Criminal Psychology: A Manual for Judges, Practitioners, and Students

[Every attempt has been made to replicate the original as printed.

Some typographical errors have been corrected; a list follows the

text. German and French spellings have not been altered from the

original.

(etext transcriber's note)]

CRIMINAL PSYCHOLOGY

MODERN CRIMINAL SCIENCE SERIES

_Published under the auspices of the American Institute of Criminal Law

and Criminology_

1. =Modern Theories of Criminality.= By C. BERNALDO DE QUIRÓS, of Madrid.

Translated from the Second Spanish edition, by Dr. ALFONSO DE SALVIO,

Assistant Professor of Romance Languages in Northwestern University.

With an American Preface by the Author, and an Introduction by W. W.

SMITHERS, of the Philadelphia Bar.

2. =Criminal Psychology.= By HANS GROSS, Professor of Criminal Law in the

University of Graz, Austria, Editor of the Archives of Criminal

Anthropology and Criminalistics, etc. Translated from the Fourth German

edition, by Dr. HORACE M. KALLEN, Professor of Philosophy in Wisconsin

University. With an American Preface by the Author, and an Introduction

by JOSEPH JASTROW, Professor of Psychology in the University of

Wisconsin.

3. =Crime, Its Causes and Remedies.= By CESARE LOMBROSO, late Professor of

Psychiatry and Legal Medicine in the University of Turin, author of the

“Criminal Man,” Founder and Editor of the “Archives of Psychiatry and

Penal Sciences.” Translated from the French and German editions by Rev.

HENRY P. HORTON, M.A., of Ithaca, N. Y. With an Introduction by MAURICE

PARMELEE, Associate Professor of Sociology in the University of

Missouri.

4. =The Individualization of Punishment.= By RAYMOND SALEILLES, Professor

of Comparative Law in the University of Paris. Translated from the

Second French edition, by Mrs. RACHAEL SZOLD JASTROW, of Madison, Wis.

With an Introduction by ROSCOE POUND, Professor of Law in Harvard

University.

5. =Penal Philosophy.= By GABRIEL TARDE, Late Magistrate in Picardy,

Professor of Modern Philosophy in the College of France, and Lecturer in

the Paris School of Political Science. Translated from the Fourth French

edition by RAPELJE HOWELL, of the New York Bar. With an Editorial

Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and an Introduction

by ROBERT H. GAULT, Assistant Professor of Psychology in Northwestern

University.

6. =Crime and Its Repression.= By GUSTAV ASCHAFFENBURG, Professor of

Psychiatry in the Academy of Practical Medicine at Cologne, Editor of

the “Monthly Journal of Criminal Psychology and Criminal Law Reform.”

Translated from the Second German edition by ADALBERT ALBRECHT. With an

Editorial Preface by MAURICE PARMELEE, Associate Professor of Sociology

in the University of Missouri, and an Introduction by ARTHUR C. TRAIN,

formerly Assistant District Attorney for New York County.

7. =Criminology.= By RAFFAELE GAROFALO, late President of the Court of

Appeals of Naples. Translated from the First Italian and the Fifth

French edition, by ROBERT W. MILLAR, Esq., of Chicago, Professor in

Northwestern University Law School. With an Introduction by E. RAY

STEVENS, Judge of the Circuit Court, Madison, Wis.

8. =Criminality and Economic Conditions.= By W. A. BONGER, Doctor in Law

of the University of Amsterdam. Translated from the French by HENRY P.

HORTON, M.A., of Ithaca, N. Y. With an American Preface by the Author,

and an Editorial Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and

an Introduction by FRANK H. NORCROSS, Justice of the Supreme Court of

Nevada.

9. =Criminal Sociology.= By ENRICO FERRI, of the Roman Bar, and Professor

of Criminal Law and Procedure in the University of Rome, Editor of the

“Archives of Psychiatry and Penal Sciences,” the “Positivist School in

Penal Theory and Practice,” etc. Translated from the Fourth Italian and

Second French edition, by JOSEPH I. KELLY, late Lecturer on Roman Law in

Northwestern University, and Dean of the Faculty of Law in the

University of Louisiana, and JOHN LISLE, late of the Philadelphia Bar.

With an American Preface by the Author, an Editorial Preface by WILLIAM

W. SMITHERS, of the Philadelphia Bar, and Introductions by CHARLES A.

ELLWOOD, Professor of Sociology in the University of Missouri, and

QUINCY A. MYERS, formerly Chief Justice of the Supreme Court of

Indiana.

THE MODERN CRIMINAL SCIENCE SERIES

_Published under the Auspices of_

THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY

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

BOSTON

LITTLE, BROWN, AND COMPANY

1918

_Copyright, 1911_,

BY LITTLE, BROWN, AND COMPANY.

_All rights reserved_

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 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 lancet 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 machine-like,

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 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.

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 Anglo-American 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

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 many-sidedness

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 “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 1893 he issued his

“Handbuch für 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 für 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 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.

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

§ 1 (_a_) General Considerations 7

§ 2 (_b_) The Method of Natural Science 9

Topic 2. PSYCHOLOGIC LESSONS 14

§ 3 (_a_) General Considerations 14

§ 4 (_b_) Integrity of Witnesses 16

§ 5 (_c_) Correctness of Testimony 18

§ 6 (_d_) Presuppositions of Evidence-Taking 20

§ 7 (_e_) Egoism 25

§ 8 (_f_) Secrets 28

§ 9 (_g_) Interest 37

Topic 3. PHENOMENOLOGY: The Outward Expression

of Mental States 41

§ 10 41

§ 11 (_a_) General External Conditions 42

§ 12 (_b_) General Signs of Character 53

§ 13 (_c_) Particular Character-signs 61

(_d_) Somatic Character-Units 69

§ 14 (1) General Considerations 69

§ 15 (2) Causes of Irritation 71

§ 16 (3) Cruelty 76

§ 17 (4) Nostalgia 77

§ 18 (5) Reflex Movements 78

§ 19 (6) Dress 82

§ 20 (7) Physiognomy and Related Subjects 83

§ 21 (8) The Hand 100

TITLE B. THE CONDITIONS FOR DEFINING THEORIES 105

Topic 1. THE MAKING OF INFERENCES 105

§ 22. 105

§ 23 (_a_) Proof 106

§ 24 (_b_) Causation 117

§ 25 (_c_) Scepticism 129

§ 26 (_d_) The Empirical Method in the Study of Cases 136

§ 27 (_e_) Analogy 144

§ 28 (_f_) Probability 147

§ 29 (_g_) Chance 159

§ 30 (_h_) Persuasion and Explanation 161

§ 31 (_i_) Inference and Judgment 165

§ 32 (_j_) Mistaken Inferences 176

§ 33 (_k_) Statistics of the Moral Situation 179

Topic 2. KNOWLEDGE 183

§ 34 183

PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION

(THE MENTAL ACTIVITY OF THE EXAMINEE) 187

TITLE A. GENERAL CONDITIONS 187

Topic 1. OF SENSE PERCEPTION 187

§ 35 187

§ 36 (_a_) General Considerations 187

(_b_) The Sense of Sight 196

§ 37 (1) General Considerations 196

§ 38 (2) Color-vision 204

§ 39 (3) The Blind Spot 207

§ 40 (_c_) The Sense of Hearing 208

§ 41 (_d_) The Sense of Taste 212

§ 42 (_e_) The Sense of Smell 213

§ 43 (_f_) The Sense of Touch 215

Topic 2. PERCEPTION AND CONCEPTION 221

§ 44 221

Topic 3. IMAGINATION 232

§ 45 232

Topic 4. INTELLECTUAL PROCESSES 238

§ 46 (_a_) General Considerations 238

§ 47 (_b_) The Mechanism of Thinking 243

§ 48 (_c_) The Subconscious 245

§ 49 (_d_) Subjective Conditions 248

Topic 5. THE ASSOCIATION OF IDEAS 254

§ 50 254

Topic 6. RECOLLECTION AND MEMORY 258

§ 51 258

§ 52 (_a_) The Essence of Memory 259

§ 53 (_b_) The Forms of Reproduction 263

§ 54 (_c_) The Peculiarities of Reproduction 268

§ 55 (_d_) Illusions of Memory 275

§ 56 (_e_) Mnemotechnique 279

Topic 7. THE WILL 281

§ 57 281

Topic 8. EMOTION 283

§ 58 283

Topic 9. THE FORMS OF GIVING TESTIMONY 287

§ 59 287

§ 60 (_a_) General Study of Variety in Forms of Expression 288

§ 61 (_b_) Dialect Forms 293

§ 62 (_c_) Incorrect Forms 296

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING

TESTIMONY 300

Topic 1. GENERAL DIFFERENCES 300

(_a_) Woman 300

§ 63 1. General Considerations 300

§ 64 2. Difference between Man and Women 307

3. Sexual Peculiarities 311

§ 65 (_a_) General 311

§ 66 (_b_) Menstruation 311

§ 67 (_c_) Pregnancy 317

§ 68 (_d_) Erotic 319

§ 69 (_e_) Submerged Sexual Factors 322

4. Particular Feminine Qualities 332

§ 70 (_a_) Intelligence 332

§ 71 1. Conception 333

§ 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

§ 79 1. General Considerations 364

§ 80 2. Children as Witnesses 365

§ 81 3. Juvenile Delinquency 369

§ 82 (_c_) Senility 372

§ 83 (_d_) Differences in Conception 375

§ 84 (_e_) Nature and Nurture 384

§ 85 1. The Influence of Nurture 385

§ 86 2. The Views of the Uneducated 388

§ 87 3. Onesided Education 391

§ 88 4. Inclination 393

§ 89 5. Other Differences 395

§ 90 6. Intelligence and Stupidity 398

Topic 2. ISOLATED INFLUENCES 406

§ 91 (_a_) Habit 406

§ 92 (_b_) Heredity 410

§ 93 (_c_) Prepossession 412

§ 94 (_d_) Imitation and the Crowd 415

§ 95 (_e_) Passion and Emotion 416

§ 96 (_f_) Honor 421

§ 97 (_g_) 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 443

§ 101 (4) Illusions of Touch 449

§ 102 (5) Illusions of the Sense of Taste 452

§103 (6) The Illusions of the Olfactory Sense 453

§ 104 (_b_) Hallucinations and Illusions 454

§ 105 (_c_) Imaginative Ideas 459

(_d_) Misunderstandings 467

§ 106 1. Verbal Misunderstandings 467

§ 107 2. Other Misunderstandings 470

(_e_) The Lie 474

§ 108 1. General Considerations 474

§ 109 2. The Pathoformic Lie 479

Topic 4. ISOLATED SPECIAL CONDITIONS 480

§ 110 (_a_) Sleep and Dream 480

§ 111 (_b_) Intoxication 484

§ 112 (_c_) Suggestion 491

APPENDIX A. BIBLIOGRAPHY, INCLUDING TEXTS MORE EASILY

WITHIN REACH OF ENGLISH READERS 493

APPENDIX B. WORKS ON PSYCHOLOGY 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 Plainer,[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] Heinroth,[6]

Schaumann,[7] Münch,[8] Eckartshausen,[9] 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,[10] 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,[11] still later,

attempted to recover it for philosophy, as is pointed out in

Friedreich’s[12] well-known text-book (cf. moreover V. Wilbrand’s[13]

text-book). Nowadays, criminal psychology, as represented by Kraus,[14]

Krafft-Ebing,[15] Maudsley,[16] Holtzendorff,[17] Lombroso,[18] 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.[19] How utterly

criminal psychology has become incorporated in criminal anthropology is

demonstrated by the works of Näcke,[20] Kurella,[21] Bleuler,[22]

Dallemagne,[23] Marro,[24] Ellis,[25] Baer,[26] Koch,[27] Maschka,[28]

Thomson,[29] Ferri,[30] Bonfigli,[31] Corre,[32] etc.

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

where-ever 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:[33]

1. The preparation of a review of psychological phenomena.

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 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 Abbé de Baëts, 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[34] who

complained: “The contemporary low stage of legal education is to be

explained like much else by that historical continuity which plays the

foremost rôle in the administration of justice.” Menger[35] 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 Stölzel[36] 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[37] 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.”

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,[38] 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.

PART I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE MENTAL ACTIVITIES OF THE

JUDGE.

TITLE A. THE CONDITIONS OF TAKING EVIDENCE.

Topic I. METHOD.

Section 1. (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[39] 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 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 court-witnesses,

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 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--that

man is a master among us.

Section 2. (b) The Method of Natural Science.[40]

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 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[41]

spoke of a “circus for dialectico-acrobatic 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 Warnkönig (1819)[42] told us, “Jurisprudence must become

a natural science,” men have rung changes upon this battle cry (cf.

Spitzer[43]). 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.[44]

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 Öttingen.[45] “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 nature

of its subject matter. This is the maxim of a book, “Über die

Dummheit”[46] (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,[47] 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 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. 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).[48] 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.

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

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 horse-dealer is no connoisseur whatever in horses, the

antiquarian can not judge the value nor the age and excellence of

antiquities, the card-sharp 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 practised 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 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 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.[49]

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, inn-keepers, 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 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 over-tasking, 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 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

cross-examination. Not only children and slow-witted folk, but also

bright persons often answer only “yes” and “no,”[50] 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, Fröbel[51] 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[52]) “is to endow

the pupil with more apperceptive capacity, i.e., to 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,[53] 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 far-removed 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 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 Fröbelian 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, 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 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[54] 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 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[55] 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 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.

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 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 Kürnberger) has chosen this fact for its principal motive. The

universal difficulty of keeping silence is expressed by Lotze[56] 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 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

abbé 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 confessée.” 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

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 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.[57] 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-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[58] 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[59] 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.[60] 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,[61]--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 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 pigeon-hole 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, lacunæ 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 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,[62] 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 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.

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.[63]

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 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 ὑστερον πρωτερον, 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 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 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.[64]

“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.[65] I should have a

similar experience if, in the course of a big 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?[66] 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, 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.[67] 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, 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 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 11. (a) General External Conditions.

“Every state of consciousness has its physical correlate,” says

Helmholtz,[68] and this proposition contains the all in all of our

problem. Every mental event must have its corresponding physical

event[69] 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,--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,[70] 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 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[71] 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,[72] 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, 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,[73] 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.[74] 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 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.[75] 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 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.

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[76] 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 order-loving, 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 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 which

unfortunately great importance is often assigned.[77] 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.[78] 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 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.[79] 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 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[80] states the matter explicitly:

“The blush always depends upon a far-reaching association-process in

which the complete saturation of the contemporaneously-excited 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 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[81]

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 Gerstäcker, 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 much-traveled and experienced author, and I have

thought countless times how right he was, but also, how there may be

numberless similar 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 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 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,[82]

“must judge them according to their wishes,” and it is the opinion of

Struve:[83] “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 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 sont 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 à Kempis, whose book is,

saving the Bible, the most wide-spread on earth, says: “Occasiones

hominem fragilem non faciunt, sed, 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 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[84] 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 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 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[85] 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

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. (c) 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 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,

house-furnishers, 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 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 ultimate 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 sitting-room. 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 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[86] 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 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

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 air-ship, 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 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[87] 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 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 Struve 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,[88] “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 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[89] that impotents exhibit

disagreeable characteristics. Such conditions find their universalizing

expression in the cruel but true maxim “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 well-disposed, 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.

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.[90]

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

pig-skin. 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 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.”[91] 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 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 role

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[92] 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 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[93] “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 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[94] 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.[95]

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 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[96] 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.[97] 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 laughter 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.

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,[98]

Blumröder,[99] Friedreich,[100] 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.[101] 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.[102]

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 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,[103] “reflex actions are not

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.[104] 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 practised

that they became involuntary.[105] 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 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 upper-cut 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 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[106]), 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 coöperating 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 cöoperation 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.

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[107] 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 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 and the closely related ones of Gall

appeared, the science came for a short time into the foreground.

Lavater’s well known monograph[108] 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[109] 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[110] and R. R. Noel[111] studied it intensively and

justly assigned him a considerable worth; the second tune 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. Müller 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,[112]

scientifically dealt with. The most important and significant book is

Darwin’s,[113] then the system of Piderit[114] and Carus’s

“Symbolik,”[115] all of them being based upon the earlier fundamental

work of the excellent English anatomist and surgeon, Bell.[116] 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,

Borée,[117] etc. The present status of physiognomics is, we must say, a

very subordinate one. Phrenology is related to physiognomics 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 physiognomics

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. 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[118] 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. Müller[119] wrote: “The reasons are unknown why

various psychoses make use of different groups of nerves or why certain

facial muscles are related to certain passions.” Gratiolet[120] 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, 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[121] 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

examples. He warns us, first of all, against seeing[122] 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 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 correctly-supposed

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 forearm bent. Anybody

may try the experiment for himself by going through the actions

enumerated and seeing whether he does not become filled 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 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. 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

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

practised 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 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; 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 naïve 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 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 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 sight-seeing. 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 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 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,[123]

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 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,[124] etc., might be

proved and tested. But their statements 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[125] 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 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 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 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[126] 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 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. (2) Proof.

Mittermaier[127] holds that “as a means of testimony in the legal sense

of that term every possible source must be examined which 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, 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

believer 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 suppositions 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[128] 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 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 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 prayer-book, 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 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 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 medico-legal opinion,

capable of distinguishing between right and wrong. His statements proved

themselves true to the very last point.

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 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 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.

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.[129]

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

researches; 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 sake, 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.”[130]

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 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

thorough-going 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.”[131] 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

instrument, 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[132] 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 passivity, 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 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 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 coördination

of cause and effect. The most difficult thing in such coördination 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 immediately 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 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[133] 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, 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 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 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 All-souls day, or at the new moon. If the accidental

nature of the connection is still less obvious, the observation becomes

a much-trusted 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:[134] “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 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.

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[135] is very illuminative.

According to Masaryk,[136] 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 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 probability 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 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

café 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 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 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[137] 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.

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 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 rôle 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.”[138]

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 rare. The situation is different in other disciplines. “Our

experience,” says James Sully,[139] “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[140] 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, revertibility, 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 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?

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 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. Suppose 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 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 according 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 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 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[141] 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 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.

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 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 1865]).

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.[142] 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. Especially

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.

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 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. In 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 half-confused 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.[143]

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 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[144] 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.

Laplace[145] spoke move definitely--“Probability depends in part on our

ignorance, in part on our knowledge....

“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[146] 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.

“According to this it is hardly proper to speak of the probability of

any result. Every individual event is either absolutely necessary or

impossible. The probability is a quality which can pertain only to a

hypothetical judgment.”[147]

That it is improper to speak of the probability of a result admits of no

doubt, nor will anybody assert that the circumstance of to-morrow’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 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.[148] He

distinguished:

(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 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[149] in the following example:

“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 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 $2487 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 law, or the unplanned

coöperation 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 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 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

probability 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 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 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[150] 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, παρἁ φὑσν, according to

nature. Epicurus, who sees the creation of the world as a pure accident,

holds it to occur τἁ μἑν ἁπὁ τὑχης, τἁ δἑ παρ’ἡμὡν. 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 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.”

A. Höfler[151] 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).

The lesson of these definitions is obvious. What we call chance plays a

great role 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[152] 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 blasé

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 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.

“The naïveté 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 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 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.

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 sense-perception 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 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.[153] 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.

Exner[154] 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[155] 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 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.

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.”[156]

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.

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 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 probably 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[157] 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.

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.”[158]

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 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: “To-day I intended to show you

the beautiful experiments in the interference of light--but it can not

be observed in daylight and when 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 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:[159] “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.”

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 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 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 even 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.

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,”[160] it must become clear what

dangers we undergo if the associative relationships of 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.

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 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 put 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.[161] 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

proximate 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.

Such mistakes may be classified under five heads.[162]

(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 rôles 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 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

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.[163] 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 Münsterberg 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[164] 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

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.”[165]

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 school-attendance

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.[166] 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