gods,'' writes Plato in the Symposium, ``there would be no philosophy''--and if our senses were truer and our sense keener, we should need no psychology. As it is we must strive hard to determine certainly how we see and think; we must understand these processes according to valid laws organized into a system-- otherwise we remain the shuttlecocks of sense, misunderstanding and accident. We must know how all of us,--we ourselves, witnesses, experts, and accused, observe and perceive; we must know how they think,--and how they demonstrate; we must take into account how variously mankind infer and perceive, what mistakes and illusions may ensue; how people recall and bear in mind; how everything varies with age, sex, nature, and cultivation. We must also see clearly what series of influences can prevail to change all those things which would have been different under normal conditions. Indeed, the largest place in this book will be given to the witness and the judge himself, since we want in fact, from the first to keep in mind the creation of material for our instruction; but the psychology of the criminal must also receive consideration whereever the issue is not concerned with his so-called psychoses, but with the validation of evidence.
Our method will be that fundamental to all psychological investigation, and may be divided into three parts:[1]
- The preparation of a review of psychological phenomena.
[1] P. Jessen: Versuch einer wissenschaftlichen Begrundung der Psychologie. Berlin 1855.
<p 4>
2. Study of causal relationships.
3. Establishment of the principles of psychic activity.
The subject-matter will be drawn on the one hand, from that already presented by psychological science, but will be treated throughout from the point of view of the criminal judge, and prepared for his purposes. On the other hand, the material will be drawn from these observations that alone the criminologist at work can make, and on this the principles of psychology will be brought to bear.
We shall not espouse either pietism, scepticism, or criticism. We have merely to consider the individual phenomena, as they may concern the criminalist; to examine them and to establish whatever value the material may have for him; what portions may be of use to him in the interest of discovering the truth; and where the dangers may lurk that menace him. And just as we are aware that the comprehension of the fundamental concepts of the exact sciences is not to be derived from their methodology, so we must keep clearly in mind that the truth which we criminalists have to attain can not be constructed out of the _formal_ correctness of the content presented us. We are in duty bound to render it _materially_ correct. But that is to be achieved only if we are acquainted with principles of psychology, and know how to make them serve our purposes. For our problem, the oft-quoted epigram of Bailey's, ``The study of physiology is as repugnant to the psychologist as that of acoustics to the composer,'' no longer holds. We are not poets, we are investigators. If we are to do our work properly, we must base it completely upon modern psycho physical fundamentals. Whoever expects unaided to find the right thing at the right moment is in the position of the individual who didn't know whether he could play the violin because he had not yet tried. We must gather wisdom while we are not required to use it; when the time for use arrives, the time for harvest is over.
Let this be our fundamental principle: _That we criminalists
receive from our main source, the witnesses, many more inferences
than observations_, and that this fact is the basis of so many mistakes
in our work. Again and again we are taught, in the deposition of
evidence, that only facts as plain sense-perceptions should be presented;
that inference is the judge's affair. But we only appear
to obey this principle; actually, most of what we note as fact
and sense-perception, is nothing but a more or less justified
judgment, which though presented in the honestest belief, still
<p 5>
offers no positive truth. ``Amicus Plato, sed magis amica
Veritas.''
There is no doubt that there is an increasing, and for us jurists, a not unimportant demand for the study of psychology in its bearing on our profession. But it must be served. The spirited Abb<e'> de Ba<e:>ts, said at a meeting of criminalists in Brussels, that the _present tendency of the science of criminal law demands the observation of the facts of the daily life_. In this observation consists the alpha and omega of our work; we can perform it only with the flux of sensory appearances, and the law which determines this flux, and according to which the appearances come, is the law of causation. But we are nowhere so neglectful of causation as in the deeds of mankind. A knowledge of that region only psychology can give us. Hence, to become conversant with psychological principles, is the obvious duty of that conscientiousness which must hold first place among the forces that conserve the state. It is a fact that there has been in this matter much delinquency and much neglect. If, then, we were compelled to endure some bitterness on account of it, let it be remembered that it was always directed upon the fact that we insisted on studying our statutes and their commentaries, fearfully excluding every other discipline that might have assisted us, and have imported vitality into our profession. It was Gneist[1] who complained: ``The contemporary low stage of legal education is to be explained like much else by that historical continuity which plays the foremost r<o^>le in the administration of justice.'' Menger[2] does not mention ``historical continuity'' so plainly, but he points sternly enough to the legal sciences as the most backward of all disciplines that were in contact with contemporary tendencies. That these accusations are justified we must admit, when we consider what St<o:>lzel[3] and the genial creator of modern civil teaching demands: ``It must be recognized that jurisprudence in reality is nothing but the thesis of the healthy human understanding in matters of law.'' But what the ``healthy human mind'' requires we can no longer discover from our statutory paragraphs only. How shameful it is for us, when Goldschmidt[4] openly narrates how a famous scientist exclaimed to a student in his laboratory: ``What do you want here? You know nothing, you understand nothing, you do nothing,--you had better become a lawyer.''
[1] R. Gneist: Aphorismen zur Reform des Rechtestudiums. Berlin 1887.
[2] A. Menger: in Archiv fin soziale Gesetzgebung v. Braun II.
[3] A. St<o:>lsel: Schulung fin die Zivilistiche Praxis. 2d Ed. Berlin 1896.
[4] S. Goldschmidt: Rechtestudium und Priifungsordnung. Stuttgart 1887.
<p 6>
Now let us for once frankly confess why we are dealt these disgraceful reproaches. Let us agree that we have not studied or dealt with jurisprudence as a science, have never envisaged it as an empirical discipline; that the aprioristic and classical tradition had kept this insight at a distance, and that where investigation and effort toward the recognition of the true is lacking, there lacks everything of the least scientific importance. To be scientifically legitimate, we need first of all the installation of the disciplines of research which shall have direct relationships with our proper task. In this way only can we attain that spiritual independence by means of spiritual freedom, which Goldschmidt defines as the affair of the higher institutions of learning, and which is also the ideal of our own business in life. And this task is not too great. ``Life is movement,'' cried Alois von Brinz,[1] in his magnificent inaugural address. ``Life is not the thought, but the thinking which comes in the fullness of action.''
It may be announced with joy and satisfaction, that since the publication of the first edition of this book, and bearing upon it, there came to life a rich collection of fortuitous works which have brought together valuable material. Concerning the testimony of witnesses, its nature and value, concerning memory, and the types of reproduction, there is now a considerable literature. Everywhere industrious hands are raised,--hands of psychologists, physicians, and lawyers, to share in the work. Should they go on unhurt we may perhaps repair the unhappy faults committed by our ancestors through stupid ignorance and destructive use of uncritically collected material.
[1] A. v. Brinz: <U:>ber Universalit<a:>t. Rektorsrede 1876.
PART I.
THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE MENTAL ACTIVITIES OF THE JUDGE.
TITLE A. THE CONDITIONS OF TAKING EVIDENCE.
Topic I. METHOD.
Section I. (a) General Considerations.
SOCRATES, dealing in the Meno with the teachability of virtue, sends for one of Meno's slaves, to prove by him the possibility of absolutely certain a priori knowledge. The slave is to determine the length of a rectangle, the contents of which is twice that of one measuring two feet; but he is to have no previous knowledge of the matter, and is not to be directly coached by Socrates. He is to discover the answer for himself. Actually the slave first gives out an incorrect answer. He answers that the length of a rectangle having twice the area of the one mentioned is four feet, thinking that the length doubles with the area. Thereupon Socrates triumphantly points out to Meno that the slave does as a matter of fact not yet quite know the truth under consideration, but that he really thinks he knows it; and then Socrates, in his own Socratic way, leads the slave to the correct solution. This very significant procedure of the philosopher is cited by Guggenheim[1] as an illustration of the essence of a priori knowledge, and when we properly consider what we have to do with a witness who has to relate any fact, we may see in the Socratic method the simplest example of our task. We must never forget _that the majority of mankind dealing with any subject whatever always believe that they know and repeat the truth_, and even when they say doubtfully: ``I believe.-- It seems to me,'' there is, in this tentativeness, more meant than meets the ear. When anybody says: ``I believe that--'' it merely means that he intends to insure himself against the event of being contradicted by better informed persons; but he certainly has not
[1] M. Guggenheim: Die Lehre vom aprioristischen Wissen. Berlin 1885.
<p 1>
the doubt his expression indicates. When, however, the report of
some bare fact is in question (``It rained,'' ``It was 9 o'clock,''
``His beard was brown,'' or ``It was 8 o'clock,'') it does not matter
to the narrator, and if he imparts _*such_ facts with the introduction,
``I believe,'' then he was really uncertain. The matter becomes
important only where the issue involves partly-concealed observations,
conclusions and judgments. In such cases another factor
enters--conceit; what the witness asserts he is fairly certain of
just because he asserts it, and all the ``I believes,'' ``Perhapses,''
and ``It seemeds,'' are merely insurance against all accidents.
Generally statements are made without such reservations and, even if the matter is not long certain, with full assurance. What thus holds of the daily life, holds also, and more intensely, of courtwitnesses, particularly in crucial matters. Anybody experienced in their conduct comes to be absolutely convinced that witnesses do not know what they know. A series of assertions are made with utter certainty. Yet when these are successively subjected to closer examinations, tested for their ground and source, only a very small portion can be retained unaltered. Of course, one may here overshoot the mark. It often happens, even in the routine of daily life, that a man may be made to feel shaky in his most absolute convictions, by means of an energetic attack and searching questions. Conscientious and sanguine people are particularly easy subjects of such doubts. Somebody narrates an event; questioning begins as to the indubitability of the fact, as to the exclusion of possible deception; the narrator becomes uncertain, he recalls that, because of a lively imagination, he has already believed himself to have seen things otherwise than they actually were, and finally he admits that the matter might probably have been different. During trials this is still more frequent. The circumstance of being in court of itself excites most people; the consciousness that one's statement is, or may be, of great significance increases the excitement; and the authoritative character of the official subdues very many people to conform their opinions to his. What wonder then, that however much a man may be convinced of the correctness of his evidence, he may yet fail in the face of the doubting judge to know anything certainly?
Now one of the most difficult tasks of the criminalist is to hit,
in just such cases, upon the truth; neither to accept the testimony
blindly and uncritically; nor to render the witness, who otherwise
<p 9>
is telling the truth, vacillating and doubtful. But it is still more
difficult to lead the witness, who is not intentionally falsifying, but
has merely observed incorrectly or has made false conclusions, to a
statement of the truth as Socrates leads the slave in the Meno.
It is as modern as it is comfortable to assert that this is not the
judge's business--that the witness is to depose, his evidence is to
be accepted, and the judge is to judge. Yet it is supposed before
everything else that the duty of the court is to establish the material
truth--that the formal truth is insufficient. Moreover, if we notice
false observations and let them by, then, under certain circumstance,
we are minus one important piece of evidence _*pro_ and _*con_,
and the whole case may be turned topsy turvy. At the very least
a basis of development in the presentation of evidence is so excluded.
We shall, then, proceed in the Socratic fashion. But, inasmuch as
we are not concerned with mathematics, and are hence more badly
placed in the matter of proof, we shall have to proceed more cautiously
and with less certainty, than when the question is merely
one of the area of a square. On the one hand we know only in the
rarest cases that we are not ourselves mistaken, so that we must
not, without anything further, lead another to agree with us; on
the other hand we must beware of perverting the witness from his
possibly sound opinions. It is not desirable to speak of suggestion
in this matter, since, if I believe that the other fellow knows a matter
better than I and conform to his opinion, there is as yet no suggestion.
And this pure form of change of opinion and of openness to
conviction is commonest among us. Whoever is able to correct
the witness's apparently false conceptions and to lead him to discover
his error of his own accord and then to speak the truth--
whoever can do this and yet does not go too far, deducing from the
facts nothing that does not actually follow from them--that man
is a master among us.
Section 2. (b) The Method of Natural Science.[1]
If now we ask how we are to plan our work, what method we are to follow, we must agree that to establish scientifically the principles of our discipline alone is not sufficient. If we are to make progress, the daily routine also must be scientifically administered. Every sentence, every investigation, every official act must satisfy the same demand as that made of the entire juristic science. In this way only
[1] Cf. H. Gross's Archiv VI, 328 and VIII, 84.
<p 10>
can we rise above the mere workaday world of manual labor, with
its sense-dulling disgust, its vexatious monotony, and its frightful
menace against law and justice. While jurists merely studied the
language of dead laws, expounding them with effort unceasing, and,
one may complain, propounding more, we must have despaired of
ever being scientific. And this because law as a science painfully
sought justification in deduction from long obsolete norms and in
the explanation of texts. To jurisprudence was left only the empty
shell, and a man like Ihering[1] spoke of a ``circus for dialecticoacrobatic
tricks.''
Yet the scientific quality is right to hand. We need only to take hold of the method, that for nearly a century has shown itself to us the most helpful. Since Warnk<o:>nig (1819)[2] told us, ``Jurisprudence must become a natural science,'' men have rung changes upon this battle cry (cf. Spitzer[3]). And even if, because misunderstood, it led in some directions wrongly, it does seem as if a genuinely scientific direction might be given to our doctrines and their application. We know very well that we may not hurry. Wherever people delayed in establishing the right thing and then suddenly tried for it, they went in their haste too far. This is apparent not only in the situations of life; it is visible, in the very recent hasty conclusions of the Lombrosists, in their very good, but inadequate observations, and unjustified and strained inferences. We are not to figure the scientific method from these.[4] It is for us to gather facts and to study them. The drawing of inferences we may leave to our more fortunate successors. But in the daily routine we may vary this procedure a little. We draw there _*particular_ inferences from correct and simple observations. ``From facts to ideas,'' says <O:>ttingen.[5] ``The world has for several millenniums tried to subdue matter to preconceptions and the world has failed. Now the procedure is reversed.'' ``From facts to ideas''--there lies our road, let us for once observe the facts of life without prejudice, without maxims built on preconceptions; let us establish them, strip them of all alien character. Then finally, when we find nothing more in the least doubtful, we may theorize about them, and draw inferences, modestly and with caution.
Every fundamental investigation must first of all establish the
[1] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.
[2] Warnkonig. Versuch einer Begr<u:>ndung des Rechtes. Bonn 1819.
[3] H. Spitzer: <U:>ber das Verh<a:>ltnis der Philosophie zu den organischen Naturwissensehaften. Leipzig 1883.
[4] Cf. Gross's Archiv VIII 89.
[5] A. v. <O:>ttingen: Moralstatistik. Erlangen 1882.
<p 11>
nature of its subject matter. This is the maxim of a book, ``<U:>ber
die Dummheit''[1] (1886), one of the wisest ever written. The same
axiomatic proposition must dominate every legal task, but especially
every task of criminal law. It is possible to read thousands upon
thousands of testimonies and to make again this identical, fatiguing,
contrary observation: The two, witness and judge, have not defined
the nature of this subject; they have not determined what they
wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been
established, the one did not know and the other did not tell him.
But the blame for this defective formulation does not rest with the
witness--formulation was the other man's business.
When the real issue is defined the essentially modern and scientific investigation begins. Ebbinghaus,[2] I believe, has for our purpose defined it best. It consists in trying to keep constant the complex of conditions demonstrated to be necessary for the realization of a given effect. It consists in varying these conditions, in isolating one from the other in a numerically determinable order, and finally, in establishing the accompanying changes with regard to the effect, in a quantified or countable order.
I can not here say anything further to show that this is the sole correct method of establishing the necessary principles of our science. The aim is only to test the practicality of this method in the routine of a criminal case, and to see if it is not, indeed, the only one by which to attain complete and indubitable results. If it is, it must _*be of use_ not only during the whole trial--not only in the testing of collected evidence, but also in the testing of every individual portion thereof, analyzed into its component elements.
Let us first consider the whole trial.
The _*effect_ is here the evidence of A's guilt. The complex conditions for its establishment are the collective instruments in getting evidence; the individual conditions are to be established by means of the individual sources of evidence--testimony of witnesses, examination of the premises, obduction, protocol, etc.
_The constantification of conditions_ now consists in standardizing the present instance, thus: Whenever similar circumstances are given, i. e.: the same instruments of evidence are present, the evidence of guilt is established. Now the accompanying changes with regard to the effect, i. e.: proof of guilt through evidence, have to
[1] Erdmann <U:>ber die Dummheit. 1886.
[2] Ebbinghaus: <U:>ber das Ged<a:>chtniss. Leipzig 1885.
<p 12>
be tested--therefore the individual conditions--i.e.: the individual
sources of evidence have to be established and their values
to be determined and _*varied_. Finally, the accompanying change in
effect (conviction by evidence) is to be tested. The last procedure
requires discussion; the rest is self evident. In our business isolation
is comparatively easy, inasmuch as any individual statement, any
visual impression, any effect, etc., may be abstracted without difficulty.
Much harder is the determination of its value. If, however,
we clearly recognize that it is necessary to express the exact value
of each particular source of evidence, and that the task is only to
determine comparative valuation, the possibility of such a thing, in
at least a sufficiently close degree of certainty, must be granted.
The valuation must be made in respect of two things--(1) its
_*reliability_ (subjective and relative); (2) its _*significance_ (objective and
absolute). On the one hand, the value of the evidence itself must
be tested according to the appraisement of the person who presents
it and of the conditions under which he is important; on the other,
what influence evidence accepted as reliable can exercise upon the
_*effect_, considered in and for itself. So then, when a testimony is
being considered, it must first be determined whether the witness
was able and willing to speak the truth, and further, what the importance
of the testimony may be in terms of the changes it may
cause in the _*organization_ of the case.
Of greatest importance and most difficult is the variation of conditions and the establishment of the changes thereby generated, with regard to the _*effect_,--i. e.: the critical interpretation of the material in hand. Applied to a case, the problem presents itself in this wise: I consider each detail of evidence by itself and cleared of all others, and I vary it as often as it is objectively possible to do so. Thus I suppose that each statement of the witness might be a lie, entirely or in part; it might be incorrect observation, false inference, etc.--and then I ask myself: Does the evidence of guilt, the establishment of an especial trial, now remain just? If not, is it just under other and related possible circumstances? Am I in possession of these circumstances? If now the degree of apparent truth is so far tested that these variations may enter and the accusation still remain just, the defendant is convicted: but only under these circumstances.
The same procedure here required for the conduct of a complete
trial, is to be followed also, in miniature, in the production
of particulars of evidence. Let us again construe an instance.
<p 13>
The _*effect_ now is the establishment of the objective correctness
of some particular point (made by statements of witnesses, looks,
etc.). The _*complex of conditions_ consists in the collection of these
influences which might render doubtful the correctness--i. e.,
dishonesty of witnesses, defective examination of locality, unreliability
of the object, ignorance of experts, etc. It is necessary
to know clearly which of these influences might be potent in the
case in hand, and to what degree. The _*standardization_ consists,
also this time, in the comparison of the conditions of the present
case with those of other cases. The _*variation_, again, consists in the
abstraction from the evidence of those details which might possibly
be incorrect, thus correcting it, from various points of view, and
finally, in observing the _*effect_ as it defines itself under this variety
of formulation.
This procedure, adopted in the preparation and judgment of each new piece of evidence, excludes error as far as our means conceivably permit. Only one thing more is needful--a narrow and minute research into that order of succession which is of indispensable importance in every natural science. ``Of all truths concerning natural phenomena, those which deal with the order of succession are for us the most important. Upon a knowledge of them is grounded every intelligent anticipation of the future'' (J. S. Mill).[1] The oversight of this doctrine is the largest cause of our failures. We must, in the determination of evidence, cleave to it. Whenever the question of influence upon the ``_*effect_'' is raised, the problem of order is found invariably the most important. Mistakes and impossibilities are in the main discovered only when the examination of the order of succession has been undertaken.
In short: We have confined ourselves long enough to the mere study of our legal canons. We now set out upon an exact consideration of their material. To do this, obviously demands a retreat to the starting-point and a beginning we ought to have made long ago; but natural sciences, on which we model ourselves, have had to do the identical thing and are now at it openly and honestly. Ancient medicine looked first of all for the universal panacea and boiled theriac; contemporary medicine dissects, uses the microscope, and experiments, recognizes no panacea, accepts barely a few specifics. Modern medicine has seen the mistake. But we lawyers boil our theriac even nowadays and regard the most important study, the study of reality, with arrogance.
[1] J. S. Mill: System of Logic.
<p 14>
Topic II. PSYCHOLOGIC LESSONS.
Section 3. (a) General Considerations.
Of the criminalist's tasks, the most important are those involving his dealings with the other men who determine his work, with witnesses, accused, jurymen, colleagues, etc. These are the most pregnant of consequences. In every case his success depends on his skill, his tact, his knowledge of human nature, his patience, and his propriety of manner. Anybody who takes the trouble, may note speedily the great differences in efficiency between those who do and those who do not possess such qualities. That they are important to witnesses and accused is undoubted. But this importance is manifest to still others. The intercourse between various examining judges and experts is a matter of daily observation. One judge puts the question according to law and expects to be respected. He does not make explicit how perfectly indifferent the whole affair is to him, but experts have sufficient opportunity to take note of that fact. The other narrates the case, explains to the experts its various particular possibilities, finds out whether and what further elucidation they demand, perhaps inquires into the intended manner and method of the expert solution of the problem, informs himself of the case by their means, and manifests especial interest in the difficult and far too much neglected work of the experts. It may be said that the latter will do their work in the one case as in the other, with the same result. This would be true if, unfortunately, experts were not also endowed with the same imperfections as other mortals, and are thus far also infected by interest or indifference. Just imagine that besides the examining magistrate of a great superior court, every justice and, in addition, all the chiefs and officials manifested equal indifference! Then even the most devoted experts would grow cool and do only what they absolutely had to. But if all the members of the same court are actuated by the same keen interest and comport themselves as described, how different the affair becomes! It would be impossible that even the indifferent, and perhaps least industrious experts, should not be carried out of themselves by the general interest, should not finally realize the importance of their position, and do their utmost.
The same thing is true of the president, the jurymen and their
fellow-judges. It is observable that here and there a presiding justice
succeeds in boring all concerned during even criminal cases interesting
<p 15>
in themselves; the incident drags on, and people are interested only
in finally seeing the end of the matter. Other presiding justices
again, fortunately the majority, understand how to impart apparent
importance to even the simplest case. Whatever office anybody
may hold,--he and his mates are commissioned in the common
task, and should the thing come up for judgment, everybody does
his best. The difference here is not due to temperamental freshness
or tediousness; the result depends only upon a correct or incorrect
psychological handling of the participants. The latter must in
every single case be led and trained anew to interest, conscientiousness
and co-operation. In this need lies the educational opportunity
of the criminal judge. Whether it arises with regard to the
accused, the witness, the associate justice, or the expert, is all one;
it is invariably the same.
That knowledge of human nature is for this purpose most important to the criminalist will be as little challenged as the circumstance that such knowledge can not be acquired from books. Curiously enough, there are not a few on the subject, but I suspect that whoever studies or memorizes them, (such books as Pockel's, Herz's, Meister's, Engel's, Jassoix's, and others, enumerated by Volkmar) will have gained little that is of use. A knowledge of human nature is acquired only (barring of course a certain talent thereto) by persevering observation, comparison, summarization, and further comparison. So acquired, it sets its possessor to the fore, and makes him independent of a mass of information with which the others have to repair their ignorance of mankind. This is to be observed in countless cases in our profession. Whoever has had to deal with certain sorts of swindlers, lying horsetraders, antiquarians, prestidigitators, soon comes to the remarkable conclusion, that of this class, exactly those who flourish most in their profession and really get rich understand their trade the least. The horsedealer is no connoisseur whatever in horses, the antiquarian can not judge the value nor the age and excellence of antiquities, the cardsharp knows a few stupid tricks with which, one might think, he ought to be able to deceive only the most innocent persons. Nevertheless they all have comfortable incomes, and merely because they know their fellows and have practiced this knowledge with repeatedly fresh applications.
I do not of course assert that we criminalists need little scholarly
knowledge of law, and ought to depend entirely upon knowledge of
men. We need exactly as much more knowledge as our task exceeds
<p 16>
that of the horse-dealer, but we can not do without knowledge of
humanity. The immense onerousness of the judge's office lies in
just the fact that he needs so very much more than his bare legal
knowledge. He must, before all things, be a jurist and not merely a
criminalist; he must be in full possession not only of the knowledge
he has acquired in his academy, but of the very latest up-to-date
status of his entire science. If he neglects the purely theoretical,
he degenerates into a mere laborer. He is in duty bound not only
to make himself familiar with hundreds of things, to be able to
consort with all sorts of crafts and trades, but also, finally, to form
so much out of the material supplied him by the law as is possible
to human power.
Section 4. (b) Integrity of Witnesses.
One of the criminal judge's grossest derelictions from duty consists
in his simply throwing the witness the question and in permitting
him to say what he chooses. If he contents himself in that,
he leaves to the witness's conscience the telling of the truth, and
the whole truth; the witness is, in such a case, certainly responsible
for one part of the untruthful and suppressed, but the responsibility
for the other, and larger part, lies with the judge who has failed to
do his best to bring out the uttermost value of the evidence,
indifferently for or against the prisoner. The work of education is
intended for this purpose,--not, as might be supposed, for training
the populace as a whole into good witnesses, but to make that
individual into a good, trustworthy witness who is called upon to
testify for the first, and, perhaps, for the last time in his life. This
training must in each case take two directions--it must make him
_*want_ to tell the truth; it must make him _*able_ to tell the truth. The
first requirement deals not only with the lie alone, it deals with
the development of complete conscientiousness. How to face the
lie itself can not be determined by means of training, but conscientious
answers under examination can certainly be so acquired.
We are not here considering people to whom truth is an utter stranger,
who are fundamentally liars and whose very existence is a libel
on mankind. We consider here only those people who have been
unaccustomed to speaking the full and unadulterated truth, who
have contented themselves throughout their lives with ``approximately,''
and have never had the opportunity of learning the value
of veracity. It may be said that a disturbingly large number of
<p 17>
people are given to wandering, in conversation, and in the reproduction
of the past. They do not go straight, quickly, and openly
to the point, they loiter toward it--``If I do not reach it in a bee
line, I can get along on by-paths, if not to-day, then to-morrow;
and if I really do not get to it at all, I do get somewhere else.'' Such
people have not homes but inns--if they are not in one place,
another will do.
These persons are characterized by the event that whenever one has seen their loitering and puts the matter to them with just anger, they either get frightened or say carelessly, ``Oh, I thought this was not so accurate.'' This famine of conscience, this indifference to truth, does far-reaching damage in our profession. I assert that it does immensely greater harm than obvious falsehood, because, indeed, the unvarnished lie is much more easily discoverable than the probable truth which is still untruth. Moreover, lies come generally from people with regard to whom one is, for one reason or another, already cautious, while these insinuating approximations are made by people who are not mistrusted at all.[1]
The lack of conscientiousness is common to all ages, both sexes, and to all sorts and conditions of men. But it is most characteristically frequent and sharply defined among people who have no real business in life. Whoever romances in the daily life, romances when he ought to be absolutely truthful. The most dangerous of this class are those who make a living by means of show and exhibition. They are not conscienceless because they do nothing worth while; they do nothing worth while because they are conscienceless. To this class belong peddlers, street merchants, innkeepers, certain shop-keepers, hack-drivers, artists, etc., and especially prostitutes (cf. Lombroso, etc., etc.). All these people follow a calling perhaps much troubled, but they do no actual work and have chosen their profession to avoid regular, actual work. They have much unoccupied time, and when they are working, part of the work consists of gossip, part of loafing about, or of a use of the hands that is little more. In brief,--since they loiter about and make a profit out of it, it is no wonder that in giving evidence they also loaf and bring to light only approximate truth. Nor is it difficult to indicate analogous persons in the higher walks of life.
The most hateful and most dangerous of these people are the congenital tramps--people who did not have to work and faithfully pursued the opportunity of doing nothing. Whoever does not
[1] Cf. L<o:>wenstimm, in H. Gross's Archiv, VII, 191.
<p 18>
recognize that the world has no place for idlers and that life on God's
earth must be earned by labor, is without conscience. No conscientious
testimony need be expected from such. Among the few
rules without exception which in the course of long experience
the criminalist may make, this is one--that _the real tramps of both
sexes and all walks of life will never testify conscientiously;--hic
niger est, hunc Tu, Romane, caveto_.
Section 5. (c) The Correctness of Testimony.
The training of the witness into a _*capacity_ for truth-telling must be based, (1) on the judge's knowledge of all the conditions that affect, negatively, correct observations and reproductions; (2) on his making clear to himself whether and which conditions are operative in the case in question; and (3) on his aiming to eliminate this negative influence from the witness. The last is in many cases difficult, but not impossible. That mistakes have been made is generally soon noted, but then, ``being called and being chosen'' are two things; and similarly, the discovery of _*what_ is correct and the substitution of the essential observations for the opinionative ones, is always the most difficult of the judge's tasks.
When the witness is both unwilling to tell the truth and unable to do so, the business of training may be approached from a few common view-points. Patience with the witness is perhaps the most important key to success. No doubt it is difficult to be patient where there is no time; and what with our contemporary overtasking, there is no time. But that must be altered. Justice must have strength to keep everybody's labor proportional to his task. A nation whose representatives do not grant money enough for this purpose must not expect satisfactory law courts--``no checkee no washee;'' no money no justice. People who have time will acquire patience.
Patience is necessary above all while taking evidence. A great
many witnesses are accustomed to say much and redundantly,
and again, most criminal justices are accustomed to try to shut
them off and to require brief statements. That is silly. If the
witness is wandering on purpose, as many a prisoner does for definite
reasons of his own, he will spread himself still more as he recognizes
that his examiner does not like it. To be disagreeable is his purpose.
He is never led by impatience beyond his introduction, and some
piece of evidence is lost because almost every accused who speaks
<p 19>
unintelligibly on purpose, says too much in the course of his speech
and brings things to light that no effort might otherwise have attained
to. Besides, whoever is making a purposely long-winded
testimony does not want to say anything superfluous, and if he
actually does so, is unaware of it. And even when he knows that
he is talking too much (most of the time he knows it from the impatient
looks of his auditors), he never can tell just what exceeded
the measure. If, then, he is asked to cut it short, he remains unmoved,
or at most begins again at the beginning, or, if he actually condescends,
he omits things of importance, perhaps even of the utmost
importance. Nor must it be forgotten that at least a large proportion
of such people who are brought to court have prepared their
story or probably blocked it out in the rough. If they are not permitted
to follow their plans, they get confused, and nothing coherent
or half-coherent is discovered. And generally those who say most
have thought their testimony over before. Those who merely have
to say no more than _*yes_ and _*no_ at the trial do not reduce the little
they are going to say to any great order; that is done only by such
as have a story to tell. Once the stream of talk breaks loose it is
best allowed to flow on, and only then interrupted with appropriate
questions when it threatens to become exhausting. Help against too
much talk can be found in one direction. But it must be made
use of before the evil begins, and is in any event of use only in the
description of a long chain of events,--e. g., a great brawl. There,
if one has been put in complete possession of the whole truth, through
one or more witnesses, the next witness may be told: ``Begin where
X entered the room.'' If that is not done, one may be compelled
to hear all the witness did the day before the brawl and how these
introductions, in themselves indifferent, have led to the event.
But if you set the subject, the witness simply abandons the first
part of possibly studied testimony without thereby losing his
coherence. The procedure may be accurately observed: The witness
is told, ``Begin at this or that point.'' This deliverance is
generally followed by a pause during which he obviously reviews
and sets aside the part of his prepared speech dealing with the events
preliminary to the required points. If, however, the setting of a
starting point does not work and the witness says he must begin
at the earlier stage, let him do so. Otherwise he tries so hard to
begin according to request that, unable to go his own way, he confuses
everything.
The patience required for taking testimony is needful also in
<p 20>
cross-examination. Not only children and slow-witted folk, but
also bright persons often answer only ``yes'' and ``no,''[1] and these
bare answers demand a patience most necessary with just this bareness,
if the answers are to be pursued for some time and consecutively.
The danger of impatience is the more obvious inasmuch as
everyone recognizes more or less clearly that he is likely to set the
reserved witness suggestive questions and so to learn things that the
witness never would have said. Not everybody, indeed, who makes
monosyllabic replies in court has this nature, but in the long run,
this common characteristic is manifest, and these laconic people
are really not able to deliver themselves connectedly in long speeches.
If, then, the witness has made only the shortest replies and a coherent
well-composed story be made of them, the witness will,
when his testimony is read to him, often not notice the untruths
it might contain. He is so little accustomed to his own prolonged
discourse that at most he wonders at his excellent speech without
noticing even coarse falsehoods. If, contrary to expectation, he
does notice them, he is too chary of words to call attention to them,
assents, and is glad to see the torture coming to an end. Hence,
nothing but endless patience will do to bring the laconic witness
to say at least enough to make his information coherent, even
though brief. It may be presented in this form for protocol.
Section 6. (d) Presuppositions of Evidence-Taking.
One of the most important rules of evidence-taking is not to suppose that practically any witness is skilled in statement of what he remembers. Even of child training, Fr<o:>bel[2] says, ``Men must be drawn out, not probed.'' And this is the more valid in jurisprudence, and the more difficult, since the lawyers have at most only as many hours with the individual as the teacher has years. However, we must aim to draw the witness out, and if it does not work at first, we must nevertheless not despair of succeeding.
The chief thing is to determine the witness's level and then meet him on it. We certainly can not succeed, in the short time allowed us, to raise him to ours. ``The object of instruction'' (says Lange[3]) ``is to endow the pupil with more apperceptive capacity, i. e., to
[1] Pathological conditions, if at all distinct, are easily recognizable, but there is a very broad and fully occupied border country between pathological and normal conditions. (Cf. O. Gross: Die Affeklage der Ablehnung. Monatschrift f<u:>r Psychiatrie u. Neurologie, 1902, XII, 359.)
[2] Fr<o:>bel: Die. Mensehenersiehung. Keilhau 1826.
[3] K. Lange: <U:>ber Apperzeption. Plauen 1889.
<p 21>
make him intellectually free. It is therefore necessary to discover
his `funded thoughts,' and to beware of expounding too much.''
This is not a little true. The development of apperceptive capacity
is not so difficult for us, inasmuch as our problem is not to prepare
our subject for life, but for one present purpose. If we desire, to
this end, to make one more intellectually free, we have only to get
him to consider with independence the matter with which we are
concerned, to keep him free of all alien suggestions and inferences,
and to compel him to see the case as if no influences, personal or
circumstantial, had been at work on him. This result does not
require merely the setting aside of special influences, nor the setting
aside of all that others have said to him on the matter under discussion,
nor the elucidation of the effect of fear,[1] of anger, of all
such states of mind as might here have been operative,--it requires
the establishment of his unbiased vision of the subject from
a period antecedent to these above-mentioned influences. Opinions,
valuations, prejudices, superstitions, etc., may here be to a high
degree factors of disturbance and confusion. Only when the whole
Augean stable is swept out may the man be supposed capable of
apperception, may the thing he is to tell us be brought to bear
upon him and he be permitted to reproduce it.
This necessary preliminary is not so difficult if the second of the above-mentioned rules is observed and the ``funded thought'' of the witness is studied out. It may be said, indeed, that so long as two people converse, unaware of each other's ``funded thought,'' they speak different languages. Some of the most striking misunderstandings come from just this reason. It is not alone a matter of varying verbal values, leading to incompatible inferences; actually the whole of a man's mind is involved. It is generally supposed to be enough to know the meaning of the words necessary for telling a story. But such knowledge leads only to external and very superficial comprehension; real clearness can be attained only by knowing the witness's habits of thought in regard to all the circumstances of the case. I remember vividly a case of jealous murder in which the most important witness was the victim's brother, an honest, simple, woodsman, brought up in the wilderness, and in every sense farremoved from idiocy. His testimony was brief, decided and intelligent. When the motive for the murder, in this case most important, came under discussion, he shrugged his shoulders and answered my question--whether it was not committed on account of
[1] Dichl in H. Gross's Arehiv, XI, 240.
<p 22>
a girl--with, ``Yes, so they say.'' On further examination I reached
the astonishing discovery that not only the word ``jealousy,'' but
the very notion and comprehension of it were totally foreign to the
man. The single girl he at one time thought of was won away from
him without making him quarrelsome, nobody had ever told him
of the pangs and passions of other people, he had had no occasion
to consider the theoretic possibility of such a thing, and so
``jealousy'' remained utterly foreign to him. It is clear that his
hearing now took quite another turn. All I thought I heard from
him was essentially wrong; his ``funded thought'' concerning a
very important, in this case a regulative concept, had been too
poor.
The discovery of the ``funded thought'' is indubitably not easy. But its objective possibility with witness and accused is at least a fact. It is excluded only where it is most obviously necessary-- in the case of the jury, and the impossibility in this case turns the institution of trial by jury into a Utopian dream. The presiding officer of a jury court is in the best instances acquainted with a few of the jurymen, but never so far as to have been entrusted with their ``funded thought.'' Now and then, when a juryman asks a question, one gets a glimpse of it, and when the public prosecutor and the attorney for the defence make their speeches one catches something from the jury's expressions; and then it is generally too late. Even if it be discovered earlier nothing can be done with it. Some success is likely in the case of single individuals, but it is simply impossible to define the mental habits of twelve men with whom one has no particular relations.
The third part of the Fr<o:>belian rule, ``To presuppose as little
as possible,'' must be rigidly adhered to. I do not say this pessimistically,
but simply because we lawyers, through endless practice,
arrange the issue so much more easily, conceive its history better
and know what to exclude and what, with some degree of certainty,
to retain. In consequence we often forget our powers and present
the unskilled laity, even when persons of education, too much of
the material. Then it must be considered that most witnesses are
uneducated, that we can not actually descend to their level, and
their unhappiness under a flood of strange material we can grasp
only with difficulty. Because we do not know the witness's point
of view we ask too much of him, and therefore fail in our purpose.
And if, in some exceptional case, an educated man is on the stand,
we fail again, since, having the habit of dealing with the uneducated,
<p 23>
we suppose this man to know our own specialties because he has
a little education. Experience does not dispel this illusion. Whether
actual training in another direction dulls the natural and free outlook
we desire in the witness, or whether, in our profession, education
presupposes tendencies too ideal, whatever be the reasons, it
is a fact that our hardest work is generally with the most highly
educated witnesses. I once had to write a protocol based on the
testimony of a famous scholar who was witness in a small affair.
It was a slow job. Either he did not like the terms as I dictated
them, or he was doubtful of the complete certainty of this or that
assertion. Let alone that I wasted an hour or two, that protocol,
though rewritten, was full of corrections and erasures. And the
thing turned out to be nonsense at the end. The beginning contradicted
the conclusion; it was unintelligible, and still worse,
untrue. As became manifest later, through the indubitable testimony
of many witnesses, the scholar had been so conscientious,
careful and accurate that he simply did not know what he had
seen. His testimony was worthless. I have had such experiences
repeatedly and others have confessed them. To the question: Where
not presuppose too much? the answer is: everywhere. First of
all, little must be presupposed concerning people's powers of observation.
They claim to have heard, seen or felt so and so, and they
have not seen, heard, or felt it at all, or quite differently. They
assent vigorously that they have grasped, touched, counted or
examined something, and on closer examination it is demonstrated
that it was only a passing glance they threw on it. And it is still
worse where something more than ordinary perception is being
considered, when exceptionally keen senses or information are
necessary. People trust the conventional and when close observation
is required often lack the knowledge proper to their particular
status. In this way, by presupposing especial professional knowledge
in a given witness, great mistakes are made. Generally he
hasn't such knowledge, or has not made any particular use of it.
In the same way too much attention and interest are often presupposed,
only to lead later to the astonishing discovery of how
little attention men really pay to their own affairs. Still less, therefore,
ought knowledge in less personal things be presupposed,
for in the matter of real understanding, the ignorance of men far
exceeds all presuppositions. Most people know the looks of all
sorts of things, and think they know their essences, and when questioned,
invariably assert it, quite in good faith. But if you depend
<p 24>
on such knowledge bad results arise that are all the more dangerous
because there is rarely later opportunity to recognize their badness.
As often as any new matter is discussed with a witness, it is necessary, before all, to find out his general knowledge of it, what he considers it to be, and what ideas he connects with it. If you judge that he knows nothing about it and appraise his questions and conclusions accordingly, you will at least not go wrong in the matter, and all in all attain your end most swiftly.
At the same time it is necessary to proceed as slowly as possible. It is Carus[1] who points out that a scholar ought not to be shown any object unless he can not discover it or its like for himself. Each power must have developed before it can be used. Difficult as this procedure generally is, it is necessary in the teaching of children, and is there successful. It is a form of education by examples. The child is taught to assimilate to its past experience the new fact, e. g.: in a comparison of some keen suffering of the child with that it made an animal suffer. Such parallels rarely fail, whether in the education of children or of witnesses. The lengthy description of an event in which, e. g., somebody is manhandled, may become quite different if the witness is brought to recall his own experience. At first he speaks of the event as perhaps a ``splendid joke,'' but as soon as he is brought to speak of a similar situation of his own, and the two stories are set side by side, his description alters. This exemplification may be varied in many directions and is always useful. It is applicable even to accused, inasmuch as the performer himself begins to understand his deed, when it can be attached to his fully familiar inner life.
The greatest skill in this matter may be exercised in the case of the jury. Connect the present new facts with similar ones they already know and so make the matter intelligible to them. The difficulty here, is again the fact that the jury is composed of strangers and twelve in number. Finding instances familiar to them all and familiar in such wise that they may easily link them with the case under consideration, is a rare event. If it does happen the success is both significant and happy.
It is not, however, sufficient to seek out a familiar case analogous to that under consideration. The analogy should be discovered for each event, each motive, each opinion, each reaction, each appearance, if people are to understand and follow the case. Ideas, like
[1] Carus: Psychologie. Leipzig 1823.
<p 25>
men, have an ancestry, and a knowledge of the ancestors leads to a
discovery of the cousins.
Section 7. (e) Egoism.
It is possible that the inner character of egoism shall be as profoundly potent in legal matters as in the daily life. Goethe has experienced its effect with unparalleled keenness. ``Let me tell you something,'' he writes (Conversations with Eckermann. Vol. 1). ``All periods considered regressive or transitional are subjective. Conversely all progressive periods look outward. The whole of contemporary civilization is reactionary, because subjective.... The thing of importance is everywhere the individual who is trying to show off his lordliness. Nowhere is any mentionable effort to be found that subordinates itself through love of the whole.''
These unmistakable terms contain a ``discovery'' that is applicable to our days even better than to Goethe's. _It is characteristic of our time that each man has an exaggerated interest in himself_. Consequently, he is concerned only with himself or with his immediate environment, he understands only what he already knows and feels, and he works only where he can attain some personal advantage. It is hence to be concluded that we may proceed with certainty only when we count on this exaggerated egoism and use it as a prime factor. The most insignificant little things attest this. A man who gets a printed directory will look his own name up, though he knows it is there, and contemplate it with pleasure; he does the same with the photograph of a group of which his worthy self is one of the immortalized. If personal qualities are under discussion, he is happy, when he can say,--``Now I am by nature so.''-- If foreign cities are under discussion, he tells stories of his native city, or of cities that he has visited, and concerning things that can interest only him who has been there. Everyone makes an effort to bring something of his personal status to bear,--either the conditions of his life, or matters concerning only him. If anybody announces that he has had a good time, he means without exception, absolutely without exception, that he has had an opportunity to push his ``I'' very forcefully into the foreground.
Lazarus[1] has rightly given this human quality historical significance: ``Pericles owed a considerable part of his political dictatorate to the circumstance of knowing practically all Athenian citizens by name. Hannibal, Wallenstein, Napoleon I, infected
[1] M. Lazarus: Das Leben der Seele. Berlin 1856.
<p 26>
their armies, thanks to ambition, with more courage than could
the deepest love of arms, country and freedom, just through knowing
and calling by name the individual soldiers.''
Daily we get small examples of this egoism. The most disgusting and boresome witness, who is perhaps angry at having been dragged so far from his work, can be rendered valuable and useful through the initial show of a little _*personal_ interest, of some comprehension of his affairs, and of some consideration, wherever possible, of his views and efficiency. Moreover, men judge their fellows according to their comprehension of their own particular professions. The story of the peasant's sneer at a physician, ``But what can he know when he does not even know how to sow oats?'' is more than a story, and is true of others besides illiterate boors. Such an attitude recurs very frequently, particularly among people of engrossing trades that require much time,--e. g., among soldiers, horsemen, sailors, hunters, etc. If it is not possible to understand these human vanities and to deal with these people as one of the trade, it is wise at least to suggest such understanding, to show interest in their affairs and to let them believe that really you think it needful for everybody to know how to saddle a horse correctly, or to distinguish the German bird-dog from the English setter at a thousand paces. What is aimed at is not personal respect for the judge, but for the judge's function, which the witness identifies with the judge's person. If he has such respect, he will find it worth the trouble to help us out, to think carefully and to assist in the difficult conclusion of the case. There is an astonishing difference between the contribution of a sulking and contrary witness and of one who has become interested and pleased by the affair. Not only quantity, but truth and reliability of testimony, are immensely greater in the latter case.
Besides, the antecedent self-love goes so far that it may become
very important in the examination of the accused. Not that a trap
is to be set for him; merely that since it is our business to get at the
truth, we ought to proceed in such proper wise with a denying
accused as might bring to light facts that otherwise careful manipulation
would not have brought out. How often have anonymous or
pseudonymous criminals betrayed themselves under examination
just because they spoke of circumstances involving their capital _*I_,
and spoke so clearly that now the clue was found, it was no longer
difficult to follow it up. In the examination of well-known criminals,
dozens of such instances occur--the fact is not new, but it needs
to be made use of.
<p 27>
A similar motive belongs to subordinate forms of egoism-- the obstinacy of a man who may be so vexed by contradiction as to drive one into despair, and who under proper treatment becomes valuable. This I learned mainly from my old butler, a magnificent honest soldier, a figure out of a comedy, but endowed with inexorable obstinacy against which my skill for a long time availed nothing. As often as I proposed something with regard to some intended piece of work or alteration, I got the identical reply--``It won't do, sir.'' Finally I got hold of a list and worked my plan--``Simon, this will now be done as Simon recently said it should be done,-- namely.'' At this he looked at me, tried to think when he had said this thing, and went and did it. And in spite of frequent application this list has not failed once for some years. What is best about it is that it will serve, mutatis mutandis, with criminals. As soon as ever real balkiness is noted, it becomes necessary to avoid the least appearance of contradictoriness, since that increases difficulties. It is not necessary to lie or to make use of trickery. Only, avoid direct contradiction, drop the subject in question, and return to it indirectly when you perceive that the obstinate individual recognizes his error. Then you may succeed in building him a golden bridge, or at least a barely visible sidedoor where he can make his retreat unnoticed. In that case even the most difficult of obstinates will no longer repeat the old story. He will repeat only if he is pressed, and this although he is repeatedly brought back to the point. If, however, the matter is once decided, beware of returning to it without any other reason, save to confirm the settled matter quite completely,--that would be only to wake the sleeper to give him a sleeping powder.
Speaking generally, the significant rule is this: _Egoism, laziness
and conceit are the only human motives on which one may unconditionally
depend_. Love, loyalty, honesty, religion and patriotism,
though firm as a rock, may lapse and fall. A man might have been
counted on for one of these qualities ten times with safety, and on
the eleventh, he might collapse like a house of cards. Count on
egoism and laziness a hundred or a thousand times and they are as
firm as ever. More simply, count on egoism--for laziness and conceit
are only modifications of egoism. The latter alone then should
be the one human motive to keep in mind when dealing with men.
There are cases enough when all the wheels are set in motion after
a clue to the truth, i. e., when there is danger that the person under
suspicion is innocent; appeals to honor, conscience, humanity and
<p 28>
religion fail;--but run the complete gamut of self-love and the
whole truth rings clear. Egoism is the best criterion of the presence
of veracity. Suppose a coherent explanation has been painfully
constructed. It is obvious that the correctness of the construction
is studied with reference to the given motive. Now, if the links in
the chain reach easily back to the motive, there is at least the
possibility that the chain is free of error. What then of the motive?
If it is noble--friendship, love, humaneness, loyalty, mercy--the
constructed chain may be correct, and happily is so oftener than is
thought; but it _*need not_ be correct. If, however, the structure
rests on egoism, in any of its innumerable forms? and if it is logically
sound, then the whole case is explained utterly and reliably. The
construction is indubitably correct.
Section 8. (f) Secrets.
The determination of the truth at law would succeed much less frequently than it does if it were not for the fact that men find it very difficult to keep secrets. This essentially notable and not clearly understood circumstance is popularly familiar. Proverbs of all people deal with it and point mainly to the fact that keeping secrets is especially difficult for women. The Italians say a woman who may not speak is in danger of bursting; the Germans, that the burden of secrecy affects her health and ages her prematurely; the English say similar things still more coarsely. Classical proverbs have dealt with the issue; numberless fairy tales, narratives, novels and poems have portrayed the difficulty of silence, and one very fine modern novel (Die Last des Schweigens, by Ferdinand K<u:>rnberger) has chosen this fact for its principal motive. The universal difficulty of keeping silence is expressed by Lotze[1] in the dictum that we learn expression very young and silence very late. The fact is of use to the criminalist not only in regard to criminals, but also with regard to witnesses, who, for one reason or another, want to keep something back. The latter is the source of a good deal of danger, inasmuch as the witness is compelled to speak and circles around the secret in question without touching it, until he points it out and half reveals it. If he stops there, the matter requires consideration, for ``a half truth is worse than a whole lie.'' The latter reveals its subject and intent and permits of defence, while the half truth may, by association and circumscriptive limitations, cause vexatious errors both as regards the identity of the semi-accused
[1] Lotze: Der Instinkt. Kleine Schriften. Leipzig 1885.
<p 29>
and as regards the circumstances with which he is thus involved.
For this reason the criminalist must consider the question of secrets
carefully.
As for his own silence, this must be considered in both directions That he is not to blab official secrets is so obvious that it need not be spoken of. Such blabbing is so negligent and dishonorable that we must consider it intrinsically impossible. But it not infrequently happens that some indications are dropped or persuaded out of a criminal Judge, generally out of one of the younger and more eager men. They mention only the event itself, and not a name, nor a place, nor a particular time, nor some even more intimate matter-- there seems no harm done. And yet the most important points have often been blabbed of in just such a way. And what is worst of all, just because the speaker has not known the name nor anything else concrete, the issue may be diverted and enmesh some guiltless person. It is worth considering that the effort above mentioned is made only in the most interesting cases, that crimes especially move people to disgusting interest, due to the fact that there is a more varied approach to synthesis of a case when the same story is repeated several times or by various witnesses. For by such means extrapolations and combinations of the material are made possible. By way of warning, let me remind you of an ancient and much quoted anecdote, first brought to light by Boccaccio: A young and much loved abb<e'> was teased by a bevy of ladies to narrate what had happened in the first confession he had experienced. After long hesitation the young fellow decided that it was no sin to relate the confessed sin if he suppressed the name of the confessor, and so he told the ladies that his first confession was of infidelity. A few minutes later a couple of tardy guests appeared,--a marquis and his charming wife. Both reproached the young priest for his infrequent visits at their home. The marquise exclaimed so that everybody heard, ``It is not nice of you to neglect me, your first confess<e'>e.'' This squib is very significant for our profession, for it is well known how, in the same way, ``bare facts,'' as ``completely safe,'' are carried further. The listener does not have to combine them, the facts combine themselves by means of others otherwise acquired, and finally the most important official matters, on the concealment of which much may perhaps have depended, become universally known. Official secrets have a general significance, and must therefore be guarded at all points and not merely in detail.
The second direction in which the criminal justice must maintain
<p 30>
silence looks toward witnesses and accused. If, in the first instance,
the cause of too much communicativeness was an over-proneness
to talk; its cause in this case is a certain conceit that teases one into
talking. Whether the justice wants to show the accused how much
he already knows or how correctly he has drawn his conclusions;
whether he wishes to impress the witness by his confidences, he may
do equally as much harm in one case as in the other. Any success
is made especially impossible if the judge has been in too much of
a hurry and tried to show himself fully informed at the very
beginning, but has brought out instead some error. The accused
naturally leaves him with his false suppositions, they suggest things
to the witness--and what follows may be easily considered. Correct
procedure in such circumstances is difficult. Never to reveal
what is already known, is to deprive oneself of one of the most
important means of examination; use of it therefore ought not to
be belated. But it is much worse to be premature or garrulous.
In my own experience, I have never been sorry for keeping silence,
especially if I had already said something. The only rule in the
matter is comparatively self-evident. Never move toward any
incorrectness and never present the appearance of knowing more
than you actually do. Setting aside the dishonesty of such a procedure,
the danger of a painful exposure in such matters is great.
There is still another great danger which one may beware of,
optima fide,--the danger of knowing something untrue. This
danger also is greatest for the greatest talent and the greatest courage
among us, because they are the readiest hands at synthesis, inference,
and definition of possibilities, and see as indubitable and shut to
contradiction things that at best are mere possibilities. It is
indifferent to the outcome whether a lie has been told purposely or
whether it has been the mere honest explosion of an over-sanguine
temperament. It is therefore unnecessary to point out the occasion
for caution. One need only suggest that something may be
learned from people who talk too much. The over-communicativeness
of a neighbor is quickly noticeable, and if the _*why_ and _*how much_
of it are carefully studied out, it is not difficult to draw a significant
analogy for one's own case. In the matter of secrets of other people,
obviously the thing to be established first is what is actually a
secret; what is to be suppressed, if one is to avoid damage to self
or another. When an actual secret is recognized it is necessary to
consider whether the damage is greater through keeping or through
revealing the secret. If it is still possible, it is well to let the secret
<p 31>
be--there is always damage, and generally, not insignificant damage,
when it is tortured out of a witness. If, however, one is
honestly convinced that the secret must be revealed--as when a
guiltless person is endangered--every effort and all skill is to be applied
in the revelation. Inasmuch as the least echo of bad faith is
here impossible, the job is never easy.
The chief rule is not to be overeager in getting at the desired secret. The more important it is, the less ought to be made of it. It is best not directly to lead for it. It will appear of itself, especially if it is important. Many a fact which the possessor had set no great store by, has been turned into a carefully guarded secret by means of the eagerness with which it was sought. In cases of need, when every other means has failed, it may not be too much to tell the witness, cautiously of course, rather more of the crime than might otherwise have seemed good. Then those episodes must be carefully hit on, which cluster about the desired secret and from which its importance arises. If the witness understands that he presents something really important by giving up his secret, surprising consequences ensue.
The relatively most important secret is that of one's own guilt, and the associated most suggestive establishment of it, the confession, is a very extraordinary psychological problem.[1] In many cases the reasons for confession are very obvious. The criminal sees that the evidence is so complete that he is soon to be convicted and seeks a mitigation of the sentence by confession, or he hopes through a more honest narration of the crime to throw a great degree of the guilt on another. In addition there is a thread of vanity in confession--as among young peasants who confess to a greater share in a burglary than they actually had (easily discoverable by the magniloquent manner of describing their actual crime). Then there are confessions made for the sake of care and winter lodgings: the confession arising from ``firm conviction'' (as among political criminals and others). There are even confessions arising from nobility, from the wish to save an intimate, and confessions intended to deceive, and such as occur especially in conspiracy and are made to gain time (either for the flight of the real criminal or for the destruction of compromising objects). Generally, in the latter case, guilt is admitted only until the plan for which it was made has succeeded; then the judge is surprised with well-
[1] Cf. Lohsing: ``Confession'' in Gross's Archiv, IV, 23, and Hausner: _ibid_. XIII, 267.
<p 32>
founded, regular and successful establishment of an alibi. Not
infrequently confession of small crimes is made to establish an
alibi for a greater one. And finally there are the confessions Catholics[1]
are required to make in confessional, and the death bed confessions.
The first are distinguished by the fact that they are made
freely and that the confessee does not try to mitigate his crime, but
is aiming to make amends, even when he finds it hard; and desires
even a definite penance. Death bed confessions may indeed have
religious grounds, or the desire to prevent the punishment or the
further punishment of an innocent person.
Although this list of explicable confession-types is long, it is in no way exhaustive. It is only a small portion of all the confessions that we receive; of these the greater part remain more or less unexplained. Mittermaier[2] has already dealt with these acutely and cites examples as well as the relatively well-studied older literature of the subject. A number of cases may perhaps be explained through pressure of conscience, especially where there are involved hysterical or nervous persons who are plagued with vengeful images in which the ghost of their victim would appear, or in whose ear the unendurable clang of the stolen money never ceases, etc. If the confessor only intends to free himself from these disturbing images and the consequent punishment by means of confession, we are not dealing with what is properly called conscience, but more or less with disease, with an abnormally excited imagination.[3] But where such hallucinations are lacking, and religious influences are absent, and the confession is made freely in response to mere pressure, we have a case of conscience,[4]--another of those terms which need explanation. I know of no analogy in the inner nature of man, in which anybody with open eyes does himself exclusive harm without any contingent use being apparent, as is the case in this class of confession. There is always considerable difficulty in explaining these cases. One way of explaining them is to say that their source is mere stupidity
[1] Cf. the extraordinary confession of the wife of the ``cannibal'' Bratuscha. The latter had confessed to having stifled his twelve year old daughter, burned and part by part consumed her. He said his wife was his accomplice. The woman denied it at first but after going to confession told the judge the same story as her husband. It turned out that the priest had refused her absolution until she ``confessed the truth.'' But both she and her husband had confessed falsely. The child was alive. Her father's confession was pathologically caused, her mother's by her desire for absolution.
[2] C. J. A. Mittermaier: Die Lehre vom Beweise im deutsehen Strafprozess. Darmstadt 1834.
[3] Poe calls such confessions pure perversities.
[4] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894.
<p 33>
and impulsiveness, or simply to deny their occurrence. But the
theory of stupidity does not appeal to the practitioner, for even if
we agree that a man foolishly makes a confession and later, when he
perceives his mistake, bitterly regrets telling it, we still find many
confessions that are not regretted and the makers of which can in no
wise be accused of defective intelligence. To deny that there are
such is comfortable but wrong, because we each know collections
of cases in which no effort could bring to light a motive for the
confession. The confession was made because the confessor wanted
to make it, and that's the whole story.
The making of a confession, according to laymen, ends the matter,
but really, the judge's work begins with it. As a matter of caution
all statutes approve confessions as evidence only when they agree
completely with the other evidence. Confession is a means of
proof, and not proof. Some objective, evidentially concurrent support
and confirmation of the confession is required. But the same
legal requirement necessitates that the value of the concurrent evidence
shall depend on its having been arrived at and established independently.
The existence of a confession contains powerful suggestive
influences for judge, witness, expert, for all concerned in the
case. If a confession is made, all that is perceived in the case may be
seen in the light of it, and experience teaches well enough how that
alters the situation. There is so strong an inclination to pigeonhole
and adapt everything perceived in some given explanation,
that the explanation is strained after, and facts are squeezed and
trimmed until they fit easily. It is a remarkable phenomenon, confirmable
by all observers, that all our perceptions are at first soft
and plastic and easily take form according to the shape of their
predecessors. They become stiff and inflexible only when we have
had them for some time, and have permitted them to reach an
equilibrium. If, then, observations are made in accord with certain
notions, the plastic material is easily molded, excrescences and
unevenness are squeezed away, lacun<ae> are filled up, and if it is at
all possible, the adaptation is completed easily. Then, if a new and
quite different notion arises in us, the alteration of the observed
material occurs as easily again, and only long afterwards, when the
observation has hardened, do fresh alterations fail. This is a matter
of daily experience, in our professional as well as in our ordinary
affairs. We hear of a certain crime and consider the earliest data.
For one reason or another we begin to suspect A as the criminal
The result of an examination of the premises is applied in each detail
<p 34>
to this proposition. It fits. So does the autopsy, so do the depositions
of the witnesses. Everything fits. There have indeed been difficulties,
but they have been set aside, they are attributed to inaccurate
observation and the like,--the point is,--that the evidence
is against A. Now, suppose that soon after B confesses the
crime; this event is so significant that it sets aside at once all the
earlier reasons for suspecting A, and the theory of the crime involves
B. Naturally the whole material must now be applied to B, and
in spite of the fact that it at first fitted A, it does now fit B. Here
again difficulties arise, but they are to be set aside just as before.
Now if this is possible with evidence, written and thereby unalterable, how much more easily can it be done with testimony about to be taken, which may readily be colored by the already presented confession. The educational conditions involve now the judge and his assistants on the one hand, and the witnesses on the other.
Concerning himself, the judge must continually remember that his business is not to fit all testimony to the already furnished confession, allowing the evidence to serve as mere decoration to the latter, but that it is his business to establish his proof by means of the confession, and by means of the other evidence, _*independently_. The legislators of contemporary civilization have started with the proper presupposition--that also false confessions are made,-- and who of us has not heard such? Confessions, for whatever reason,--because the confessor wants to die, because he is diseased,[1] because he wants to free the real criminal,--can be discovered as false only by showing their contradiction with the other evidence. If, however, the judge only fits the evidence, he abandons this means of getting the truth. Nor must false confessions be supposed to occur only in case of homicide. They occur most numerously in cases of importance, where more than one person is involved. It happens, perhaps, that only one or two are captured, and they assume all the guilt, e. g., in cases of larceny, brawls, rioting, etc. I repeat: the suggestive power of a confession is great and it is hence really not easy to exclude its influence and to consider the balance of the evidence on its merits,--but this must be done if one is not to deceive oneself.
Dealing with the witness is still more ticklish, inasmuch as to the difficulties with them, is added the difficulties with oneself. The simplest thing would be to deny the existence of a confession, and
[1] Cf. above, the case of the ``cannibal'' Bratuscha.
<p 35>
thus to get the witness to speak without prejudice. But aside
from the fact of its impossibility as a lie, each examination of a
witness would have to be a comedy and that would in many cases
be impossible as the witness might already know that the accused
had confessed. The only thing to be done, especially when it is
permissible for other reasons, is to tell the witness that a confession
exists and to call to his attention that it is _*not_ yet evidence, and finally
and above all to keep one's head and to prevent the witness from
presenting his evidence from the point of view of the already-established.
In this regard it can not be sufficiently demonstrated that
the coloring of a true bill comes much less from the witness than
from the judge. The most excited witness can be brought by the
judge to a sober and useful point of view, and conversely, the most
calm witness may utter the most misleading testimony if the judge
abandons in any way the safe bottom of the indubitably established
fact.
Very intelligent witnesses (they are not confined to the educated
classes) may be dealt with constructively and be told after their
depositions that the case is to be considered as if there were no
confession whatever. There is an astonishing number of people--
especially among the peasants--who are amenable to such considerations
and willingly follow if they are led on with confidence.
In such a case it is necessary to analyze the testimony into its elements.
This analysis is most difficult and important since it must
be determined what, taken in itself, is an element, materially, not
formally, and what merely appears to be a unit. Suppose that
during a great brawl a man was stabbed and that A confesses to
the stabbing. Now a witness testified that A had first uttered
a threat, then had jumped into the brawl, felt in his bag, and left
the crowd, and that in the interval between A's entering and leaving,
the stabbing occurred. In this simple case the various incidents
must be evaluated, and each must be considered by itself. So we
consider--Suppose A had not confessed, what would the threat
have counted for? Might it not have been meant for the assailants
of the injured man? May his feeling in the bag not be interpreted
in another fashion? Must he have felt for a knife only? Was there
time enough to open it and to stab? Might the man not have been
already wounded by that time? We might then conclude that all
the evidence about A contained nothing against him--but if we
relate it to the confession, then this evidence is almost equal to
direct evidence of A's crime.
<p 36>
But if individual sense-perceptions are mingled with conclusions, and if other equivalent perceptions have to be considered, which occurred perhaps to other people, then the analysis is hardly so simple, yet it must be made.
In dealing with less intelligent people, with whom this construction cannot be performed, one must be satisfied with general rules. By demanding complete accuracy and insisting, in any event, on the ratio sciendi, one may generally succeed in turning a perception, uncertain with regard to any individual, into a trustworthy one with regard to the confessor. It happens comparatively seldom that untrue confessions are discovered, but once this does occur, and the trouble is taken to subject the given evidence to a critical comparison, the manner of adaptation of the evidence to the confession may easily be discovered. The witnesses were altogether unwilling to tell any falsehood and the judge was equally eager to establish the truth, nevertheless the issue must have received considerable perversion in order to fix the guilt on the confessor. Such examinations are so instructive that the opportunity to make them should never be missed. All the testimony presents a typical picture. The evidence is consistent with the theory that the real confessor was guilty, but it is also consistent with the theory that the real criminal was guilty, but some details must be altered, often very many. If there is an opportunity to hear the same witnesses again, the procedure becomes still more instructive. The witnesses (supposing they want honestly to tell the truth) naturally confirm the evidence as it points to the second, more real criminal, and if an explanation is asked for the statements that pointed to the ``confessor,'' the answers make it indubitably evident, that their incorrectness came as without intention; the circumstance that a confession had been made acted as a suggestion.[1]
Conditions similar to confessional circumstances arise when other types of persuasive evidence are gathered, which have the same impressive influence as confessions. In such cases the judge's task is easier than the witness's, since he need not tell them of evidence already at hand. How very much people allow themselves to be influenced by antecedent grounds of suspicion is a matter of daily observation. One example will suffice. An intelligent man was attacked at night and wounded. On the basis of his description
[1] We must not overlook those cases in which false confessions are the results of disease, vivid dreams, and toxications, especially toxication by coal-gas. People so poisoned, but saved from death, claim frequently to have been guilty of murder (Hofman. Gerichtliche Medizin, p. 676).
<p 37>
an individual was arrested. On the next day the suspect was brought
before the man for identification. He identified the man with
certainty, but inasmuch as his description did not quite hit off the
suspect he was asked the reason for his certainty. ``Oh, you certainly
would not have brought him here if he were not the right
man,'' was the astonishing reply. Simply because the suspect was
arrested on the story of the wounded man and brought before him
in prison garb, the latter thought he saw such corroboration for his
data as to make the identification certain--a pure <gr usteron prwteron>
which did not at all occur to him in connection with the vivid impression
of what he saw. I believe that to keep going with merely
what the criminalist knows about the matter, belongs to his most
difficult tasks.
Section 9. (g) Interest.
Anybody who means to work honestly must strive to awaken and to sustain the interest of his collaborators. A judge's duty is to present his associates material, well-arranged, systematic, and exhaustive, but not redundant; and to be himself well and minutely informed concerning the case. Whoever so proceeds may be certain in even the most ordinary and simplest cases, of the interest of his colleagues,--hence of their attention; and, in consequence, of the best in their power. These are essentially self-evident propositions. In certain situations, however, more is asked with regard to the experts. The expert, whether a very modest workman or very renowned scholar, must in the first instance become convinced of the judge's complete interest in his work; of the judge's power to value the effort and knowledge it requires; of the fact that he does not question and listen merely because the law requires it, and finally of the fact that the judge is endowed, so far as may be, with a definite comprehension of the expert's task.
However conscientiously and intensely the expert may apply
himself to his problem, it will be impossible to work at it with real
interest if he finds no co-operation, no interest, and no understanding
among those for whom he, at least formally, is at work. We may
be certain that the paucity of respect we get from the scientific
representatives of other disciplines (let us be honest,--such is
the case) comes particularly from those relations we have with
them as experts, relations in which they find us so unintelligent and
so indifferent with regard to matters of importance. If the experts
<p 38>
speak of us with small respect and the attitude spreads and becomes
general, we get only our full due. Nobody can require of a criminal
judge profound knowledge of all other disciplines besides his own--
the experts supply that--but the judge certainly must have some
insight into them in so far as they affect his own work, if he is not
to meet the expert unintelligent and unintelligible, and if he is to
co-operate with and succeed in appraising the expert's work. In
a like fashion the judge may be required to take interest in the
experts' result. If the judge receives their report and sticks to the
statutes, if he never shows that he was anxious about their verdict,
and merely views it as a number, it is no wonder that in the end the
expert also regards his work as a mere number, and loses interest.
No man is interested in a thing unless it is made interesting, and
the expert is no exception. Naturally no one would say that the
judge should pretend interest,--that would be worst of all;--he
must be possessed of it, or he will not do for a judge. But interest
may be intensified and vitalized. If the judge perceives that the
finding of the experts is very important for his case he must at
least meet them with interest in it. If that is present he will read
their reports attentively, will note that he does not understand some
things and ask the experts for elucidation. One question gives rise
to another, one answer after another causes understanding, and
understanding implies an ever-increasing interest. It never happens
that there should be difficulties because of a request to judicial
experts to explain things to the judge. I have never met any in my
own practice and have never heard any complaints. On the contrary,
pleasure and efficiency are generally noticeable in such connections,
and the state, above all, is the gainer. The simple explanation
lies here in the fact that the expert is interested in his profession,
interested in just that concrete way in which the incomparably
greater number of jurists are _*not_. And this again is based upon a
sad fact, for us. The chemist, the physician, etc., studies his subject
because he wants to become a chemist, physician, etc., but the
lawyer studies law not because he wants to become a lawyer, but
because he wants to become an official, and as he has no especial
interest he chooses his state position in that branch in which he
thinks he has the best prospects. It is a bitter truth and a general
rule--that those who want to study law and the science of law are
the exceptions, and that hence we have to acquire a real interest in
our subject from laymen, from our experts. But the interest can
be acquired, and with the growth of interest, there is growth of
<p 39>
knowledge, and therewith increase of pleasure in the work itself
and hence success.
The most difficult problem in interest, is arousing the interest of witnesses--because this is purely a matter of training. Receiving the attention is what should be aimed at in rousing interest, inasmuch as full attention leads to correct testimony--i. e., to the thing most important to our tasks. ``No interest, no attention,'' says Volkmar.[1] ``The absolutely new does not stimulate; what narrows appreciation, narrows attention also.'' The significant thing for us is that ``the absolutely new does not stimulate''-- a matter often overlooked. If I tell an uneducated man, with all signs of astonishment, that the missing books of Tacitus' ``Annals'' have been discovered in Verona, or that a completely preserved Dinotherium has been cut out of the ice, or that the final explanation of the Martian canals has been made at Manora observatory,-- all this very interesting news will leave him quite cold; it is absolutely new to him, he does not know what it means or how to get hold of it, it offers him no matter of interest.[2] I should have a similar experience if, in the course of a trig case, I told a man, educated, but uninterested in the case, with joy, that I had finally discovered the important note on which the explanation of the events depended. I could not possibly expect interest, attention, and comprehension of a matter if my interlocutor knows nothing about the issue or the reason of the note's importance. And in spite of the fact that everything is natural and can be explained we have the same story every day. We put the witness a definite question that is of immense importance to us, who are fully acquainted with the problem, but is for the witness detached, incoherent, and therefore barren of interest. Then who can require of an uninterested witness, attention, and effective and well-considered replies?[3] I myself heard a witness answer a judge who asked him about the weather on a certain day, ``Look here, to drag me so many miles to this place in order to discuss the weather with me,--that's--.'' The old man was quite right because the detached question had no particular purpose. But when it was circumstantially explained to him that the weather was of uttermost significance in this case, how it was related thereto, and how important his answer would be, he went at the question eagerly,
[1] v. Volkmar: Lehrbuch der Psychologie. Cothen 1875
[2] K. Haselbrunner: Die Lehre von der Aufmerkeamkeit Vienna 1901.
[3] E. Wiersma and K. Marbe: Untersuchungen <u:>ber die sogenannten Aufmerksamkeitsschwankungen. Ztseh. f. Psych. XXVI, 168 (1901).
<p 40>
and did everything thinkable in trying to recall the weather in
question by bringing to bear various associated events, and did
finally make a decidedly valuable addition to the evidence. And
this is the only way to capture the attention of a witness. If he is
merely ordered to pay attention, the result is the same as if he were
ordered to speak louder,--he does it, in lucky cases, for a moment,
and then goes on as before. Attention may be generated but not
commanded, and may be generated successfully with everybody, and
at all times, if only the proper method is hit upon. The first and
absolute requirement is to have and to show the same interest
oneself. For it is impossible to infect a man with interest when
you have no interest to infect with. There is nothing more deadly
or boresome than to see how witnesses are examined sleepily and with
tedium, and how the witnesses, similarly infected, similarly answer.
On the other hand, it is delightful to observe the surprising effect
of questions asked and heard with interest. Then the sleepiest
witnesses, even dull ones, wake up: the growth of their interest,
and hence of their attention, may be followed step by step; they
actually increase in knowledge and their statements gain in reliability.
And this simply because they have seen the earnestness of
the judge, the importance of the issue, the case, the weighty consequences
of making a mistake, the gain in truth through watchfulness
and effort, the avoidance of error through attention. In
this way the most useful testimony can be obtained from witnesses
who, in the beginning, showed only despairing prospects.
Now, if one is already himself endowed with keen interest and resolved to awaken the same in the witnesses, it is necessary carefully to consider the method of so doing and how much the witness is to be told of what has already been established, or merely been said and received as possibly valuable. On the one hand it is true that the witness can be roused to attention and to more certain and vigorous responses according to the quantity of detail told him.[1] On the other, caution and other considerations warn against telling an unknown witness, whose trustworthiness is not ascertained, delicate and important matters. It is especially difficult if the witness is to be told of presuppositions and combinations, or if he is to be shown how the case would alter with his own answer. The last especially has the effect of suggestion and must occur in particular and in general at those times alone when his statement,
[1] Slaughter: The Fluctuations of Attention. Am. Jour. of Psych. XII, 313 (1901).
<p 41>
or some part of it, is apparently of small importance but actually
of much. Often this importance can be made clear to the witness
only by showing him that the difference in the effect of his testimony
is pointed out to him because when he sees it he will find it worth
while to exert himself and to consider carefully his answer. Any one
of us may remember that a witness who was ready with a prompt,
and to him an indifferent reply, started thinking and gave an essentially
different answer, even contradictory to his first, when the
meaning and the effect of what he might say was made clear to
him.
How and when the witness is to be told things there is no rule for. The wise adjustment between saying enough to awaken interest and not too much to cause danger is a very important question of tact. Only one certain device may be recommended--it is better to be careful with a witness during his preliminary examination and to keep back what is known or suspected; thus the attention and interest of the witness may perhaps be stimulated. If, however, it is believed that fuller information may increase and intensify the important factors under examination, the witness is to be recalled later, when it is safe, and his testimony is, under the new conditions of interest, to be corrected and rendered more useful. In this case, too, the key to success lies in increase of effort--but that is true in all departments of law, and the interest of a witness is so important that it is worth the effort.
Topic III. PHENOMENOLOGY: STUDY OF THE OUTWARD EXPRESSION OF MENTAL STATES.
Section 10.
Phenomenology is in general the science of appearances. In
our usage it is the systematic co-ordination of those outer symptoms
occasioned by inner processes, and conversely, the inference
from the symptoms to them. Broadly construed, this may be taken
as the study of the habits and whole bearing of any individual.
But essentially only those external manifestations can be considered
that refer back to definite psychical conditions, so that our
phenomenology may be defined as the semiotic of normal psychology.
This science is legally of immense importance, but has not
yet assumed the task of showing how unquestionable inferences
may be drawn from an uncounted collection of outward appearances
to inner processes. In addition, observations are not numerous
<p 42>
enough, far from accurate enough, and psychological research not
advanced enough. What dangerous mistakes premature use of
such things may lead to is evident in the teaching of the Italian
positivistic school, which defines itself also as psychopathic semiotic.
But if our phenomenology can only attempt to approximate the
establishment of a science of symptoms, it may at least study critically
the customary popular inferences from such symptoms and
reduce exaggerated theories concerning the value of individual
symptoms to a point of explanation and proof. It might seem that
our present task is destructive, but it will be an achievement if
we can show the way to later development of this science, and to
have examined and set aside the useless material already to hand.
Section II. (a) General External Conditions.
``Every state of consciousness has its physical correlate,'' says Helmholtz,[1] and this proposition contains the all in all of our problem. Every mental event must have its corresponding physical event[2] in some form, and is therefore capable of being sensed, or known to be indicated by some trace. Identical inner states do not, of course, invariably have identical bodily concomitants, neither in all individuals alike, nor in the same individual at different times. Modern methods of generalization so invariably involve danger and incorrectness that one can not be too cautious in this matter. If generalization were permissible, psychical events would have to be at least as clear as physical processes, but that is not admissible for many reasons. First of all, physical concomitants are rarely direct and unmeditated expressions of a psychical instant (e. g., clenching a fist in threatening). Generally they stand in no causal relation, so that explanations drawn from physiological, anatomical, or even atavistic conditions are only approximate and hypothetical. In addition, accidental habits and inheritances exercise an influence which, although it does not alter the expression, has a moulding effect that in the course of time does finally so recast a very natural expression as to make it altogether unintelligible. The phenomena, moreover, are in most cases personal, so that each individual means a new study. Again the phenomena rarely remain constant; e. g.: we call a thing habit,--
[1] H. L. Helmholtz: <U:>ber die Weebselwirkungen der Naturkr<a:>fte. K<o:>nigsberg 1854.
[2] A. Lehmann: Die k<o:>rperliche <A:>usserungen psychologischer Zust<a:>nde. Leipsig Pt. I, 1899. Pt. II, 1901.
<p 43>
we say, ``He has the habit of clutching his chin when he is embarrassed,''--
but that such habits change is well known. Furthermore,
purely physiological conditions operate in many directions,
(such as blushing, trembling, laughter,[1] weeping, stuttering, etc.),
and finally, very few men want to show their minds openly to their
friends, so that they see no reason for co-ordinating their symbolic
bodily expressions. Nevertheless, they do so, and not since yesterday,
but for thousands of years. Hence definite expressions have
been transmitted for generations and have at the same time been
constantly modified, until to-day they are altogether unrecognizable.
Characteristically, the desire to fool others has also its predetermined
limitations, so that it often happens that simple and significant
gestures contradict words when the latter are false. E. g., you hear
somebody say, ``She went down,'' but see him point at the same time,
not clearly, but visibly, up. Here the speech was false and the
gesture true. The speaker had to turn all his attention on what he
wanted to say so that the unwatched co-consciousness moved his
hand in some degree.
A remarkable case of this kind was that of a suspect of child murder. The girl told that she had given birth to the child all alone, had washed it, and then laid it on the bed beside herself. She had also observed how a corner of the coverlet had fallen on the child's face, and thought it might interfere with the child's breathing. But at this point she swooned, was unable to help the child, and it was choked. While sobbing and weeping as she was telling this story, she spread the fingers of her left hand and pressed it on her thigh, as perhaps she might have done, if she had first put something soft, the corner of a coverlet possibly, over the child's nose and mouth, and then pressed on it. This action was so clearly significant that it inevitably led to the question whether she hadn't choked the child in that way. She assented, sobbing.
Similar is another case in which a man assured us that he lived very peaceably with his neighbor and at the same time clenched his fist. The latter meant illwill toward the neighbor while the words did not.
It need not, of course, be urged that the certainty of a belief will be much endangered if too much value is sanguinely set on such and similar gestures, when their observation is not easy. There is enough to do in taking testimony, and enough to observe, to make it difficult to watch gestures too. Then there is danger (because of
[1] H. Bergson: Le Rire. Paris 1900.
<p 44>
slight practice) of easily mistaking indifferent or habitual gestures
for significant ones; of supposing oneself to have seen more than
should have been seen, and of making such observations too noticeable,
in which case the witness immediately controls his gestures.
In short, there are difficulties, but once they are surmounted, the
effort to do so is not regretted.
It is to be recommended here, also, not to begin one's studies with murder and robbery, but with the simple cases of the daily life, where there is no danger of making far-reaching mistakes, and where observations may be made much more calmly. Gestures are especially powerful habits and almost everybody makes them, mainly _*not_ indifferent ones. It is amusing to observe a man at the telephone, his free hand making the gestures for both. He clenches his fist threateningly, stretches one finger after another into the air if he is counting something, stamps his foot if he is angry, and puts his finger to his head if he does not understand--in that he behaves as he would if his interlocutor were before him. Such deep-rooted tendencies to gesture hardly ever leave us. The movements also occur when we lie; and inasmuch as a man who is lying at the same time has the idea of the truth either directly or subconsciously before him, it is conceivable that this idea exercises much greater influence on gesture than the probably transitory lie. The question, therefore, is one of intensity, for each gesture requires a powerful impulse and the more energetic is the one that succeeds in causing the gesture. According to Herbert Spencer[1] it is a general and important rule that any sensation which exceeds a definite intensity expresses itself ordinarily in activity of the body. This fact is the more important for us inasmuch as we rarely have to deal with light and with not deep-reaching and superficial sensations. In most cases the sensations in question ``exceed a certain intensity,'' so that we are able to perceive a bodily expression at least in the form of a gesture.
The old English physician, Charles Bell,[2] is of the opinion, in his cautious way, that what is called the external sign of passion is only the accompanying phenomenon of that spontaneous movement required by the structure, or better, by the situation of the body. Later this was demonstrated by Darwin and his friends to be the indubitable starting point of all gesticulation:--so, for example,
[1] H. Spencer: Essays, Scientific, etc. 2d Series
[2] Charles Bell: The Anatomy and Philosophy of Expression. London 1806 and 1847.
<p 45>
the defensive action upon hearing something disgusting, the clenching
of the fists in anger; or among wild animals, the baring of the
teeth, or the bull's dropping of the head, etc. In the course of time
the various forms of action became largely unintelligible and significatory
only after long experience. It became, moreover, differently
differentiated with each individual, and hence still more difficult
to understand. How far this differentiation may go when it has
endured generation after generation and is at last crystallized into
a set type, is well known; just as by training the muscles of porters,
tumblers or fencers develop in each individual, so the muscles develop
in those portions of our body most animated by the mind--in our
face and hands, especially, have there occurred through the centuries
fixed expressions or types of movement. This has led to the
observations of common-sense which speak of raw, animal, passionate
or modest faces, and of ordinary, nervous, or spiritual hands; but it
has also led to the scientific interpretation of these phenomena which
afterwards went shipwreck in the form of Lombroso's ``criminal stigmata,''
inasmuch as an overhasty theory has been built on barren,
unexperienced, and unstudied material. The notion of criminal
stigmata is, however, in no sense new, and Lombroso has not invented
it; according to an incidental remark of Kant in his ``Menschenkunde,''
the first who tried scientifically to interpret these otherwise
ancient observations was the German J. B. Friedreich,[1] who says
expressly that determinate somatic pathological phenomena may
be shown to occur with certain moral perversions. It has
been observed with approximate clearness in several types of cases.
So, for example, incendiarism occurs in the case of abnormal sexual
conditions; poisoning also springs from abnormal sexual impulses;
drowning is the consequence of oversatiated drink mania, etc.
Modern psychopathology knows nothing additional concerning
these marvels; and similar matters which are spoken of nowadays
again, have shown themselves incapable of demonstration. But
that there are phenomena so related, and that their number is
continually increasing under exact observations, is not open to
doubt.[2] If we stop with the phenomena of daily life and keep in
mind the ever-cited fact that everybody recognizes at a glance the
old hunter, the retired officer, the actor, the aristocratic lady, etc.,
we may go still further: the more trained observers can recognize
the merchant, the official, the butcher, the shoe-maker, the real
[1] J. B. Friedreich: System der Gericht. Psych.
[2] Cf. N<a:>cke in Gross's Archiv, I, 200, and IX, 253.
<p 46>
tramp, the Greek, the sexual pervert, etc. Hence follows an important
law--_that if a fact is once recognized correctly in its coarser
form, then the possibility must be granted that it is correct in its subtler
manifestations_. The boundary between what is coarse and what
is not may not be drawn at any particular point. It varies with
the skill of the observer, with the character of the material before
him, and with the excellence of his instruments, so that nobody can
say where the possibility of progress in the matter ceases. Something
must be granted in all questions appertaining to this subject
of recognizable unit-characters and every layman pursues daily
certain activities based on their existence. When he speaks of
stupid and intelligent faces he is a physiognomist; he sees that
there are intellectual foreheads and microcephalic ones, and is thus
a craniologist; he observes the expression of fear and of joy, and so
observes the principles of imitation; he contemplates a fine and
elegant hand in contrast with a fat and mean hand, and therefore
assents to the effectiveness of chirognomy; he finds one hand-writing
scholarly and fluid, another heavy, ornate and unpleasant; so he is
dealing with the first principles of graphology;--all these observations
and inferences are nowhere denied, and nobody can say where
their attainable boundaries lie.
Hence, the only proper point of view to take is that from which we set aside as too bold, all daring and undemonstrated assertions on these matters. But we will equally beware of asserting without further consideration that far-reaching statements are unjustified, for we shall get very far by the use of keener and more careful observation, richer material, and better instruments.
How fine, for example, are the observations made by Herbert Spencer concerning the importance of the ``timbre'' of speech in the light of the emotional state--no one had ever thought of that before, or considered the possibilities of gaining anything of importance from this single datum which has since yielded such a rich collection of completely proved and correctly founded results. Darwin knew well enough to make use of it for his own purposes.[1] He points out that the person who is quietly complaining of bad treatment or is suffering a little, almost always speaks in a high tone of voice; and that deep groans or high and piercing shrieks indicate extreme pain. Now we lawyers can make just such observations in great number. Any one of us who has had a few experiences, can immediately recognize from the tone of voice with which a new
[1] C. Darwin: The Expression of the Emotions.
<p 47>
comer makes his requests just about what he wants. The accused,
for example, who by chance does not know why he has been called
to court, makes use of a questioning tone without really pronouncing
his question. Anybody who is seriously wounded, speaks hoarsely
and abruptly. The secret tone of voice of the querulous, and of such
people who speak evil of another when they are only half or not at
all convinced of it, gives them away. The voice of a denying criminal
has in hundreds of cases been proved through a large number of
physiological phenomena to do the same thing for him; the stimulation
of the nerves influences before all the characteristic snapping
movement of the mouth which alternates with the reflex tendency to
swallow. In addition it causes lapses in blood pressure and palpitation
of the heart by means of disturbances of the heart action,
and this shows clearly visible palpitation of the right carotid (well
within the breadth of hand under the ear in the middle of the right
side of the neck). That the left carotid does not show the palpitation
may be based on the fact that the right stands in much more
direct connection with the aorta. All this, taken together, causes
that so significant, lightly vibrating, cold and toneless voice, which
is so often to be perceived in criminals who deny their guilt. It
rarely deceives the expert.
But these various timbres of the voice especially contain a not insignificant danger for the criminalist. Whoever once has devoted himself to the study of them trusts them altogether too easily, for even if he has identified them correctly hundreds of times, it still may happen that he is completely deceived by a voice he holds as ``characteristically demonstrative.'' That timbres may deceive, or simulations worthy of the name occur, I hardly believe. Such deceptions are often attempted and begun, but they demand the entire attention of the person who tries them, and that can be given for only a short time. In the very instant that the matter he is speaking of requires the attention of the speaker, his voice involuntarily falls into that tone demanded by its physical determinants: and the speaker significantly betrays himself through just this alteration. We may conclude that an effective simulation is hardly thinkable.
It must, however, be noticed that earlier mistaken observations and incorrect inference at the present moment--substitutions and similar mistakes--may easily mislead. As a corroborative fact, then, the judgment of a voice would have great value; but as a means in itself it is a thing too little studied and far from confirmed. <p 48>
There is, however, another aspect of the matter which manifests itself in an opposite way from voice and gesture. Lazarus calls attention to the fact that the spectators at a fencing match can not prevent themselves from imitative accompaniment of the actions of the fencers, and that anybody who happens to have any swinging object in his hand moves his hand here and there as they do. Stricker[1] makes similar observations concerning involuntary movements performed while looking at drilling or marching soldiers. Many other phenomena of the daily life--as, for example, keeping step with some pedestrian near us, with the movement of a pitcher who with all sorts of twistings of his body wants to guide the ball correctly when it has already long ago left his hand; keeping time to music and accompanying the rhythm of a wagon knocking on cobblestones; even the enforcement of what is said through appropriate gestures when people speak vivaciously--naturally belong to the same class. So do nodding the head in agreement and shaking it in denial; shrugging the shoulders with a declaration of ignorance. The expression by word of mouth should have been enough and have needed no reinforcement through conventional gestures, but the last are spontaneously involuntary accompaniments.
On the other hand there is the converse fact that the voice may be influenced through expression and gesture. If we fix an expression on our features or bring our body into an attitude which involves passional excitement we may be sure that we will be affected more or less by the appropriate emotion. This statement, formulated by Maudsley, is perfectly true and may be proved by anybody at any moment. It presents itself to us as an effective corroboration of the so well-known phenomenon of ``talking-yourself-into-it.'' Suppose you correctly imagine how a very angry man looks: frowning brow, clenched fists, gritting teeth, hoarse, gasping voice, and suppose you imitate. Then, even if you feel most harmless and orderloving, you become quite angry though you keep up the imitation only a little while. By means of the imitation of lively bodily changes you may in the same way bring yourself into any conceivable emotional condition, the outer expressions of which appear energetically. It must have occurred to every one of us how often prisoners present so well the excitement of passion that their earnestness is actually believed; as for example, the anger of a guiltless suspect or of an obviously needy person, of a man financially ruined by his trusted servant, etc. Such scenes of passion happen
[1] S. Stricker: Studien <u:>ber die Bewegungsvorstellungen. Vienna 1882.
<p 49>
daily in every court-house and they are so excellently presented
that even an experienced judge believes in their reality and tells
himself that such a thing can not be imitated because the imitation
is altogether too hard to do and still harder to maintain. But in
reality the presentation is not so wonderful, and taken altogether,
is not at all skilful; whoever wants to manifest _*anger_ must make the
proper gestures (and that requires no art) and when he makes the
gestures the necessary conditions occur and these stimulate and cause
the correct manifestation of the later gestures, while these again
influence the voice. Thus without any essential mummery the comedy
plays itself out, self-sufficient, correct, convincing. Alarming oneself
is not performed by words, but by the reciprocal influence of word
and gesture, and the power of that influence is observable in the
large number of cases where, in the end, people themselves believe
what they have invented. If they are of delicate spiritual equilibrium
they even become hypochondriacs. Writing, and the reading
of writing, is to be considered in the same way as gesticulation; it
has the same alarming influence on voice and general appearance
as the other, so that it is relatively indifferent whether a man speaks
and acts or writes and thinks. This fact is well known to everybody
who has ever in his life written a really coarse letter.
Now this exciting gesticulation can be very easily observed, but the observation must not come too late. If the witness is once quite lost in it and sufficiently excited by the concomitant speeches he will make his gestures well and naturally and the artificial and untrue will not be discoverable. But this is not the case in the beginning; then his gestures are actually not skilful, and at that point a definite force of will and rather notable exaggerations are observable; the gestures go further than the words, and that is a matter not difficult to recognize. As soon as the recognition is made it becomes necessary to examine whether a certain congruity invariably manifests itself between word and gesture, inasmuch as with many people the above-mentioned lack of congruity is habitual and honest. This is particularly the case with people who are somewhat theatrical and hence gesticulate too much. But if word and gesture soon conform one to another, especially after a rather lively presentation, you may be certain that the subject has skilfully worked himself into his alarm or whatever it is he wanted to manifest. Quite apart from the importance of seeing such a matter clearly the interest of the work is a rich reward for the labor involved.
In close relation to these phenomena is the change of color to
<p 50>
which unfortunately great importance is often assigned.[1] In this
regard paling has received less general attention because it is more
rare and less suspicious. That it can not be simulated, as is frequently
asserted in discussions of simulation (especially of epilepsy),
is not true, inasmuch as there exists an especial physiological process
which succeeds in causing pallor artificially. In that experiment the
chest is very forcibly contracted, the glottis is closed and the muscles
used in inspiration are contracted. This matter has no practical
value for us, on the one hand, because the trick is always involved
with lively and obvious efforts, and on the other, because cases are
hardly thinkable in which a man will produce artificial pallor in the
court where it can not be of any use to him. The one possibility
of use is in the simulation of epilepsy, and in such a case the trick
can not be played because of the necessary falling to the ground.
Paling depends, as is well known, on the cramp of the muscles of the veins, which contract and so cause a narrowing of their bore which hinders the flow of blood. But such cramps happen only in cases of considerable anger, fear, pain, trepidation, rage; in short, in cases of excitement that nobody ever has reason to simulate. Paling has no value in differentiation inasmuch as a man might grow pale in the face through fear of being unmasked or in rage at unjust suspicion.
The same thing is true about blushing.[2] It consists in a sort of transitory crippling of those nerves that end in the walls of small arteries. This causes the relaxation of the muscle-fibers of the blood vessels which are consequently filled in a greater degree with blood. Blushing also may be voluntarily created by some individuals. In that case the chest is fully expanded, the glottis is closed and the muscles of expiration are contracted. But this matter again has no particular value for us since the simulation of a blush is at most of use only when a woman wants to appear quite modest and moral. But for that effect artificial blushing does not help, since it requires such intense effort as to be immediately noticeable. Blushing by means of external assistance, e. g., inhaling certain chemicals, is a thing hardly anybody will want to perform before the court.
With regard to guilt or innocence, blushing offers no evidence whatever. There is a great troop of people who blush without any
[1] E. Clapar<e!>de: L'obsession de la rougeur. Arch. de Psych. de la Suisse Romande, 1902, I, 307
[2] Henle: <U:>ber das Err<o:>ten. Breslau 1882.
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reason for feeling guilty. The most instructive thing in this matter
is self-observation, and whoever recalls the cause of his own blushing
will value the phenomenon lightly enough. I myself belonged, not
only as a child, but also long after my student days, to those
unfortunates who grow fire-red quite without reason; I needed only
to hear of some shameful deed, of theft, robbery, murder, and I
would get so red that a spectator might believe that I was one of
the criminals. In my native city there was an old maid who had,
I knew even as a boy, remained single because of unrequited love
of my grandfather. She seemed to me a very poetical figure and
once when her really magnificent ugliness was discussed, I took up
her cause and declared her to be not so bad. My taste was laughed
at, and since then, whenever this lady or the street she lives in or
even her furs (she used to have pleasure in wearing costly furs)
were spoken of, I would blush. And her age may be estimated from
her calf-love. Now what has occurred to me, often painfully, happens
to numbers of people, and it is hence inconceivable why forensic
value is still frequently assigned to blushing. At the same time
there are a few cases in which blushing may be important.
The matter is interesting even though we know nothing about the intrinsic inner process which leads to the influence on the nervous filaments. Blushing occurs all the world over, and its occasion and process is the same among savages as among us.[1] The same events may be observed whether we compare the flush of educated or uneducated. There is the notion, which I believed for a long time, that blushing occurs among educated people and is especially rare among peasants, but that does not seem to be true. Working people, especially those who are out in the open a good deal, have a tougher pigmentation and a browner skin, so that their flush is less obvious. But it occurs as often and under the same conditions as among others. It might be said for the same reason that Gypsies never blush; and of course, that the blush may be rarer among people lacking in shame and a sense of honor is conceivable. Yet everybody who has much to do with Gypsies asserts that the blush may be observed among them.
Concerning the relation of the blush to age, Darwin says that early childhood knows nothing about blushing. It happens in youth more frequently than in old age, and oftener among women than among men. Idiots blush seldom, blind people and hereditary albinos, a great deal. The somatic process of blushing is, as Darwin
[1] Th. Waitz: Anthropologie der Naturv<o:>lker (Pt. I). Leipzig 1859.
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shows, quite remarkable. Almost always the blush is preceded
by a quick contraction of the eyelids as if to prevent the rise of the
blood in the eyes. After that, in most cases, the eyes are dropped,
even when the cause of blushing is anger or vexation; finally the
blush rises, in most cases irregularly and in spots, at last to cover
the skin uniformly. If you want to save the witness his blush you
can do it only at the beginning--during the movement of the eyes--
and only by taking no notice of it, by not looking at him, and going
right on with your remarks. This incidentally is valuable inasmuch
as many people are much confused by blushing and really do not
know what they are talking about while doing it. There is no third
thing which is the cause of the blush and of the confusion; the blush
itself is the cause of the confusion. This may be indubitably confirmed
by anybody who has the agreeable property of blushing and
therefore is of some experience in the matter. I should never dare
to make capital of any statement made during the blush. Friedreich
calls attention to the fact that people who are for the first time
subject to the procedure of the law courts blush and lose color more
easily than such as are accustomed to it, so that the unaccustomed
scene also contributes to the confusion. Meynert[1] states the matter
explicitly: ``The blush always depends upon a far-reaching associationprocess
in which the complete saturation of the contemporaneouslyexcited
nervous elements constricts the orderly
movement of the mental process, inasmuch as here also the simplicity
of contemporaneously-occurring activities of the brain
determines the scope of the function of association.'' How convincing
this definition is becomes clear on considering the processes
in question. Let us think of some person accused of a crime to
whom the ground of accusation is presented for the first time, and to
whom the judge after that presents the skilfully constructed proof
of his guilt by means of individual bits of evidence. Now think of
the mass of thoughts here excited, even if the accused is innocent.
The deed itself is foreign to him, he must imagine that; should
any relation to it (e. g. presence at the place where the deed was
done, interest in it, ownership of the object, etc.) be present to his
mind, he must become clear concerning this relationship, while at
the same time the possibilities of excuse--alibi, ownership of the
thing, etc.--storm upon him. Then only does he consider the
particular reasons of suspicion which he must, in some degree,
incarnate and represent in their dangerous character, and for each of
[1] Th. Meynert: Psychiatry. Vienna 1884.
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which he must find a separate excuse. We have here some several
dozens of thought-series, which start their movement at the same
time and through each other. If at that time an especially dangerous
apparent proof is brought, and if the accused, recognizing
this danger, blushes with fear, the examiner thinks: ``Now I have
caught the rascal, for he's blushing! Now let's go ahead quickly,
speed the examination and enter the confused answer in the protocol!
``And who believes the accused when, later on, he withdraws
the ``confession'' and asserts that he had said the thing because they
had mixed him up?
In this notion, ``you blush, therefore you have lied; you did it!'' lie many sins the commission of which is begun at the time of admonishing little children and ended with obtaining the ``confessions'' of the murderous thief.
Finally, it is not to be forgotten that there are cases of blushing which have nothing to do with psychical processes. Ludwig Meyer[1] calls it ``artificial blushing'' (better, ``mechanically developed blushing''), and narrates the case of ``easily-irritated women who could develop a blush with the least touch of friction, e. g., of the face on a pillow, rubbing with the hand, etc.; and this blush could not be distinguished from the ordinary blush.'' We may easily consider that such lightly irritable women may be accused, come before the court without being recognized as such, and, for example, cover their faces with their hands and blush. Then the thing might be called ``evidential.''
Section 12. (b) General Signs of Character.
Friedrich Gerst<a:>cker, in one of his most delightful moods, says somewhere that the best characteristicon of a man is how he wears his hat. If he wears it perpendicular, he is honest, pedantic and boresome. If he wears it tipped slightly, he belongs to the best and most interesting people, is nimble-witted and pleasant. A deeply tipped hat indicates frivolity and obstinate imperious nature. A hat worn on the back of the head signifies improvidence, easiness, conceit, sensuality and extravagance; the farther back the more dangerous is the position of the wearer. The man who presses his hat against his temples complains, is melancholy, and in a bad way. It is now many years since I have read this exposition by the muchtraveled and experienced author, and I have thought countless times how right he was, but also, how there may be numberless similar
[1] L. Meyer: <U:>ber k<u:>nstliches Err<o:>ten. Westphals. Archiv, IV.
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marks of recognition which show as much as the manner of wearing
a hat. There are plenty of similar expositions to be known; one
man seeks to recognize the nature of others by their manner of
wearing and using shoes; the other by the manipulation of an umbrella;
and the prudent mother advises her son how the candidate
for bride behaves toward a groom lying on the floor, or how she eats
cheese--the extravagant one cuts the rind away thick, the miserly
one eats the rind, the right one cuts the rind away thin and carefully.
Many people judge families, hotel guests, and inhabitants of
a city, and not without reason, according to the comfort and cleanliness
of their privies.
Lazarus has rightly called to mind what is told by the pious
Chr. von Schmidt, concerning the clever boy who lies under a tree
and recognizes the condition of every passer-by according to what
he says. ``What fine lumber,''--``Good-morning, carpenter,''--
``What magnificent bark,''--Good-morning, tanner,''--``What
beautiful branches,''--``Good-morning, painter.'' This significant
story shows us how easy it is with a little observation to perceive
things that might otherwise have been hidden. With what subtle
clearness it shows how effective is the egoism which makes each man
first of all, and in most cases exclusively, perceive what most
concerns him as most prominent! And in addition men so eagerly
and often present us the chance for the deepest insight into their
souls that we need only to open our eyes--seeing and interpreting
is so childishly easy! Each one of us experiences almost daily the
most instructive things; e. g. through the window of my study I
could look into a great garden in which a house was being built;
when the carpenters left in the evening they put two blocks at the
entrance and put a board on them crosswise. Later there came each
evening a gang of youngsters who found in this place a welcome
playground. That obstruction which they had to pass gave me an
opportunity to notice the expression of their characters. One ran
quickly and jumped easily over,--that one will progress easily and
quickly in his life. Another approached carefully, climbed slowly
up the board and as cautiously descended on the other side--
careful, thoughtful, and certain. The third climbed up and jumped
down--a deed purposeless, incidental, uninforming. The fourth
ran energetically to the obstruction, then stopped and crawled
boldly underneath--disgusting boy who nevertheless will have
carried his job ahead. Then, again, there came a fifth who jumped,--
but too low, remained hanging and tumbled; he got up, rubbed his
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knee, went back, ran again and came over magnificently--and how
magnificently will he achieve all things in life, for he has will,
fearlessness, and courageous endurance!--he can't sink. Finally a
sixth came storming along--one step, and board and blocks fell
together crashing, but he proudly ran over the obstruction, and
those who came behind him made use of the open way. He is of
the people who go through life as path-finders; we get our great
men from among such.
Well, all this is just a game, and no one would dare to draw conclusions concerning our so serious work from such observations merely. But they can have a corroborative value if they are well done, when large numbers, and not an isolated few, are brought together, and when appropriate analogies are brought from appropriate cases. Such studies, which have to be sought in the daily life itself, permit easy development; if observations have been clearly made, correctly apprehended, and if, especially, the proper notions have been drawn from them, they are easily to be observed, stick in the memory, and come willingly at the right moment. But they must then serve only as indices, they must only suggest: ``perhaps the case is the same to-day.'' And that means a good deal; a point of view for the taking of evidence is established, not, of course, proof as such, or a bit of evidence, but a way of receiving it,--perhaps a false one. But if one proceeds carefully along this way, it shows its falseness immediately, and another presented by memory shows us another way that is perhaps correct.
The most important thing in this matter is to get a general view
of the human specimen--and incidentally, nobody needs more to
do this than the criminalist. For most of us the person before us
is only ``A, suspected of _x_.'' But our man is rather more than
that, and especially he was rather more before he became ``A suspected
of _x_.'' Hence, the greatest mistake, and, unfortunately,
the commonest, committed by the judge, is his failure to discuss
with the prisoner his more or less necessary earlier life. Is it not
known that every deed is an outcome of the total character of the
doer? Is it not considered that deed and character are correlative
concepts, and that the character by means of which the deed is to
be established cannot be inferred from the deed alone? ``Crime
is the product of the physiologically grounded psyche of the criminal
and his environing external conditions.'' (Liszt). Each particular
deed is thinkable only when a determinate character of the doer
is brought in relation with it--a certain character predisposes to
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determinate deeds, another character makes them unthinkable and
unrelatable with this or that person. But who thinks to know the
character of a man without knowing his view of the world, and
who talks of their world-views with his criminals? ``Whoever wants
to learn to know men,'' says Hippel,[1] ``must judge them according
to their wishes,'' and it is the opinion of Struve:[2] ``A man's belief
indicates his purpose.'' But who of us asks his criminals about their
wishes and beliefs?
If we grant the correctness of what we have said we gain the conviction that we can proceed with approximate certainty and conscientiousness only if we speak with the criminal, not alone concerning the deed immediately in question, but also searchingly concerning the important conditions of his inner life. So we may as far as possible see clearly what he is according to general notions and his particular relationships.
The same thing must also be done with regard to an important witness, especially when much depends upon his way of judging, of experiencing, of feeling, and of thinking, and when it is impossible to discover these things otherwise. Of course such analyses are often tiring and without result, but that, on the other hand, they lay open with few words whole broadsides of physical conditions, so that we need no longer doubt, is also a matter of course. Who wants to leave unused a formula of Schopenhauer's: ``We discover what we are through what we do?'' Nothing is easier than to discover from some person important to us what he does, even though the discovery develops merely as a simple conversation about what he has done until now and what he did lately. And up to date we have gotten at such courses of life only in the great cases; in cases of murder or important political criminals, and then only at externals; we have cared little about the essential deeds, the smaller forms of activity which are always the significant ones. Suppose we allow some man to speak about others, no matter whom, on condition that he must know them well. He judges their deeds, praises and condemns them, and thinks that he is talking about them but is really talking about himself alone, for in each judgment of the others he aims to justify and enhance himself; the things he praises he does, what he finds fault with, he does not; or at least he wishes people to believe that he does the former and avoids the
[1] Th. G. von Hippel: Lebenl<a:>sufe nach aufsteigender Linie. Ed. v Oettingen. Leipzig 1880
[2] G. Struve: Das Seelenleben oder die Naturgeschichte des Menschen. Berlin 1869.
<p 57>
latter. And when he speaks unpleasantly about his friends he has
simply abandoned what he formerly had in common with them.
Then again he scolds at those who have gotten on and blames their
evil nature for it; but whoever looks more closely may perceive
that he had no gain in the same evil and therefore dislikes it. At
the same time, he cannot possibly suppress what he wishes and
what he needs. Now, whoever knows this fact, knows his motives
and to decide in view of these with regard to a crime is seldom
difficult. ``Nos besoins vent nos forces''--but superficial needs
do not really excite us while what is an actual need does. Once
we are compelled, our power to achieve what we want grows astoundingly.
How we wonder at the great amount of power used up, in
the case of many criminals! If we know that a real need was behind
the crime, we need no longer wonder at the magnitude of the power.
The relation between the crime and the criminal is defined because
we have discovered his needs. To these needs a man's pleasures
belong also; every man, until the practically complete loss of vigor,
has as a rule a very obvious need for some kind of pleasure. It is
human nature not to be continuously a machine, to require relief and
pleasure.
The word pleasure must of course be used in the loosest way, for
one man finds his pleasure in sitting beside the stove or in the shadow,
while another speaks of pleasure only when he can bring some
change in his work. I consider it impossible not to understand a
man whose pleasures are known; his will, his power, his striving
and knowing, feeling and perceiving cannot be made clearer by
any other thing. Moreover, it happens that it is a man's pleasures
which bring him into court, and as he resists or falls into them
he reveals his character. The famous author of the ``Imitation of
Christ,'' Thomas <a!> Kempis, whose book is, saving the Bible, the
most wide-spread on earth, says: ``Occasiones hominem fragilem
non faciunt, sea, qualis sit, ostendunt.'' That is a golden maxim
for the criminalist. Opportunity, the chance to taste, is close to
every man, countless times; is his greatest danger; for that reason
it was great wisdom in the Bible that called the devil, the Tempter.
A man's behavior with regard to the discovered or sought-out
opportunity exhibits his character wholly and completely. But
the chance to observe men face to face with opportunity is a rare
one, and that falling-off with which we are concerned is often the
outcome of such an opportunity. But at this point we ought not
longer to learn, but to know; and hence our duty to study the
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pleasures of men, to know how they behave in the presence of their
opportunities.
There is another group of conditions through which you may observe and judge men in general. The most important one is to know yourself as well as possible, for accurate self-knowledge leads to deep mistrust with regard to others, and only the man suspicious with regard to others is insured, at least a little, against mistakes. To pass from mistrust to the reception of something good is not difficult, even in cases where the mistrust is well-founded and the presupposition of excellent motives among our fellows is strongly fought. Nevertheless, when something actually good is perceivable, one is convinced by it and even made happy. But the converse is not true, for anybody who is too trusting easily presupposes the best at every opportunity, though he may have been deceived a thousand times and is now deceived again. How it happens that self-knowledge leads to suspicion of others we had better not investigate too closely--it is a fact.
Every man is characterized by the way he behaves in regard to his promises. I do not mean keeping or breaking a promise, because nobody doubts that the honest man keeps it and the scoundrel does not. I mean the _*manner_ in which a promise is kept and the _*degree_ in which it is kept. La Roche-Foucauld[1] says significantly: ``We promise according to our hopes, and perform according to our fears.'' When in any given case promising and hopes and performance and fears are compared, important considerations arise,-- especially in cases of complicity in crime.
When it is at all possible, and in most cases it is, one ought to concern oneself with a man's style,--the handwriting of his soul. What this consists of cannot be expressed in a definite way. The style must simply be studied and tested with regard to its capacity for being united with certain presupposed qualities. Everybody knows that education, bringing-up, and intelligence are indubitably expressed in style, but it may also be observed that style clearly expresses softness or hardness of a character, kindness or cruelty, determination or weakness, integrity or carelessness, and hundreds of other qualities. Generally the purpose of studying style may be achieved by keeping in mind some definite quality presupposed and by asking oneself, while reading the manuscript of the person in question, whether this quality fuses with the manuscript's form and with the individual tendencies and relationships that occur in the
[1] La Roche-Foucauld: Maximes et Refl<'>exions Morales.
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construction of the thought. One reading will of course not bring
you far, but if the reading is repeated and taken up anew, especially
as often as the writer is met with or as often as some new fact about
him is established, then it is almost impossible not to attain a fixed
and valuable result. One gets then significantly the sudden impression
that the thing to be proved, having the expression of which
the properties are to be established, rises out of the manuscript;
and when that happens the time has come not to dawdle with the
work. Repeated reading causes the picture above-mentioned to
come out more clearly and sharply; it is soon seen in what places
or directions of the manuscript that expression comes to light--
these places are grouped together, others are sought that more or
less imply it, and soon a standpoint for further consideration is
reached which naturally is not evidential by itself, but has, when
combined with numberless others, corroborative value.
Certain small apparently indifferent qualities and habits are
important. There are altogether too many of them to talk about;
but there are examples enough of the significance of what is said of
a man in this fashion: ``this man is never late,'' ``this man never
forgets,'' ``this man invariably carries a pencil or a pocket knife,''
``this one is always perfumed,'' ``this one always wears clean, carefully
brushed clothes,''--whoever has the least training may construct
out of such qualities the whole inner life of the individual.
Such observations may often be learned from simple people, especially
from old peasants. A great many years ago I had a case
which concerned a disappearance. It was supposed that the lost
man was murdered. Various examinations were made without
result, until, finally, I questioned an old and very intelligent peasant
who had known well the lost man. I asked the witness to describe
the nature of his friend very accurately, in order that I might draw
from his qualities, habits, etc., my inferences concerning his tendencies,
and hence concerning his possible location. The old peasant
supposed that everything had been said about the man in question
when he explained that he was a person who never owned a decent
tool. This was an excellent description, the value of which I completely
understood only when the murdered man came to life and I
learned to know him. He was a petty lumberman who used to
buy small wooded tracts in the high mountains for cutting, and
having cut them down would either bring the wood down to the
valley, or have it turned to charcoal. In the fact that he never
owned a decent tool, nor had one for his men, was established his
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whole narrow point of view, his cramped miserliness, his disgusting
prudence, his constricted kindliness, qualities which permitted his
men to plague themselves uselessly with bad tools and which justified
altogether his lack of skill in the purchase of tools. So I thought
how the few words of the old, much-experienced peasant were confirmed
utterly--they told the whole story. Such men, indeed, who
say little but say it effectively, must be carefully attended to, and
everything must be done to develop and to understand what they
mean.
But the judge requires attention and appropriate conservation of his own observations. Whoever observes the people he deals with soon notices that there is probably not one among them that does not possess some similar, apparently unessential quality like that mentioned above. Among close acquaintances there is little difficulty in establishing which of their characteristics belong to that quality, and when series of such observations are brought together it is not difficult to generalize and to abstract from them specific rules. Then, in case of need, when the work is important, one makes use of the appropriate rule with pleasure, and I might say, with thanks for one's own efforts.
One essential and often useful symbol to show what a man makes of himself, what he counts himself for, is his use of the word _*we_. Hartenstein[1] has already called attention to the importance of this circumstance, and Volkmar says: ``The _*we_ has a very various scope, from the point of an accidental simultaneity of images in the same sensation, representation or thought, to the almost complete circle of the family _*we_ which breaks through the _*I_ and even does not exclude the most powerful antagonisms; hatred, just like love, asserts its _*we_.'' What is characteristic in the word _*we_ is the opposition of a larger or smaller group of which the _*I_ is a member, to the rest of the universe. I say _*we_ when I mean merely my wife and myself, the inhabitants of my house, my family, those who live in my street, in my ward, or in my city; I say _*we_ assessors, we central-Austrians, we Austrians, we Germans, we Europeans, we inhabitants of the earth. I say we lawyers, we blonds, we Christians, we mammals, we collaborators on a monthly, we old students' society, we married men, we opponents of jury trial. But I also say _*we_ when speaking of accidental relations, such as being on the same train, meeting on the same mountain peak, in the same hotel, at the same concert, etc. In a word _*we_ defines all relationships from the
[1] Grundbegriffe der ethisehen Wissensehaft. Leipzig 1844.
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narrowest and most important, most essential, to the most individual
and accidental. Conceivably the _*we_ unites also people who have
something evil in common, who use it a great deal among themselves,
and because of habit, in places where they would rather not have done
so. Therefore, if you pay attention you may hear some suspect
who denies his guilt, come out with a _*we_ which confesses his alliance
with people who do the things he claims not to: _*we_ pickpockets, _*we_
house-breakers, _*we_ gamblers, inverts, etc.
It is so conceivable that man as a social animal seeks companionship in so many directions that he feels better protected when he has a comrade, when he can present in the place of his weak and unprotected _*I_ the stronger and bolder _*we_; and hence the considerable and varied use of the word. No one means that people are to be caught with the word; it is merely to be used to bring clearness into our work. Like every other honest instrument, it is an index to the place of the man before us.
Section 13. (Cc Particular Character-signs.
It is a mistake to suppose that it is enough in most cases to study that side of a man which is at the moment important--his dishonesty only, his laziness, etc. That will naturally lead to merely one-sided judgment and anyway be much harder than keeping the whole man in eye and studying him as an entirety. Every individual quality is merely a symptom of a whole nature, can be explained only by the whole complex, and the good properties depend as much on the bad ones as the bad on the good ones. At the very least the quality and quantity of a good or bad characteristic shows the influence of all the other good and bad characteristics. Kindliness is influenced and partly created through weakness, indetermination, too great susceptibility, a minimum acuteness, false constructiveness, untrained capacity for inference; in the same way, again, the most cruel hardness depends on properties which, taken in themselves, are good: determination, energy, purposeful action, clear conception of one's fellows, healthy egotism, etc. Every man is the result of his nature and nurture, i. e. of countless individual conditions, and every one of his expressions, again, is the result of all of these conditions. If, therefore, he is to be judged, he must be judged in the light of them all.
For this reason, all those indications that show us the man
as a whole are for us the most important, but also those others
are valuable which show him up on one side only. In the latter
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case, however, they are to be considered only as an index which
never relieves us from the need further to study the nature of our
subject. The number of such individual indications is legion and
no one is able to count them up and ground them, but examples of
them may be indicated.
We ask, for example, what kind of man will give us the best and
most reliable information about the conduct and activity, the nature
and character, of an individual? We are told: that sort of person
who is usually asked for the information--his nearest friends and
acquaintances, and the authorities. Before all of these nobody
shows himself as he is, because the most honest man will show
himself before people in whose judgment he has an interest at least
as good as, if not better than he is--that is fundamental to the
general egoistic essence of humanity, which seeks at least to avoid
reducing its present welfare. Authorities who are asked to make
a statement concerning any person, can say reliably only how often
the man was punished or came otherwise in contact with the law
or themselves. But concerning his social characteristics the authorities
have nothing to say; they have got to investigate them and the
detectives have to bring an answer. Then the detectives are, at
most, simply people who have had the opportunity to watch and
interrogate the individuals in question,--the servants, housefurnishers,
porters, corner-loafers, etc. Why we do not question
the latter ourselves I cannot say; if we did we might know these
people on whom we depend for important information and might
put our questions according to the answers that we need. It is
a purely negative thing that an official declaration is nowadays
not unfrequently presented to us in the disgusting form of the
gossip of an old hag. But in itself the form of getting information
about people through servants and others of the same class is correct.
One has, however, to beware that it is not done simply because
the gossips are most easily found, but because _people show their
weaknesses most readily before those whom they hold of no account_.
The latter fact is well known, but not sufficiently studied. It is
of considerable importance. Let us then examine it more closely:
Nobody is ashamed to show himself before an animal as he is, to
do an evil thing, to commit a crime; the shame will increase very
little if instead of the animal a complete idiot is present, and if now
we suppose the intelligence and significance of this witness steadily
to increase, the shame of appearing before him as one is increases in
a like degree. So we will control ourselves most before people
<p 63>
whose judgment is of most importance to us. The Styrian, Peter
Rosegger, one of the best students of mankind, once told a first-rate
story of how the most intimate secrets of certain people became
common talk although all concerned assured him that nobody had
succeeded in getting knowledge of them. The news-agent was
finally discovered in the person of an old, humpy, quiet, woman,
who worked by the day in various homes and had found a place,
unobserved and apparently indifferent, in the corner of the sittingroom.
Nobody had told her any secrets, but things were allowed to
occur before her from which she might guess and put them together.
Nobody had watched this disinterested, ancient lady; she worked
like a machine; her thoughts, when she noted a quarrel or anxiety
or disagreement or joy, were indifferent to all concerned, and so
she discovered a great deal that was kept secret from more important
persons. This simple story is very significant--we are not to pay
attention to gossips but to keep in mind that the information of
persons is in the rule more important and more reliable when the
question under consideration is indifferent to them than when it
is important. We need only glance at our own situation in this
matter--what do we know about our servants? What their Christian
names are, because we have to call them; where they come from,
because we hear their pronunciation; how old they are, because
we see them; and those of their qualities that we make use of. But
what do we know of their family relationships, their past, their
plans, their joys or sorrows? The lady of the house knows perhaps
a little more because of her daily intercourse with them, but her
husband learns of it only in exceptional cases when he bothers
about things that are none of his business. Nor does madam know
much, as examination shows us daily. But what on the other hand
do the servants know about us? The relation between husband and
wife, the bringing-up of the children, the financial situation, the
relation with cousins, the house-friends, the especial pleasures, each
joy, each trouble that occurs, each hope, everything from the least
bodily pain to the very simplest secret of the toilette--they know
it all. What can be kept from them? The most restricted of them
are aware of it, and if they do not see more, it is not because of
our skill at hiding, but because of their stupidity. We observe that
in these cases there is not much that can be kept secret and hence
do not trouble to do so.
There is besides another reason for allowing subordinate or indifferent
people to see one's weaknesses. The reason is that we
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hate those who are witnesses of a great weakness. Partly it is
shame, partly vexation at oneself, partly pure egoism, but it is
a fact that one's anger turns instinctively upon those who have
observed one's degradation through one's own weakness. This is
so frequently the case that the witness is to be the more relied on
the more the accused would seem to have preferred that the witness
had not seen him. Insignificant people are not taken as real witnesses;
they were there but they haven't perceived anything; and
by the time it comes to light that they see at least as well as anybody
else, it is too late. One will not go far wrong in explaining
the situation with the much varied epigram of Tacitus: ``Figulus
odit figulum.'' It is, at least, through business-jealousy that one
porter hates another, and the reason for it lies in the fact that two
of a trade know each other's weaknesses, that one always knows
how the other tries to hide his lack of knowledge, how deceitful
fundamentally every human activity is, and how much trouble
everybody takes to make his own trade appear to the other as fine
as possible. If you know, however, that your neighbor is as wise as
you are, the latter becomes a troublesome witness in any disagreeable
matter, and if he is often thought of in this way, he comes to be
hated. Hence you must never be more cautious than when one
``figulus'' gives evidence about another. Esprit de corps and
jealousy pull the truth with frightful force, this way and that, and
the picture becomes the more distorted because so-called esprit
de corps is nothing more than generalized selfishness. Kant[1] is
not saying enough when he says that the egoist is a person who
always tries to push his own _*I_ forward and to make it the chief
object of his own and of everybody else's attention. For the person
who merely seeks attention is only conceited; the egoist, however,
seeks his own advantage alone, even at the cost of other people,
and when he shows esprit de corps he desires the advantage of his
corps because he also has a share in that. In this sense one of a
trade has much to say about his fellow craftsmen, but because of
jealousy, says too little--in what direction, however, he is most
likely to turn depends on the nature of the case and the character
of the witness.
In most instances it will be possible to make certain distinctions as to when objectively too much and subjectively too little is said. That is to say, the craftsman will exaggerate with regard to all
[1] Menschenkunde oder philosophische Anthropologie. Leipzig 1831. Ch. Starke.
<p 65>
general questions, but with regard to his special fellow jealousy
will establish her rights. An absolute distinction may never be
drawn, not even subjectively. Suppose that A has something to
say about his fellow craftsman B, and suppose that certain achievements
of B are to be valued. If now A has been working in the same
field as B he must not depreciate too much the value of B's work,
since otherwise his own work is in danger of the same low valuation.
Objectively the converse is true: for if A bulls the general efficiency
of his trade, it doesn't serve his conceit, since we find simply that the
competitor is in this way given too high a value. It would be inadvisable
to give particular examples from special trades, but everybody
who has before him one ``figulus'' after another, from the
lowest to the highest professions, and who considers the statements
they make about each other, will grant the correctness of our contention.
I do not, at this point, either, assert that the matter is the
same in each and every case, but that it is generally so is indubitable.
There is still another thing to be observed. A good many people who are especially efficient in their trades desire to be known as especially efficient in some other and remote circle. It is historic that a certain regent was happy when his very modest flute-playing was praised; a poet was pleased when his miserable drawings were admired; a marshal wanted to hear no praise of his victories but much of his very doubtful declamation. The case is the same among lesser men. A craftsman wants to shine with some foolishness in another craft, and ``the philistine is happiest when he is considered a devil of a fellow.'' The importance of this fact lies in the possibility of error in conclusions drawn from what the subject himself tries to present about his knowledge and power. With regard to the past it leads even fundamentally honest persons to deception and lying.
So for example a student who might have been the most solid and harmless in his class later makes suggestions that he was the wildest sport; the artist who tried to make his way during his cubhood most bravely with the hard-earned money of his mother is glad to have it known that he was guilty as a young man of unmitigated nonsense; and the ancient dame who was once the most modest of girls is tickled with the flattery of a story concerning her magnificent flirtations. When such a matter is important for us it must be received with great caution.
To this class of people who want to appear rather more interesting
than they are, either in their past or present, belong also those who
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declare that everything is possible and who have led many a judge
into vexatious mistakes. This happens especially when an accused
person tries to explain away the suspicions against him by daring
statements concerning his great achievements (e. g.: in going back
to a certain place, or his feats of strength, etc.), and when witnesses
are asked if these are conceivable. One gets the impression in these
cases that the witnesses under consideration suppose that they
belittle themselves and their point of view if they think anything to
be impossible. They are easily recognized. They belong to the
worst class of promoters and inventors or their relations. If a man
is studying how to pay the national debt or to solve the social question
or to irrigate Sahara, or is inclined to discover a dirigible airship,
a perpetual-motion machine, or a panacea, or if he shows sympathy
for people so inclined, he is likely to consider everything
possible--and men of this sort are surprisingly numerous. They do
not, as a rule, carry their plans about in public, and hence have the
status of prudent persons, but they betray themselves by their
propensity for the impossible in all conceivable directions. If a man
is suspected to be one of them, and the matter is important enough,
he may be brought during the conversation to talk about some project
or invention. He will then show how his class begins to deal
with it, with what I might call a suspicious warmth. By that token
you know the class. They belong to that large group of people
who, without being abnormal, still have passed the line which divides
the perfectly trustworthy from those unreliable persons who, with
the best inclination to tell the truth, can render it only as it is distorted
by their clouded minds.
These people are not to be confused with those specific men of
power who, in the attempt to show what they can do, go further than
in truth they should. There are indeed persons of talent who are
efficient, and know it, whether for good or evil, and they happen to
belong both to the class of the accused and of the witness. The
former show this quality in confessing to more than they are guilty
of, or tell their story in such a way as to more clearly demonstrate
both their power and their conceit. So that it may happen that a
man takes upon himself a crime that he shares with three accomplices
or that he describes a simple larceny as one in which force had to
be used with regard to its object and even with regard to the object's
owner; or perhaps he describes his flight or his opponents' as much
more troublesome than these actually were or need have been.
The witness behaves in a similar fashion and shows his defense
<p 67>
against an attack for example, or his skill in discovery of his goods,
or his detection of the criminal in a much brighter light than really
belongs to it; he even may describe situations that were superfluous
in order to show what he can do. In this way the simplest fact is
often distorted. As suspects such people are particularly difficult
to deal with. Aside from the fact that they do more and actually
have done more than was necessary, they become unmanageable
and hard-mouthed through unjust accusations. Concerning these
people the statement made a hundred years ago by Ben David[1]
still holds: ``Persecution turns wise people raw and foolish, and
kindly and well disposed ones cruel and evil-intentioned.'' There
are often well disposed natures who, after troubles, express themselves
in the manner described. It very frequently happens that
suspects, especially those under arrest, alter completely in the course
of time, become sullen, coarse, passionate, ill-natured, show themselves
defiant and resentful to even the best-willed approach, and
exhibit even a kind of courage in not offering any defense and in
keeping silent. Such phenomena require the most obvious caution,
for one is now dealing apparently with powerful fellows who have
received injustice. Whether they are quite guiltless, whether they
are being improperly dealt with, or for whatever reason the proper
approach has not been made, we must go back, to proceed in another
fashion, and absolutely keep in mind the possibility of their being
innocent in spite of serious evidence against them.
These people are mainly recognizable by their mode of life, their habitual appearance, and its expression. Once that is known their conduct in court is known. In the matter of individual features of character, the form of life, the way of doing things is especially to be observed. Many an effort, many a quality can be explained in no other way. The simple declaration of Volkmar, ``There are some things that we want only because we had them once,'' explains to the criminalist long series of phenomena that might otherwise have remained unintelligible. Many a larceny, robbery, possibly murder, many a crime springing from jealousy, many sexual offenses become intelligible when one learns that the criminal had at one time possessed the object for the sake of which he committed the crime, and having lost it had tried with irresistible vigor to regain it. What is extraordinary in the matter is the fact that considerable time passes between the loss and the desire for recovery. It seems as if the isolated moments of desire sum themselves up in the course
[1] Etwas zur Charakterisierung der Juden. 1793.
<p 68>
of time and then break out as the crime. In such cases the explaining
motive of the deed is never to be found except in the criminal's
past.
The same relationship exists in the cases of countless criminals whose crimes seem at bottom due to apparently inconceivable brutality. In all such cases, especially when the facts do not otherwise make apparent the possible guilt of the suspect, the story of the crime's development has to be studied. Gustav Strave asserts that it is demonstrable that young men become surgeons out of pure cruelty, out of desire to see people suffer pain and to cause pain. A student of pharmacy became a hangman for the same reason and a rich Dutchman paid the butchers for allowing him to kill oxen. If, then, one is dealing with a crime which points to _*extraordinary_ cruelty, how can one be certain about its motive and history without knowing the history of the criminal?
This is the more necessary inasmuch as we may be easily deceived through apparent motives. ``Inasmuch as in most capital crimes two or more motives work together, an ostensible and a concealed one,'' says Kraus,[1] ``each criminal has at his command apparent motives which encourage the crime.'' We know well enough how frequently the thief excuses himself on the ground of his need, how the criminal wants to appear as merely acting in self-defense during robberies, and how often the sensualist, even when he has misbehaved with a little child, still asserts that the child had seduced _*him_. In murder cases even, when the murderer has confessed, we frequently find that he tries to excuse himself. The woman who poisons her husband, really because she wants to marry another, tells her story in such a way as to make it appear that she killed him because he was extraordinarily bad and that her deed simply freed the world of a disgusting object. As a rule the psychological aspect of such cases is made more difficult, by the reason that the subject has in a greater or lesser degree convinced himself of the truth of his statements and finally believes his reasons for excuse altogether or in part. And if a man believes what he says, the proof that the story is false is much harder to make, because psychological arguments that might be used to prove falsehood are then of no use. This is an important fact which compels us to draw a sharp line between a person who is obviously lying and one who does believe what he says. We have to discover the difference, inasmuch as the self-developed conviction of the truth of a story is never so
[1] A. Kraus: Die Psychologie des Verbrechens. T<u:>bingen 1884.
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deep rooted as the real conviction of truth. For that reason, the
person who has convinced himself of his truth artificially, watches
all doubts and objections with much greater care than a man who
has no doubt whatever in what he says. The former, moreover, does
not have a good conscience, and the proverb says truly, ``a bad
conscience has a fine ear.'' The man knows that he is not dealing
correctly with the thing and hence he observes all objections, and
the fact that he does so observe, can not be easily overlooked by the
examining officer.
Once this fine hearing distinguishes the individual who really believes in the motive he plausibly offers the court, there is another indication (obviously quite apart from the general signs of deceit) that marks him further, and this comes to light when one has him speak about similar crimes of others in which the ostensible motive actually was present. It is said rightly, that not he is old who no longer commits youthful follies but he that no longer forgives them, and so not merely he is bad who himself commits evil but also he who excuses them in others. Of course, that an accused person should defend the naked deed as it is described in the criminal law is not likely for conceivable reasons--since certainly no robbery-suspect will sing a paean about robbers, but certainly almost anybody who has a better or a better-appearing motive for his crime, will protect those who have been guided by a similar motive in other cases. Every experiment shows this to be the case and then apparent motives are easily enough recognized as such.
(d) Somatic Character-Units.
Section 14. (1) _General Considerations_.
When we say that the inner condition of men implies some outer expression, it must follow that there are series of phenomena which especially mold the body in terms of the influence of a state of mind on external appearance, or conversely, which are significant of the influence of some physical uniqueness on the psychical state, or of some other psycho physical condition. As an example of the first kind one may cite the well known phenomenon that devotees always make an impression rather specifically feminine. As an example of the second kind is the fact demonstrated by Gyurkovechky[1] that impotents exhibit disagreeable characteristics. Such conditions find their universalizing expression in the cruel but true maxim
[1] V. Gyurkovechky: Pathologie und Therapie der m<a:>nnlichen Impotenz. Vienna, Leipzig 1889.
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``Beware of the marked one.'' The Bible was the first of all to
make mention of these evil stigmata. No one of course asserts that
the bearer of any bodily malformation is for that reason invested
with one or more evil qualities--``Non cum hoc, sed propter hoc.''
It is a general quality of the untrained, and hence the majority of
men, that they shall greet the unfortunate who suffers from some
bodily malformation not with care and protection, but with scorn
and maltreatment. Such propensities belong, alas, not only to
adults, but also to children, who annoy their deformed playfellows
(whether expressly or whether because they are inconsiderate),
and continually call the unhappy child's attention to his deformity.
Hence, there follows in most cases from earliest youth, at first a
certain bitterness, then envy, unkindness, stifled rage against the
fortunate, joy in destruction, and all the other hateful similar qualities
however they may be named. In the course of time all of these
retained bitter impressions summate, and the qualities arising
from them become more acute, become habitual, and at last you
have a ready-made person ``marked for evil.'' Add to this the
indubitable fact that the marked persons are considerably wiser
and better-instructed than the others. Whether this is so by accident
or is causally established is difficult to say; but inasmuch as
most of them are compelled just by their deformities to deprive
themselves of all common pleasures and to concern themselves with
their own affairs, once they have been fed to satiety with abuse,
scorn and heckling, the latter is the more likely. Under such
circumstances they have to think more, they learn more than the
others to train their wits, largely as means of defense against physical
attack. They often succeed by wit, but then, they can never
be brought into a state of good temper and lovableness when they
are required to defend themselves by means of sharp, biting and
destructive wit. Moreover, if the deformed is naturally not welldisposed,
other dormant evil tendencies develop in him, which
might never have realized themselves if he had had no need
of them for purposes of self-defense--lying, slander, intrigue,
persecution by means of unpermitted instruments, etc. All this
finally forms a determinate complex of phenomena which is undivorceably
bound in the eyes of the expert with every species of
deformity: the mistrusting of the deaf man, the menacing expression
of the blind, the indescribable and therefore extremely
characteristic smiling of the hump-back are not the only typical
phenomena of this kind.
<p 71>
All this is popularly known and is abnormally believed in, so that we often discover that the deformed are more frequently suspected of crime than normal people. Suspicion turns to them especially when an unknown criminal has committed a crime the accomplishment of which required a particularly evil nature and where the deed of itself called forth general indignation. In that case, once a deformed person is suspected, grounds of suspicion are not difficult to find; a few collect more as a rolling ball does snow. After that the sweet proverb: ``Vox populi, vox dei,'' drives the unfortunate fellow into a chaos of evidential grounds of suspicion which may all be reduced to the fact that he has red hair or a hump. Such events are frightfully frequent.[1]
Section 15. (2) _Causes of Irritation_.
Just as important as these phenomena are the somatic results of psychic irritation. These latter clear up processes not to be explained by words alone and often over-valued and falsely interpreted. Irritations are important for two reasons: (1) as causes of crime, and (2) as signs of identification in examination.
In regard to the first it is not necessary to show what crimes are committed because of anger, jealousy, or rage, and how frequently terror and fear lead to extremes otherwise inexplicable--these facts are partly so well known, partly so very numerous and various, that an exposition would be either superfluous or impossible. Only those phenomena will be indicated which lie to some degree on the borderland of the observed and hence may be overlooked. To this class belong, for example, anger against the object, which serves as explanation of a group of so-called malicious damages, such as arson, etc. Everybody, even though not particularly lively, remembers instances in which he fell into great and inexplicable rage against an object when the latter set in his way some special difficulties or caused him pain; and he remembers how he created considerable ease for himself by flinging it aside, tearing it or smashing it to pieces. When I was a student I owned a very old, thick Latin lexicon, ``Kirschii cornu copia,'' bound in wood covered with pigskin. This respectable book flew to the ground whenever its master was vexed, and never failed profoundly to reduce the inner stress. This ``Kirschius'' was inherited from my great-grandfather and it did not suffer much damage. When, however, some poor apprentice tears the fence, on a nail of which his only coat got a bad tear, or
[1] Cf. N<a:>cke in H. Gross's Archiv, I, 200; IX, 153.
<p 72>
when a young peasant kills the dog that barks at him menacingly
and tries to get at his calf, then we come along with our ``damages
according to so and so much,'' and the fellow hasn't done any more
than I have with my ``Kirschius.''[1] In the magnificent novel,
``Auch Einer,'' by F. T. Vischer, there is an excellent portrait of
the perversity of things; the author asserts that things rather frequently
hold ecumenical councils with the devil for the molestation
of mankind.
How far the perversity of the inanimate can lead I saw in a criminal case in which a big isolated hay-stack was set on fire. A traveler was going across the country and sought shelter against oncoming bad weather. The very last minute before a heavy shower he reached a hay-stack with a solid straw cover, crept into it, made himself comfortable in the hay and enjoyed his good fortune. Then he fell asleep, but soon woke again inasmuch as he, his clothes, and all the hay around him was thoroughly soaked, for the roof just above him was leaking. In frightful rage over this ``evil perversity,'' he set the stack on fire and it burned to the ground.
It may be said that the fact of the man's anger is as much a motive as any other and should have no influence on the legal side of the incident. Though this is quite true, we are bound to consider the crime and the criminal as a unit and to judge them so. If under such circumstances we can say that this unit is an outcome natural to the character of mankind, and even if we say, perhaps, that we might have behaved similarly under like circumstances, if we really cannot find something absolutely evil in the deed, the criminal quality of it is throughout reduced. Also, in such smaller cases the fundamental concept of modern criminology comes clearly into the foreground: ``not the crime but the criminal is the object of punishment, not the concept but the man is punished.'' (Liszt).
The fact of the presence of a significant irritation is important for passing judgment, and renders it necessary to observe with the most thorough certainty how this irritation comes about. This is the more important inasmuch as it becomes possible to decide whether the irritation is real or artificial and imitated. Otherwise, however, the meaning of the irritation can be properly valued only when its development can be held together step by step with its causes. Suppose I let the suspect know the reason of suspicion brought by his enemies, then if his anger sensibly increases with the presentation of each new ground, it appears much more natural
[1] Cf. Bernhardi in H. Gross's Archiv, V, p. 40.
<p 73>
and real than if the anger increased in inexplicable fashion with
regard to less important reasons for suspicion and developed more
slowly with regard to the more important ones.
The collective nature of somatic phenomena in the case of great excitement has been much studied, especially among animals, these being simpler and less artificial and therefore easier to understand, and in the long run comparatively like men in the expression of their emotions. Very many animals, according to Darwin, erect their hair or feathers or quills in cases of anxiety, fear, or horror, and nowadays, indeed, involuntarily, in order to exhibit themselves as larger and more terrible. The same rising of the hair even to-day plays a greater r<o^>le among men than is generally supposed. Everybody has either seen in others or discovered in himself that fear and terror visibly raise the hair. I saw it with especial clearness during an examination when the person under arrest suddenly perceived with clearness, though he was otherwise altogether innocent, in what great danger he stood of being taken for the real criminal. That our hair rises in cases of fear and horror without being visible is shown, I believe, in the well known movement of the hand from forehead to crown. It may be supposed that the hair rises at the roots invisibly but sensibly and thus causes a mild tickling and pricking of the scalp which is reduced by smoothing the head with the hand. This movement, then, is a form of involuntary scratching to remove irritation. That such a characteristic movement is made during examination may therefore be very significant under certain circumstances. Inasmuch as the process is indubitably an influence of the nerves upon the finer and thinner muscle-fibers, it must have a certain resemblance to the process by which, as a consequence of fear, horror, anxiety, or care, the hair more or less suddenly turns white. Such occurrences are in comparatively large numbers historical; G. Pouchet[1] counts up cases in which hair turned white suddenly, (among them one where it happened while the poor sinner was being led to execution). Such cases do not interest us because, even if the accused himself turned grey over night, no evidence is afforded of guilt or innocence. Such an occurrence can be evidential only when the hair changes color demonstrably in the case of a witness. It may then be certainly believed that he had experienced something terrible and aging. But whether he had really experienced this, or merely believed that he had experienced it, can as yet not be discovered, since the
[1] Revue de deux Mondes, Jan. 1, 1872.
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belief and the actual event have the same mental and physical
result.
Properly to understand the other phenomena that are the result of significant irritation, their matrix, their aboriginal source must be studied. Spencer says that fear expresses itself in cries, in hiding, sobbing and trembling, all of which accompany the discovery of the really terrible; while the destructive passions manifest themselves in tension of the muscles, gritting of the teeth, extending the claws: all weaker forms of the activity of killing. All this, aboriginally inherited from the animals, occurs in rather less intense degrees in man, inclusive of baring the claws, for exactly this movement may often be noticed when somebody is speaking with anger and vexation about another person and at the same time extends and contracts his fingers. Anybody who does this even mildly and unnoticeably means harm to the person he is talking about. Darwin indeed, in his acutely observing fashion, has also called attention to this. He suggests that a man may hate another intensely, but that so long as his anatomy is not affected he may not be said to be enraged. This means clearly that the somatic manifestations of inner excitement are so closely bound up with the latter that we require the former whenever we want to say anything about the latter. And it is true that we never say that a man was enraged or only angry, if he remained physically calm, no matter how noisy and explicit he might have been with words. This is evidence enough of the importance of noticing bodily expression. ``How characteristic,'' says Volkmar[1] ``is the trembling and heavy breathing of fear, the glowering glance of anger, the choking down of suppressed vexation, the stifling of helpless rage, the leering glance and jumping heart of envy.'' Darwin completes the description of fear: The heart beats fast, the features pale, he feels cold but sweats, the hair rises, the secretion of saliva stops, hence follows frequent swallowing, the voice becomes hoarse, yawning begins, the nostrils tremble, the pupils widen, the constrictor muscles relax. Wild and very primitive people show this much more clearly and tremble quite uncontrolled. The last may often be seen and may indeed be established as a standard of culture and even of character and may help to determine how far a man may prevent the inner irritation from becoming externally noticeable. Especially he who has much to do with Gypsies is aware how little these people can control themselves. From this fact also spring the numerous
[1] v. Volkmar: Lehrbuch der Psychologie. C<o:>then 1875.
<p 75>
anecdotes concerning the wild rulers of uncultivated people, who
simply read the guilt of the suspect from his external behavior, or
even more frequently were able to select the criminal with undeceivable
acuteness from a number brought before them. Bain[1]
narrates that in India criminals are required to take rice in the
mouth and after awhile to spit it out. If it is dry the accused is held
to be guilty--fear has stopped the secretion of saliva--obstupui,
stetetuntque comae, et vox faucibus haesit.
Concerning the characteristic influence of timidity see Paul Hartenberg.[2]
Especially self-revealing are the outbreaks of anger against oneself, the more so because I believe them always to be evidence of consciousness of guilt. At least, I have never yet seen an innocent man fall into a paroxysm of rage against himself, nor have I ever heard that others have observed it, and I would not be able psychologically to explain such a thing should it happen. Inasmuch as scenes of this kind can occur perceivably only in the most externalized forms of anger, so such an explosion is elementary and cannot possibly be confused with another. If a man wrings his hands until they bleed, or digs his finger-nails into his forehead, nobody will say that this is anger against himself; it is only an attempt to do something to release stored-up energy, to bring it to bear against somebody. People are visibly angry against themselves only when they do such things to themselves as they might do to other people; for example, beating, smashing, pulling the hair, etc. This is particularly frequent among Orientals who are more emotional than Europeans. So I saw a Gypsy run his head against a wall, and a Jew throw himself on his knees, extend his arms and box his ears with both hands so forcibly that the next day his cheeks were swollen. But other races, if only they are passionate enough, behave in a similar manner. I saw a woman, for example, tear whole handfuls of hair from her head, a murdering thief, guilty of more or fewer crimes, smash his head on the corner of a window, and a seventeen year old murderer throw himself into a ditch in the street, beat his head fiercely on the earth, and yell, ``Hang me! Pull my head off!''
The events in all these cases were significantly similar: the crime was so skilfully committed as conceivably to prevent the discovery of the criminal; the criminal denied the deed with the most glaring
[1] A. Bain: The Emotions and the Will. 1875.
[2] Les Timides et la Timidit<e'>. Paris 1901.
<p 76>
impudence and fought with all his power against conviction--in
the moment, however, he realized that all was lost, he exerted his
boundless rage against himself who had been unable to oppose any
obstacle to conviction and who had not been cautious and sly enough
in the commission of the crime. Hence the development of the
fearful self-punishment, which could have no meaning if the victim
had felt innocent.
Such expressions of anger against oneself often finish with fainting. The reason of the latter is much less exhaustion through paroxysms of rage than the recognition and consciousness of one's own helplessness. Reichenbach[1] once examined the reason for the fainting of people in difficult situations. It is nowadays explained as the effect of the excretion of carbonic acid gas and of the generated anthropotoxin; another explanation makes it a nervous phenomenon in which the mere recognition that release is impossible causes fainting, the loss of consciousness. For our needs either account of this phenomenon will do equally. It is indifferent whether a man notices that he cannot voluntarily change his condition in a physical sense, or whether he notices that the evidence is so convincing that he can not dodge it. The point is that if for one reason or another he finds himself physically or legally in a bad hole, he faints, just as people in novels or on the stage faint when there is no other solution of the dramatic situation.
When anger does not lead to rage against oneself, the next lower stage is laughter.[2] With regard to this point, Darwin calls attention to the fact that laughter often conceals other mental conditions than those it essentially stands for--anger, rage, pain, perplexity, modesty and shame; when it conceals anger it is anger against oneself, a form of scorn. This same wooden, dry laughter is significant, and when it arises from the perception that the accused no longer sees his way out, it is not easily to be confused with another form of laughter. One gets the impression that the laugher is trying to tell himself, ``That is what you get for being bad and foolish!''
Section 16. (3) _Cruelty_.
Under this caption must be placed certain conditions that may under given circumstances be important. Although apparently without any relations to each other they have the common property of being external manifestations of mental processes.
[1] K. von Reichenbach: Der sensitive Mensch. Cotta 1854.
[2] e. f. H. Bergson: Le Rire. Paris 1900.
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In many cases they are explanations which may arise from the observation of the mutative relations between cruelty, bloodthirstiness, and sensuality. With regard to this older authors like Mitchell,[1] Blumroder,[2] Friedreich,[3] have brought examples which are still of no little worth. They speak of cases in which many people, not alone men, use the irritation developed by greater or lesser cruelty for sexual purposes: the torturing of animals, biting, pinching, choking the partner, etc. Nowadays this is called sadism.[4] Certain girls narrate their fear of some of their visitors who make them suffer unendurably, especially at the point of extreme passion, by biting, pressing, and choking. This fact may have some value in criminology. On the one hand, certain crimes can be explained only by means of sexual cruelty, and on the other, knowledge of his habits with this regard may, again, help toward the conviction of a criminal. I recall only the case of Ballogh-Steiner in Vienna, a case in which a prostitute was stifled. The police were at that time hunting a man who was known in the quarter as ``chicken-man,'' because he would always bring with him two fowls which he would choke during the orgasm. It was rightly inferred that a man who did that sort of thing was capable under similar circumstances of killing a human being. Therefore it will be well, in the examination of a person accused of a cruel crime, not to neglect the question of his sexual habits; or better still, to be sure to inquire particularly whether the whole situation of the crime was not sexual in nature.[5]
In this connection, deeds that lead to cruelty and murder often involve forms of epilepsy. It ought therefore always to be a practice to consult a physician concerning the accused, for cruelty, lust, and psychic disorders are often enough closely related. About this matter Lombroso is famous for the wealth of material he presents.
Section 17. (4) _Nostalgia_.
The question of home-sickness is of essential significance and must not be undervalued. It has been much studied and the notion has been reached that children mainly (in particular during the period of puberty), and idiotic and weak persons, suffer much from home-sickness, and try to combat the oppressive feeling of dejection
[1] Mitchell: <U:>ber die Mitleidenschaft der Geschlechtsteile mit dem Kopfe. Vienna 1804.
[2] Blumr<o:>der: <U:>ber das Irresein. Leipzig 1836.
[3] J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832.
[4] Cf. N<a:>cke. Gross's Archiv, XV. 114.
[5] Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, 275; IX, 98.
<p 78>
with powerful sense stimuli. Hence they are easily led to crime,
especially to arson. It is asserted that uneducated people in lonesome,
very isolated regions, such as mountain tops, great moors,
coast country, are particularly subject to nostalgia. This seems to
be true and is explained by the fact that educated people easily find
diversion from their sad thoughts and in some degree take a piece
of home with them in their more or less international culture. In
the same way it is conceivable that inhabitants of a region not particularly
individualized do not so easily notice differences. Especially
he who passes from one city to another readily finds himself, but
mountain and plain contain so much that is contrary that the feeling
of strangeness is overmastering. So then, if the home-sick person is
able, he tries to destroy his nostalgia through the noisiest and most
exciting pleasures; if he is not, he sets fire to a house or in case
of need, kills somebody--in short what he needs is explosive relief.
Such events are so numerous that they ought to have considerable
attention. Nostalgia should be kept in mind where no proper
motive for violence is to be found and where the suspect is a person
with the above-mentioned qualities. Then again, if one discovers
that the suspect is really suffering from home-sickness, from great
home-sickness for his local relations, one has a point from which the
criminal may be reached. As a rule such very pitiful individuals
are so less likely to deny their crime in the degree in which they feel
unhappy that their sorrow is not perceivably increased through
arrest. Besides that, the legal procedure to which they are subjected
is a not undesired, new and powerful stimulus to them.
When such nostalgiacs confess their deed they never, so far as I know, confess its motive. Apparently they do not know the motive and hence cannot explain the deed. As a rule one hears, ``I don't know why, I had to do it.'' Just where this begins to be abnormal, must be decided by the physician, who must always be consulted when nostalgia is the ground for a crime. Of course it is not impossible that a criminal in order to excite pity should explain his crime as the result of unconquerable home-sickness--but that must always be untrue because, as we have shown, anybody who acts out of home-sickness, does not know it and can not tell it.
Section 18. (5) _Reflex Movements_.
Reflex actions are also of greater significance than as a rule they are supposed to be. According to Lotze,[1] ``reflex actions are not
[1] Lotze: Medizinisehe Psychologie. Leipzig 1852.
<p 79>
limited to habitual and insignificant affairs of the daily life. Even
compounded series of actions which enclose the content even of a
crime may come to actuality in this way . . . in a single moment
in which the sufficient opposition of some other emotional condition,
the enduring intensity of emotion directed against an obstacle, or
the clearness of a moving series of ideas is lacking. The deed may
emerge from the image of itself without being caused or accompanied
by any resolve of the doer. Hearings of criminals are full of statements
which point to such a realization of their crimes, and these
are often considered self-exculpating inventions, inasmuch as people
fear from their truth a disturbance or upsetting of the notions
concerning adjudication and actionability. The mere recognition of
that psychological fact alters the conventional judgment but little;
the failure in these cases consists in not having prevented that
automatic transition of images into actions, a transition essentially
natural to our organism which ought, however, like so many other
things, to be subjected to power of the will.'' Reflex movements
require closer study.[1] The most numerous and generally known
are: dropping the eyelids, coughing, sneezing, swallowing, all
involuntary actions against approaching or falling bodies; then again
the patellar reflex and the kremaster reflex, etc. Other movements
of the same kind were once known and so often practiced that they
became involuntary.[2] Hence, for example, the foolish question how
a person believed to be disguised can be recognized as man or woman.
The well known answer is: let some small object fall on his lap;
the woman will spread her limbs apart because she is accustomed
to wear a dress in which she catches the object; the man will
bring his limbs together because he wears trousers and is able to catch
the object only in this way. There are so many such habitual
actions that it is difficult to say where actual reflexes end and habits
begin. They will be properly distinguished when the first are understood
as single detached movements and the last as a continuous,
perhaps even unconscious and long-enduring action. When I, for
example, while working, take a cigar, cut off the end, light it, smoke,
and later am absolutely unaware that I have done this, what has
occurred is certainly not a reflex but a habitual action. The latter
does not belong to this class in which are to be grouped only such
as practically bear a defensive character. As examples of how such
movements may have criminological significance only one's own
[1] Berz<e'> in Gross's Archiv, I, 93.
[2] E. Schultze. Zeitschrift f<u:>r Philosophie u. P<a:>dagogie, VI, 1.
<p 80>
experience may be cited because it is so difficult to put oneself at
the point of view of another. I want to consider two such examples.
One evening I passed through an unfrequented street and came
upon an inn just at the moment that an intoxicated fellow was
thrown out, and directly upon me. At the very instant I hit the poor
fellow a hard blow on the ear. I regretted the deed immediately,
the more so as the assaulted man bemoaned his misfortune, ``inside
they throw him out, outside they box his ears.'' Suppose that I
had at that time burst the man's ear-drum or otherwise damaged
him heavily. It would have been a criminal matter and I doubt
whether anybody would have believed that it was a ``reflex action,''
though I was then, as to-day, convinced that the action was reflex.
I didn't in the least know what was going to happen to me and what I
should do. I simply noticed that something unfriendly was approaching
and I met it with a defensive action in the form of an uppercut
on the ear. What properly occurred I knew only when I heard
the blow and felt the concussion of my hand. Something similar
happened to me when I was a student. I had gone into the country
hunting before dawn, when some one hundred paces from the house,
right opposite me a great ball rolled down a narrow way. Without
knowing what it was or why I did it I hit at the ball heavily with an
alpenstock I carried in my hand, and the thing emerged as two
fighting tomcats with teeth fixed in each other. One of them was
my beloved possession, so that I keenly regretted the deed, but
even here I had not acted consciously; I had simply smashed away
because something unknown was approaching me. If I had then
done the greatest damage I could not have been held responsible--
_*if_ my explanation were allowed; but _*that_ it would have been allowed
I do not believe in this case, either.
A closer examination of reflex action requires consideration of certain properties, which in themselves cannot easily have criminal significance, but which tend to make that significance clearer. One is the circumstance that there are reflexes which work while you sleep. That we do not excrete during sleep depends on the fact that the faeces pressing in the large intestine generates a reflexive action of the constrictors of the rectum. They can be brought to relax only through especially powerful pressure or through the voluntary relaxation of one's own constrictors.
The second suggestive circumstance is the fact that even habitual
reflexes may under certain conditions, especially when a particularly
weighty different impression comes at the same time, _*not_
<p 81>
take place. It is a reflex, for example, to withdraw the hand when
it feels pain, in spite of the fact that one is so absorbed with another
matter as to be unaware of the whole process; but if interest in
this other matter is so sufficiently fixed as to make one forget, as
the saying goes, the whole outer world, the outer impression of pain
must have been very intense in order to awaken its proper reflex.
The attention may, however, not be disturbed at all and yet
the reflex may fail. If we suppose that a reflex action is one brought
about through the excitement of an afferent sensory nerve which
receives the stimulation and brings it to the center from which the
excitement is transferred to the motor series (Landois[1]), we exclude
the activity of the brain. But this exclusion deals only with conscious
activity and the direct transition through the reflex center
can happen successfully only because the brain has been consciously
at work innumerable times, so that it is co<o:>perating in the later
cases also without our knowing it. When, however, the brain is
brought into play through some other particularly intense stimuli,
it is unable to contribute that unconscious co<o:>peration and hence
the reflex action is not performed. On this point I have, I believe,
an instructive and evidential example. One of my maids opened
a match-box pasted with paper at the corner by tearing the paper
along the length of the box with her thumb-nail. Apparently the
box was over-filled or the action was too rapidly made, for the matches
flamed up explosively and the whole box was set on fire. What was
notable was the fact that the girl threw the box away neither consciously
nor instinctively; she shrieked with fright and kept the
box in her hand. At her cry my son rushed in from _*another_ room,
and only after he had shouted as loudly as possible, ``Throw it
away, drop it,'' did she do so. She had kept the burning thing in
her hand long enough to permit my son to pass from one room into
another, and her wound was so serious that it needed medical treatment
for weeks. When asked why she kept the burning box in her
hand in spite of really very terrible pain she simply declared that
``she didn't think of it,'' though she added that when she was told
to throw the thing away it just occurred to her that that would be
the wisest of all things to do. What happened then was obviously
this: fear and pain so completely absorbed the activity of the brain
that it was not only impossible for it consciously to do the right
thing, it was even unable to assist in the unconscious execution of
the reflex.
[1] L. Landois: Lehrbuch der Physiologie des Mensehen. Vienna 1892.
<p 82>
This fact suggests that the sole activity of the spinal cord does not suffice for reflexes, since if it did, those would occur even when the brain is otherwise profoundly engaged. As they do not so occur the brain also must be in play. Now this distinction is not indifferent for us; for if we hold that the brain acts during reflexes we have to grant the possibility of degrees in its action. Thus where brain activity is in question, the problem of responsibility also arises, and we must hold that wherever a reflex may be accepted as the cause of a crime the subject of the degree of punishment must be taken exceptionally into account. It is further to be noted that as a matter of official consideration the problem of the presence of reflexes ought to be studied, since it rarely occurs that a man says, ``It was purely a reflex action.'' He says, perhaps, ``I don't know how it happened,'' or, ``I couldn't do otherwise,'' or he denies the whole event because he really was not aware how it happened. That the questions are here difficult, both with regard to the taking of evidence, and with regard to the judgment of guilt, is obvious,-- and it is therefore indifferent whether we speak of deficiency in inhibition-centers or of ill-will[1] and malice.
Section 19. (6) _Dress_.
It is easy to write a book on the significance of a man's clothes as the expression of his inner state. It is said that the character of a woman is to be known from her shoe, but actually the matter reaches far beyond the shoe, to every bit of clothing, whether of one sex or the other. The penologist has more opportunity than any one else to observe how people dress, to take notes concerning the wearer, and finally to correct his impressions by means of the examination. In this matter one may lay down certain axioms. If we see a man whose coat is so patched that the original material is no longer visible but the coat nowhere shows a hole; if his shirt is made of the very coarsest and equally patched material but is clean; and if his shoes are very bad but are whole and well polished, we should consider him and his wife as honest people, without ever making an error. We certainly see very little wisdom in our modern painfully attired ``sports,'' we suspect the suggestively dressed woman of some little disloyalty to her husband, and we certainly expect no low inclinations from the lady dressed with intelligent, simple respectability. If a man's general appearance is correct it
[1] Cf. H. Gross's Archiv, II, 140; III, 350; VII, 155; VIII, 198.
<p 83>
indicates refinement and attention to particular things. Anybody
who considers this question finds daily new information and new
and reliable inferences. Anyway, everybody has a different viewpoint
in this matter, a single specific detail being convincing to
one, to another only when taken in connection with something else,
and to a third when connected with still a third phenomenon. It
may be objected that at least detailed and prolonged observations
are necessary before inferences should be drawn from the way of
dressing, inasmuch as a passing inclination, economic conditions,
etc., may exert no little influence by compelling an individual to
a specific choice in dress. Such influence is not particularly deep.
A person subject to a particular inclination may be sufficiently
self-exhibiting under given circumstances, and that he was compelled
by his situation to dress in one way rather than another is
equally self-evident. Has anybody seen an honest farm hand
wearing a worn-out evening coat? He may wear a most threadbare,
out-worn sheep-skin, but a dress-coat he certainly would
not buy, even if he could get it cheap, nor would he take it as a
gift. He leaves such clothes to others whose shabby elegance shows
at a glance what they are. Consider how characteristic are the
clothes of discharged soldiers, of hunters, of officials, etc. Who
fails to recognize the dress of a real clerical, of democrats, of
conservative-aristocrats? Their dress is everywhere as well defined
as the clothing of Englishmen, Frenchmen, Germans, and Americans,
formed not by climatic conditions but by national character in a
specific and quite unalterable way. Conceit, carelessness, cleanliness,
greasiness, anxiety, indifference, respectability, the desire to
attract attention and to be original, all these and innumerable
similar and related qualities express themselves nowhere so powerfully
and indubitably as in the way people wear their clothes. And
not all the clothes together; many a time a single item of dress
betrays a character.
Section 20. (7) _Physiognomy and Related Subjects_.
The science of physiognomy belongs to those disciplines which
show a decided variability in their value. In classical times it
was set much store by, and Socrates, Plato, Aristotle, and Pythagoras
were keenly interested in its doctrines. Later on it was forgotten,
was studied in passing when Baptista Porta wrote a book
about human physiognomy, and finally, when the works of Lavater
<p 84>
and the closely related ones of Gall appeared, the science came for
a short time into the foreground. Lavater's well known monograph[1]
excited great attention in his day and brought its author
enthusiastic admiration. How much Goethe was interested in it is
indicated in the popular book by Von der Hellen and the exchange
of letters between Goethe and Lavater. If Lavater had not brought
the matter into relation with his mystical and apodictic manner, if
he had made more observations and fewer assertions, his fame would
have endured longer and he would have been of some use to the
science; as it was it soon slipped from people's minds and they
turned to the notorious phrenology of Gall. Gall, who to some
degree had worked with his friend Spurzheim, committed the same
error in his works[2] as Lavater, inasmuch as he lost himself in theories
without scientific basis, so that much that was indubitably correct
and indicative in his teaching was simply overlooked. His meaning
was twice validated, once when B. v. Cotta[3] and R. R. Noel[4]
studied it intensively and justly assigned him a considerable worth;
the second time when Lombroso and his school invented the doctrine
of criminal stigmata, the best of which rests on the postulates
of the much-scorned and only now studied Dr. Gall. The great
physiologist J. M<u:>ller declared: ``Concerning the general possibility
of the principles of Gall's system no a priori objections can
be made.'' Only recently were the important problems of physiognomy,
if we except the remarkable work by Schack,[5] scientifically
dealt with. The most important and significant book is Darwin's,[6]
then the system of Piderit[7] and Carus's ``Symbolik,''[8] all of them
being based upon the earlier fundamental work of the excellent
English anatomist and surgeon, Bell.[9] Other works of importance
are those of LeBrun, Reich, Mantegazza, Dr. Duchenne, Skraup,
Magnus, Gessmann, Schebest, Engel, Schneider, K. Michel, Wundt,
C. Lange, Giraudet, A. Mosso, A. Baer, Wiener, Lotze, Waitz,
Lelut, Monro, Heusinger, Herbart, Comte, Meynert, Goltz, Hughes,
[1] J. K. Lavater: Physiognomische Fragmente zur Bef<o:>rderung des Menschenkentniss und Mensehenliebe. Leipzig 1775.
[2] F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris 1808. Recherehes sur la syst<e!>me nerveux. Paris 1809.
[3] B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838.
[4] R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874.
[5] S. Sehack: Physiognomisehe Studien. Jena 1890.
[6] Darwin: Expression of the Emotions in Men and Animals.
[7] Th. Piderit: Wissensehaftliches System der Mimik und Physiognomik. Detmold 1867.
[8] Carus: Symbolik der Menschlichen Gestalt. Leipzig 1858.
[9] C. Bell: Anatomy and Philosophy of Expression. London 1847.
<p 85>
Bor<e'>e,[1] etc. The present status of physiognomies is, we must say, a
very subordinate one. Phrenology is related to physiognomies as
the bony support of the skull to its softer ones, and as a man's
physiognomy depends especially upon the conformation of his
skull, so physiognomies must deal with the forms of the skull. The
doctrine of the movement of physiognomy is mimicry. But physiognomics
concerns itself with the features of the face taken in themselves
and with the changes which accompany the alterations of consciousness,
whereas mimicry deals with the voluntary alterations of
expression and gesture which are supposed to externalize internal
conditions. Hence, mimicry interests primarily actors, orators,
and the ordinary comedians of life. Phrenology remains the research
of physicians, anthropologists and psychologists, so that
the science of physiognomy as important in itself is left to us lawyers.
Its value as a discipline is variously set. Generally it is asserted
that much, indeed, fails to be expressed by the face; that what
does show, shows according to no fixed rules; that hence, whatever
may be read in a face is derivable either instinctively by oneself
or not at all. Or, it may be urged, the matter can not be learned.
[1] Le Brun: Conferences sur l'Expression. 1820.
Reich: Die Gestalt des Menschen und deren Beziehung zum Seelenleben.
Heidelberg 1878.
P. Mantegazza. Physiognomik u. Mimik. Leipzig 1890.
Duchenne: Mechanismus des Menschlichen Physiognomie. 1862.
Skraup: Katechismus der Mimik. Leipzig 1892.
H. Magnus: Die Sprache der Augen.
Gessmann: Katechismus der Gesichtslesekunst. Berlin 1896.
- Sehebest: Rede u. Geberde. Leipzig 1861. Engel: Ideen zu einer Mimik. Berlin 1785.
- Schneider: Die tierische Wille. 1880.
- Miehel: Die Geberdensprache. K61n 1886. Wundt: Grundz<u:>ge, etc. Leipzig 1894.
- Lange: <U:>ber Gemutsbewegungen. 1887. Giraudet: Mimique, Physiognomie et Gestes. Paris 1895.
- Mosso: Die Furcht. 1889.
- A. Baer: Der Verbreeher. Leipzig 1893. Wiener. Die geistige Welt. Lotze. Medizinisehe Psychologie. Th. Waitz. Anthropologie der Naturv<o:>lker. Leipzig 1877. Lelut: Physiologie de la Pens<e'>e. Monro: Remarks on Sanity.
- F. Heusinger: Grundriss der physiologischen u. psychologisehen Anthropologie. Eisenach 1829. Herbart: Psychologische Untersuchung. G<o:>ttingen 1839. Comte: Systeme de Philosophie Positive. Paris 1824.
- Meynert: Mechanik der Physiognomik. 1888.
- Goltz: <U:>ber Moderne Phrenologie. Deutsehe Rundschau Nov. - Dec. 1885.
- Hughes: Die Mimik des Menschen auf Grund voluntariseher Psychologie Frankfurt a. M. 1900.
- Bor<e'>e: Physiognom. Studien. Stuttgart 1899.
<p 86>
Such statements, as ways of disposing of things, occur regularly
wherever there is a good deal of work to do; people do not like to
bother with troublesome problems and therefore call them worthless.
But whoever is in earnest and is not averse to a little study
will get much benefit from intensive application to this discipline
in relation to his profession.
The right of physiognomies to the status of an independent science is to some degree established in the oft-repeated dictum that whatever is valid in its simplest outline must be capable of extension and development. No man doubts that there are intelligent faces and foolish ones, kind ones and cruel ones, and if this assertion is admitted as it stands it must follow that still other faces may be distinguished so that it is possible to read a certain number of spiritual qualities from the face. And inasmuch as nobody can indicate the point at which this reading of features must cease, the door is opened to examination, observation and the collection of material. Then, if one bewares of voluntary mistakes, of exaggeration and unfounded assertion, if one builds only upon actual and carefully observed facts, an important and well-grounded discipline must ensue.
The exceptionally acute psychiatrist Meynert shows[1] how physiognomics depends on irradiation and parallel images. He shows what a large amount of material having physiognomical contents we keep in mind. Completely valueless as are the fixed forms by which mankind judges the voluntary acts of its individual members, they point to the universal conclusion that it is proper to infer from the voluntary acts of a person whose features correspond to those of another the voluntary acts of the other. One of Hans Virchow's very detailed physiognomical observations concerning the expression of interest in the eyes by means of the pupil, has very considerable physiognomical value. The pupil, he believes, is the gate through which our glance passes into the inner life of our neighbor; the psychical is already close at hand with the word ``inner.'' How this occurs, why rather this and not another muscle is innervated in the development of a certain process, we do not know, but our ignorance does not matter, since ultimately a man might split his head thinking why we do not hear with our eyes and see with our ears. But to some extent we have made observable progress in this matter. As far back as 1840 J. M<u:>ller[2] wrote: ``The reasons are unknown why various psychoses make use of different groups of nerves or why
[1] Psychiatrie. Vienna 1884.
[2] J. M<u:>ller: Handbuch der Physiologie des Menschen. 1840.
<p 87>
certain facial muscles are related to certain passions.'' Gratiolet[1]
thought it necessary forty years ago to deny that muscles were
developed merely for the purpose of expression. Almost
contemporaneously Piderit knew that expressive muscular movements
refer partly to imaginary objects and partly to imaginary sense impressions.
In this fact lies the key to the meaning of all expressive
muscular movements. Darwin's epoch-making book on the expressions
of the emotions finally established the matter so completely
and firmly, that we may declare ourselves in possession of enough
material for our purpose to make it possible to carry our studies
further. The study of this book of Darwin's I believe absolutely
necessary to each criminalist--for he meets in every direction,
expositions and explanations that are related to cases he has already
experienced in practice or is sure to experience. I present here
only a few of Darwin's most important notes and observations in
order to demonstrate their utility for our purpose.
As subjects for study he recommends children because they permit forms of expression to appear vigorously and without constraint; lunatics, because they are subject to strong passions without control; galvanized persons, in order to facilitate the muscles involved, and finally, to establish the identity of expression among all races of men and beasts. Of these objects only children are important for our purpose. The others either are far removed from our sphere of activity, or have only theoretic value. I should, however, like to add to the subjects of observation another, viz., the simple unstudied persons, peasants and such otherwise unspoiled individuals whom we may believe innocent of all intention to play a comedy with us. We can learn much from such people and from children. And it is to be believed that in studying them we are studying not a special class but are establishing a generally valid paradigm of the whole of mankind. Children have the same features as adults only clearer and simpler. For, suppose we consider any one of Darwin's dicta,--e. g., that in the expression of anger and indignation the eyes shine, respiration becomes more rapid and intense, the nostrils are somewhat raised, the look misses the opponent,-- these so intensely characteristic indices occur equally in the child and the adult. Neither shows more or fewer, and once we have defined them in the child we have done it for the adult also. Once the physiognomy of children and simple people has been studied,
[1] L. P. Gratiolet: De la Physiognomie et des Mouvements d'Expression. Paris 1865.
<p 88>
the further study of different kinds of people is no longer difficult;
there is only the intentional and customary masking of expression
to look out for; for the rest, the already acquired principles, mutandis
mutatis, are to be used.
Darwin posits three general principles on which most expressions and gestures are to be explained. They are briefly:
I. The principle of purposeful associated habits.
II. The principle of contradication.
III. The principle of the direct activity of the nervous system.
With regard to the first. When, in the course of a long series of generations, any desire, experience, or disinclination, etc., has led to some voluntary action, then, as often as the same or any analogous associated experience is undergone, there will arise a tendency to the realization of a similar action. This action may no longer have any use but is inherited and generally becomes a mere reflex.
This becomes clearer when one notices how often habit facilitates very complex action:--the habits of animals; the high steps of horses; the pointing of pointers; the sucking of calves, etc. It is difficult for us in falling to make opposite movements to stretching out the arms, even in bed; we draw on our gloves unconsciously. Gratiolet says: ``Whoever energetically denies some point, etc., shuts his eyes; if he assents he nods and opens his eyes wide. Whoever describes a terrible thing shuts his eyes and shakes his head; whoever looks closely raises his eye-brows. In the attempt to think the same thing is done or the eye-brows are contracted-- both make the glance keener. Thence follows the reflex activity.''
With regard to the second. Dogs who are quarrelling with cats assume the appearance of battle--if they are kindly-minded they do the opposite, although this serves no purpose. M. Taylor[1] says, that the gesture language of the Cistercians depends considerably on antithesis; e. g., shrugging the shoulders is the opposite of firmness, immovability.
With regard to the direct activity of the nervous system, examples are paling, trembling (fear, terror, pain, cold, fever, horror, joy), palpitation of the heart, blushing, perspiring, exertion of strength, tears, pulling the hair, urinating, etc. With these subdivisions it will be possible to find some thoroughfare and to classify every phenomenon.
We want to discuss a few more particulars in the light of Darwin's
[1] Taylor: Early History of Mankind.
<p 89>
examples. He warns us, first of all, against seeing[1] certain muscle
movements as the result of emotional excitement, because they were
looked for. There are countless habits, especially among the movements
of the features, which happen accidentally or as the result
of some passing pain and which have no significance. Such movements
are often of the greatest clearness, and do not permit the
unexperienced observer to doubt that they have important meanings,
although they have no relation whatever to any emotional condition.
Even if it is agreed only to depend on changes of the whole face;
already established as having a definite meaning, there is still danger
of making mistakes, because well accredited facial conditions may
occur in another way (as matters of habit, nervous disturbances,
wounds, etc.). Hence in this matter, too, care and attention are
required; for if we make use of any one of the Darwinian norms, as,
for example, that the eyes are closed when we do not want to see a
thing or when we dislike it, we still must grant that there are people
to whom it has become habitual to close their eyes under other and
even opposed conditions.
We must grant that, with the exception of such cases, the phenomena are significant during examinations, as when we show the accused a very effective piece of evidence, (e. g.: a comparison of hand-writings which is evidential,) and he closes his eyes. The act is then characteristic and of importance, particularly when his words are intended to contest the meaning of the object in question. The contradiction between the movement of his eyes and his words is then suggestive enough. The same occurs when the accused is shown the various possibilities that lie before him--the movement of the examination, the correlations and consequences. If he finds them dangerous, he closes his eyes. So with witnesses also; when one of them, e. g., deposes to more, and more harmfully, than according to our own notion he can explain, he will close his eyes, though perhaps for an instant only, if the inevitable consequences of his deposition are expounded to him. If he closes his eyes he has probably said too much, and the proper moment must not be missed to appeal to his conscience and to prevent more exaggerated and irresponsible assertions.
This form of closing the eyes is not to be confused with the performances of persons who want to understand the importance of their depositions and to collect their senses, or who desire to review
[1] J. Reid: The Muscular Sense. Journal of Mental Science, XLVII, 510.
<p 90>
the story mentally and consider its certainty. These two forms of
closing the eyes are different: the first, which wants to shut out the
consequences of testimony, is much shorter; the latter longer,
because it requires a good deal of time to collect one's senses and
to consider a problem. The first, moreover, is accompanied by
a perceivable expression of fear, while the latter is manifest only by
its duration; what is most important is a characteristic contemporary
and perceivable defensive movement of the hand, and this
occurs only in the cases where the desire is to exclude. This movement
occurs even among very phlegmatic persons, and hence is
comparatively reliable; it is not made by people who want
undisturbedly to study a question and to that end shut their
eyes.
In a similar way there is significance in the sudden closing of the
mouth by either the accused or the witness. Resolution and the
shutting of the mouth are inseparable; it is as impossible to imagine
a vacillating, doubting person with lips closely pressed together,
as a firm and resolute person with open mouth. The reason implies
Darwin's first law: that of purposeful associated habits. When a
man firmly resolves upon some deed the resolution begins immediately
to express itself in movements which are closely dependent upon
bodily actions. Even when I suddenly resolve to face some correctlysupposed
disagreeable matter, or to think about some joyless thing,
a bodily movement, and indeed quite an energetic one, will ensue
upon the resolution--I may push my chair back, raise my elbows,
perhaps put my head quickly between my hands, push the chair
back again, and then begin to look or to think. Such actions, however,
require comparatively little bodily exertion; much more follows
on different types of resolutions--in short, a firm resolution requires
a series of movements immediately to follow its being made. And
if we are to move the muscles must be contracted. And it is, of
course, obvious that only those muscles can be set in action which
are, according to the immediate situation of the body, free to move.
If we are sitting down, for example, we can not easily make our feet
conform to the movement of a march forward; nor can we do much
with the thighs, hence the only muscles we can use are those of the
face and of the upper limbs. So then, the mouth is closed because
its muscles are contracted, and with equal significance the arms are
thrust outward sharply, the fist clenched, and the fore-arm bent.
Anybody may try the experiment for himself by going through the
actions enumerated and seeing whether he does not become filled
<p 91>
with a sense of resolution. It is to be especially observed, as has
already been indicated, that not only are mental states succeeded by
external movements, but imitated external movements of any
kind awaken, or at least plainly suggest, their correlated mental
states.
If, then, we observe in any person before us the signs of resolution we may certainly suppose that they indicate a turn in what he has said and what he is going to say. If they be observed in the accused, then he has certainly resolved to pass from denial to confession, or to stick to his denial, or to confess or keep back the names of his accomplices, the rendezvous, etc. Inasmuch as in action there is no other alternative than saying or not saying so, it might be supposed that there is nothing important in the foregoing statement; the point of importance lies, however, in the fact that a _*definite_ resolution has been reached of which the court is aware and from which a departure will hardly be made. Therefore, what follows upon the resolution so betrayed, we cannot properly perceive; we know only that it in all likelihood consists of what succeeds it, i. e. the accused either confesses to something, or has resolved to say nothing. And that observation saves us additional labor, for he will not easily depart from his resolution.
The case is analogous with regard to the witness who tells no truth or only a part of the truth. He reveals the marks of resolution upon deciding finally to tell the truth or to persist in his lying, and so, whatever he does after the marks of resolution are noted, we are saved unnecessary effort to make the man speak one way or another.
It is particularly interesting to watch for such expressions of
resolution in jurymen, especially when the decision of guilt or innocence
is as difficult as it is full of serious consequences. This happens
not rarely and means that the juryman observed is clear in his
own mind as to how he is going to vote. Whatever testimony may
succeed this resolution is then indifferent. The resolved juryman
is so much the less to be converted, as he usually either pays no
more attention to the subsequent testimony, or hears it in such
prejudiced fashion that he sees everything in his own way. In
this case, however, it is not difficult to tell what the person in
question has decided upon. If the action we now know follows a very
damaging piece of testimony, the defendant is condemned thereby;
if it follows excusive testimony he is declared innocent. Anybody
who studies the matter may observe that these manifestations are
<p 92>
made by a very large number of jurymen with sufficient clearness
to make it possible to count the votes and predict the verdict. I
remember vividly in this regard a case that occurred many years
ago. Three men, a peasant and his two sons, were accused of having
killed an imbecile who was supposed to have boarded in their house.
The jury unanimously declared them guiltless, really because of
failure, in spite of much effort, to find the body of the victim. Later
a new witness appeared, the case was taken up again, and about a
year after the first trial, a second took place. The trial consumed
a good many days, in which the three defendants received a flood of
anonymous letters which called attention mostly to the fact that
there was in such and such a place an unknown imbecile woman
who might be identical with the ostensible murdered person. For
that reason the defendant appealed for a postponement of the trial
or immediate liberation. The prosecutor of the time fought the
appeal but held that so far as the case went (and it was pretty bad
for the prosecution), the action taken with regard to the appeal was
indifferent. ``The mills of the gods grind slowly,'' he concluded
in his oration; ``a year from now I shall appear before the jury.''
The expression of this rock-bound conviction that the defendants
were guilty, on the part of a man who, because of his great talent,
had tremendous influence on juries, caused an astounding impression.
The instant he said it one could see in most of the jurymen
clearest signs of absolute resolution and the defendants were condemned
from that moment.
Correlated with the signs of resolution are those of astonishment.
``The hands are raised in the air,'' says Darwin, ``and the palm is
laid on the mouth.'' In addition the eyebrows are regularly raised,
and people of not too great refinement beat their foreheads and
in many cases there occurs a slight, winding movement of the trunk,
generally toward the left. The reason is not difficult to find. We
are astonished when we learn something which causes an inevitable
change in the familiar course of events. When this occurs the hearer
finds it necessary, if events are simple, properly to get hold of it.
When I hear that a new Niebelungen manuscript has been discovered,
or a cure for leprosy, or that the South Pole has been
reached, I am astonished, but immediate conception on my part
is altogether superfluous. But that ancient time in which our
habitual movements came into being, and which has endured longer,
incomparably longer than our present civilization, knew nothing
whatever of these interests of the modern civilized human being.
<p 93>
What astonished people in those days were simple, external, and
absolutely direct novelties: that a flood was coming, that game was
near the camp, that inimical tribes had been observed, etc.--in
short, events that required immediate action. From this fact
spring our significant movements which must hence be perceivably
related to the beginning of some necessary action. We raise our
hands when we want to jump up; we elevate our eyebrows when we
look up, to see further into the distance; we slap our foreheads in
order to stimulate the muscles of our legs, dormant because of long
sitting; we lay the palms of our hands on our mouths and turn the
trunk because we discover in the course of life rather more disagreeable
than pleasant things and hence we try to keep them out and
to turn away from them. And astonishment is expressed by any
and all of these contradictory movements.
In law these stigmata are significant when the person under examination ought to be astonished at what is told him but for one reason or another does not want to show his astonishment. This he may hide in words, but at least one significant gesture will betray him and therefore be of considerable importance in the case. So, suppose that we present some piece of evidence from which we expect great results; if they do not come we may perhaps have to take quite another view of the whole case. It is hence important not to be fooled about the effect, and that can be accomplished only through the observation of the witnesses' gestures, these being much more rarely deceptive than words.
Scorn manifests itself in certain nasal and oral movements. The
nose is contracted and shows creases. In addition you may count
the so-called sniffing, spitting, blowing as if to drive something
away; folding the arms, and raising the shoulders. The action
seems to be related to the fact that among savage people, at least,
the representation of a worthless, low and despicable person is
brought into relation with the spread of a nasty odor: the Hindoo
still says of a man he scorns, ``He is malodorous.'' That our ancestors
thought similarly, the movement of the nose, especially raising
it and blowing and sniffing, makes evident. In addition there is the
raising of the shoulders as if one wanted to carry the whole body
out of a disgusting atmosphere--the conduct, here, is briefly
the conduct of the proud. If something of the sort is observable
in the behavior of a witness it will, as a rule, imply something good
about him: the accused denies thereby his identity with the criminal,
or he has no other way of indicating the testimony of some damaging
<p 94>
witness as slander, or he marks the whole body of testimony, with
this gesture, as a web of lies.
The case is similar when a witness so conducts himself and expresses scorn. He will do the latter when the defendant or a false witness for the defense accuses him of slander, when indelicate motives are ascribed to him, or earlier complicity with the criminal, etc. The situations which give a man opportunity to show that he despises anybody are generally such as are to the advantage of the scorner. They are important legally because they not only show the scorner in a good light but also indicate that the scorn must be studied more closely. It is, of course, naturally true that scorn is to a great degree simulated, and for that reason the gestures in question must be attentively observed. Real scorn is to be distinguished from artificial scorn almost always by the fact that the latter is attended by unnecessary smiling. It is popularly and correctly held that the smile is the weapon of the silent. That kind of smile appears, however, only as defense against the less serious accusations, or perhaps even more serious ones, but obviously never when evil consequences attendant on serious accusations are involved. If indubitable evil is in question, no really innocent person smiles, for he scorns the person he knows to be lying and manifests other gestures than the smile. Even the most confused individual who is trying to conceal his stupidity behind a flat sort of laughter gives this up when he is so slandered that he is compelled to scorn the liar; only the simulator continues to smile. If, however, anybody has practiced the manifestation of scorn he knows that he is not to smile, but then his pose becomes theatrical and betrays itself through its exaggeration.
Not far from scorn are defiance and spite. They are characterized by baring the canine teeth and drawing together the face in a frown when turning toward the person upon whom the defiance or spite is directed. I believe that this image has got to be variously filled out by the additional fact that the mouth is closed and the breath several times forced sharply through the nostrils. This arises from the combination of resolution and scorn, these being the probable sources of defiance and spite. As was explained in the discussion of resolution, the mouth is bound to close; spite and defiance are not thinkable with open mouth. Scorn, moreover, demands, as we have shown, this blowing, and if the blowing is to be done while the mouth is closed it must be done through the nose.
Derision and depreciation show the same expressions as defiance
<p 95>
and spite, but in a lesser degree. They all give the penologist a
good deal to do, and those defendants who show defiance and spite
are not unjustly counted as the most difficult we have to deal with.
They require, above all, conscientious care and patience, just indeed
because not rarely there are innocents among them. This is
especially so when a person many times punished is accused another
time, perhaps principally because of his record. Then the bitterest
defiance and almost childish spite takes possession of him against
``persecuting'' mankind, particularly if, for the nonce, he is innocent.
Such persons turn their spite upon the judge as the representative
of this injustice and believe they are doing their best by conducting
themselves in an insulting manner and speaking only a few
defiant words with the grimmest spite. Under such circumstances
it is not surprising that the inexperienced judge considers these
expressions as the consequences of a guilty conscience, and that the
spiteful person may blame himself for the results of his defiant
conduct. He therefore pays no more attention to the unfortunate.
How this situation may lead to an unjust sentence is obvious.
But whether the person in question is guilty or not guilty, it is the
undeniable duty of the judge to make especial efforts with such
persons, for defiance and spite are in most cases the result of
embitterment, and this again comes from the disgusting treatment
received at the hands of one's fellows. And it is the judge's duty
at least not to increase this guilt if he can not wipe it away. The
only, and apparently the simplest, way of dealing with such people
is the patient and earnest discussion of the case, the demonstration
that the judge is ready carefully to study all damaging facts, and
even a tendency to refer to evidence of innocence in hand, and a
not over-energetic discussion of the man's possible guilt. In most
cases this will not be useful at the beginning. The man must have
time to think the thing over, to conceive in the lonely night that it
is not altogether the world's plan to ruin him. Then when he begins
to recognize that he will only hurt himself by his spiteful silence
if he is again and again examined he will finally be amenable. Once
the ice is broken, even those accused who at the beginning showed
only spite and defiance, show themselves the most tractable and
honest. The thing needful above all is patience.
Real rage, unfortunately, is frequent. The body is carried erect
or thrown forward, the limbs become stiff, mouth and teeth closely
press together, the voice becomes very loud or dies away or grows
hoarse, the forehead is wrinkled and the pupil of the eye contracted;
<p 96>
in addition one should count the change of color, the flush or deep
pallor. An opportunity to simulate real rage is rare, and anyway
the characteristics are so significant that a mistake in recognition
can hardly be made. Darwin says that the conviction of one's own
guilt is from time to time expressed through a sparkling of the eyes,
and through an undefinable affectation. The last is well known
to every penologist and explicable in general psychological terms.
Whoever knows himself to be guiltless behaves according to his
condition, naturally and without constraint: hence the notion that
na<i:>ve people are such as represent matters as they are. They do
not find anything suspicious in them because they do not know
about suspicious matters. But persons who know themselves guilty
and try not to show it, must attain their end through artifice and
imitation, and when this is not well done the affectation is
obvious.
There is also something in the guilty sparkle of the eye. The sparkle in the eyes of beauty, the glance of joy, of enthusiasm, of rapture, is not so poetical as it seems, inasmuch as it is no more than intensified secretion of tears. The latter gets its increase through nervous excitation, so that the guilty sparkle should also be of the same nature. This may be considered as in some degree a flow of tears in its first stages.
An important gesture is that of resignation, which expresses
itself especially as folding the hands in one's lap. This is one of
the most obvious gestures, for ``folding the hands in the lap'' is
proverbial and means there is no more to be done. The gesture
signifies, therefore, ``I'm not going to do any more, I can't, I won't.''
Hence it must be granted that the condition of resignation and its
gesture can have no significance for our own important problem,
the problem of guilt, inasmuch as the innocent as well as the guilty
may become resigned, or may reach the limit at which he permits
everything to pass without his interference. In the essence and
expression of resignation there is the abandonment of everything
or of some particular thing, and in court, what is abandoned is the
hope to show innocence, and as the latter may be real as well as
merely pleaded, this gesture is a definite sign in certain cases. It
is to be noted among the relations and friends of a defendant who,
having done everything to save him, recognize that the evidence
of guilt is irrefutable. It is again to be noticed among courageous
lawyers who, having exerted all their art to save their clients, perceive
the failure of their efforts. And finally, the defendants show it, who
<p 97>
have clearly recognized the danger of their case. I believe that it is
not an empirical accident that the gesture of resignation is made
regularly by innocent persons. The guilty man who finds himself
caught catches at his head perhaps, looks toward heaven gritting
his teeth, rages against himself, or sinks into a dull apathy, but
the essential in resignation and all its accompanying movements
is foreign to him. Only that conforms to the idea of resignation
which indicates a surrender, the cession of some value that one
has a claim on--if a man has no claim to any given thing he can
not resign it. In the same way, a person without right to guiltlessness
and recognition, will instinctively not surrender it with
the emotion of resignation, but at most with despair or anger or
rage. And it is for this reason that the guilty do not exhibit gestures
of resignation.
The contraction of the brow occurs in other cases besides those
mentioned. Before all it occurs when anything is dealt with intensively,
increasing with the increase of the difficulty of the subject.
The aboriginal source of this gesture lies in the fact that
intensive activities involve the need of acuter vision, and this is
in some degree acquired by the contraction of the skin of the forehead
above the eyebrows; for vision is clarified in this way. Intensive
consideration on the part of a defendant or a witness, and
the establishment of its reality or simulation, are significant in
determining whether he himself believes the truth of what is about
to be explained. Let us suppose that the issue involves proving an
alibi on a certain definite, rather remote day, and the defendant
is required to think over his whereabouts on that day. If he is in
earnest with regard to the establishment of his alibi, i. e. if he really
was not there and did not do the thing, it will be important for
him to remember the day in question and to be able to name the
witnesses of his whereabouts then. Hence he will think intensively.
But if he has claimed an alibi dishonestly, as is frequent with criminals,
in order to make people conclude that nobody has the right
to demand where and for how long a time he was on such and such
a day, then there is no need of thinking closely about something
that has not happened. He exhibits in such cases a kind of thoughtfulness,
which is not, however, earnest and profound: and these
two adjectives describe _*real_ consideration. The same observations
are to be made in regard to dishonest witnesses who, when pressed
to think hard, only simulate doing so. One is compelled at the very
least to look closely after the witness who simply imitates intensive
<p 98>
thinking without showing the signs proper to it. The suspicion of
false testimony is then justifiable.
A rather different matter is that blank expression of the eyes which only shows that its possessor is completely lost in his thoughts --this has nothing to do with sharp recollection and demands above all things being let alone or the belief of being so. In this case no distinguishing gestures are made, though the forehead, mouth or chin may be handled, only, however, when embarrassment occurs-- i. e. when the man observes that he is being watched, or when he discovers that he has forgotten the presence of other people. It is supposed that this does not occur in court, but it does happen not infrequently when, for example, the judge, after some long discussion with the accused, is about to dictate what has been said. If this takes rather a long time, it may chance that the witness is no longer listening but is staring vacantly into the distance. He is then reviewing his whole life or the development and consequences of his deed. He is absorbed in a so-called intuitive thought, in the reproduction of events. Intensive consideration requires the combination of particulars and the making of inferences; hence the form of thinking we have just been speaking of is merely spiritual sightseeing. It is when this takes place that confessions are most easy to get, if only the judge keeps his eyes properly open.
That contraction of the brow signifies a condition of disgust is well known, but there is yet, as I believe, a still other use of this contraction--i. e. its combination with a smile, indicating disbelief. How this union occurred seems comparatively undiscoverable-- perhaps it results from the combination of the smile of denial with the frown of sharp observation. But the gesture is, in any event, reliable, and may not easily stand for anything but disbelief and doubt. Hence it is always a mistake to believe that anybody who makes that expression believes what he has heard. If you test it experimentally you will find that when you make it you say involuntarily to yourself: ``Well now, that can't be true,'' or ``Look here, that's a whopper!'' or something like that. The expression occurs most frequently in confronting witnesses with defendants and especially witnesses with each other.
The close relation of the contraction of the brow with its early
stage, a slight elevation of the eyebrows, is manifest in the fact that
it occurs under embarrassment--not very regularly but almost
always upon the perception of something foreign and inexplicable,
or upon getting twisted in one's talk; in fact, upon all such conditions
<p 99>
which require greater physical and psychical clearness of vision,
and hence the shutting out of superfluous light. The expression
may be important on the face of a defendant who asserts,--e. g.--
that he does not understand an argument intended to prove his
guilt. If he is guilty he obviously knows what happened in the
commission of the crime and thereby the argument which reproduces
it, and even if he assures the court a hundred times that he does
not understand it, he is either trying to show himself innocent or
wants to gain time for his answer. If he is innocent it may be that
he really does not understand the argument because he is unaware
of the actual situation. Hence he will frown and listen attentively
at the very beginning of the argument. The guilty person perhaps
also aims to appear enormously attentive, but he does not contract
his brow, because he does not need to sharpen his glance; he knows
the facts accurately enough without it. It is important for the
penologist to know whether a man has in the course of his life undergone
much anxiety and trouble, or whether he has lived through it
carelessly. Concerning these matters Darwin points out that when
the inner ends of the eyebrows are raised certain muscles have to
be contracted (i. e. the circular ones which contract the eyebrows
and the pyramidal muscle of the nose, which serve both to pull
down and contract the eyelids). The contraction is accomplished
through the vigorous drawing together of the central bundle of
muscles at the brow. These muscles, by contracting, raise the inner
ends of the brow, and since the muscles which contract the eyebrows
bring them together at the same time, their inner ends are folded
in great lumpy creases. In this way short oblique, and short
perpendicular furrows are made. Now this, few people can do without
practice; many can never perform it voluntarily, and it is more
frequent among women and children than among men. It is important
to note that it is always a sign of spiritual pain, not physical.
And curiously enough it is as a rule related with drawing down the
corners of the mouth.
Further to study the movements of the features will require an
examination into the reasons for the action of these, and not other
muscles, as accompaniments of the psychical states. Piderit holds
it is due to the fact that the motor nerves which supply these muscles
rise right next to the purely psychical centers and hence these muscles
are the supports of the organs of sense. The latter is no doubt
correct, but the first statement is rather doubtful. In any event
it is evident that the features contain an exceptionally large number
<p 100>
of fine muscles with especially rich motor capacity, and hence move
together and in accordance with the psychical conditions. It may
be that the other muscles of the body have also a share in this but
that we fail to perceive the fact. Such movements, however, have
not been essential.
We may take it as a general rule that all joyous and uplifting emotions (even astonishment) are succeeded by the raising of the skin of the forehead, the nostrils, the eyes, the eyelids, while sad and oppressing emotions have the contrary effect. This simple and easy rule renders immediately intelligible many an otherwise obscure expression which we find important but concerning the meaning of which we are in doubt. The development of a movement in any face goes, according to Harless,[1] in this fashion: ``The superior motor nerve is the oculomotorius. The stimulation reaches this one first--the mildest alteration of emotion betrays itself most rapidly in the look, the movement and condition of the pupil of the eye. If the impulse is stronger it strikes the roots of the motor end of the trigeminus and the movement of the muscles of mastication occur; then the intensified affection spreads through the other features.'' Nobody will, of course, assert that even a completely developed physiognomical science will help us over all our difficulties, but with a little attention it can help us to a considerable degree. This help we do need, as La Rochefoucauld points out, with even contemporary correctness, ``It is easier to know men than to know a particular man.''
Section 21. (8) _The Hand_.
The physiognomy of the hand stands close to that of the face in significance and is in some relations of even greater importance, because the expression of the hand permits of no, or very slight, simulation. A hand may be rendered finer or coarser, may be rendered light or dark, the nails may be cared for or allowed to develop into claws. The appearance of the hand may be altered, but not its physiognomy or character. Whoever creases his face in the same way for a thousand times finally retains the creases and receives from them a determinate expression even if this does not reveal his inner state; but whoever does the same thing a thousand times with his hand does not thereby impress on it a means of identification. The frequent Tartuffian rolling of the eyes finally gives the face a pious or at least pietistic expression, but fold your hands in
[1] Wagner's Handw<o:>rterbuch, III, i.
<p 101>
daily prayer for years and nobody would discover it from them. It
seems, however, of little use to know that human hands can not be
disguised, if they are little or not at all differentiated; but as it
happens they are, next to the face, the most extremely and profoundly
differentiated of human organs; and a general law teaches
us that different effects are produced by different causes, and that
from the former the latter may be inferred. If then we observe
the infinite variety of the human hand we have to infer an equally
infinite variety of influences, and inasmuch as we cannot trace these
influences any further we must conclude that they are to be explained
causally by the infinite variety of psychical states.
Whoever studies the hand psychologically gains in the course of time a great deal of faith in what the hand tells him. And finally he doubts it only when chirognomy conflicts with physiognomy. If in such cases it is observed that the hand is more likely to be correct than the face, and that inferences from the hand more rarely show themselves to be false, one is reminded of the dictum of Aristotle, ``The hand is the organ of organs, the instrument of instruments in the human body.'' If this is correct, the favored instrument must be in the closest kind of relation with the psyche of the owner, but if this relation exists there must be an interaction also. If the hand contained merely its physical structure, Newton would never have said, ``Other evidence lacking, the thumb would convince me of God's existence.''
How far one ought to establish fundamental propositions in this matter, I can not easily say. Perhaps it would be scientifically most correct to be satisfied for the time with collecting the carefully and keenly observed material and getting the anatomists, who are already in need of material for professional investigations, to take the matter up; in collecting photographs of hands belonging to persons whose characters are well known and in getting a sufficient number of properly equipped persons to make the collection. If we had enough material to draw fundamental principles from, much that has been asserted by Bell, Carus, D'Arpentigny, Allen, Gessmann, Liersch, Landsberg,[1] etc., might be proved and tested. But their statements
[1] C. Bell: The Human Hand. London 1865.
K. G. Carus: <U:>ber Grund u. Bedeutung der verschiedenen Hand. Stuttgart
1864.
D'Arpentigny: La Chirognomie. Paris 1843.
Allen. Manual of Cheirosophy. London 1885.
Gessman: Die M<a:>nnerhand, Die Frauenhand, Die Kinderhand. Berlin
1892, 1893, 1894.
Liersch. Die linke Hand. Berlin 1893.
J. Landsberg: Die Wahrsagekunst aus der Menschlichen Gestalt. Berlin 1895.
<p 102>
are still subject to contradiction because their fundamental principles
are not sufficient for the development of a system. Probably
nobody will doubt some of the more common statements; all will
grant with Winkelmann that a beautiful hand is in keeping with a
beautiful soul; or with Balzac that people of considerable intellect
have handsome hands, or in calling the hand man's second face.
But when specific co-ordinations of the hand are made these meet
with much doubt. So for example, Esser[1] calls the _elementary_
hand essentially a work hand, the _motor_ essentially a masculine
hand, having less soul and refinement of character than will and
purposefulness. So again the _sensitive_ hand implies generally a
sanguine character, and the _psychic_ hand presents itself as the
possession of beautiful souls and noble spirits.
However true this classification may be, the establishment and description of the various significatory signs is very difficult, especially because the forms named rarely appear in clear and sharply defined subdivisions. The boundaries are fluid, like the characters themselves, and where the properties of one group pass almost directly into the other, both description and recognition are difficult. If, then, we can not depend upon a systematic, and at present remote treatment, we still may depend on well-founded observations which appear as reliable presuppositions in the light of their frequent repetition.
Not essentially psychological but of importance for the criminalist are the inferences we may draw from Herbert Spencer's assertion that people whose ancestors have worked with their hands possess heavy hands. Conversely, people whose ancestors have not worked hard with their hands possess small and fine hands. Hence the small delicate hands of Jews, the frequent perfection of form and invariable smallness of the hands of Gypsies, who have inherited their hands from high-cast Hindoos, and the so-called racial hands of real aristocrats. That hard work, even tumbling, piano playing, etc., should alter the form of a hand is self-evident, since muscles grow stronger with practice and the skin becomes coarser and drawn through friction, sharp wind and insufficient care. As is well known, physical properties are hereditary and observable in any study of races; is it any wonder that a skilled glance at a man's hand may uncover a number of facts concerning the circumstances of his life? Nobody doubts that there are raw, low, sensual, fat hands. And who does not know the suffering, spiritual, refined, and delicate
[1] W. Esser: Psychologie. M<u:>nster 1854.
<p 103>
hand? Hands cannot of course be described and distinguished
according to fixed classification, and no doubt Hellenbach was
right when he said, ``Who can discover the cause of the magic
charm which lies in one out of a hundred thousand equally beautiful
hands?''
And this is remarkable because we are not fooled through a well cared for, fine and elegant hand. Everybody, I might say, knows the convincing quality that may lie in the enormous leathery fist of a peasant. For that, too, is often harmoniously constructed, nicely articulated, appears peaceful and trustworthy. We feel that we have here to do with a man who is honest, who presents himself and his business as they are, who holds fast to whatever he once gets hold of, and who understands and is accustomed to make his words impressive. And we gain this conviction, not only through the evidence of honest labor, performed through years, but also through the stability and determination of the form of his hands. On the other hand, how often are we filled with distrust at the sight of a carefully tended, pink and white hand of an elegant gentleman-- whether because we dislike its condition or its shape, or because the form of the nails recalls an unpleasant memory, or because there is something wrong about the arrangement of the fingers, or because of some unknown reason. We are warned, and without being hypnotised, regularly discover that the warning is justified. Certain properties are sure to express themselves: coldness, prudence, hardness, calm consideration, greed, are just as indubitable in the hand as kindness, frankness, gentleness, and honesty.
The enchantment of many a feminine hand is easily felt. The surrender, the softness, the concession, the refinement and honesty of many a woman is so clear and open that it streams out, so to speak, and is perceivable by the senses.
To explain all this, to classify it scientifically and to arrange it
serially, would be, nowadays at least, an unscientific enterprise.
These phenomena pass from body to body and are as reliable as
inexplicable. Who has never observed them, and although his
attention has been called to them, still has failed to notice them,
need not consider them, but persons believing in them must be
warned against exaggeration and haste. The one advice that can
be given is to study the language of the hand before officially ignoring
it; not to decide immediately upon the value of the observations
one is supposed to have made, but to handle them cautiously and
to test them with later experiences. It is of especial interest to trace
<p 104>
the movement of the hand, especially the fingers. I do not mean
those movements which are external, and co-ordinate with the movements
of the arm; those belong to mimicry. I mean those that
begin at the wrist and therefore occur in the hand only. For the
study of those movements the hand of childhood is of little use,
being altogether too untrained, unskilled, and neutral. It shows
most clearly the movement of the desire to possess, of catching hold
and drawing toward oneself, generally toward the mouth, as does the
suckling child its mother's breast. This movement, Darwin has
observed even among kittens.
The masculine hand is generally too heavy and slow, clearly to exhibit the more refined movements; these are fully developed only in the feminine, particularly in the hands of vivacious, nervous, and spiritually excitable women. The justice who observes them may read more than he can in their owner's words. The hand lies in the lap apparently inert, but the otherwise well concealed anger slowly makes a fist of it, or the fingers bend characteristically forward as if they wished to scratch somebody's eyes out. Or they cramp together in deep pain, or the balls of the four other fingers pass with pleasure over the ball of the thumb, or they move spasmodically, nervously, impatiently and fearfully, or they open and close with characteristic enjoyment like the paws of cats when the latter feel quite spry.
Closer observation will show that toes reveal a great deal, particularly among women who wear rather fine shoes and hence can move their feet with greater ease. In anger, when they cannot, because it would be suggestive, stamp their feet, the women press their toes closely to the ground. If they are embarrassed they turn the sole of their shoe slightly inwards and make small curves with the point on the ground. Impatience shows itself through alternating and swinging pressure of heel and toe, repeated with increasing rapidity; defiance and demand through raising the toes in such a way that the sole is directly forward and the foot rests only on the heel. Sensuality is always indicated when the foot is put forward and the shin bone lightly stretched out, when all the toes are drawn in toward the sole just as the cat does when she feels good. What women do not say in words and do not express in their features and do not indicate in the movement of their hands, they say with their feet; the inner experience must express itself externally and the foot most betrays it.
In conclusion it ought to be kept in mind that the hands of all
<p 105>
those people who claim to be hard workers but who really try to
live without work, i. e. thieves, gamblers, etc., ought to be carefully
examined. Concerning the value of graphology see my ``Manual
for Examining Judges.''
TITLE B. THE CONDITIONS FOR DEFINING THEORIES.
Topic I. THE MAKING OF INFERENCES.
Section 22.
The study of the human soul as psychology, has for its subject the whole stream of conscious life and for its aim the discovery of the occurrence and relation of the laws of human thought. Now whether these relations imply the coherence of the objects thought about or not, so long as logic is dealing with the laws according to which thoughts must be correlated in order to attain to objectively valid knowledge, all questions that deal with the formal aspect of thinking do not enter the field of psychological investigation. The general psychological problem is to describe the actual psychic events as they occur, to analyze them into their simplest elements, and inasmuch as it is this purely pragmatic application of psychology to the problem of inference that concerns us, we need to deal only with that law which defines the combination of images and with the question,--how the spirit achieves this combination. The material aspect of this question is therefore psychological. The legal importance of the problem lies in the very potent fact that inferences and theories are often constructed which are formally or logically absolutely free of error, yet psychologically full of errors that no logic whatever could correct. We have, therefore, to consider at least the most important conditions which determine the manner of our inferences.
The right which lawyers possess of studying these questions, so far as they lie in our field, is of modern establishment. According to Hillebrand[1] the theory of knowledge has to-day broken up into individual theories, involving the certain needs of special fields of knowledge. The place of the epistomologists, who are professionals and beyond the pale of individual disciplines, is now taken by the representatives of those disciplines and each works expressly on his own epistomological problem. Our especial problem is the drawing of inferences from the material presented to us or brought together by our efforts, just as in other disciplines. If we set ourselves the
[1] F. Hillebrand: zur Lehre der Hypothesenbildung.
<p 106>
task of determining the procedure when subjecting the fundamental
principles of our work to revision and examining their utility, we
merely ask whether the process is voluntary or according to fixed
laws; and having cleared up that point we ask what influence
psychological conditions exercise on the situation. It is, indeed,
said that thinking is a congenital endowment, not to be learned from
rules. But the problem is not teaching the inferrer to think; the
problem is the examination of how inferences have been made by
another and what value his inferences may have for our own conclusions.
And our own time, which has been bold enough to lay
this final conclusion in even the most important criminal cases, in
the hands of laymen, this time is doubly bound at least to prepare
all possible control for this work, to measure what is finally taken
as evidence with the finest instruments possible, and to present to
the jury only what has been proved and repeatedly examined.
It might almost seem as if the task the jury trial sets the judge has not been clearly perceived. A judge who thinks he has performed it when he has cast before the jury the largest possible mass of testimony, more or less reviewed, and who sees how people, who perhaps for the first time in their lives, are involved in a court of law, who perhaps see a criminal for the first time, and are under these circumstances the arbiters of a man's fate,--a judge who sees all this and is satisfied, is not effective in his work. Nowadays more than ever, it is for the judge to test all evidence psychologically, to review what is only apparently clear, to fill out lacunae, and to surmount difficulties, before he permits the material brought together in a very few hours to pass into the jury's hands. According to Hillebrand, much that seems ``self-evident'' shows itself dependent on definite experience attained in the process of hundreds of repetitions in the daily life; the very impression of self-evidence is frequently produced by a mere chance instinct about what should be held for true. Hume has already shown how the most complex and abstract concepts are derived from sensation. Their relation must be studied, and only when we can account for every psychic process with which we have to concern ourselves, is our duty properly fulfilled.
Section 23. (a) Proof.
Mittermaier[1] holds that ``as a means of testimony in the legal sense of that term every possible source must be examined which
[1] C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen Strafprozess. Darmstadt 1834.
<p 107>
may suffice the judge according to law. And from such examination
only may the requisite certainties be attained from which
the judge is to assume as determined, facts relevant to his judgment.''
Only the phrase ``according to law'' needs explanation,
inasmuch as the ``source'' of reasons and certainties must satisfy
the legal demands not only formally but must sustain materially
every possible test, whether circumstantial or logico-psychologic.
If, for example, the fundamental sources should be a combination
of (1) a judicial examination of premises (lokalaugenschein), (2)
testimony of witnesses, and (3) a partial confession, the requirements
of the law would be satisfied if the protocol, (1), were
written or made according to prescribed forms, if a sufficient
number of properly summoned witnesses unanimously confirmed
the point in question, and if finally the confession were made
and protocoled according to law. Yet, though the law be satisfied,
not only may the conclusion be wholly false but every
particular part of the evidence may be perfectly useless, without the
presence anywhere of intentional untruth. The personal examination
may have been made by a judge who half the time, for some
sufficiently cogent reason, had a different conception of the case than
the one which later appeared to be true. It need not have been
necessary that there should be mixed therewith false information of
witnesses, incorrect observation, or such other mistakes. There need
only have been a presupposition, accepted at the beginning of the
examination, when the examination of the premises took place, as to
the visible condition of things; and this might have given apparent
justification to doubtful material and have rendered it intelligible,
only to be shown later as false. The so-called ``local examination''
however, is generally supposed to be ``objective.'' It is supposed
to deal only with circumstantial events, and it does not occur to
anybody to modify and alter it when it is certainly known that at
another point the situation has taken an altogether different form.
The objectivity of the local examination is simply non-existent, and
if it were really objective, i. e., contained merely dry description
with so and so many notations of distances and other figures, it
would be of no use. Every local examination, to be of use, must
give an accurate picture of the mental process of him who made it.
On the one hand it must bring vividly to the mind of the reader,
even of the sentencing judge, what the situation was; on the other,
it must demonstrate what the examiner thought and represented
to himself in order that the reader, who may have different opinions,
<p 108>
may have a chance to make corrections. If I, for example, get the
impression that a fire was made through carelessness, and that
somebody lost his life on account of it, and if I made my local
examination with this presupposition in mind, the description will
certainly seem different from that made under the knowledge that
the fire was intentional and made to kill. At trial the description
of local conditions will be read and entered as important testimony.
It satisfies the law if it is taken according to form, has the correct
content, and is read as prescribed. But for our conscience and in
truth this manuscript can be correct only when it is logically and
psychologically presented revised according to the viewpoint its
writer would have had if he had been in possession of all the facts
in possession of the reader. This work of reconstruction belongs to
the most difficult of our psychological tasks--but it must be performed
unless we want to go on superficially and without conscience.
The judgment and interpretation of the testimony of witnesses, (2), demand similar treatment. I am legally right if I base my judgment on the testimony of witnesses (provided there are enough of them and they are properly subpoenaed) if nothing suggestive is offered against their testimony, if they do not contradict each other, and especially if there are no contradictions in the testimony of any single individual. This inner contradiction is rather frequent, and the inattention with which the protocols, as a rule, are read, and the scanty degree in which the testimony is tested logically and psychologically, are shown clearly by the fact that the inner contradictions are not observed and worked over more frequently. As evidence of this, let us consider a few cases that are generally told as extravagant jokes. Suppose that a man dreamed that his head was cut off and that that dream so affected him that he died of apoplexy-- yet not everybody asks how the dream was discovered. In a like manner people hear with disgust that somebody who has lost his arm, in despair cut off his other arm with an axe in order more easily to get assistance, and yet they do not ask ``how.'' Or again when somebody is asked if he knows the romance ``The Emperor Joseph and The Beautiful Railway-signal-man's Daughter,'' the anachronism of the title does not occur to him, and nobody thinks of the impossibilities of the vivid description of a man walking back and forth, with his hands behind his back, reading a newspaper.
Much testimony contains similar, if not so thorough-going contradictions.
If they are credited in spite of this fact the silly be-
<p 109>
liever may be blamed, but he is justified in the eyes of the law if
the above-mentioned legal conditions were satisfied. Hence, the
frightfully frequent result: ``Whether the witness's deposition is
true, is a matter for his own conscience; eventually he may be
arrested for perjury, but he has made his statements and I judge
accordingly.'' What is intended with such a statement is this: ``I
hide behind the law, I am permitted to judge in such a case in such
a way, and nobody can blame me.'' But it is correct to assert that
in such cases there is really no evidence, there is only a form of
evidence. It can be actually evidential only when the testimony is
tested logically and psychologically, and the ability and willingness
of the witness to tell the truth is made clear. Of course it is true, as
Mittermaier says, that the utterance of witnesses is tested by its
consistency with other evidence, but that is neither the only test
nor the most valid, for there is always the more important internal
test, in the first place; and in the second place, it is not conclusive
because the comparison may reveal only inconsistency, but can
not establish which of the conflicting statements is correct. Correctness
can be determined only through testing the single statements,
the willingness and ability of each witness, both in themselves
and in relation to all the presented material.
Let us take now the third condition of our suppositious case, i. e. partial confession. It is generally self-evident that the value of the latter is to be judged according to its own nature. The confession must be accepted as a means of proof, not as proof, and this demands that it shall be consistent with the rest of the evidence, for in that way only can it become proof. But it is most essential that the confession shall be internally tested, i. e. examined for logical and psychological consistency. This procedure is especially necessary with regard to certain definite confessions.
(a) Confessions given without motive.
(b) Partial confessions.
(c) Confessions implying the guilt of another.
(a) Logic is, according to Schiel[1] the science of evidence--not of finding evidence but of rendering evidence evidential. This is particularly true with regard to confessions, if we substitute psychology for logic. It is generally true that many propositions hold so long only as they are not doubted, and such is the case with many confessions. The crime is confessed; he who confesses to it is always a criminal, and no man doubts it, and so the confession
[1] J. Schiel: Die Methode der Induktiven Forschung. Braunschweig 1865.
<p 110>
stands. But as soon as doubt, justified or unjustified, occurs, the
question takes quite a different form. The confession has first
served as proof, but now psychological examination alone will show
whether it can continue to serve as proof.
The most certain foundation for the truth of confession in any case is the establishment of a clear motive for it--and that is rarely present. Of course the motive is not always absent because we do not immediately recognize it, but it is not enough to suppose that the confession does not occur without a reason. That supposition would be approximately true, but it need not be true. If a confession is to serve evidentially the motive _*must_ be clear and indubitable. Proof of its mere existence is insufficient; we must understand the confession in terms of all the factors that caused it. The process of discovering these factors is purely logical and generally established indirectly by means of an apagogue. This is essentially the proof by negation, but it may serve in connection with a disjunctive judgment which combines possible alternatives as a means of confirmation. We are, then, to bring together all conceivable motives and study the confession with regard to them. If all, or most of them, are shown to be impossible or insufficient, we have left only the judgment of one or more conclusions, and with this we have an essentially psychological problem. Such a problem is seldom simple and easy, and as there is no possibility of contradiction, the danger is nowhere so great of making light of the matter. ``What is reasserted is half proved.'' That is a comfortable assertion, and leads to considerable incorrectness. A confession is only established in truth when it is construed psychologically, when the whole inner life of the confessor and his external conditions are brought into relation with it, and the remaining motives established as at least possible. And this must be done to avoid the reproach of having condemned some confessor without evidence, for a confession having no motive may be untrue, and therefore not evidential.
(b) _Partial confessions_ are difficult, not only because they make
it harder to prove the evidence for what is not confessed, but also
because what is confessed appears doubtful in the light of what is
not. Even in the simplest cases where the reason for confession and
silence seems to be clear, mistakes are possible. If, for example, a
thief confesses to having stolen only what has been found in his
possession but denies the rest, it is fairly probable that he hopes
some gain from the evidence in which there appears to be no proof
<p 111>
of his having stolen what has not been found upon him. But though
this is generally the case, it might occur that the thief wants to
assume the guilt of another person, and hence naturally can confess
only to what he is accused of, inasmuch as he either has insufficient
or no evidence whatever of his guilt for the rest of the crime.
Another fairly clear reason for partial confession, is shown in the confession to a certain degree of malicious intent, as the denial of the intent to kill. If this is made by a person who may be supposed to know the legal situation, either because of earlier experience or for other reasons, there is sufficient justification for doubting the honesty of his confession. Most of such cases belong to the numerous class in which the defendant confesses to a series of facts or a number of things, and denies a few of them without any apparent reason; he may confess to a dozen objects used in an assault and simply refuse to discuss two probably quite insignificant ones. If such a case comes up for judgment to the full bench, half the judges say that since he has stolen twelve he must have taken the other two, and the other half say that since he has confessed to twelve he would have confessed to the other two if he had taken them. Generally speaking, both sides are right; one inference is as justified as the other. As a rule, such cases do not repay a great deal of troublesome examination, inasmuch as the question of A's having stolen twelve or fourteen objects can little affect either his guilt or his sentence. But it is to be remembered that it is never indifferent whether a man pleads guilty or not guilty, and later on, especially in another case, it may be quite the reverse of indifferent whether a man is condemned because of a matter indifferent to-day. Suppose that the denied theft was of a worthless but characteristic thing, e. g. an old prayer-book. If now the thief is again suspected of a robbery which he denies and the theft is again that of an old prayerbook, then it is not indifferent as a matter of proof whether the man was condemned for stealing a prayer-book or not. If he was so condemned, there will already be remarks about, ``a certain passion for old prayer-books,'' and the man will be suspected of the second theft.
In regard to the possession of stolen goods, such a sentence may
have similar significance. I recall a case in which several people
were sentenced for the theft of a so-called fokos (a Hungarian cane
with a head like an ax). Later a fokos was used in murder in the
same region and the first suspicion of the crime was attached to the
thief, who might, because of his early crime, have been in possession
<p 112>
of a fokos. Now suppose that the man had confessed to theft of
everything but the fokos, and that he had been condemned on the
basis of the confession, the fact would be of far-reaching significance
in the present case. Of course it is not intended that the old case
is to be tried again before the new. That would be a difficult job
after the lapse of some time, and in addition, would be of little use,
for everybody recalls the old judgment anyway and supposes that
the circumstances must have been such as to show the man guilty.
If a man is once sentenced for something he has not confessed to,
the stigma remains no matter how the facts may be against it.
Experience has shown that the victims of theft count everything stolen that they do not discover at the first glance. And it might have been lost long before the theft, or have been stolen at an earlier or a later time. For this reason it often happens that servants, and even the children of the house or other frequenters, take the robbery as an opportunity for explaining the disappearance of things they are responsible for or steal afresh and blame it upon ``the thief.'' The quantity stolen is generally exaggerated, moreover, in order to excite universal sympathy and perhaps to invoke help. In general, we must hold that there is no psychological reason that a confessor should deny anything the confession of which can bring him no additional harm. The last point must be carefully treated, for it requires taking the attitude of the accused and not of the examiner. It is the former's information and view-point that must be studied, and it often contains the most perverted view-points; e. g., one man denies out of mere obstinacy because he believes that his guilt is increased by this or that fact. The proposition: who has stolen one thing, has also stolen the rest, has slight justification.
(c) If a denying fellow-criminal is accused by a confession, the
interpretation of the latter becomes difficult. First of all, the pure
kernel of the confession must be brought to light, and everything
set aside that might serve to free the confessor and involve the other
in guilt. This portion of the work is comparatively the easiest,
inasmuch as it depends upon the circumstances of the crime. It
is more difficult to determine what degree of crime the confessor
attached to himself by accusing also the other man, because clearness
can be reached in such a case only by working out the situation
from beginning to end in two directions; first, by studying it without
reference to the fellow-criminal, second, with such reference. The
complete elimination of the additional circumstance is exceedingly
troublesome because it requires the complete control of the material
<p 113>
and because it is always psychologically difficult so to exclude an
event already known in its development and inference as to be able
to formulate a theory quite without reference to it.
If this is really accomplished and some positive fact is established in the self-accusation, the question becomes one of finding the value seen by the confessor in blaming himself together with his fellow. Revenge, hatred, jealousy, envy, anger, suspicion, and other passions will be the forces in which this value will be found. One man brings his ancient comrade into jeopardy in revenge for the latter's injustice in the division of the booty, or in deliberate anger at the commission of some dangerous stupidity in a burglary. Again, it often happens that he or she, through jealousy, accuses her or him in order that the other may be also imprisoned, and so not become disloyal. Business jealousy, again, is as influential as the attempt to prevent another from disposing of some hidden booty, or from carrying out by himself some robbery planned in partnership. These motives are not always easy to discover but are conceivable. There are also cases, not at all rare, in which the ordinary man is fully lacking in comprehension of ``the substitute value,'' which makes him confess the complicity of his fellow. I am going to offer just one example, and inasmuch as the persons concerned are long since dead, will, by way of exception, mention their names and the improbability of their stories. In 1879 an old man, Blasius Kern, was found one morning completely snowed over and with a serious wound in the head. There was no possible suspicion of robbery as motive of the murder, inasmuch as the man was on his way home drunk, as usual, and it was supposed that he had fallen down and had smashed his skull. In 1881 a young fellow, Peter Seyfried, came to court and announced that he had been hired by Blasius Kern's daughter, Julia Hauck, and her husband August Hauck, to kill the old fellow, who had become unendurable through his love of drink and his endless quarrelsomeness; and accordingly he had done the deed. He had been promised an old pair of trousers and three gulden, but they had given him the trousers, not the money, and as all his attempts to collect payment had failed he divulged the secret of the Hauck people. When I asked him if he were unaware that he himself was subject to the law he said, ``I don't care; the others at least will also be punished;--why haven't they kept their word.'' And this lad was very stupid and microcephalic, but according to medicolegal opinion, capable of distinguishing between right and wrong. His statements proved themselves true to the very last point. <p 114>
So significantly weak as this in fundamental reliability, very few confessions will appear to be, but the reasons for confessions, difficult both to find and to judge, are many indeed. The only way to attain certainty is through complete and thorough-going knowledge of all the external conditions, but primarily through sound psychological insight into the nature of both the confessor and those he accuses. Evidently the first is by far the more important: what he is beneath the surface, his capacities, passions, intentions, and purposes, must all be settled if any decision is to be arrived at as to the advantage accruing to a man by the accusation of others. For example, the passionate character of some persons may indicate beyond a doubt that they might find pleasure in suffering provided they could cause suffering to others at that price. Passion is almost always what impels men, and what passion in particular lies behind a confession will be revealed partly by the crime, partly by the relation of the criminals one to the other, partly by the personality of the new victim. If this passion was strong enough to deal, if I may use the term, anti-egoistically, it can be discovered only through the study of its possessor. It may be presupposed that everybody acts according to his own advantage--the question asks merely what this advantage is in the concrete, and whether he who seeks it, seeks it prudently. Even the satisfaction of revenge may be felt as an advantage if it is more pleasurable than the pain which follows confession--the matter is one of relative weight and is prudently sought as the substitution of an immediate and petty advantage for a later and greater one.
Another series of procedures is of importance in determining proof,
where circumstances are denied which have no essential relation to
the crime. They bring the presentation of proof into a bypath so
that the essential problem of evidence is left behind. Then if the
denied circumstance is established as a fact it is falsely supposed
that the guilt is so established. And in this direction many mistakes
are frequently made. There are two suggestive examples.
Some years ago there lived in Vienna a very pretty bachelor girl,
a sales-person in a very respectable shop. One day she was found
dead in her room. Inasmuch as the judicial investigation showed
acute arsenic poisoning, and as a tumbler half full of sweetened
water and a considerable quantity of finely powdered arsenic was
found on her table, these two conditions were naturally correlated.
From the neighbors it was learned that the dead girl had for some
time been intimate with an unknown gentleman who visited her
<p 115>
frequently, but whose presence was kept as secret as possible by
both. This gentleman, it was said, had called on the girl on the
evening before her death. The police inferred that the man was a
very rich merchant, residing in a rather distant region, who lived
peaceably with his much older wife and therefore kept his illicit
relations with the girl secret. It was further established at the autopsy
that the girl was pregnant, and so the theory was formed that the
merchant had poisoned his mistress and in the examination this
deed was set down against him. Now, if the man had immediately
confessed that he knew the dead girl, and stood in intimate relation
with her and that he had called on her the last evening; if he had
asserted perhaps that she was in despair about her condition, had
quarreled with him and had spoken of suicide, etc., then suicide
would unconditionally have had to be the verdict. In any event,
he never could have been accused, inasmuch as there was no additional
evidence of poisoning. But the man conceived the unfortunate
notion of denying that he knew the dead girl or had any
relations with her, or that he had ever, even on that last evening,
called on her. He did this clearly because he did not want to
confess a culpable relation to public opinion, especially to his
wife. And the whole question turned upon this denied circumstance.
The problem of evidence was no longer, ``Has he killed
her,'' but ``Did he carry on an intimacy with her.'' Then it was
proved beyond reasonable doubt through a long series of witnesses
that his visits to the girl were frequent, that he had been there on
the evening before her death, and that there could be no possible
doubt as to his identity. That settled his fate and he was sentenced
to death. If we consider the case psychologically we have
to grant that his denial of having been present might have for motive
as much the fact that he had poisoned the girl, as that he did not
want to admit the relation at the beginning. Later on, when he
completely understood the seriousness of his situation, he thought
a change of front too daring and hoped to get on better by sticking
to his story. Now, as we have seen, what was proved was the fact
that he knew and visited the girl; what he was sentenced for was
the murder of the girl.
A similar case, particularly instructive in its development, and
especially interesting because of the significant study (of the
suggestibility of witnesses) of Dr. Von Schrenck-Notzing and Prof.
Grashey, kept the whole of Munich in excitement some years ago.
A widow, her grown-up daughter, and an old servant were stifled
<p 116>
and robbed in their home. The suspicion of the crime fell
upon a brick-layer who had once before made a confession
concerning another murder and of whom it was known that some
time before the deed was done he had been building a closet into
the house of the three murdered women. Through various combinations
of the facts the supposition was reached that the
mason got entry into the house on the pretense of examining
whether or not the work he had done on the closet had caused
any damage, and had then committed the thieving murder.
Now here again, if the mason had said: ``Yes, I was without
a job, wanted to get work, entered the house under the assigned
pretense, and appeared to see about the closet and had myself paid
for the apparently repaired improvement, left the three women
unharmed, and they must only after that have been killed,''--if
he had said this, his condemnation would have been impossible,
for all the other testimony was of subordinate importance. Now
suppose the man was innocent, what could he have thought: ``I
have already been examined once in a murder case, I found myself
in financial difficulties, I still am in such difficulties--if I admit
that I was at the place of the crime at the time the crime was committed,
I will get into serious trouble, which I won't, if I deny my
presence.'' So he really denied having been in the house or in
the street for some time, and inasmuch as this was shown by many
witnesses to be untrue, his presence at the place where the crime
was committed was identified with the unproved fact that he had
committed it, and he was condemned.
I do not assert that either one or the other of these persons was condemned guiltlessly, or that such ``side issues'' have no value and ought not to be proved. I merely point out that caution is necessary in two directions. First of all, these side issues must not be identified with the central issue. Their demonstration is only preparatory work, the value of which must be established cautiously and without prejudice. It may be said that the feeling of satisfaction with what has been done causes jurists frequently to forget what must yet be done, or to undervalue it. Further, a psychological examination must seek out the motives which led or might have led the accused to deny some point not particularly dangerous to him. In most cases an intelligible ground for such action can be discovered, and if the psychologically prior conditions are conceived with sufficient narrowness to keep us from assuming unconditional guilt, we are at least called upon to be careful. <p 117>
This curious danger of identification of different issues as the aim of presentation of evidence, occurs much more frequently and with comparatively greater degree in the cases of individual witnesses who are convinced of the principal issue when a side issue is proved. Suppose a witness is called on to identify a man as somebody who had stabbed him in a serious assault, and that he has also to explain whether the quarrel he had had with this man a short time ago was of importance. If the suspect is desirous of having the quarrel appear as harmless, and the wounded person asserts that the quarrel was serious, the latter will be convinced, the moment his contention may be viewed as true, that his opponent was really the person who had stabbed him. There is, of course, a certain logical justification for this supposition, but the psychological difficulty with it is the fact that this case, like many others, involves the identification of what is inferred with what is perceived. It is for this reason that the mere fact of arrest is to most people a conviction of guilt. The witness who had first identified A as only the probable criminal becomes absolutely convinced of it when A is presented to him in stripes, even though he knows that A has been arrested on his own testimony alone. The appearance and the surroundings of the prisoner influence many, and not merely uneducated people, against the prisoner, and they think, involuntarily, ``If he were not the one, they would not have him here.''
Section 24. (b) Causation.[1]
If we understand by the term cause the axiom that every change has an occasion, hence that every event is bound up with a number of conditions which when lacking in whole or in part would prevent the appearance of the event, while their presence would compel its appearance, then the whole business of the criminalist is the study of causes. He must indeed study not only whether and how crime and criminal are causally related, but also how their individual elements are bound to each other and to the criminal; and finally, what causation in the criminal, considered with regard to his individual characteristics, inevitably led to the commission of the crime. The fact that we deal with the problem of cause brings us close to other sciences which have the same task in their own re-
[1] Max Mayer: Der Kausalzusammenhang zwischen Handlung und Erfolg
in Strafrecht. 1899.
von Rohland. Die Kausallehre im Strafreeht. Leipzig 1903
H. Gross's Archiv, XV, 191.
<p 118>
searches; and this is one of the reasons for the criminalist's necessary
concern with other disciplines. Of course no earnest criminalist
can pursue other studies for their own sane, he has no time; but he
must look about him and study the methods used in other sciences.
In the other sciences we learn method, but not as method, and
that is all that we need. And we observe that the whole problem
of method is grounded on causation. Whether empirically or
aprioristically does not matter. We are concerned solely with causation.
In certain directions our task is next to the historians' who aim to bring men and events into definite causal sequence. The causal law is indubitably the ideal and only instructive instrument in the task of writing convincing history, and it is likewise without question that the same method is specifically required in the presentation of evidence. Thus: ``This is the causal chain of which the last link is the crime committed by A. Now I present the fact of the crime and include only those events which may be exclusively bound up with A's criminality--and the crime appears as committed. Now again, I present the fact of the crime and exclude all those events which can without exception be included only if A is not a criminal-- and there is no crime.''[1]
Evidently the finding of causes involves, according to the complexities of the case, a varying number of subordinate tasks which have to be accomplished for each particular incident, inasmuch as each suspicion, each statement _pro_ or _con_ has to be tested. The job is a big one but it is the only way to absolute and certain success, provided there is no mistake in the work of correlating events. As Schell says: ``Of all the observed identities of effect in natural phenomena only one has the complete strength of mathematical law--the general law of causation. The fact that everything that has a beginning has a cause is as old as human experience.'' The application of this proposition to our own problem shows that we are not to turn the issue in any unnecessary direction, once we are convinced that every phenomenon has its occasion. We are, on the contrary, to demonstrate this occasion and to bring it into connection with every problem set by the testimony at any moment. In most cases the task, though not rigidly divided, is double and its quality depends upon the question whether the criminal was known from the beginning or not. The duality is foremost, and lasts
[1] Cf. S. Strieker: Studien <u:>ber die Assoziation der Vorstellungen. Vienna 1883.
<p 119>
longest if only the deed itself is known, and if the judge must limit
himself entirely to its sole study in order to derive from it its objective
situation.
The greatest mistakes in a trial occur when this derivation of the objective situation of the crime is made unintelligently, hastily or carelessly, and conversely the greatest successes are due to its correct rendering. But such a correct rendering is no more than the thoroughgoing use of the principle of causality. Suppose a great crime has been committed and the personality of the criminal is not revealed by the character of the crime. The mistake regularly made in such a case is the immediate and superficial search for the personality of the criminal instead of what should properly proceed--the study of the causal conditions of the crime. For the causal law does not say that everything which occurs, taken as a whole and in its elements, has one ground--that would be simply categorical emptiness. What is really required is an efficient and satisfying cause. And this is required not merely for the deed as a whole but for every single detail. When causes are found for all of these they must be brought together and correlated with the crime as described, and then integrated with the whole series of events.
The second part of the work turns upon the suspicion of a definite person when his own activity is interpolated as a cause of the crime. Under some conditions again, the effect of the crime on the criminal has to be examined, i. e., enrichment, deformation, emotional state, etc. But the evidence of guilt is established only when the crime is accurately and explicitly described as the inevitable result of the activity of the criminal and his activity only. This systematic work of observing and correlating every instant of the supposed activities of the accused (once the situation of the crime is defined as certainly as possible), is as instructive as it is promising of success. It is the one activity which brings us into touch with bare perception and its reproduction. ``All inference with regard to facts appears to depend upon the relation of cause to effect; by virtue of this relation alone may we rely upon the evidence of our memories and our senses.''[1] Hume illustrates this remark with the following example: If a clock or some other machine is found on a desert island, the conclusion is drawn that men are or were on the island. The application is easy enough. The presence of a clock, the presence of a three-cornered wound is perceived by the senses--that men were there, that the wound was made with a specific kind of in-
[1] Meinong: Humestudien. Vienna 1882.
<p 120>
strument, is a causal inference. Simple as this proposition of Hume's
is, it is of utmost importance in the law because of the permanent
and continually renewed problems: What is the effect in _*this_ case?
What is the cause? Do they belong together? Remembering that
these questions make our greatest tasks and putting them, even
beyond the limit of disgust, will save us from grave errors.
There is another important condition to which Hume calls attention and which is interpreted by his clever disciple Meinong. It is a fact that without the help of previous experience no causal nexus can be referred to an observation, nor can the presence of such be discovered in individual instances. It may be postulated only. A cause is essentially a complex in which every element is of identical value. And this circumstance is more complicated than it appears to be, inasmuch as it requires reflection to distinguish whether only one or more observations have been made. Strict self-control alone and accurate enumeration and supervision will lead to a correct decision as to whether one or ten observations have been made, or whether the notion of additional observations is not altogether illusory.
This task involves a number of important circumstances. First of all must be considered the manner in which the man on the street conceives the causal relation between different objects. The notion of causality, as Schwarz[1] shows, is essentially foreign to the man on the street. He is led mainly by the analogy of natural causality with that of human activity and passivity, e. g., the fire is active with regard to water, which simply must sizzle passively. This observation is indubitably correct and significant, but I think Schwarz wrong to have limited his description to ordinary people; it is true also of very complex natures. It is conceivable that external phenomena shall be judged in analogy with the self, and inasmuch as the latter often appears to be purely active, it is also supposed that those natural phenomena which appear to be especially active are really so.
In addition, many objects in the external world with which we have a good deal to do, and are hence important, do as a matter of fact really appear to be active--the sun, light, warmth, cold, the weather, etc., so that we assign activity and passivity only according to the values the objects have for us. The ensuing mistake is the fact that we overlook the alternations between activity and pas-
[1] Das Wahrnehmungsproblem von Standpunkte des Physikers, Physiologen und Philosophen. Leipzig 1892.
<p 121>
sivity, or simply do not make the study such alternations require;
yet the correct apportionment of action and reaction is, for us, of
greatest importance. In this regard, moreover, there is always the
empty problem as to whether two things may stand in causal relation,--
empty, because the answer is always yes. The scientific
and practical problem is as to whether there exists an actual causal
nexus. The same relation occurs in the problem of reciprocal influences.
No one will say, for example, that any event exercises a
reciprocal influence on the sun, but apart from such relatively few
cases it would not only be supposed that A is the cause of the effect
B, but also that B might have reciprocally influenced A. Regard
for this possibility may save one from many mistakes.
One important source of error with regard to cause and effect lies in the general and profound supposition that the cause must have a certain similarity to the effect. So Ovid, according to J. S. Mill, has Medea brew a broth of long-lived animals; and popular superstitions are full of such doctrine. The lung of a long-winded fox is used as a cure for asthma, the yarrow is used to cure jaundice, agaricos is used for blisters, aristolochia (the fruit of which has the form of a uterus) is used for the pains of child-birth, and nettle-tea for nettle-rash. This series may be voluntarily increased when related to the holy patron saints of the Catholic Church, who are chosen as protectors against some especial condition or some specific difficulty because they at one time had some connection with that particular matter. So the holy Odilia is the patron saint for diseases of the eye, not because she knew how to cure the eyes, but because her eyes were put out with needles. The thief Dismas is the patron of the dying because we know nothing about him save that he died with Christ. St. Barbara, who is pictured together with a tower in which she was imprisoned, and which was supposed to be a powder house, has become the patron saint of artillery. In the same manner St. Nicholas is, according to Simrock, the patron of sailors because his name resembles Nichus, Nicor, Nicker, which is the name of the unforgotten old German sea-deity.
Against such combinations, external and unjustified, not even
the most educated and skilful is safe. Nobody will doubt that he
is required to make considerable effort in his causal interpretation
because of the sub-conscious influence of such similarities. The
matter would not be so dangerous, all in all, because such mistakes
may be easily corrected and the attention of people may be called
<p 122>
to the inadequacy of such causation--but the reason for this kind
of correlations is rarely discovered. Either people do not want to
tell it because they instinctively perceive that their causal interpretation
cannot be justified, or they cannot even express it because
the causal relation had been assumed only subconsciously, and
they are hence unaware of the reasons for it and all the more convinced
that they are right. So for example, an intelligent man told
me that he suspected another of a murder because the latter's mother
died a violent death. The witness stuck to his statement: ``the
man who had once had something to do with killing must have
had something to do with this killing.'' In a similar manner, a
whole village accused a man of arson because he was born on the
night on which a neighboring village burned down. Here, however,
there was no additional argument in the belief that his mother had
absorbed the influence of the fire inasmuch as the latter was told
that there had been a fire only after the child was born. ``He once
had something to do with fire,'' was the basis of the judgment,
also in this case.
There are innumerable similar examples which, with a large
number of habitual superstitious presuppositions, make only false
causality. Pearls mean tears because they have similar form;
inasmuch as the cuckoo may not without a purpose have only two
calls at one time and ten or twenty at another, the calls must mean
the number of years before death, before marriage, or of a certain
amount of money, or any other countable thing. Such notions
are so firmly rooted in the peasantry and in all of us, that they come
to the surface, whether consciously or unconsciously, and influence
us more than we are accustomed to suppose they do. Whenever
anybody assures us that he is able to assert absolutely, though
not altogether prove a thing, this assurance may be variously
grounded, but not rarely it is no more than one of these false correlations.
Schopenhauer has said, that ``motivation is causality
seen from within,''--and one may add conversely that causality
is motivation seen from without. What is asserted must be motivated,
and that is done by means of causality--if no real ultimate
cause is found a false, superficial and insufficient one is adopted,
inasmuch as we ever strive to relate things causally, in the knowledge
that, otherwise, the world would be topsy-turvy. ``Everywhere,''
says Stricker, ``we learn that men who do not associate their
experiences according to right cause are badly adapted to their
environment; the pictures of artists are disliked, the laborer's
<p 123>
work does not succeed; the tradesman loses his money, and the
general his battle. And we may add, ``The criminalist his case.''
For whoever seeks the reason for a lost case certainly will find it
in the ignorance of the real fact and in the incorrect co<o:>rdination
of cause and effect. The most difficult thing in such co<o:>rdination
is not that it has to be tested according to the notion one has for
himself of the chain of events; the difficulty lies in the fact that the
point of view and mental habits of the man who is suspected of
the effects must be adopted. Without this the causal relations as
they are arrived at by the other can never be reached, or different
results most likely ensue.
The frequency of mistakes like those just mentioned is well known. They affect history. Even La Rochefoucauld was of the opinion that the great and splendid deeds which are presented by statesmen as the outcome of far-reaching plans are, as a rule, merely the result of inclination and passion. This opinion concerns the lawyer's task also, for the lawyer is almost always trying to discover the moving, great, and unified plan of each crime, and in order to sustain such a notion, prefers to perfect a large and difficult theoretic construction, rather than to suppose that there never was a plan, but that the whole crime sprang from accident, inclination, and sudden impulse. The easiest victims in this respect are the most logical and systematic lawyers; they merely presuppose, ``I would not have done this'' and forget that the criminal was not at all so logical and systematic, that he did not even work according to plan, but simply followed straying impulses.
Moreover, a man may have determined his causal connections
correctly, yet have omitted many things, or finally have made a
voluntary stop at some point in his work, or may have carried the
causal chain unnecessarily far. This possibility has been made
especially clear by J. S. Mill, who showed that the immediately
preceding condition is never taken as cause. When we throw a stone
into the water we call the cause of its sinking its gravity, and not
the fact that it has been thrown into the water. So again, when a
man falls down stairs and breaks his foot, in the story of the fall
the law of gravity is not mentioned; it is taken for granted. When
the matter is not so clear as in the preceding examples, such facts
are often the cause of important misunderstandings. In the first
case, where the immediately preceding condition is _*not_ mentioned,
it is the inaccuracy of the expression that is at fault, for we see that
at least in scientific form, the efficient cause is always the immedi-
<p 124>
ately preceding condition. So the physician says, ``The cause of
death was congestion of the brain in consequence of pressure resulting
from extravasation of the blood.'' And he indicates only
in the second line that the latter event resulted from a blow on
the head. In a similar manner the physicist says that the board
was sprung as a consequence of the uneven tension of the fibers;
he adds only later that this resulted from the warmth, which again
is the consequence of the direct sunlight that fell on the board.
Now the layman had in both cases omitted the proximate causes
and would have said in case 1, ``The man died because he was
beaten on the head,'' and in case 2 ``The board was sprung because
it lay in the sun.'' We have, therefore, to agree to the surprising
fact that the layman skips more intermediaries than the professional,
but only because either he is ignorant of or ignores the intervening
conditions. Hence, he is also in greater danger of making
a mistake through omission.
Inasmuch as the question deals only with the scarcity of correct knowledge of proximate causes, we shall set aside the fact that lawyers themselves make such mistakes, which may be avoided only by careful self-training and cautious attention to one's own thoughts. But we have at the same time to recognize how important the matter is when we receive long series of inferences from witnesses who give expression only to the first and the last deduction. If we do not then examine and investigate the intermediary links and their justification, we deserve to hear extravagant things, and what is worse, to make them, as we do, the foundation of further inference. And once this is done no man can discover where the mistake lies.
If again an inference is omitted as self-evident (cf. the case of
gravity, in falling down stairs) the source of error and the difficulty
lies in the fact that, on the one hand, not everything is as self-evident
as it seems; on the other, that two people rarely understand the
same thing by ``self-evident,'' so that what is self-evident to one
is far from so to the other. This difference becomes especially clear
when a lawyer examines professional people who can imagine
offhand what is in no sense self-evident to persons in other walks
of life. I might cite out of my own experience, that the physicist
Boltzmann, one of the foremost of living mathematicians, was told
once upon a time that his demonstrations were not sufficiently
detailed to be intelligible to his class of non-professionals, so that
his hearers could not follow him. As a result, he carefully counted
the simplest additions or interpolations on the blackboard, but at
<p 125>
the same time integrated them, etc., in his head, a thing which very
few people on earth can do. It was simply an off-hand matter for
this genius to do that which ungenial mortals can not.
This appears in a small way in every second criminal case. We have only to substitute the professionals who appear as witnesses. Suppose, e. g., that a hunter is giving testimony. He will omit to state a group of correlations; with regard to things which are involved in his trade, he will reach his conclusion with a single jump. Then we reach the fatal circle that the witness supposes that we can follow him and his deductions, and are able to call his attention to any significant error, while we, on the other hand, depend on his professional knowledge, and agree to his leaping inferences and allow his conclusions to pass as valid without knowing or being able to test them.
The notion of ``specialist'' or ``professional'' must be applied in such instances not only to especial proficients in some particular trade, but also to such people as have by accident merely, any form of specialized knowledge, e. g., knowledge of the place in which some case had occurred. People with such knowledge present many a thing as self-evident that can not be so to people who do not possess the knowledge. Hence, peasants who are asked about some road in their own well known country reply that it is ``straight ahead and impossible to miss'' even when the road may turn ten times, right and left.
Human estimates are reliable only when tested and reviewed at each instant; complicated deductions are so only when deduction after deduction has been tested, each in itself, Lawyers must, therefore, inevitably follow the rule of requiring explication of each step in an inference--such a requirement will at least narrow the limits of error.
The task would be much easier if we were fortunate enough to be able to help ourselves with experiments. As Bernard[1] says, ``There is an absolute determinism in the existential conditions of natural phenomena, as much in living as in non-living bodies. If the condition of any phenomenon is recognized and fulfilled the phenomenon must occur whenever the experimenter desires it.'' But such determination can be made by lawyers in rare cases only, and to-day the criminalist who can test experimentally the generally asserted circumstance attested by witnesses, accused, or experts,
[1] C. Bernard: Introduction <a!> l'Etude de la Med<e'>cine Experimentale. Paris 1871.
<p 126>
is a rarissima avis. In most cases we have to depend on our experience,
which frequently leaves us in difficulties if we fail thoroughly
to test it. Even the general law of causation, that every
effect has its cause, is formulated, as Hume points out, only as a
matter of habit. Hume's important discovery that we do not
observe causality in the external world, demonstrates only the
difficulty of the interpretation of causality. The weakness of his
doctrine lies in his assertion that the knowledge of causality may be
obtained through habit because we perceive the connection of
similars, and the understanding, through habit, deduces the appearance
of the one from that of the other. These assertions of
the great thinker are certainly correct, but he did not know how
to ground them. Hume teaches the following doctrine:
The proposition that causes and effects are recognized, not by the understanding but because of experience, will be readily granted if we think of such things as we may recollect we were once altogether unacquainted with. Suppose we give a man who has no knowledge of physics two smooth marble plates. He will never discover that when laid one upon the other they are hard to separate. Here it is easily observed that such properties can be discovered only through experience. Nobody, again, has the desire to deceive himself into believing that the force of burning powder or the attraction of a magnet could have been discovered a priori. But this truth does not seem to have the same validity with regard to such processes as we observed almost since breath began. With regard to them, it is supposed that the understanding, by its own activity, without the help of experience can discover causal connections. It is supposed that anybody who is suddenly sent into the world will be able at once to deduce that a billiard ball will pass its motion on to another by a push.
But that this is impossible to derive a priori is shown through
the fact that elasticity is not an externally recognizable quality,
so that we may indeed say that perhaps no effect can be recognized
unless it is experienced at least once. It can not be deduced a priori
that contact with water makes one wet, or that an object responds
to gravity when held in the hand, or that it is painful to keep a
finger in the fire. These facts have first to be experienced either by
ourselves or some other person. Every cause, Hume argues therefore,
is different from its effect and hence can not be found in the
latter, and every discovery or representation of it a priori must
remain voluntary. All that the understanding can do is to simplify
<p 127>
the fundamental causes of natural phenomena and to deduce the
individual effects from a few general sources, and that, indeed, only
with the aid of analogy, experience, and observation.
But then, what is meant by trusting the inference of another person, and what in the other person's narrative is free from inference? Such trust means, to be convinced that the other has made the correct analogy, has made the right use of experience, and has observed events without prejudice. That is a great deal to presuppose, and whoever takes the trouble of examining however simple and short a statement of a witness with regard to analogy, experience, and observation, must finally perceive with fear how blindly the witness has been trusted. Whoever believes in knowledge a priori will have an easy job: ``The man has perceived it with his mind and reproduced it therewith; no objection may be raised to the soundness of his understanding; ergo, everything may be relied upon just as he has testified to it.'' But he who believes in the more uncomfortable, but at least more conscientious, skeptical doctrine, has, at the minimum, some fair reason for believing himself able to trust the intelligence of a witness. Yet he neither is spared the task of testing the correctness of the witness's analogy, experience and observation.
Apriorism and skepticism define the great difference in the attitude toward the witness. Both skeptic and apriorist have to test the desire of the witness to lie, but only the skeptic needs to test the witness's ability to tell the truth and his possession of sufficient understanding to reproduce correctly; to examine closely his innumerable inferences from analogy, experience and observation. That only the skeptic can be right everybody knows who has at all noticed how various people differ in regard to analogies, how very different the experiences of a single man are, both in their observation and interpretation. To distinguish these differences clearly is the main task of our investigation.
There are two conditions to consider. One is the strict difference
between what is causally related and its accidental concomitants,--
a difference with regard to which experience is so often misleading,
for two phenomena may occur together at the same time without
being causally connected. When a man is ninety years old and has
observed, every week in his life, that in his part of the country there
is invariably a rainfall every Tuesday, this observation is richly
and often tested, yet nobody will get the notion of causally connecting
Tuesday and rain--but only because such connection would
<p 128>
be regarded as generally foolish. If the thing, however, may be
attributed to coincidence with a little more difficulty, then it becomes
easier to suppose a causal connection; e. g., as when it rains on Allsouls
day, or at the new moon. If the accidental nature of the
connection is still less obvious, the observation becomes a muchtrusted
and energetically defended meteorological law. This happens
in all possible fields, and not only our witnesses but we ourselves
often find it very difficult to distinguish between causation and
accident. The only useful rule to follow is to presuppose accident
wherever it is not indubitably and from the first excluded, and
carefully to examine the problem for whatever causal connection it
may possibly reveal. ``Whatever is united in any perception must
be united according to a general rule, but a great deal more may be
present without having any causal relation.''
The second important condition was mentioned by Schopenhauer:[1] ``As soon as we have assigned causal force to any great influence and thereby recognized that it is efficacious, then its intensification in the face of any resistance according to the intensity of the resistance will produce finally the appropriate effect. Whoever cannot be bribed by ten dollars, but vacillates, will be bribed by twenty-five or fifty.''
This simple example may be generalized into a golden rule for lawyers and requires them to test the effect of any force on the accused at an earlier time in the latter's life or in other cases,-- i. e., the early life of the latter can never be studied with sufficient care. This study is of especial importance when the question is one of determining the culpability of the accused with regard to a certain crime. We have then to ask whether he had the motive in question, or whether the crime could have been of interest to him. In this investigation the problem of the necessary intensity of the influence in question need not, for the time, be considered; only its presence needs to be determined. That it may have disappeared without any demonstrable special reason is not supposable, for inclinations, qualities, and passions are rarely lost; they need not become obvious so long as opportunity and stimulus are absent, and they may be in some degree suppressed, but they manifest themselves as soon as--Schopenhauer's twenty-five or fifty dollars appear. The problem is most difficult when it requires the conversion of certain related properties, e. g., when the problem is one of suspecting a person of murderous inclination, and all that
[1] Schopenhauer: Die beiden Grundprobleme der Ethik.
<p 129>
can be shown in his past life is the maltreatment of animals. Or
again, when cruelty has to be shown and all that is established is
great sensuality. Or when there is no doubt about cruelty and the
problem is one of supposing intense avarice. These questions of
conversion are not especially difficult, but when it must be explained
to what such qualities as very exquisite egoism, declared envy,
abnormal desire for honor, exaggerated conceit, and great idleness
may lead to, the problem requires great caution and intensive study.
Section 25. (c) Skepticism.
Hume's skepticism is directly connected with the subject of the preceding chapter, but wants still a few words for itself. Though it is not the lawyer's problem to take an attitude with regard to philosophical skepticism, his work becomes essentially easier through the study of Hume's doctrines.
According to these, all we know and infer, in so far as it is unmathematical, results from experience, and our conviction of it and our reasoning about it, means by which we pass the bounds of sense-perception, depend on sensation, memory and inference from causation. Our knowledge of the relation of cause and effect results also from experience, and the doctrine, applied to the work of the criminalist, may be formulated as follows: ``Whatever we take as true is not an intellectual deduction, but an empirical proposition.'' In other words, our presuppositions and inferential knowledge depend only upon those innumerable repetitions of events from which we postulate that the event recurred in the place in question. This sets us the problem of determining whether the similar cases with which we compare the present one really are similar and if they are known in sufficiently large numbers to exclude everything else.
Consider a simple example. Suppose somebody who had traveled
all through Europe, but had never seen or heard of a negro, thought
about the pigmentation of human beings: neither all his thinking
nor the assistance of all possible scientific means can lead him to
the conclusion that there are also black people--that fact he can
only discover, not think out. If he depends only on experience, he
must conclude from the millions of examples he has observed that
all human beings are white. His mistake consists in the fact that
the immense number of people he has seen belong to the inhabitants
of a single zone, and that he has _*failed to observe_ the inhabitants
of other regions.
<p 130>
In our own cases we need no examples, for I know of no inference which was not made in the following fashion: ``The situation was so in a hundred cases, it must be so in this case.'' We rarely ask whether we know enough examples, whether they were the correct ones, and whether they were exhaustive. It will be no mistake to assert that we lawyers do this more or less consciously on the supposition that we have an immense collection of suggestive a priori inferences which the human understanding has brought together for thousands of years, and hence believe them to be indubitably certain. If we recognize that all these presuppositions are compounds of experience, and that every experience may finally show itself to be deceptive and false; if we recognize how the actual progress of human knowledge consists in the addition of one hundred new experiences to a thousand old ones, and if we recognize that many of the new ones contradict the old ones: if we recognize the consequence that there is no reason for the mathematical deduction from the first to the hundred-and-first case, we shall make fewer mistakes and do less harm. In this regard, Hume[1] is very illuminative.
According to Masaryk,[2] the fundamental doctrine of Humian skepticism is as follows: ``If I have had one and the same experience ever so often, i. e., if I have seen the sun go up 100 times, I expect to see it go up the 101st time the next day, but I have no guarantee, no certainty, no evidence for this belief. Experience looks only to the past, not to the future. How can I then discover the 101st sunrise in the first 100 sunrises? Experience reveals in me the habit to expect similar effects from similar circumstances, but the intellect has no share in this expectation.''
All the sciences based on experience are uncertain and without logical foundation, even though their results, as a whole and in the mass, are predictable. Only mathematics offers certainty and evidence. Therefore, according to Hume, sciences based on experience are unsafe because the recognition of causal connection depends on the facts of experience and we can attain to certain knowledge of the facts of experience only on the ground of the evident relation of cause and effect.
This view was first opposed by Reid, who tried to demonstrate that we have a clear notion of necessary connection. He grants that this notion is not directly attained either from external or internal experience, but asserts its clearness and certainty in spite
[1] Cf. Hume's Treatise of Human Nature.
[2] Masaryk: David Hume's Skepsis. Vienna 1884.
<p 131>
of that fact. Our mind has the power to make its own concepts
and one such concept is that of necessary connection. Kant goes
further and says that Hume failed to recognize the full consequences
of his own analysis, for the notion of causality is not the only one
which the understanding uses to represent a priori the connection
of objects. And hence, Kant defines psychologically and logically
a whole system of similar concepts. His ``Critique of Pure Reason''
is intended historically and logically as the refutation of Hume's
skepticism. It aims to show that not only metaphysics and natural
science have for their basis ``synthetic judgments a priori,'' but that
mathematics also rests on the same foundation.
Be that as it may, our task is to discover the application of Hume's skepticism to our own problems in some clear example. Let us suppose that there are a dozen instances of people who grew to be from 120 to 140 years old. These instances occur among countless millions of cases in which such an age was not reached. If this small proportion is recognized, it justifies the postulate that nobody on earth may attain to 150 years. But now it is known that the Englishman Thomas Parr got to be 152 years old, and his countryman Jenkins was shown, according to the indubitable proofs of the Royal Society, to be 157 years old at least (according to his portrait in a copper etching he was 169 years old). Yet as this is the most that has been scientifically proved I am justified in saying that nobody can grow to be 200 years old. Nevertheless because there are people who have attained the age of 180 to 190 years, nobody would care to assert that it is absolutely impossible to grow so old. The names and histories of these people are recorded and their existence removes the great reason against this possibility.
We have to deal, then, only with greater or lesser possibilities
and agree with the Humian idea that under similar conditions
frequency of occurrence implies repetition in the next instance.
Contrary evidence may be derived from several so-called phenomena
of alternation. E. g., it is a well known fact that a number in the
so-called Little Lottery, which has not been drawn for a long time,
is sure finally to be drawn. If among 90 numbers the number 27
has not turned up for a long time its appearance becomes more
probable with every successive drawing. All the so-called mathematical
combinations of players depend on this experience, which,
generalized, might be held to read: the oftener any event occurs
(as the failure of the number 27 to be drawn) the less is the proba-
<p 132>
bility of its recurrence (i. e., it becomes more probable that 27
will be drawn)--and this seems the contrary of Hume's proposition.
It may at first be said that the example ought to be put in a different form, i. e., as follows: If I know that a bag contains marbles, the color of which I do not know, and if I draw them one by one and always find the marble I have drawn to be white, the probability that the bag contains only white ones grows with every new drawing that brings a white marble to light. If the bag contains 100 marbles and 99 have been drawn out, nobody would suppose that the last one would be red--for the repetition of any event increases the probability of its occurrence.
This formulation proves nothing, inasmuch as a different example does not contradict the one it is intended to substitute. The explanation is rather as follows: In the first case there is involved the norm of equal possibilities, and if we apply the Humian principle of increase of probability through repetition, we find it effective in explaining the example. We have known until now always that the numbers in the Little Lottery are drawn equally, and with approximate regularity,--i. e., none of the single numbers is drawn for a disproportionately long time. And as this fact is invariable, we may suppose that every individual number would appear with comparative regularity. But this explanation is in accord with Hume's doctrine.
The doctrine clarifies even astonishing statistical miracles. We
know, e. g., that every year there come together in a certain region
a large number of suicides, fractures of arms and legs, assaults,
unaddressed letters, etc. When, now, we discover that the number
of suicides in a certain semester is significantly less than the number
in the same semester of another year, we will postulate that in the
next half-year a comparatively larger number of suicides will take
place so that the number for the whole year will become approximately
equal. Suppose we say: ``There were in the months of
January, February, March, April, May and June an average of x
cases. Because we have observed the average to happen six times,
we conclude that it will not happen in the other months but that instead,
x+y cases will occur in those months, since otherwise the
average annual count will not be attained.'' This would be a mistaken
abstraction of the principle of equal distribution from the
general Humian law, for the Humian law applied to this case
indicates: ``For a long series of years we have observed that in
<p 133>
this region there occur annually so and so many suicides; we conclude
therefore that in this year also there will occur a similar
number of suicides.''
The principle of equal distribution presents itself therefore as a subordinate rule which must not be separated from the principal law. It is, indeed, valid for the simplest events. When I resolve to walk in x street, which I know well, and when I recall whether to-day is Sunday or a week day, what time it is and what the weather is like, I know quite accurately how the street will look with regard to the people that may be met there, although a large number of these people have chosen the time accidentally and might as well have passed through another street. If, for once, there were more people in the street, I should immediately ask myself what unusual event had taken place.
One of my cousins who had a good deal of free time to dispose of, spent it for several months, with the assistance of his comrade, in counting the number of horses that passed daily, in the course of two hours, by a caf<e'> they frequented. The conscientious and controlled count indicated that every day there came one bay horse to every four. If then, on any given day, an incommensurably large number of brown, black, and tawny horses came in the course of the first hour, the counters were forced to infer that in the next 60 minutes horses of a different color must come and that a greater number of bays must appear in order to restore the disturbed equilibrium. Such an inference is not contradictory to the Humian proposition. At the end of a series of examinations the counters were compelled to say, ``Through so many days we have counted one bay to every four horses; we must therefore suppose that a similar relationship will be maintained the next day.''
So, the lawyer, too, must suppose, although we lawyers have nothing to do with figures, that he knows nothing a priori, and must construct his inferences entirely from experience. And hence we must agree that our premises for such inferences are uncertain, and often subject to revision, and often likely, in their application to new facts, to lead to serious mistakes, particularly if the number of experiences from which the next moment is deduced, are too few; or if an unknown, but very important condition is omitted.
These facts must carefully be kept in mind with reference to the
testimony of experts. Without showing ourselves suspicious, or
desirous of confusing the professional in his own work, we must
consider that the progress of knowledge consists in the collection
<p 134>
of instances, and anything that might have been normal in 100
cases, need not in any sense be so when 1000 cases are in question.
Yesterday the norm may have been subject to no exception; to-day
exceptions are noted; and to-morrow the exception has become the
rule.
Hence, rules which have no exceptions grow progressively rarer, and wherever a single exception is discovered the rule can no longer be held as normative. Thus, before New Holland was discovered, all swans were supposed to be white, all mammals incapable of laying eggs; now we know that there are black swans and that the duck-bill lays eggs. Who would have dared to assert before the discovery of the X-ray that light can penetrate wood, and who, especially, has dared to make generalizations with regard to the great inventions of our time which were not afterwards contradicted by the facts? It may be that the time is not too far away in which great, tenable and unexceptionable principles may be posited, but the present tendency is to beware of generalizations, even so far as to regard it a sign of scientific insight when the composition of generally valid propositions is made with great caution. In this regard the great physicians of our time are excellent examples. They hold: ``whether the phenomenon A is caused by B we do not know, but nobody has ever yet seen a case of A in which the precedence of B could not be demonstrated.'' Our experts should take the same attitude in most cases. It might be more uncomfortable for us, but certainly will be safer; for if they do not take that attitude we are in duty bound to presuppose in our conclusions that they have taken it. Only in this wise, by protecting ourselves against apparently exceptionless general rules, can our work be safely carried on.
This becomes especially our duty where, believing ourselves to
have discovered some generally valid rule, we are compelled to
draw conclusions without the assistance of experts. How often
have we depended upon our understanding and our ``correct'' a
priori method of inference, where that was only experience,--and
such poor experience! We lawyers have not yet brought our science
so far as to be able to make use of the experience of our comrades
with material they have reviewed and defined in writing. We have
bothered a great deal about the exposition of some legal difficulty,
the definition of some judicial concept, but we have received little
instruction or tradition concerning mankind and its passions. Hence,
each one has to depend on his own experience, and that is supposed
<p 135>
to be considerable if it has a score of years to its back, and is somewhat
supplemented by the experience, of others. In this regard
there are no indubitable rules; everybody must tell himself, ``I
have perhaps never experienced this fact, but it may be that a
thousand other people have seen it, and seen it in a thousand different
ways. How then, and whence, my right to exclude every exception?''
We must never forget that every rule is shattered whenever any single element of the situation is unknown, and that happens very easily and frequently. Suppose that I did not have full knowledge of the nature of water, and walked on terra firma to the edge of some quiet, calm pool. When now I presume: water has a body, it has a definite density, it has consistency, weight, etc., I will also presume that I may go on walking over its surface just as over the surface of the earth,--and that, simply because I am ignorant of its fluidity and its specific gravity. Liebman[1] summarizes the situation as follows. The causal nexus, the existential and objective relation between lightning and thunder, the firing of powder and the explosion, are altogether different from the logical nexus, i. e. the mere conceptual connection between antecedent and consequent in deduction. This constitutes the well known kernel of Humian skepticism. We must keep in mind clearly that we never can know with certainty whether we are in possession of all the determining factors of a phenomenon, and hence we must adhere to the only unexceptionable rule: _Be careful about making rules that admit of no exceptions_. There is still another objection to discuss, i. e. the mathematical exception to Humian skepticism. It might be held that inasmuch as the science of justice is closely related in many ways to mathematics, it may permit of propositions a priori. Leibnitz already had said, ``The mathematicians count with numbers, the lawyers with ideas,--fundamentally both do the same thing.'' If the relationship were really so close, general skepticism about phenomenal sciences could not be applied to the legal disciplines. But we nowadays deal not with concepts merely, and in spite of all obstruction, Leibnitz's time has passed and the realities of our profession, indeed its most important object, the human being itself, constitute an integrating part of our studies. And the question may be still further raised whether mathematics is really so exempt from skepticism. The work of Gauss, Lobatschewski, Bolyai, Lambert, would make the answer negative.
[1] Liebman Zur Analysis der Wirklichkeit. Strassburg 1888.
<p 136>
Let us, for once, consider what significance mathematical postulates have. When Pythagoras discovered his proposition in such a way that he first drew a right-angled triangle and then built a square on each of the sides, and finally measured the area of each and compared them, he must at first have got the notion that that also might be merely accidental. If he had made the construction 10 or 100 times with various triangles and these had resulted always identically, only then might he have been justified in saying that he had apparently discovered a theorem. But then his process was just as thoroughly experiential as that of a scientist who says that a bird has never yet been observed to give birth to living young, and that hence all birds lay eggs.
But Pythagoras did not proceed in this experiential manner in the discovery of his theorem. He constructed and he counted, and when he did that he acted on postulates: ``If this is a right-angled triangle and if that be a square, so,''--and this is just what is done in every science. The general propositions are, ``If the relations remain the same as formerly the moon must rise to-morrow at such and such a time.'' ``If this step in a deduction is not false, if it is well grounded at this point, if it really refers to x, it follows.... '' In his procedures the criminalist does exactly the same thing. What he must be skeptical about is the postulates from which he starts.
Section 26. (d) The Empirical Method in the Study of Cases.
Properly to bound our discussion of Humian skepticism, a few
words have to be said concerning the empirical method of the sciences.
We will call those laws purely empirical which, in the study of nature,
yield regularities that are demonstrated by observation and experiment,
but upon which little or no reliance is placed with regard
to cases which differ considerably from the observed. The latter
is done because no reason is seen for the existence of such laws.
The empirical rule is, therefore, no final law, but is capable of explaining,
especially when true, e. g., the succession of a certain
condition of weather from certain meteorological signs, the improvement
of species through crossing, the fact that some alloys are
harder than their components, and so on. Or, to choose examples
from our own field, jurisprudence may assert as empirical law that
a murderer is a criminal who has gone unpunished for his earlier
crimes; that all gamblers show such significant resemblances;
that the criminal who has soiled his hands with blood in some violent
<p 137>
crime was accustomed to wipe them on the underside of a table;
that the slyest person generally perpetrates some gross stupidity
after committing a serious crime, and so renders discovery simpler;
that lust and cruelty have a certain relation; that superstition plays
a great r<o^>le in crime, etc.
It is of exceeding importance to establish such purely empiric laws in our science, which has done little with such matters because, owing to scanty research into most of them, we need these laws. We know approximately that this and that have come to light so and so often, but we have not reduced to order and studied systematically the cases before us, and we dare not call this knowledge natural law because we have subjected it to no inductive procedure. ``The reference of any fact discovered by experience to general laws or rules we call induction. It embraces both observation and deduction.'' Again, it may be defined as ``the generalization or universalization of our experiences; and inference that a phenomenon occurring x times will invariably occur when the essential circumstances remain identical. The earliest investigators started with the simplest inductions,--that fire burns, that water flows downward,--so that new, simple truths were continually discovered. This is the type of scientific induction and it requires further, the addition of certainty and accuracy.''[1]
The foregoing might have been written expressly for us lawyers, but we have to bear in mind that we have not proceeded in our own generalizations beyond ``fire burns, water flows downward.'' And such propositions we have only derived from other disciplines. Those derived from our own are very few indeed, and to get more we have very far to go. Moreover, the laws of experience are in no way so certain as they are supposed to be, even when mathematically conceived. The empirical law is established that the sum of the three angles of a triangle is equal to two right angles. And yet nobody, ever since the science of surveying has been invented, has succeeded in discovering 180 degrees in any triangle. Now then, when even such things, supposed ever since our youth to be valid, are not at all true, or true theoretically only, how much more careful must we be in making inferences from much less certain rules, even though we have succeeded in using them before in many analogous cases? The activity of a criminalist is of far too short duration to permit him to experience any more than a very small portion of the possibilities of life, and suggestions from foreign sources are very
[1] <O:>ttingen: Die Moralstatistik. Erlangen 1882.
<p 138>
rare. The situation is different in other disciplines. ``Our experience,''
says James Sully,''[1] enables us to express a number of additional
convictions. We can predict political changes and scientific
developments, and can conceive of the geographical conditions at
the north pole.'' Other disciplines are justified to assert such
additional propositions, but is ours? A man may have dealt for years
with thieves and swindlers, but is he justified in deducing from the
inductions made in his experience, the situation of the first murderer
he deals with? Is he right in translating things learned by dealing
with educated people to cases where only peasants appear? In all
these cases what is needed in making deductions is great caution
and continual reminder to be very careful, for our work here
still lacks the proper material. In addition we have to bear in
mind that induction is intimately related to analogy. According
to Lipps[2] the ground of one is the ground of the other; they both
rest on the same foundation. ``If I am still in doubt whether the
fact on which a moment ago I depended as the sufficient condition
for a judgment may still be so regarded, the induction is uncertain.
It is unjustified when I take for sufficiently valid something that as
a matter of fact ought not to be so taken.'' If we bear in mind
how much we are warned against the use of analogy, how it is expressly
excluded in the application of certain criminal laws, and how
dangerous the use of every analogy is, we must be convinced that
the use for our cases of both induction and analogy, is always
menace. We have at the same time to bear in mind how much use
we actually make of both; even our general rules--e. g., concerning
false testimony,--bias, reversibility, special inclinations, etc.--
and our doctrines concerning the composition and indirection of
testimony, even our rules concerning the value of witnesses and
confessions, all these depend upon induction and analogy. We pass
by their use in every trial from case to case. A means so frequently
and universally used must, however, be altogether reliable, or be
handled with the greatest care. As it is not the first it must be
handled in the second way.
We have yet to indicate the various ways in which induction
may be used. Fick has already called attention to the astounding
question concluding Mill's system of logic: Why, in many cases,
is a single example sufficient to complete induction, while in other
<139>
cases myriads of unanimous instances admitting of no single known
or suspected exception, make only a small step toward the establishment
of a generally valid judgment?
[1] James Sully: ``Die Illusionen'' in Vol. 62 of the Internation. Wissensohft Bibliothek. Leipzig 1884.
[2] Th. Lipps: Grundtatssehen des Seelenlebens. Bonn 1883.
This question is of enormous significance in criminal cases because it is not easy to determine in any particular trial whether we have to deal with a situation of the first sort where a single example is evidential, or a situation of the second sort where a great many examples fail to be evidential. On this difficulty great mistakes depend, particularly mistakes of substitution of the first for the second. We are satisfied in such cases with a few examples and suppose ourselves to have proved the case although nothing whatever has been established.
We must see first of all if it is of any use to refer the difficulty of the matter to the form in which the question is put, and to say: The difficulty results from the question itself. If it be asked, ``Are any of the thousand marbles in the bag white marbles?'' the question is determined by the first handful, if the latter brings to light a single white marble. If, however, the problem is phrased so: Does the bag contain white marbles _*only_? then, although 999 marbles might already have been drawn from the receptacle, it can not be determined that the last marble of the 1000 is white. In the same way, if people assert that the form of the question determines the answer, it does not follow that the form of the question is itself determined or distinguished inasmuch as the object belongs to the first or the second of the above named categories.
A safe method of distinction consists in calling the first form of
the question positive and the second negative. The positive refers
to a single unit; the negative to a boundless unit. If then I ask:
Are there any white marbles whatever in the bag? the answer is
rendered affirmative by the discovery of a single white marble.
But if the question is phrased: Are there _*only_ white marbles in the
bag? merely its form is positive but its intent is negative. To conform
the manner of the question to its intent, it would be necessary
to ask: Are there no other colors than white among the marbles
in the bag? And inasmuch as the negative under given circumstances
is in many ways boundless, the question admits of no answer until
the last marble has been brought to light. If the total number of
marbles is unlimited the question can receive no complete inductive
answer in mathematical form; it can be solved only approximately.
So again, if one asks: Are there any purely blue birds? the answer
is affirmative as soon as a single completely blue bird is brought to
<p 140>
light. But if the question is: Do not also striped birds exist? no
answer is possible until the very last bird on earth is exhibited.
In that way only could the possibility be excluded that not one of
the terrestrial fowls is striped. As a matter of fact we are satisfied
with a much less complete induction. So we say: Almost the whole
earth has been covered by naturalists and not one of them reports
having observed a striped bird; hence there would be none such
even in the unexplored parts of the earth. This is an inductive
inference and its justification is quite another question.
The above mentioned distinction may be made still clearer if instead of looking back to the form of the question, we study only the answer. We have then to say that positive statements are justified by the existence of a single instance, negative assertions only by the complete enumeration of all possible instances and never at all if the instances be boundless. That the negative proof always requires a series of demonstrations is well known; the one thing which may be firmly believed is the fact that the problem, whether a single example is sufficient, or a million are insufficient, is only a form of the problem of affirmative and negative assertions.
So then, if I ask: Has A ever stolen anything? it is enough to record one judgment against him, or to bring one witness on the matter in order to establish that A committed theft at least once in his life. If, however, it is to be proved that the man has never committed a theft, his whole life must be reviewed point by point, and it must be shown that at no instant of it did he commit larceny. In such cases we are content with much less. We say first of all: We will not inquire whether the man has never stolen. We will see merely whether he was never punished for theft. But here, too, we must beware and not commit ourselves to inquiring of all the authorities in the world, but only of a single authority, who, we assume, ought to know whether A was punished or not. If we go still further, we say that inasmuch as we have not heard from any authorities that the man was ever punished for stealing, we suppose that the man was never punished on that ground; and inasmuch as we have not examined anybody who had seen A steal, we preferably suppose that he has never stolen. This is what we call satisfactory evidence, and with the poor means at our disposal it must suffice.
In most cases we have to deal with mixed evidence, and frequently
it has become habitual to change the problem to be solved according
to our convenience, or at least to set aside some one thing. Sup-
<p 141>
pose that the issue deals with a discovered, well-retained footprint
of a man. We then suspect somebody and compare the sole
of his shoe with the impression. They fit in length and width,
in the number of nails and in all the other possible indices, and we
therefore assert: It is the footprint of the suspect, for ``whose
footprint?'' is the problem we are troubling ourselves to solve.
In truth we have only shown that the particular relations, in the
matter of length, breadth, number of nails, etc., agree, and hence
we regard the positive part of the evidence as sufficient and neglect
the whole troublesome negative part, which might establish the
fact that at the time and in the region in question, nobody was or
could be whose foot could accurately fit that particular footprint.
Therefore we have not proved but have only calculated the probability
that at the time there might possibly not have been another
person with a shoe of similar length, breadth and number of nails.
The probability becomes naturally less as fewer details come to
hand. The difficulty lies in finding where such probability, which
stands for at least an assumption, must no longer be considered.
Suppose, now, that neither shoe-nails nor patches, nor other clear
clews can be proved and only length and width agree. If the agreement
of the clews were really a substantiation of the proof by evidence,
it would have to suffice as positive evidence; but as has
been explained, the thing proved is not the point at issue, but another
point.
The negative portion of the evidence will naturally be developed with less accuracy. The proof is limited to the assertion that such shoes as were indicated in the evidence were very rarely or never worn in that region, also that no native could have been present that the form of the nails allowed inference of somebody from foreign regions, one of which might be the home of the suspect, etc. Such an examination shows that what we call evidence is only probability or possibility.
Another form which seems to contradict the assertion that negative
propositions are infinite is positive evidence in the shape of
negation. If we give an expert a stain to examine and ask him
whether it is a blood stain, and he tells us: ``It is not a blood stain,''
then this single scientifically established assertion proves that we
do not have to deal with blood, and hence ``negative'' proof seems
brought in a single instance. But as a matter of fact we deal here
with an actually positive proof, for the expert has given us the
deduced proposition, not the essential assertion. He has found the
<p 142>
stain to be a rust stain or a tobacco stain, and hence he may assert
and deduce that it is not blood. Even were he a skeptic, he would
say, ``We have not yet seen the blood of a mammal in which the
characteristic signs for recognition were not present, and we have
never yet recognized a body without the blood pertaining to it,
and hence we may say, we are not dealing with blood because all
of us found the characteristics of the stain to be what we have
been until now accustomed to call the characteristics of rust stain.''
We have still to touch upon the difference between logical connection
and experience. If I say, ``This mineral tastes salty, therefore
it is soluble in water,'' the inference depends upon logical
relationships, for my intent is: ``If I perceive a salty taste, it has
to be brought to the nerves of taste, which can be done only by the
combination of the mineral with the saliva, hence by its solution
in the saliva. But if it is soluble in saliva it must also be soluble
in water.'' If I say on the other hand, ``This mineral tastes salty,
has a hardness of 2, a specific gravity of 2.2, and consequently it
crystallizes hexagonally,''--this statement depends on experience,
for what I really say is: ``I know first of all, that a mineral which
has the qualities mentioned must be rock salt; for at the least, we
know of no mineral which has these qualities and is not rock salt,
and which in the second place crystallizes hexagonally as rock salt
does,--a way which, at least, we find rock salt never to have missed.''
If we examine the matter still more closely we become convinced
that in the first case only the formal and logical side, in the second
the experiential aspect predominates. The premises of both cases
are purely matters of experience and the formal question of inference
is a matter of logic. Only,--at one time the first question, at
another the second comes more obviously into the foreground.
Although this matter appears self-evident it is not indifferent. It
is well known that whenever we are powerfully influenced by one
thing, things of little intensity are either not experienced at all or
only to a very small degree, and are therefore neglected. This is
a fact which may indeed be shown mathematically, for infinity
plus one equals infinity. When, therefore, we undergo great pain
or great joy, any accompanying insignificant pain or any pleasure
will be barely felt, just as the horses who drag a very heavy wagon
will not notice whether the driver walking beside them adds his
coat to the load (cf. Weber's law). Hence, when we criminalists
study a difficult case with regard to the question of proof, there are
two things to do in order to test the premises for correctness accord-
<p 143>
ing to the standards of our other experiences, and to draw logically
correct inferences from these premises. If it happens that there are
especial difficulties in one direction while by some chance those in
the other are easily removed, it becomes surprising how often the
latter are entirely ignored. And hence, the adjustment of inferences
is naturally false even when the great difficulties of the first type
are removed correctly. Therefore, if the establishment of a fact
costs a good deal of pains and means the expenditure of much time,
the business of logical connection appears so comparatively easy
that it is made swiftly and--wrongly.
Mistakes become, at least according to my experience, still more
frequent when the difficulty is logical and not empirical. As a
matter of honesty, let me say that we criminalists are not trained
logicians, however necessary it is that we shall be such, and most
of us are satisfied with the barren remainder of what we learned
long ago in the Gymnasium and have since forgotten. The difficulties
which occur in the more important logical tasks are intelligible
when compared with the lesser difficulties; and when one of these
larger problems is by good fortune rightly solved, the effort and the
work required by the solution make it easy to forget asking whether
the premises are correct; they are assumed as self-evident. Hence,
in the review of the basis for judgment, it is often discovered that
the logical task has been performed with care, with the expenditure
of much time, etc., only to be based upon some apparently unessential
presupposition which contradicts all experience and is hence
materially incorrect. Consequence,--the inference is wrong since
the premise was wrong, and the whole work has gone for nothing.
Such occurrences convince one that no judge would have been
guilty of them if the few difficulties concerning the fact in question
were not, because treated in the light of the effort required by the
logical work, quite neglected. Nor does this occur unconsciously,
or as a consequence of a sort of lapse of memory concerning the
meaning or the importance of an empirical problem, it also happens
at least half consciously by way of a characteristic psychic process
which everybody may identify in his own experience: i. e., the idea
occurs, in some degree subconsciously, that the overgreatness of
the work done in one direction ought to be corrected by the inadequacy
of the work done in the other direction. And this happens
in lawyer's work often, and being frequently justifiable, becomes
habitual. If I, for example, have examined ten unanimous witnesses
concerning the same event and have completely demonstrated
<p 144>
the status of the case, I ought, in examining the last two witnesses,
who are perhaps no longer needed but have been summoned and appear,
certainly to proceed in a rapid manner. This justifiable neglect
is then half unconsciously transferred to other procedures where
there is possible no equalization of the hypertrophy of work in one
direction with the dwarfing of it in another, and where the mistake
causes the result to be wrong. However I may have been bothered
by the multiplication of ten groups of factors and whatever accuracy
I may have applied to a task can not permit me to relax my attention
in the addition of the individual results. If I do I am likely to
commit an error and the error renders all the previous labor worthless.
Indeed, it may be asserted that all logic is futile where the premises or a single premise may be wrong. I expect, in truth, that the procedures here described will be doubted to be even possible, but doubters are recommended to examine a few cases for the presence of this sort of thing.
Section 27. (e) Analogy.
Analogy is the least negligible of all methods of induction because it rests at bottom on the postulate that one thing which has a number of qualities in common with another will agree with that other in one or more _*additional_ qualities. In cases of analogy, identity is never asserted; indeed, it is excluded, while a certain parallelism and agreement in specific points are assumed, i. e., introduced tacitly as a mutatis mutandis. Consider Lipps's examples. He calls analogy the transfer of judgment or the transition from similar to similar, and he adds that the value of such a process is very variable. If I have perceived x times that flowers of a certain color have perfume, I am inclined to expect perfume from flowers of the same color in x+1 cases. If I have observed x times that clouds of a certain structure are followed by rain I shall expect rain in the x+1st case. The first analogy is worthless because there is no relation between color and perfume; the second is of great value because such a relation does exist between rain and clouds.
Simply stated, the difference between these two examples does
not consist in the existence of a relationship in the one case and
the absence of a relationship in the other; it consists in the fact
that in the case of the flowers the relationship occurs now and then
but is not permanently knowable. It is possible that there is a
natural law controlling the relation between color and odor, and if
<p 145>
that law were known there would be no question of accident or of
analogy, but of law. Our ignorance of such a law, in spite of the
multiplicity of instances, lies in the fact that we are concerned only
with the converse relationships and not with the common cause of
perfume and color. Suppose I see on the street a large number of
people with winter over-coats and a large number of people with
skates in their hands, I would hardly ask whether the coats are
conditioned or brought out by the skates or the skates by the coats.
If I do not conclude that the cold weather is the condition both of
the need of over-coats and the utility of skates, I will suppose that
there is some unintelligible reflexive relation between over-coats
and skates. If I observe that on a certain day every week there
regularly appear many well-dressed people and no workingmen on
the street, if I am ignorant of the fact that Sunday is the cause
of the appearance of the one and the disappearance of the other, I
shall try in vain to find out how it happens that the working people
are crowded out by the well-dressed ones or conversely.
The danger of analogy lies in the fact that we prefer naturally
to depend on something already known, and that the preference is
the greater in proportion to our feeling of the strangeness and
ominousness of the particular intellectual or natural regions in
which we find ourselves. I have already once demonstrated[1] how
disquieting it is to notice, during the examination of the jury, that
the jurymen who ask questions try to find some relation to their
own trades even though this requires great effort, and seek to bring
the case they are asking about under the light of their particular
profession. So, however irrelevant the statement of a witness may
be, the merchant juryman will use it to explain Saldo-Conti, the
carpenter juryman to explain carpentry, the agriculturist to notice
the farming of cattle, and then having set the problem in his own
field construct the most daring analogies, for use in determining the
guilt of the accused. And we lawyers are no better. The more
difficult and newer a case is the more are we inclined to seek analogies.
We want supports, for we do not find firm natural laws, and
in our fear we reach out after analogies, not of course in law, because
that is not permitted, but certainly in matters of fact. Witness X
has given difficult testimony in a certain case. We seek an analogy
in witness Y of an older case, and we observe the present issue
thus analogically, without the least justification. We have never
yet seen drops of blood on colored carpets, yet we believe in applying
<p 146>
our experience of blood stains on clothes and boots analogically.
We have before us a perfectly novel deed rising from perverted
sexual impulse--and we presuppose that the accused is to be
treated altogether analogously to another in a different case,
although indeed the whole event was different.
[1] Manual for Examining Justices.
Moreover the procedure, where the analogy is justified, is complex. ``With insight,'' says Trendelenburg, ``did the ancients regard analogy as important. The power of analogy lies in the construction and induction of a general term which binds the subconcept with regard to which a conclusion is desired, together with the individual object which is compared with the first, and which is to appear as a mediating concept but can not. This new general term is not, however, the highest concept among the three termini of the conclusion; it is the middle one and is nothing else than the terminus medius of the first figure.'' This clear statement shows not only how circumstantial every conclusion from analogy is, but also how little it achieves. There is hardly any doubt of the well-known fact that science has much to thank analogy for, since analogy is the simplest and easiest means for progress in thought. If anything is established in any one direction but progress is desired in another, then the attempt is made to adapt what is known to the proximate unknown and to draw the possible inference by analogy. Thousands upon thousands of analogies have been attempted and have failed,-- but no matter; one successful one became a hypothesis and finally an important natural law. In our work, however, the case is altogether different, for we are not concerned with the construction of hypotheses, we are concerned with the discovering of truth, or with the recognition that it cannot be discovered.
The only place where our problems permit of the use of analogy
is in the making of so-called constructions, i. e., when we aim to
clarify or to begin the explanation of a case which is at present
unintelligible, by making some assumption. The construction then
proceeds in analogy to some already well known earlier case. We
say: ``Suppose the case to have been so and so,'' and then we begin
to test the assumption by applying it to the material before us,
eliminating and constructing progressively until we get a consistent
result. There is no doubt that success is frequently attained in this
way and that it is often the only way in which a work may be begun.
At the same time, it must be recognized how dangerous this is,
for in the eagerness of the work it is easy to forget that so far, one
is working only according to analogy by means of an assumption
<p 147>
still to be proved. This assumption is in such cases suddenly
considered as something already proved and is counted as
such with the consequence that the result must be false. If you add
the variability in value of analogy, a variability not often immediately
recognized, the case becomes still worse. We have never
been on the moon, have therefore apparently no right to judge the
conditions there--and still we know--only by way of analogy--
that if we jumped into the air there we should fall back to the
ground. But still further: we conclude again, by analogy, that
there are intelligent beings on Mars; if, however, we were to say
how these people might look, whether like us or like cubes or like
threads, whether they are as large as bees or ten elephants, we
should have to give up because we have not the slightest basis for
analogy.
In the last analysis, analogy depends upon the recurrence of similar conditions. Therefore we tacitly assume when we judge by analogy that the similarity of conditions contains an equivalence of ultimately valid circumstance. The certainty of analogy is as great as the certainty of this postulate, and its right as great as the right of this postulate.
If, then, the postulate is little certain, we have gained nothing and reach out into the dark; if its certainty is great we no longer have an analogy, we have a natural law. Hence, Whately uses the term analogy as an expression for the similarity of relation, and in this regard the use of analogy for our real work has no special significance. Concerning so-called false analogies and their importance cf. J. Schiel's Die Methode der induktiven Forschung (Braunschweig 1868).
Section 28. (f) Probability.
Inasmuch as the work of the criminal judge depends upon the
proof of evidence, it is conceivable that the thing for him most
important is that which has evidential character or force.[1] A sufficient
definition of evidence or proof does not exist because no bounds
have been set to the meaning of ``Proved.'' All disciplines furnish
examples of the fact that things for a long time had probable validity,
later indubitable validity; that again some things were considered
proved and were later shown to be incorrect, and that many things at
one time wobbly are in various places, and even among particular
persons, supposed to be at the limits of probability and proof. Es-
<p 148>
pecially remarkable is the fact that the concept of _*the proved_ is very
various in various sciences, and it would be absorbing to establish
the difference between what is called proved and what only probable
in a number of given examples by the mathematician, the physicist,
the chemist, the physician, the naturalist, the philologist, the historian,
the philosopher, the lawyer, the theologian, etc. But this is no
task for us and nobody is called upon to determine who knows what
``Proved'' means. It is enough to observe that the differences are
great and to understand why we criminalists have such various
answers to the question: Is this proved or only probable? The
varieties may be easily divided into groups according to the mathematical,
philosophic, historical or naturalistic inclinations of the
answerer. Indeed, if the individual is known, what he means by
``proved'' can be determined beforehand. Only those minds that
have no especial information remain confused in this regard, both
to others and to themselves.
[1] B. Petronievics: Der Satz vom Grunde. Leipzig 1898.
Sharply to define the notion of ``proved'' would require at least to establish its relation to usage and to say: What we desire leads us to an _*assumption_, what is possible gives us _*probability_, what appears certain, we call _*proved_. In this regard the second is always, in some degree, the standard for the first (desires, e. g., cause us to act; one becomes predominant and is fixed as an assumption which later on becomes clothed with a certain amount of reliability by means of this fixation).
The first two fixations, the assumption and the probability, have in contrast to their position among other sciences only a heuristic interest to us criminalists. Even assumptions, when they become hypotheses, have in various disciplines a various value, and the greatest lucidity and the best work occur mainly in the quarrel about an acutely constructed hypothesis.
_*Probability_ has a similar position in the sciences. The scholar
who has discovered a new thought, a new order, explanation or
solution, etc., will find it indifferent whether he has made it only
highly probable or certain. He is concerned only with the idea, and
a scholar who is dealing with the idea for its own sake will perhaps
prefer to bring it to a great probability rather than to indubitable
certainty, for where conclusive proof is presented there is no longer
much interest in further research, while probability permits and
requires further study. But our aim is certainty and proof only,
and even a high degree of probability is no better than untruth and
can not count. In passing judgment and for the purpose of judgment
<p 149>
a high degree of probability can have only corroborative weight,
and then it is probability only when taken in itself, and proof
when taken with regard to the thing it corroborates. If, for example,
it is most probable that X was recognized at the place of a crime,
and if at the same time his evidence of alibi has failed, his footmarks
are corroborative; so are the stolen goods which have been seen
in his possession, and something he had lost at the place of the crime
which is recognized as his property, etc. ln short, when all these
indices are in themselves established only as highly probable, they
give under certain circumstances, when taken together, complete
certainty, because the coincidence of so many high probabilities must
be declared impossible if X were not the criminal.
In all other cases, as we have already pointed out, _*assumption_ and probability have only a heuristic value for us lawyers. With the assumption, we must of course count; many cases can not be begun without the assistance of assumption. Every only halfconfused case, the process of which is unknown, requires first of all and as early as possible the application of some assumption to its material. As soon as the account is inconsistent the assumption must be abandoned and a fresh one and yet again a fresh one assumed, until finally one holds its own and may be established as probable. It then remains the center of operation, until it becomes of itself a proof or, as we have explained, until so many high probabilities in various directions have been gathered, that, taken in their order, they serve evidentially. A very high degree of probability is sufficient in making complaints; but sentencing requires ``certainty,'' and in most cases the struggle between the prosecution and the defense, and the doubt of the judge, turns upon the question of probability as against proof.[1]
[1] Of course we mean by ``proof'' as by ``certainty'' only the highest possible degree of probability.
That probability is in this way and in a number of relations, of great value to the criminalist can not appear doubtful. Mittermaier defines its significance briefly: ``Probability naturally can never lead to sentence. It is, however, important as a guide for the conduct of the examiner, as authorizing him to take certain measures; it shows how to attach certain legal processes in various directions.''
Suppose that we review the history of the development of the
theory of probability. The first to have attempted a sharp distinction
between demonstrable and probable knowledge was Locke.
Leibnitz was the first to recognize the importance of the theory
<p 150>
of probability for inductive logic. He was succeeded by the mathematician
Bernoulli and the revolutionist Condorcet. The theory in
its modern form was studied by Laplace, Quetelet, Herschel, von
Kirchmann, J. von Kries, Venn, Cournot, Fick, von Bortkiewicz, etc.
The concept that is called probability varies with different authorities.
Locke[1] divides all fundamentals into demonstrative and probable.
According to this classification it is probable that ``all men are mortal,''
and that ``the sun will rise to-morrow.'' But to be consistent
with ordinary speech the fundamentals must be classified as evidence,
certainties, and probabilities. By certainties I understand such
fundamentals as are supported by experience and leave no room
for doubt or consideration--everything else, especially as it permits
of further proof, is more or less probable.
[1] Locke: Essay on the Human Understanding.
Laplace[2] spoke more definitely--``Probability depends in part on our ignorance, in part on our knowledge . . .
[2] Laplace: Essay Philosophique sur les Probabilit<e'>s. Paris 1840.
``The theory of probability consists in the reduction of doubts of the same class of a definite number of equally possible cases in such a way that we are equally undetermined with regard to their existence, and it further consists in the determination of the number of those cases which are favorable to the result the probability of which is sought. The relation of this number to the number of all possible cases is the measure of the probability. It is therefore a fraction the numerator of which is derived from the number of cases favorable to the result and the denominator from the number of all possible cases.'' Laplace, therefore, with J. S. Mill, takes probability to be a low degree of certainty, while Venn[3] gives it an objective support like truth. The last view has a great deal of plausibility inasmuch as there is considerable doubt whether an appearance is to be taken as certain or as only probable. If this question is explained, the assertor of certainty has assumed some objective foundation which is indubitable at least subjectively. Fick represents the establishment of probability as a fraction as follows: ``The probability of an incompletely expressed hypothetical judgment is a real fraction proved as a part of the whole universe of conditions upon which the realization of the required result necessarily depends.
[3] Venn: The Logic of Chance.
``According to this it is hardly proper to speak of the probability
of any result. Every individual event is either absolutely necessary
<p 151>
or impossible. The probability is a quality which can pertain only
to a hypothetical judgment.''[1]
[1] Philos. Versuch <u:>ber die Wahrscheinlichkeiten. W<u:>rzburg 1883.
That it is improper to speak of the probability of a result admits
of no doubt, nor will anybody assert that the circumstance of tomorrow'
s rain is in itself probable or improbable--the form of
expression is only a matter of usage. It is, however, necessary to
distinguish between conditioned and unconditioned probability.
If I to-day consider the conditions which are attached to the ensuing
change of weather, if I study the temperature, the barometer, the
cloud formation, the amount of sunlight, etc., as conditions which
are related to to-morrow's weather as its forerunners, then I must
say that to-morrow's rain is probable to such or such a degree. And
the correctness of my statement depends upon whether I know
the conditions under which rain _*must_ appear, more or less accurately
and completely, and whether I relate those conditions properly.
With regard to unconditioned probabilities which have nothing to
do with the conditions of to-day's weather as affecting to-morrow's,
but are simply observations statistically made concerning the
number of rainy days, the case is quite different. The distinction
between these two cases is of importance to the criminalist because
the substitution of one for the other, or the confusion of one with the
other, will cause him to confuse and falsely to interpret the probability
before him. Suppose, e. g., that a murder has happened in
Vienna, and suppose that I declare immediately after the crime and
in full knowledge of the facts, that according to the facts, i. e., according
to the conditions which lead to the discovery of the criminal,
there is such and such a degree of probability for this discovery.
Such a declaration means that I have calculated a conditioned probability.
Suppose that on the other hand, I declare that of the
murders occurring in Vienna in the course of ten years, so and
so many are unexplained with regard to the personality of the
criminal, so and so many were explained within such and such a
time,--and consequently the probability of a discovery in the case
before us is so and so great. In the latter case I have spoken of
unconditioned probability. Unconditioned probability may be
studied by itself and the event compared with it, but it must never
be counted on, for the positive cases have already been reckoned
with in the unconditioned percentage, and therefore should not be
counted another time. Naturally, in practice, neither form of
probability is frequently calculated in figures; only an approximate
<p 152>
interpretation of both is made. Suppose that I hear of a certain
crime and the fact that a footprint has been found. If without
knowing further details, I cry out: ``Oh! Footprints bring little
to light!'' I have thereby asserted that the statistical verdict in
such cases shows an unfavorable percentage of unconditional probability
with regard to positive results. But suppose that I have
examined the footprint and have tested it with regard to the other
circumstances, and then declared: ``Under the conditions before
us it is to be expected that the footprint will lead to results''--
then I have declared, ``According to the conditions the conditioned
probability of a positive result is great.'' Both assertions may be
correct, but it would be false to unite them and to say, ``The conditions
for results are very favorable in the case before us, but
generally hardly anything is gained by means of footprints, and
hence the probability in this case is small.'' This would be false
because the few favorable results as against the many unfavorable
ones have already been considered, and have already determined
the percentage, so that they should not again be used.
Such mistakes are made particularly when determining the complicity of the accused. Suppose we say that the manner of the crime makes it highly probable that the criminal should be a skilful, frequently-punished thief, i. e., our probability is conditioned. Now we proceed to unconditioned probability by saying: ``It is a well-known fact that frequently-punished thieves often steal again, and we have therefore two reasons for the assumption that X, of whom both circumstances are true, was the criminal.'' But as a matter of fact we are dealing with only one identical probability which has merely been counted in two ways. Such inferences are not altogether dangerous because their incorrectness is open to view; but where they are more concealed great harm may be done in this way.
A further subdivision of probability is made by Kirchmann.[1] He distinguished:
[1] <U:>ber die Wahrscheinlicbkeit, Leipzig 1875.
(1) General probability, which depends upon the causes or consequences
of some single uncertain result, and derives its character
from them. An example of the dependence on causes is the collective
weather prophecy, and of dependence on consequences is Aristotle's
dictum, that because we see the stars turn the earth must
stand still. Two sciences especially depend upon such probabilities:
history and law, more properly the practice and use of criminal
<p 153>
law. Information imparted by men is used in both sciences, this
information is made up of effects and hence the occurrence is inferred
from as cause.
(2) Inductive probability. Single events which must be true, form the foundation, and the result passes to a valid universal. (Especially made use of in the natural sciences, e. g., in diseases caused by bacilli; in case X we find the appearance A and in diseases of like cause Y and Z, we also find the appearance A. It is therefore probable that all diseases caused by bacilli will manifest the symptom A.)
(3) Mathematical Probability. This infers that A is connected either with B or C or D, and asks the degree of probability. I. e.: A woman is brought to bed either with a boy or a girl: therefore the probability that a boy will be born is one-half.
Of these forms of probability the first two are of equal importance to us, the third rarely of value, because we lack arithmetical cases and because probability of that kind is only of transitory worth and has always to be so studied as to lead to an actual counting of cases. It is of this form of probability that Mill advises to know, before applying a calculation of probability, the necessary facts, i. e., the relative frequency with which the various events occur, and to understand clearly the causes of these events. If statistical tables show that five of every hundred men reach, on an average, seventy years, the inference is valid because it expresses the existent relation between the causes which prolong or shorten life.
A further comparatively self-evident division is made by Cournot, who separates subjective probability from the possible probability pertaining to the events as such. The latter is objectively defined by Kries[1] in the following example:
[1] J. v. Kries: <U:>ber die Wahrseheinlichkeit Il. M<o:>glichkeit u. ihre Bedeutung in Strafrecht. Zeitschrift f. d. ges. St. R. W. Vol. IX, 1889.
``The throw of a regular die will reveal, in the great majority of cases, the same relation, and that will lead the mind to suppose it objectively valid. It hence follows, that the relation is changed if the shape of the die is changed.'' But how ``this objectively valid relation,'' i. e., substantiation of probability, is to be thought of, remains as unclear as the regular results of statistics do anyway. It is hence a question whether anything is gained when the form of calculation is known.
Kries says, ``Mathematicians, in determining the laws of probability,
have subordinated every series of similar cases which take
<p 154>
one course or another as if the constancy of general conditions, the
independence and chance equivalence of single events, were identical
throughout. Hence, we find there are certain simple rules according
to which the probability of a case may be calculated from the number
of successes in cases observed until this one and from which,
therefore, the probability for the appearance of all similar cases
may be derived. These rules are established without any exception
whatever.'' This statement is not inaccurate because the general
applicability of the rules is brought forward and its use defended
in cases where the presuppositions do not agree. Hence, there are
delusory results, e. g., in the calculation of mortality, of the statements
of witnesses and judicial deliverances. These do not proceed
according to the schema of the ordinary play of accident. The
application, therefore, can be valid only if the constancy of general
conditions may be reliably assumed.
But this evidently is valid only with regard to unconditioned probability which only at great intervals and transiently may influence our practical work. For, however well I may know that according to statistics every xth witness is punished for perjury, I will not be frightened at the approach of my xth witness though he is likely, according to statistics, to lie. In such cases we are not fooled, but where events are confused we still are likely to forget that probabilities may be counted only from great series of figures in which the experiences of individuals are quite lost.
Nevertheless figures and the conditions of figures with regard to probability exercise great influence upon everybody; so great indeed, that we really must beware of going too far in the use of figures. Mill cites a case of a wounded Frenchman. Suppose a regiment made up of 999 Englishmen and one Frenchman is attacked and one man is wounded. No one would believe the account that this one Frenchman was the one wounded. Kant says significantly: ``If anybody sends his doctor 9 ducats by his servant, the doctor certainly supposes that the servant has either lost or otherwise disposed of one ducat.'' These are merely probabilities which depend upon habits. So, it may be supposed that a handkerchief has been lost if only eleven are found, or people may wonder at the doctor's ordering a tablespoonful every five quarters of an hour, or if a job is announced with $2437 a year as salary.
But just as we presuppose that wherever the human will played
any part, regular forms will come to light, so we begin to doubt
that such forms will occur where we find that accident, natural
<p 155>
law, or the unplanned co<o:>peration of men were determining factors,
If I permit anybody to count up accidentally concurrent things
and he announces that their number is one hundred, I shall probably
have him count over again. I shall be surprised to hear that somebody's
collection contains exactly 1000 pieces, and when any one
cites a distance of 300 steps I will suppose that he had made an
approximate estimation but had not counted the steps. This fact
is well known to people who do not care about accuracy, or who
want to give their statements the greatest possible appearance of
correctness; hence, in citing figures, they make use of especially
irregular numbers, e. g. 1739, <7/8>, 3.25%, etc. I know a case of a
vote of jurymen in which even the proportion of votes had to be
rendered probable. The same jury had to pass that day on three
small cases. In the first case the proportion was 8 for, 4 against,
the second case showed the same proportion and the third case the
same. But when the foreman observed the proportion he announced
that one juryman must change his vote because the same proportion
three times running would appear too improbable! If we want
to know the reason for our superior trust in irregularity in such
cases, it is to be found in the fact that experience shows nature, in
spite of all her marvelous orderliness in the large, to be completely
free, and hence irregular in little things. Hence, as Mill shows in
more detail, we expect no identity of form in nature. We do not
expect next year to have the same order of days as this year, and
we never wonder when some suggestive regularity is broken by a
new event. Once it was supposed that all men were either black
or white, and then red men were discovered in America. Now
just exactly such suppositions cause the greatest difficulties, because
we do not know the limits of natural law. For example, we do not
doubt that all bodies on earth have weight. And we expect to find
no exception to this rule on reaching some undiscovered island on
our planet; all bodies will have weight there as well as everywhere
else. But the possibility of the existence of red men had to be granted
even before the discovery of America. Now where is the difference
between the propositions: All bodies have weight, and, All men are
either white or black? It may be said circularly the first is a natural
law and the second is not. But why not? Might not the human
body be so organized that according to the natural law it would be
impossible for red men to exist? And what accurate knowledge
have we of pigmentation? Has anybody ever seen a green horse?
And is the accident that nobody has ever seen one to prevent the
<p 156>
discovery of green horses in the heart of Africa? May, perhaps,
somebody not breed green horses by crossings or other experiments?
Or is the existence of green horses contrary to some unknown but
invincible natural law? Perhaps somebody may have a green horse
to-morrow; perhaps it is as impossible as water running up hill.
To know whether anything is natural law or not always depends upon the grade and standing of our immediate experience--and hence we shall never be able honestly to make any universal proposition. The only thing possible is the greatest possible accurate observation of probability in all known possible cases, and of the probability of the discovery of exceptions. Bacon called the establishment of reliable assumptions, counting up without meeting any contradictory case. But what gives us the law is the manner of counting. The untrained mind accepts facts as they occur without taking the trouble to seek others; the trained mind seeks the facts he needs for the premises of his inference. As Mill says, whatever has shown itself to be true without exception may be held universal so long as no doubtful exception is presented, and when the case is of such a nature that a real exception could not escape our observation.
This indicates how we are to interpret information given by others. We hear, ``Inasmuch as this is always so it may be assumed to be so in the present case.'' Immediate acceptance of this proposition would be as foolhardy as doubt in the face of all the facts. The proper procedure is to examine and establish the determining conditions, i. e., who has counted up this ``always,'' and what caution was used to avoid the overlooking of any exception. The real work of interpretation lies in such testing. We do not want to reach the truth with one blow, we aim only to approach it. But the step must be taken and we must know how large it is to be, and know how much closer it has brought us to the truth. And this is learned only through knowing who made the step and how it was made. Goethe's immortal statement, ``Man was not born to solve the riddle of the universe, but to seek out what the problem leads to in order to keep himself within the limits of the conceivable,'' is valid for us too.
Our great mistake in examining and judging often lies in our
setting too much value upon individual circumstances, and trying
to solve the problem with those alone, or in not daring to use any
given circumstance sufficiently. The latter represents that stupidity
which is of use to scientific spirits when they lack complete proof
<p 157>
of their points, but is dangerous in practical affairs. As a rule, it is
also the consequence of the failure to evaluate what is given, simply
because one forgets or is too lazy to do so. Proper action in this
regard is especially necessary where certain legal proceedings have
to occur which are entitled to a definite degree of probability without
requiring certainty, i. e., preliminary examinations, arrests,
investigations of the premises, etc. No law says how much probability
is in such cases required. To say how much is impossible, but it
is not unwise to stick to the notion that the event must appear
true, if not be proved true, i. e., nothing must be present to destroy
the appearance of truth. As Hume says, ``Whenever we have reason
to trust earlier experiences and to take them as standards of
judgment of future experiences, these reasons may have probability.''
The place of probability in the positive determination of the order of modern criminal procedure is not insignificant. When the law determines upon a definite number of jurymen or judges, it is probable that this number is sufficient for the discovery of the truth. The system of prosecution establishes as a probability that the accused is the criminal. The idea of time-lapse assumes the probability that after the passage of a certain time punishment becomes illusory, and prosecution uncertain and difficult. The institution of experts depends on the probability that the latter make no mistakes. The warrant for arrest depends on the probability that the accused behaved suspiciously or spoke of his crime, etc. The oath of the witness depends on the probability that the witness will be more likely to tell the truth under oath, etc.
Modern criminal procedure involves not only probabilities but also various types of possibility. Every appeal has for its foundation the possibility of an incorrect judgment; the exclusion of certain court officials is based on the possibility of prejudice, or at least on the suspicion of prejudice; the publicity of the trial is meant to prevent the possibility of incorrectness; the revision of a trial depends on the possibility that even legal sentences may be false and the institution of the defendant lawyer depends upon the possibility that a person without defense may receive injustice. All the formalities of the action of the court assume the possibility that without them improprieties may occur, and the institution of seizing letters and messages for evidence, asserts only the possibility that the latter contain things of importance, etc.
When the positive dicta of the law deal with possibility and proba-
<p 158>
bility in questions of great importance the latter become especially
significant.
We have yet to ask what is meant by ``rule'' and what its relation
is to probability. Scientifically ``rule'' means law subjectively
taken and is of equal significance with the guiding line for
one's own conduct, whence it follows that there are only rules of
art and morality, but no rules of nature. Usage does not imply
this interpretation. We say that as a rule it hails only in the daytime;
by way of exception, in the night also; the rule for the appearance
of whales indicates that they live in the Arctic Ocean;
a general rule indicates that bodies that are especially soluble in
water should dissolve more easily in warm than in cold water, but
salt dissolves equally well in both. Again we say: As a rule the
murderer is an unpunished criminal; it is a rule that the brawler is
no thief and vice versa; the gambler is as a rule a man of parts,
etc. We may say therefore, that regularity is equivalent to customary
recurrence and that whatever serves as rule may be expected
as probable. If, i. e., it be said, that this or that happens as a rule,
we may suppose that it will repeat itself this time. It is not permissible
to expect more, but it frequently happens that we mistake
rules permitting exceptions for natural laws permitting none. This
occurs frequently when we have lost ourselves in the regular occurrences
for which we are ourselves responsible and suppose that
because things have been seen a dozen times they must always
appear in the same way. It happens especially often when we have
heard some phenomenon described in other sciences as frequent and
regular and then consider it to be a law of nature. In the latter case
we have probably not heard the whole story, nor heard general
validity assigned to it. Or again, the whole matter has long since
altered. Lotze wrote almost half a century ago, that he had some
time before made the statistical observation that the great positive
discoveries of exact physiology have an average life of about four
years. This noteworthy statement indicates that great positive
discoveries are set up as natural laws only to show themselves as
at most regular phenomena which have no right to general validity.
And what is true of physiology is true of many other sciences, even
of the great discoveries of medicine, even legal medicine. This,
therefore, should warn against too much confidence in things that
are called ``rules.'' False usage and comfortable dependence upon
a rule have very frequently led us too far. Its unreliability is shown
by such maxims as ``Three misses make a rule'' or ``Many stupidities
<p 159>
taken together give a golden rule of life,'' or ``To-day's exception
is to-morrow's rule,'' or the classical perversion: ``The rule that
there are no rules without exception is a rule without exception,
hence, there is one rule without exception.''
The unreliability of rules is further explained by their rise from generalization. We must not generalize, as Schiel says, until we have shown that if there are cases which contradict our generalizations we know those contradictions. In practice approximate generalizations are often our only guides. Natural law is too much conditioned, cases of it too much involved, distinctions between them too hard to make, to allow us to determine the existence of a natural phenomenon in terms of its natural characteristics as a part of the business of our daily life. Our own age generalizes altogether too much, observes too little, and abstracts too rapidly. Events come quickly, examples appear in masses, and if they are similar they tend to be generalized, to develop into a rule, while the exceptions which are infinitely more important are unobserved, and the rule, once made, leads to innumerable mistakes.
Section 29. (g) Chance.
The psychological significance of what we call chance depends upon the concept of chance and the degree of influence that we allow it to possess in our thinking. What is generally called chance, and what is called chance in particular cases, will depend to a significant degree upon the nature of the case. In progressive sciences the laws increase and the chance-happenings decrease; the latter indeed are valid only in particular cases of the daily life and in the general business of it. We speak of chance or accident when events cross which are determined in themselves by necessary law, but the law of the crossing of which is unknown. If, e. g., it is observed that where there is much snow the animals are white, the event must not be attributed to accident, for the formation of snow in high mountains or in the north, and its long stay on the surface of the earth develop according to special natural laws, and the colors of animals do so no less--but that these two orderly series of facts should meet requires a third law, or still better, a third group of laws, which though unknown some time ago, are now known to every educated person.
For us lawyers chance and the interpretation of it are of immense
importance not only in bringing together evidence, but in every
case of suspicion, for the problem always arises whether a causal
<p 160>
relation may be established between the crime and the suspect, or
whether the relation is only accidental. ``Unfortunate coincidence''
--``closely related connection of facts''--``extraordinary accumulation
of reason for suspicion,''--all these terms are really
chance mistaken for causation. On the knowledge of the difference
between the one and the other depends the fate of most evidence
and trials. Whoever is fortunate enough in rightly perceiving what
chance is, is fortunate in the conduct of his trial.
Is there really a theory of chance? I believe that a direct treatment
of the subject is impossible. The problem of chance can be
only approximately explained when all conceivable chance-happenings
of a given discipline are brought together and their number reduced
by careful search for definite laws. Besides, the problem demands
the knowledge of an extremely rich casuistry, by means of which,
on the one hand, to bring together the manifoldness of chance
events, and on the other to discover order. Enough has been written
about chance, but a systematic treatment of it must be entirely
theoretical. So Windelband's[1] excellent and well-ordered book
deals with relations (chance and cause, chance and law, chance and
purpose, chance and concept) the greatest value of which is to indicate
critically the various definitions of the concept of chance.
Even though there is no definition which presents the concept of
chance in a completely satisfactory manner, the making of such
definitions is still of value because one side of chance is explained
and the other is thereby seen more closely. Let us consider a few
of these and other definitions. Aristotle says that the accidental
occurs, <gr para fusin>, according to nature. Epicurus, who sees the
creation of the world as a pure accident, holds it to occur <gr ta men apo>
<gr tuchs, ta de par hmwn>. Spinoza believes nothing to be contingent
save only according to the limitations of knowledge; Kant says
that conditioned existence as such, is called accidental; the unconditioned,
necessary. Humboldt: ``Man sees those things as accident
which he can not explain genetically.'' Schiel: ``Whatever may
not be reduced back to law is called accidental.'' Quetelet: ``The
word chance serves officiously to hide our ignorance.'' Buckle
derives the idea of chance from the life of nomadic tribes, which
contains nothing firm and regulated. According to Trendelenburg
chance is that which could not be otherwise. Rosenkranz says:
Chance is a reality which has only the value of possibility, while
Fischer calls chance the individualized fact, and Lotze identifies it
<p 161>
with everything that is not valid as a natural purpose. For Windelband
``chance consists, according to usage, in the merely factual
but not necessary transition from a possibility to an actuality.
Chance is the negation of necessity. It is a contradiction to say
`This happened by accident,' for the word `by' expressed a cause.''
[1] Windelband: Die Lehren vom Zufall. Berlin 1870.
- H<o:>fler[1] says most intelligently, that the contradiction of the idea of chance by the causal law may be easily solved by indicating the especial relativity of the concept. (Accidental with regard to _*one_, but otherwise appearing as a possible causal series).
[1] Cf. S. Freud: Psychopathologie des Alltagsleben.
The lesson of these definitions is obvious. What we call chance plays a great r<o^>le in our legal work. On our recognizing a combination of circumstances as accidental the result of the trial in most cases depends, and the distinction between accident and law depends upon the amount of knowledge concerning the events of the daily life especially. Now the use of this knowledge in particular cases consists in seeking out the causal relation in a series of events which are adduced as proof, and in turning accident into order. Or, in cases where the law which unites or separates the events can not be discovered, it may consist in the very cautious interpretation of the combination of events on the principle _simul cum hoc non est propter hoc_.
Section 30. (h) Persuasion and Explanation.
How in the course of trial are people convinced? The criminalist
has as presiding officer not only to provide the truth which convinces;
it is his business as state official to convince the defendant of the
correctness of the arguments adduced, the witness of his duty to
tell the truth. But he again is often himself convinced by a witness
or an accused person--correctly or incorrectly. Mittermaier[2]
calls conviction a condition in which our belief-it-is-true depends
on full satisfactory grounds of which we are aware. But this state
of conviction is a goal to be reached and our work is not done until
the convincing material has been provided. Seeking the truth is
not enough. Karl Gerock assures us that no philosophical system
offers us the full and finished truth, but there is a truth for the idealist,
and to ask Pilate's blas<e'> question is, as Lessing suggests, rendering
the answer impossible. But this shows the difference between
scientific and practical work; science may be satisfied with seeking
truth, but we must possess truth. If it were true that truth alone
<p 162>
is convincing, there would not be much difficulty, and one might be
content that one is convinced only by what is correct. But this is
not the case. Statistically numbers are supposed to prove, but
actually numbers prove according to their uses. So in the daily
life we say facts are proofs when it would be more cautious to say:
facts are proofs according to their uses. It is for this reason that
sophistical dialectic is possible. Arrange the facts in one way and
you reach one result, arrange the facts another way and you may
reach the opposite. Or again, if you study the facts in doubtful
cases honestly and without prejudice you find how many possible
conclusions may be drawn, according to their arrangement. We
must, of course, not have in mind that conviction and persuasion
which is brought about by the use of many words. We have to
consider only that adduction of facts and explanation, simple or
complex, in a more or less skilful, intentional or unintentional
manner, by means of which we are convinced at least for a moment.
The variety of such conviction is well known to experience.
[2] C. J. A. Mittermaier: Die Lehre vom Beweise.
``The na<i:>vet<e'> of the first glance often takes the prize from scholarship. All hasty, decisive judgment betrays, when it becomes habitual, superficiality of observation and impiety against the essential character of particular facts. Children know as completely determined and certain a great deal which is doubtful to the mature man'' (V. Volkmar).
So, frequently, the simplest thing we are told gets its value from the manner of telling, or from the person of the narrator. And inasmuch as we ourselves are much more experienced and skilful in arranging and grouping facts than are our witnesses and the accused, it often happens that we persuade these people and that is the matter which wants consideration.
Nobody will assert that it will occur to any judge to persuade
a witness to anything which he does not thoroughly believe, but
we know how often we persuade ourselves to some matter, and
nothing is more conceivable than that we might like to see other
people agree with us about it. I believe that the criminalist, because,
let us say, of his power, as a rule takes his point of view too lightly.
Every one of us, no doubt, has often begun his work in a small and
inefficient manner, has brought it along with mistakes and scantiness
and when finally he has reached a somewhat firm ground, he has
been convinced by his failures and mistakes of his ignorance and
inadequacy. Then he expected that this conviction would be obvious
also to other people whom he was examining. But this obviousness
<p 163>
is remarkably absent, and all the mistakes, cruelties, and miscarriages
of justice, have not succeeded in robbing it of the dignity it possesses
in the eyes of the nation. Perhaps the goodwill which may be presupposed
ought to be substituted for the result, but it is a fact that
the layman presupposes much more knowledge, acuteness, and
power in the criminalist than he really possesses. Then again, it
is conceivable that a single word spoken by the judge has more
weight than it should have, and then when a real persuasion--
evidently in the best sense of the word--is made use of, it must
be influential. I am certain that every one of us has made the
frightful observation that by the end of the examination the witness
has simply taken the point of view of the examiner, and the worst
thing about this is that the witness still thinks that he is thinking
in his own way.
The examiner knows the matter in its relation much better, knows how to express it more beautifully, and sets pretty theories going. The witness, to whom the questions are suggestive, becomes conceited, likes to think that he himself has brought the matter out so excellently, and therefore is pleased to adopt the point of view and the theories of the examiner who has, in reality, gone too far in his eagerness. There is less danger of this when educated people are examined for these are better able to express themselves; or again when women are examined for these are too obstinate to be persuaded, but with the great majority the danger is great, and therefore the criminalist can not be told too often how necessary it is that he shall meet his witness with the least conceivable use of eloquence.
Forensic persuasion is of especial importance and has been considered
so since classical days, whether rightly, is another question.
The orations of state prosecutors and lawyers for the defense, when
made before scholarly judges, need not be held important. If individuals
are ever asked whether they were persuaded or made
doubtful by the prosecutor or his opponent they indicate very few
instances. A scholarly and experienced judge who has not drawn
any conclusions about the case until the evidence was all in need
hardly pay much attention to the pleaders. It may indeed be that
the prosecution or defense may belittle or intensify one or another
bit of evidence which the bench might not have thought of; or they
may call attention to some reason for severity or mercy. But on
the one hand if this is important it will already have been touched
in the adduction of evidence, and on the other hand such points are
<p 164>
generally banal and indifferent to the real issue in the case. If this
be not so it would only indicate that either we need a larger number
of judges, or even when there are many judges that one thing or
another may be overlooked.
But with regard to the jury the case is quite different; it is easily
influenced and more than makes up for the indifference of the bench.
Whoever takes the trouble to study the faces of the jury during trial,
comes to the conclusion that the speeches of the prosecution and
defense are the most important things in the trial, that they absorb
most of the attention of the jury, and that the question of guilt
or innocence does not depend upon the number and weight of the
testimony but upon the more or less skilful interpretation of it.
This is a reproach not to the jury but to those who demand from it
a service it can not render. It is first necessary to understand how
difficult the conduct of a trial is. In itself the conduct of a jury trial
is no art, and when compared with other tasks demanded of the
criminalist may be third or fourth in difficulty. What is difficult
is the determination of the chronological order in which to present
evidence, i. e., the drawing of the brief. If the brief is well drawn,
everything develops logically and psychologically in a good way
and the case goes on well; but it is a great and really artistic task
to draw this brief properly. There are only two possibilities. If the
thing is not done, or the brief is of no use, the case goes on irrelevantly,
illogically and unintelligibly and the jury can not understand what
is happening. If the trick is turned, however, then like every art it
requires preparation and intelligence. And the jury do not possess
these, so that the most beautiful work of art passes by them without
effect. They therefore must turn their attention, to save what can
be saved, upon the orations of the prosecution and defense. These
reproduce the evidence for them in some intelligible fashion and
the verdict will be innocence or guilt according to the greater intelligence
of one or the other of the contending parties. Persuasiveness
at its height, Hume tells us, leaves little room for intelligence and
consideration. It addresses itself entirely to the imagination and
the affections, captures the well-inclined auditors, and dominates
their understanding. Fortunately this height is rarely reached.
In any event, this height, which also dominates those who know
the subject, will always be rare, yet the jury are not people of knowledge
and hence dominations ensue, even through attempts at persuasiveness
which have attained no height whatever. Hence the
great danger.
<p 165>
The only help against this is in the study by the presiding justice, not as lawyer but as psychologist, of the faces of the jury while the contending lawyers make their addresses. He must observe very narrowly and carefully every influence exercised by the speeches, which is irrelevant to the real problem, and then in summing up call it to the attention of the jury and bring them back to the proper point of view. The ability to do this is very marvelous, but it again is an exceedingly difficult performance.
Nowadays persuadability is hardly more studied but anybody who has empirically attained some proficiency in it has acquired the same tricks that are taught by theory. But these must be known if they are to be met effectively. Hence the study of the proper authors can not be too much recommended. Without considering the great authors of the classical period, especially Aristotle and Cicero, there are many modern ones who might be named.
Section 31. (i) Inference and Judgment.
The judgment to be discussed in the following section is not the
judgment of the court but the more general judgment which occurs
in any perception. If we pursue our tasks earnestly we draw from
the simplest cases innumerable inferences and we receive as many
inferences from those we examine. The correctness of our work
depends upon the truth of both. I have already indicated how very
much of the daily life passes as simple and invincible sense-perception
even into the determination of a sentence, although it is
often no more than a very complicated series of inferences each of
which may involve a mistake even if the perception itself has been
correct. The frequency with which an inference is made from senseperception
is the more astonishing inasmuch as it exceeds all that
the general and otherwise valid law of laziness permits. In fact, it
contradicts that law, though perhaps it may not do so, for a hasty
inference from insufficient premises may be much more comfortable
than more careful observation and study. Such hasty inference
is made even with regard to the most insignificant things. In the
course of an investigation we discover that we have been dealing
only with inferences and that our work therefore has been for nothing.
Then again, we miss that fact, and our results are false and their
falsehood is rarely sought in these petty mistakes. So the witness
may have ``seen'' a watch in such and such a place when in reality
he has only heard a noise that he took for the ticking of a watch
and hence _*inferred_ that there had really been a watch, that he had
<p 166>
seen it, and finally _*believed_ that he had seen it. Another witness
asserts that X has many chickens; as a matter of fact he has heard
two chickens cluck and infers a large number. Still another has
seen footprints of cattle and speaks of a herd, or he knows the exact
time of a murder because at a given time he heard somebody sigh,
etc. There would be little difficulty if people told us how they had
inferred, for then a test by means of careful questions would be
easy enough--but they do not tell, and when we examine ourselves
we discover that we do exactly the same thing and often believe
and assert that we have seen or heard or smelt or felt although we
have only inferred these things.[1] Here belong all cases of correct
or partly correct inference and of false inference from false sense
perception. I recall the oft-cited story in which a whole judicial
commission smelt a disgusting odor while a coffin was being exhumed
only to discover that it was empty. If the coffin, for one reason or
another, had not been opened all those present would have taken
oath that they had an indubitable perception although the latter
was only inferred from its precedent condition.
[1] Cf. H. Gross, Korrigierte Vorstellungen, in the Archiv, X, 109.
Exner[2] cites the excellent example in which a mother becomes
frightened while her child cries, not because the cry as such sounds
so terrible as because of its combination with the consciousness that
it comes from her own child and that something might have happened
to it. It is asserted, and I think rightly, that verbal associations
have a considerable share in such cases. As Stricker[3] expresses
it, the form of any conceptual complex whatever, brings out its
appropriate word. If we see the _*thing_ watch, we get the _*word_ watch.
If we see a man with a definite symptom of consumption the word
tuberculosis occurs at once. The last example is rather more significant
because when the whole complex appears mistakes are more
remote than when merely one or another ``safe'' symptom permits
the appearance of the word in question. What is safe to one mind
need not be so to another, and the notion as to the certainty of
any symptom changes with time and place and person. Mistakes
are especially possible when people are so certain of their ``safe''
symptoms that they do not examine how they inferred from them.
This inference, however, is directly related to the appearance of the
word. Return to the example mentioned above, and suppose that
A has discovered a ``safe'' symptom of consumption in B and the
<p 167>
word tuberculosis occurs to him. But the occurrence does not leave
him with the word merely, there is a direct inference ``B has tuberculosis.''
We never begin anything with the word alone, we attach
it immediately to some fact and in the present case it has become,
as usual, a judgment. The thought-movement of him who has
heard this judgment, however, turns backward and he supposes
that the judge has had a long series of sense-perceptions from which
he has derived his inference. And in fact he has had only one perception,
the reliability of which is often questionable.
[2] S. Exner: Entwurf zu einer physiologisehen Erkl<a:>rung der psychischen Erscheinungen. Leipzig 1894.
[3] Studien <u:>ber die Assoziation der Vorstellungen. Vienna 1883.
Then there is the additional difficulty that in every inference there are leaps made by each inferer according to his character and training. And the maker does not consider whether the other fellow can make similar leaps or whether his route is different. E. g., when an English philosopher says, ``We really ought not to expect that the manufacture of woolens shall be perfected by a nation which knows no astronomy,''--we are likely to say that the sentence is silly; another might say that it is paradoxical and a third that it is quite correct, for what is missing is merely the proposition that the grade of culture made possible by astronomy is such as to require textile proficiency also. ``In conversation the simplest case of skipping is where the conclusion is drawn directly from the minor premise. But many other inferences are omitted, as in the case of real thinking. In giving information there is review of the thinking of other people; women and untrained people do not do this, and hence the disconnectedness of their conversation.''[1] In this fact is the danger in examining witnesses, inasmuch as we involuntarily interpolate the missing details in the skipping inferences, but do it according to our own knowledge of the facts. Hence, a test of the correctness of the other man's inference becomes either quite impossible or is developed coarsely. In the careful observation of leaping inferences made by witnesses--and not merely by women and the uneducated--it will be seen that the inference one might oneself make might either have been different or have proceeded in a different way. If, then, all the premises are tested a different result from that of the witness is obtained. It is well known how identical premises permit of different conclusions by different people.
[1] von Hartmann: Philosophie des Unbewussten. Berlin 1869.
In such inferences certain remarkable things occur which, as a
rule, have a given relation to the occupation of the witness. So,
e. g., people inclined to mathematics make the greatest leaps, and
though these may be comparatively and frequently correct, the
<p 168>
danger of mistake is not insignificant when the mathematician deals
in his mathematical fashion with unmathematical things.
Another danger lies in the testimony of witnesses who have a certain sense of form in representation and whose inferential leaps consists in their omitting the detailed expression and in inserting the notion of form instead. I learned of this notable psychosis from a bookkeeper of a large factory, who had to provide for the test of numberless additions. It was his notion that if we were to add two and three are five, and six are eleven, and seven are eighteen we should never finish adding, and since the avoidance of mistakes requires such adding we must so contrive that the image of two and three shall immediately call forth the image of five. Now this mental image of five is added with the actual six and gives eleven, etc. According to this we do not add, we see only a series of images, and so rapidly that we can follow with a pencil but slowly. And the images are so certain that mistake is impossible. ``You know how 9 looks? Well, just as certainly we know what the image of 27 and 4 is like; the image of 31 occurs without change.''
This, as it happens, is a procedure possible only to a limited type, but this type occurs not only among bookkeepers. When any one of such persons unites two events he does not consider what may result from such a union; he sees, if I may say so, only a resulting image. This image, however, is not so indubitably certain as in the case of numbers; and it may take all kinds of forms, the correctness of which is not altogether probable. E. g., the witness sees two forms in the dark and the flash of a knife and hears a cry. If he belongs to the type under discussion he does not consider that he might have been so frightened by the flashing knife as to have cried out, or that he had himself proceeded to attack with a stick and that the other fellow did the yelling, or that a stab or cut had preceded the cry--no, he saw the image of the two forms and the knife and he heard the cry and these leap together into an image. i. e., one of the forms has a cut above his brow. And these leaps occur so swiftly and with such assurance that the witness in question often believes himself to have seen what he infers and swears to it.
There are a great many similar processes at the bottom of impressions
that depend only upon swift and unconscious inference.
Suppose, e. g., that I am shown the photograph of a small section
of a garden, through which a team is passing. Although I observe
the image of only a small portion of the garden and therefore
have no notion of its extent, still, in speaking of it, I shall proba-
<p 169>
bly speak of a very big garden. I have inferred swiftly and
unconsciously that in the fact that a wagon and horses were
present in the pictured portion of the garden, is implied great
width of road, for even gardens of average size do not have such
wide roads as to admit wagons; the latter occurring only in parks
and great gardens. Hence my conclusion: the garden must be
very big. Such inferences[1] are frequent, whence the question as
to the source and the probability of the witness's information,
whether it is positive or only an impression. Evidently such an
impression may be correct. It will be correct often, inasmuch as
impressions occur only when inferences have been made and tested
repeatedly. But it is necessary in any case to review the sequence
of inferences which led to this impression and to examine their
correctness. Unfortunately the witness is rarely aware whether he
has perceived or merely inferred.
[1] Cf. Gross's Archiv, I, 93, II, 140, III, 250, VII, 155.
Examination is especially important when the impression has been made after the observation of a few marks or only a single one and not very essential one at that. In the example of the team the impression may have been attained by inference, but frequently it will have been attained through some unessential, purely personal, determinative characteristic. ``Just as the ancient guest recognizes his friend by fitting halves of the ring, so we recognize the object and its constitution from one single characteristic, and hence the whole vision of it is vivified by that characteristic.''[2]
[2] H. Aubert: Physiologie der Netzhaut. Breslau 1865.
All this is very well if no mistakes are made. When Tertullian said, ``Credo quia impossibile est,'' we will allow honesty of statement to this great scholar, especially as he was speaking about matters of religion, but when Socrates said of the works of Heraclitus the Obscure: ``What I understand of it is good; I think that what I do not understand is also good''--he was not in earnest. Now the case of many people who are not as wise as Tertullian and Socrates is identical with theirs. Numerous examinations of witnesses made me think of Tertullian's maxim, for the testimonies presented the most improbable things as facts. And when they even explained the most unintelligible things I thought: ``And what you do not understand is also good.''
This belief of uncultured people in their own intelligence has
been most excellently portrayed by Wieland in his immortal ``Abderites.''
The fourth philosopher says: ``What you call the world
<p 170>
is essentially an infinite series of worlds which envelop one another
like the skin of an onion.'' ``Very clear,'' said the Abderites, and
thought they understood the philosopher because they knew perfectly
well what an onion looked like. The inference which is drawn
from the comprehension of one term in a comparison to the comprehension
of the other is one of the most important reasons for the
occurrence of so many misunderstandings. The example, as such,
is understood, but its application to the assertion and the question
whether the latter is also made clear by the example are forgotten.
This explains the well known and supreme power of examples and
comparisons, and hence the wise of all times have used comparisons
in speaking to the poor in spirit. Hence, too, the great effect of
comparisons, and also the numerous and coarse misunderstandings
and the effort of the untrained and unintelligent to clarify those
things they do not understand by means of comparisons. Fortunately
they have, in trying to explain the thing to other people,
the habit of making use of these difficultly discovered comparisons
so that the others, if they are only sufficiently observant, may
succeed in testing the correctness of the inference from one term in
a comparison to the other. We do this frequently in examining
witnesses, and we discover that the witness has made use of a figure
to clarify some unintelligible point and that he necessarily understands
it since it lies within the field of his instruments of thought.
But what is compared remains as confused to him as before. The
test of it, therefore, is very tiring and mainly without results, because
one rarely succeeds in liberating a man from some figure discovered
with difficulty. He always returns to it because he understands it,
though really not what he compares. But what is gained in such
a case is not little, for the certainty that, so revealed, the witness
does not understand the matter in hand, easily determines the value
of his testimony.
The fullness of the possibilities under which anything may be
asserted is also of importance in this matter. The inference that
a thing is impossible is generally made by most people in such wise
that they first consider the details of the eventualities they already
know, or immediately present. Then, when these are before them,
they infer that the matter is quite impossible--and whether one
or more different eventualities have missed of consideration, is not
studied at all. Our kindly professor of physics once told us: ``Today
I intended to show you the beautiful experiments in the interference
of light--but it can not be observed in daylight and when
<p 171>
I draw the curtains you raise rough-house. The demonstration is
therefore impossible and I take the instruments away.'' The good
man did not consider the other eventuality, that we might be depended
upon to behave decently even if the curtains were drawn.
Hence the rule that a witness's assertion that a thing is impossible must never be trusted. Take the simplest example. The witness assures us that it is impossible for a theft to have been committed by some stranger from outside. If you ask him why, he will probably tell you: ``Because the door was bolted and the windows barred.'' The eventuality that the thief might have entered by way of the chimney, or have sent a child between the bars of the window, or have made use of some peculiar instrument, etc., are not considered, and would not be if the question concerning the ground of the inference had not been put.
We must especially remember that we criminalists ``must not dally with mathematical truth but must seek historical truth. We start with a mass of details, unite them, and succeed by means of this union and test in attaining a result which permits us to judge concerning the existence and the characteristics of past events.'' The material of our work lies in the mass of details, and the manner and reliability of its presentation determines the certainty of our inferences.
Seen more closely the winning of this material may be described as Hume describes it:[1] ``If we would satisfy ourselves, therefore, concerning the nature of that evidence which assures us of matters of fact, we must inquire how we arrive at the knowledge of cause and effect. I shall venture to affirm as a general proposition which admits of no exception, that the knowledge of this relation is not, in any instance, attained by reasonings a priori; but arises entirely from experience, when we find that any particular objects are constantly conjoined with each other; . . . nor can our reason, unassisted by experience, ever draw any inference concerning real existence and matter of fact.''
[1] David Hume: Enquiry, p. 33 (Open Court Ed.).
In the course of his explanation Hume presents two propositions,
(1) I have found that such an object has always been attended with such an effect.
(2) I foresee that other objects which are in appearance similar, will be attended with similar effects.
He goes on: ``I shall allow, if you please, that the one proposition
may justly be inferred from the other; I know in fact that it always
<p 172>
is inferred. But if you insist that the inference is made by a chain
of reasoning, I desire you to produce that chain of reasoning. The
connection between these propositions is not intuitive. There is
required a medium which may enable the mind to draw such an
inference, if, indeed, it be drawn by reasoning and argument. What
the medium is, I must confess, passes my comprehension; and it
is incumbent on those to produce it who assert that it exists, and
is the origin of all our conclusions concerning matters of fact.''
If we regard the matter more closely we may say with certainty: This medium exists not as a substance but as a transition. When I speak in the proposition of ``such an object,'' I already have ``similar'' in mind, inasmuch as there is nothing absolutely like anything else, and when I say in the first proposition, ``such an object,'' I have already passed into the assertion made in the second proposition.
Suppose that we take these propositions concretely:
(1) I have discovered that bread made of corn has a nourishing effect.
(2) I foresee that other apparently similar objects, e. g., wheat, will have a like effect.
I could not make various experiments with the same corn in case (1). I could handle corn taken as such from one point of view, or considered as such from another, i. e., I could only experiment with very similar objects. I can therefore make these experiments with corn from progressively remoter starting points, or soils, and finally with corn from Barbary and East Africa, so that there can no longer be any question of identity but only of similarity. And finally I can compare two harvests of corn which have less similarity than certain species of corn and certain species of wheat. I am therefore entitled to speak of identical or similar in the first proposition as much as in the second. One proposition has led into another and the connection between them has been discovered.
The criminological importance of this ``connection'' lies in the
fact that the correctness of our inferences depends upon its discovery.
We work continuously with these two Humian propositions,
and we always make our assertion, first, that some things are
related as cause and effect, and we join the present case to that
because we consider it similar. If it is really similar, and the connection
of the first and the second proposition are actually correct,
the truth of the inference is attained. We need not count the unexplained
wonders of numerical relations in the result. D'Alembert
<p 173>
asserts: ``It seems as if there were some law of nature which more
frequently prevents the occurrence of regular than irregular combinations;
those of the first kind are mathematically, but not physically,
more probable. When we see that high numbers are thrown
with some one die, we are immediately inclined to call that die
false.'' And John Stuart Mill adds, that d'Alembert should have
set the problem in the form of asking whether he would believe in
the die if, after having examined it and found it right, somebody
announced that ten sixes had been cast with it.
We may go still further and assert that we are generally inclined to consider an inference wrong which indicates that accidental matters have occurred in regular numerical relation. Who believes the hunter's story that he has shot 100 hares in the past week, or the gambler's that he has won 1000 dollars; or the sick man's, that he was sick ten times? It will be supposed at the very least that each is merely indicating an approximately round sum. Ninety-six hares, 987 dollars, and eleven illnesses will sound more probable. And this goes so far that during examinations, witnesses are shy of naming such ``improbable ratios,'' if they at all care to have their testimony believed. Then again, many judges are in no wise slow to jump at such a number and to demand an ``accurate statement,'' or eves immediately to decide that the witness is talking only ``about.'' How deep-rooted such views are is indicated by the circumstance that bankers and other merchants of lottery tickets find that tickets with ``pretty numbers'' are difficult to sell. A ticket of series 1000, number 100 is altogether unsalable, for such a number ``can not possibly be sold.'' Then again, if one has to count up a column of accidental figures and the sum is 1000, the correctness of the sum is always doubted.
Here are facts which are indubitable and unexplained. We must therefore agree neither to distrust so-called round numbers, nor to place particular reliance on quite irregular figures. Both should be examined.
It may be that the judgment of the correctness of an inference is made analogously to that of numbers and that the latter exercise an influence on the judgment which is as much conceded popularly as it is actually combated. Since Kant, it has been quite discovered that the judgment that fools are in the majority must lead through many more such truths in judging--and it is indifferent whether the judgment dealt with is that of the law court or of a voting legislature or mere judgments as such. <p 174>
Schiel says, ``It has been frequently asserted that a judgment is more probably correct according to the number of judges and jury. Quite apart from the fact that the judge is less careful, makes less effort, and feels less responsibility when he has associates, this is a false inference from an enormous average of cases which are necessarily remote from any average whatever. And when certain prejudices or weaknesses of mind are added, the mistake multiplies. Whoever accurately follows, if he can avoid getting bored, the voting of bodies, and considers by themselves individual opinions about the subject, they having remained individual against large majorities and hence worthy of being subjected to a cold and unprejudiced examination, will learn some rare facts. It is especially interesting to study the judgment of the full bench with regard to a case which has been falsely judged; surprisingly often only a single individual voice has spoken correctly. This fact is a warning to the judge in such cases carefully to listen to the individual opinion and to consider that it is very likely to deserve study just because it is so significantly in the minority.
The same thing is to be kept in mind when a thing is asserted by a large number of witnesses. Apart from the fact that they depend upon one another, that they suggest to one another, it is also easily possible, especially if any source of error is present, that the latter shall have influenced all the witnesses.
Whether a judgment has been made by a single judge or is the verdict of any number of jurymen is quite indifferent since the correctness of a judgment does not lie in numbers. Exner says, ``The degree of probability of a judgment's correctness depends upon the richness of the field of the associations brought to bear in establishing it. The value of knowledge is judicially constituted in this fact, for it is in essence the expansion of the scope of association. And the value is proportional to the richness of the associations between the present fact and the knowledge required.'' This is one of the most important of the doctrines we have to keep in mind, and it controverts altogether those who suppose that we ought to be satisfied with the knowledge of some dozens of statutes, a few commentaries, and so and so many precedents.
If we add that ``every judgment is an identification and that in
every judgment we assert that the content represented is identical
in spite of two different associative relationships,''[1] it must become
clear what dangers we undergo if the associative relationships of
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a judge are too poor and narrow. As Mittermaier said seventy
years ago: ``There are enough cases in which the weight of the
evidence is so great that all judges are convinced of the truth in the
same way. But in itself what determines the judgment is the essential
character of him who makes it.'' What he means by essential
character has already been indicated.
[1] H. M<u:>nsterberg: Beitr<a:>ge zur experimentellen Psychologie, III. Freiburg.
We have yet to consider the question of the value of inferences made by a witness from his own combinations of facts, or his descriptions. The necessity, in such cases, of redoubled and numerous examinations is often overlooked. Suppose, for example, that the witness does not know a certain important date, but by combining what he does know, infers it to have been the second of June, on which day the event under discussion took place. He makes the inference because at the time he had a call from A, who was in the habit of coming on Wednesdays, but there could be no Wednesday after June seventh because the witness had gone on a long journey on that day, and it could not have been May 26 because this day preceded a holiday and the shop was open late, a thing not done on the day A called. Nor, moreover, could the date have been May 20, because it was very warm on the day in question, and the temperature began to rise only after May 20. In view of these facts the event under discussion must have occurred upon June 2nd and only on that day.
As a rule, such combinations are very influential because they appear cautious, wise and convincing. They impose upon people without inclination toward such processes. More so than they have a right to, inasmuch as they present little difficulty to anybody who is accustomed to them and to whom they occur almost spontaneously. As usually a thing that makes a great impression upon us is not especially examined, but is accepted as astounding and indubitable, so here. But how very necessary it is carefully to examine such things and to consider whether the single premises are sound, the example in question or any other example will show. The individual dates, the facts and assumptions may easily be mistaken, and the smallest oversight may render the result false, or at least not convincing.
The examination of manuscripts is still more difficult. What is
written has a certain convincing power, not only on others but on
the writer, and much as we may be willing to doubt and to improve
what has been written immediately or at most a short time ago,
a manuscript of some age has always a kind of authority and we
<p 176>
give it correctness cheaply when that is in question. In any event
there regularly arises in such a case the problem whether the written
description is quite correct, and as regularly the answer is a convinced
affirmative. It is impossible to give any general rule for testing
such affirmation. Ordinarily some clearness may be attained by
paying attention to the purpose of the manuscript, especially in
order to ascertain its sources and the personality of the writer.
There is much in the external form of the manuscript. Not that
especial care and order in the notes are particularly significant; I
once published the accounts of an old peasant who could neither
read nor write, and his accounts with a neighbor were done in untrained
but very clear fashion, and were accepted as indubitable in
a civil case. The purposiveness, order, and continuity of a manuscript
indicate that it was not written after the event; and are
therefore, together with the reason for having written it and obviously
with the personality of the writer, determinative of its value.
Section 32. (j) Mistaken Inferences.
It is true, as Huxley says, that human beings would have made
fewer mistakes if they had kept in mind their tendency to false
judgments which depend upon extraordinary combinations of real
experiences. When people say: I felt, I heard, I saw this or that,
in 99 cases out of 100 they mean only that they have been aware
of some kind of sensation the nature of which they determine in a
_*judgment_. Most erroneous inferences ensue in this fashion. They
are rarely formal and rarely arise by virtue of a failure to use logical
principles; their ground is the inner paucity of a premise, which
itself is erroneous because of an erroneous perception or conception.[1]
As Mill rightly points out, a large portion of mankind make mistakes
because of tacit assumptions that the order of nature and the
order of knowledge are identical and that things must exist as they
are thought, so that when two things can not be thought together
they are supposed not to exist together, and the inconceivable is
supposed to be identical with the non-existent. But what they do
not succeed in conceiving must not be confused with the absolutely
inconceivable. The difficulty or impossibility of conceiving may be
subjective and conditional, and may prevent us from understanding
the relation of a series of events only because some otherwise proxi-
<p 177>
mate condition is unknown or overlooked. Very often in criminal
cases when I can make no progress in some otherwise simple matter,
I recall the well known story of an old peasant woman who saw
the tail of a horse through an open stable door and the head of
another through another door several yards away, and because the
colors of both head and tail were similar, was moved to cry out:
``Dear Lord, what a long horse!'' The old lady started with the
presupposition that the rump and the head of the two horses
belonged to one, and could make no use of the obvious solution
of the problem of the inconceivably long horse by breaking it in
two.
[1] Cf. O. Gross: Soziale Hemmungsvorstellungen. II Gross's Archiv: VII, 123.
Such mistakes may be classified under five heads.[1]
[1] A paragraph is here omitted. Translator.
(1) Aprioristic mistakes. (Natural prejudices).
(2) Mistakes in observation.
(3) Mistakes in generalization. (When the facts are right and the inferences wrong).
(4) Mistakes of confusion. (Ambiguity of terms or mistakes by association).
(5) Logical fallacies.
All five fallacies play important r<o^>les in the lawyer's work.
We have very frequently to fight natural prejudices. We take certain classes of people to be better and others to be worse than the average, and without clearly expressing it we expect that the first class will not easily do evil nor the other good. We have prejudices about some one or another view of life; some definition of justice, or point of view, although we have sufficient opportunity to be convinced of their incorrectness. We have a similar prejudice in trusting our human knowledge, judgment of impressions, facts, etc., far too much, so far indeed, that certain relations and accidents occurring to any person we like or dislike will determine his advantage or disadvantage at our hands.
Of importance under this heading, too, are those inferences which
are made in spite of the knowledge that the case is different; the
power of sense is more vigorous than that of reflection. As Hartmann
expresses it: ``The prejudices arising from sensation, are not
conscious judgments of the understanding but instinctively practical
postulates, and are, therefore, very difficult to destroy, or even set
aside by means of conscious consideration. You may tell yourself
a thousand times that the moon at the horizon is as big as at the
zenith--nevertheless you see it smaller at the zenith.'' Such fixed
<p 178>
impressions we meet in every criminal trial, and if once we have
considered how the criminal had committed a crime we no longer
get free of the impression, even when we have discovered quite
certainly that he had no share in the deed. The second type of
fallacy--mistakes in observation--will be discussed later under
sense perception and similar matters.
Under mistakes of generalization the most important processes are those of arrangement, where the environment or accompanying circumstances exercise so determinative an influence that the inference is often made from them alone and without examination of the object in question. The Tanagra in the house of an art-connoisseur I take to be genuine without further examination; the golden watch in the pocket of a tramp to be stolen; a giant meteor, the skeleton of an iguana, a twisted-looking Nerva in the Royal Museum of Berlin, I take to be indubitably original, and indubitably imitations in the college museum of a small town. The same is true of events: I hear a child screeching in the house of the surly wife of the shoemaker so I do not doubt that she is spanking it; in the mountains I infer from certain whistles the presence of chamois, and a single long drawn tone that might be due to anything I declare to have come from an organ, if a church is near by.
All such processes are founded upon experience, synthesis, and, if you like, prejudices. They will often lead to proper conclusions, but in many cases they will have the opposite effect. It is a frequently recurring fact that in such cases careful examination is most of all necessary, because people are so much inclined to depend upon ``the first, always indubitably true impression.'' The understanding has generalized simply and hastily, without seeking for justification.
The only way of avoiding great damage is to extract the fact in itself from its environment and accompanying circumstance, and to study it without them. The environment is only a means of proof, but no proof, and only when the object or event has been validated in itself may we adduce one means of proof after another and modify our point of view accordingly. Not to do so, means always to land upon false inferences, and what is worse, to find it impossible upon the recognition of an error later on, to discover at what point it has occurred. By that time it has been buried too deep in the heap of our inferential system to be discoverable.
The error of confusion Mill reduces especially to the unclear
<p 179>
representation of _*what_ proof is, i. e., to the ambiguity of words. We
rarely meet such cases, but when we do, they occur after we have
compounded concepts and have united rather carelessly some symbol
with an object or an event which ought not to have been united,
simply because we were mistaken about its importance. A warning
example may be found in the inference which is made from the
sentence given a criminal because of ``identical motive.'' The
Petitio, the Ignorantia, etc., belong to this class. The purely logical
mistakes or mistakes of syllogism do not enter into these considerations.
Section 33. (k) Statistics of the Moral Situation.
Upon the first glance it might be asserted that statistics and
psychology have nothing to do with each other. If, however, it
is observed that the extraordinary and inexplicable results presented
by statistics of morals and general statistics influence our thought
and reflection unconditionally, its importance for criminal psychology
can not be denied. Responsibility, abundance of criminals,
their distribution according to time, place, personality, and circumstances,
the regularity of their appearance, all these have so profound
an influence upon us both essentially and circumstantially
that even our judgments and resolutions, no less than the conduct
and thought of other people whom we judge, are certainly altered
by them.[1] Moreover, probability and statistics are in such close
and inseparable connection that we may not make use of or interpret
the one without the other. Eminent psychological contributions
by M<u:>nsterberg show the importance the statistical problems have
for psychology. This writer warns us against the over-valuation
of the results of the statistics of morality, and believes that its proper
tendencies will be discovered only much later. In any event the
real value of statistical synthesis and deduction can be discovered
only when it is closely studied. This is particularly true with regard
to criminal conditions. The works of many authors[2] teach us things
that would not otherwise be learned, and they would not be dealt
with here if only a systematic study of the works themselves could
be of use. We speak here only of their importance for our own
discipline. Nobody doubts that there are mysteries in the figures
and figuring of statistics. We admit honestly that we know no
<p 180>
more to-day than when Paul de Decker discussed Quetelet's labors
in statistics of morality in the Brussels Academy of Science, and
confessed what a puzzle it was that human conduct, even in its
smallest manifestations, obeyed in their totality constant and
immutable laws. Concerning this curious fact Adolf Wagner says:
``If a traveler had told us something about some people where a
statute determines exactly how many persons per year shall marry,
die, commit suicide, and crimes within certain classes,--and if he
had announced furthermore that these laws were altogether obeyed,
what should we have said? And as a matter of fact the laws are
obeyed all the world over.''[1]
[1] O. Gross: Zur Phyllogenese der Ethik. H. Gross's Archiv, IX, 100. [2] Cf. B. F<:>oldes: Einuge Ergebnisse der neueren Kriminalstatistik. Zeitschrift f. d. yes. Strafrechte-Wissenschaft, XI. 1891. [1] N<a:>cke: Moralische Werte. Archiv, IX, 213
Of course the statistics of morality deal with quantities not qualities, but in the course of statistical examination the latter are met with. So, e. g., examinations into the relation of crime to schoolattendance and education, into the classes that show most suicides, etc., connect human qualities with statistical data. The time is certainly not far off when we shall seek for the proper view of the probability of a certain assumption with regard to some rare crime, doubtful suicide, extraordinary psychic phenomena, etc., with the help of a statistical table. This possibility is made clearer when the inconceivable constancy of some figures is considered. Suppose we study the number of suicides since 1819 in Austria, in periods of eight years. We find the following figures, 3000, 5000, 6000, 7000, 9000, 12000, 15000--i. e., a regular increase which is comparable to law.[2] Or suppose we consider the number of women, who, in the course of ten continuous years in France, shot themselves; we find 6, 6, 7, 7, 6, 6, 7; there is merely an alternation between 6 and 7. Should not we look up if in some one year eight or nine appeared? Should not we give some consideration to the possibility that the suicide is only a pretended one? Or suppose we consider the number of men who have drowned themselves within the same time: 280, 285, 292, 276, 257, 269, 258, 276, 278, 287,--Wagner says rightly of such figures ``that they contain the arithmetical relation of the mechanism belonging to a moral order which ought to call out even greater astonishment than the mechanism of stellar systems.''
[2] J. Gurnhill: The Morals of Suicide. London 1900.
Still more remarkable are the figures when they are so brought
together that they may be seen as a curve. It is in this way that
Drobisch brings together a table which distributes crime according
<p 181>
to age. Out of a thousand crimes committed by persons between
the ages of:
AGAINST AGAINST
PROPERTY PERSONS
Less than 16 years 2 0.53
16-21 105 28
21-25 114 50
25-30 101 48
30 35 93 41
35-40 78 31
40-45 63 25
45-50 48 19
50-55 34 15
55-60 24 12
60 65 19 11
65-70 14 8
70-80 8 5
More than 80 2 2
Through both columns a definite curve may be drawn which grows steadily and drops steadily. Greater mathematical certainty is almost unthinkable. Of similar great importance is the parallelization of the most important conditions. When, e. g., suicides in France, from 1826 to 1870 are taken in series of five years we find the figures 1739, 2263, 2574, 2951, 8446, 3639, 4002, 4661, 5147; if now during that period the population has increased from 30 to only 36 millions other determining factors have to be sought.[1]
[1] N<a:>cke in Archiv VI, 325, XIV, 366.
Again, most authorities as quoted by Gutberlet,[2] indicate that most suicides are committed in June, fewest in December; most at night, especially at dawn, fewest at