Criminal Psychology

Hans Gross

Part 1

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Criminal Psychology.

by Hans Gross.

PART I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE MENTAL ACTIVITIES OF THE JUDGE.

t.i.tLE A. THE CONDITIONS OF TAKING EVIDENCE.

Topic I. METHOD.

Section I. (a) General Considerations.

SOCRATES, dealing in the Meno with the teachability of virtue, sends for one of Meno's slaves, to prove by him the possibility of absolutely certain a priori knowledge. The slave is to determine the length of a rectangle, the contents of which is twice that of one measuring two feet; but he is to have no previous knowledge of the matter, and is not to be directly coached by Socrates. He is to discover the answer for himself. Actually the slave first gives out an incorrect answer. He answers that the length of a rectangle having twice the area of the one mentioned is four feet, thinking that the length doubles with the area. Thereupon Socrates triumphantly points out to Meno that the slave does as a matter of fact not yet quite know the truth under consideration, but that he really thinks he knows it; and then Socrates, in his own Socratic way, leads the slave to the correct solution. This very significant procedure of the philosopher is cited by Guggenheim[1] as an ill.u.s.tration of the essence of a priori knowledge, and when we properly consider what we have to do with a witness who has to relate any fact, we may see in the Socratic method the simplest example of our task. We must never forget that the majority of mankind dealing with any subject whatever always believe that they know and repeat the truth, and even when they say doubtfully: "I believe.-- It seems to me," there is, in this tentativeness, more meant than meets the ear. When anybody says: "I believe that--" it merely means that he intends to insure himself against the event of being contradicted by better informed persons; but he certainly has not [1] M. Guggenheim: Die Lehre vom aprioristischen Wissen. Berlin 1885.

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 a.s.serts he is fairly certain of just because he a.s.serts 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 a.s.surance. 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 a.s.sertions 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 circ.u.mstance 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 a.s.sert 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 circ.u.mstance, we are minus one important piece of evidence *pro and *con, and the whole case may be turned topsy turvy. At the very least a basis of development in the presentation of evidence is so excluded. We shall, then, proceed in the Socratic fashion. But, inasmuch as we are not concerned with mathematics, and are hence more badly placed in the matter of proof, we shall have to proceed more cautiously and with less certainty, than when the question is merely one of the area of a square. On the one hand we know only in the rarest cases that we are not ourselves mistaken, so that we must not, without anything further, lead another to agree with us; on the other hand we must beware of perverting the witness from his possibly sound opinions. It is not desirable to speak of suggestion in this matter, since, if I believe that the other fellow knows a matter better than I and conform to his opinion, there is as yet no suggestion. And this pure form of change of opinion and of openness to conviction is commonest among us. Whoever is able to correct the witness's apparently false conceptions and to lead him to discover his error of his own accord and then to speak the truth-- whoever can do this and yet does not go too far, deducing from the facts nothing that does not actually follow from them--that man is a master among us.

Section 2. (b) The Method of Natural Science.[1]

If now we ask how we are to plan our work, what method we are to follow, we must agree that to establish scientifically the principles of our discipline alone is not sufficient. If we are to make progress, the daily routine also must be scientifically administered. Every sentence, every investigation, every official act must satisfy the same demand as that made of the entire juristic science. In this way only [1] Cf. H. Gross's Archiv VI, 328 and VIII, 84.

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 sh.e.l.l, and a man like Ihering[1] 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 Warnknig (1819)[2] told us, "Jurisprudence must become a natural science," men have rung changes upon this battle cry (cf. Spitzer[3]). And even if, because misunderstood, it led in some directions wrongly, it does seem as if a genuinely scientific direction might be given to our doctrines and their application. We know very well that we may not hurry. Wherever people delayed in establishing the right thing and then suddenly tried for it, they went in their haste too far. This is apparent not only in the situations of life; it is visible, in the very recent hasty conclusions of the Lombrosists, in their very good, but inadequate observations, and unjustified and strained inferences. We are not to figure the scientific method from these.[4] It is for us to gather facts and to study them. The drawing of inferences we may leave to our more fortunate successors. But in the daily routine we may vary this procedure a little. We draw there *particular inferences from correct and simple observations. "From facts to ideas," says ttingen.[5] "The world has for several millenniums tried to subdue matter to preconceptions and the world has failed. Now the procedure is reversed." "From facts to ideas"--there lies our road, let us for once observe the facts of life without prejudice, without maxims built on preconceptions; let us establish them, strip them of all alien character. Then finally, when we find nothing more in the least doubtful, we may theorize about them, and draw inferences, modestly and with caution.

Every fundamental investigation must first of all establish the [1] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.

[2] Warnkonig. Versuch einer Begrndung des Rechtes. Bonn 1819.

[3] H. Spitzer: ber das Verh

[4] Cf. Gross's Archiv VIII 89.

[5] A. v. ttingen: Moralstatistik. Erlangen 1882.

nature of its subject matter. This is the maxim of a book, "ber die Dummheit"[1] (1886), one of the wisest ever written. The same axiomatic proposition must dominate every legal task, but especially every task of criminal law. It is possible to read thousands upon thousands of testimonies and to make again this identical, fatiguing, contrary observation: The two, witness and judge, have not defined the nature of this subject; they have not determined what they wanted of each other. The one spoke of one matter, the other of another; but just what the thing really was that was to have been established, the one did not know and the other did not tell him. But the blame for this defective formulation does not rest with the witness--formulation was the other man's business.

When the real issue is defined the essentially modern and scientific investigation begins. Ebbinghaus,[2] I believe, has for our purpose defined it best. It consists in trying to keep constant the complex of conditions demonstrated to be necessary for the realization of a given effect. It consists in varying these conditions, in isolating one from the other in a numerically determinable order, and finally, in establishing the accompanying changes with regard to the effect, in a quantified or countable order.

I can not here say anything further to show that this is the sole correct method of establishing the necessary principles of our science. The aim is only to test the practicality of this method in the routine of a criminal case, and to see if it is not, indeed, the only one by which to attain complete and indubitable results. If it is, it must *be of use not only during the whole trial--not only in the testing of collected evidence, but also in the testing of every individual portion thereof, a.n.a.lyzed 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 circ.u.mstances are given, i. e.: the same instruments of evidence are present, the evidence of guilt is established. Now the accompanying changes with regard to the effect, i. e.: proof of guilt through evidence, have to [1] Erdmann ber die Dummheit. 1886.

[2] Ebbinghaus: ber das Ged

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 apprais.e.m.e.nt 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 circ.u.mstances? Am I in possession of these circ.u.mstances? 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 circ.u.mstances.

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 antic.i.p.ation of the future" (J. S. Mill).[1] The oversight of this doctrine is the largest cause of our failures. We must, in the determination of evidence, cleave to it. Whenever the question of influence upon the "*effect" is raised, the problem of order is found invariably the most important. Mistakes and impossibilities are in the main discovered only when the examination of the order of succession has been undertaken.

In short: We have confined ourselves long enough to the mere study of our legal canons. We now set out upon an exact consideration of their material. To do this, obviously demands a retreat to the starting-point and a beginning we ought to have made long ago; but natural sciences, on which we model ourselves, have had to do the identical thing and are now at it openly and honestly. Ancient medicine looked first of all for the universal panacea and boiled theriac; contemporary medicine dissects, uses the microscope, and experiments, recognizes no panacea, accepts barely a few specifics. Modern medicine has seen the mistake. But we lawyers boil our theriac even nowadays and regard the most important study, the study of reality, with arrogance.

[1] J. S. Mill: System of Logic.

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 partic.i.p.ants. 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 a.s.sociate 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 circ.u.mstance 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, Ja.s.soix'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 ma.s.s 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 cla.s.s, exactly those who flourish most in their profession and really get rich understand their trade the least. The horsedealer is no connoisseur whatever in horses, the antiquarian can not judge the value nor the age and excellence of antiquities, the cardsharp knows a few stupid tricks with which, one might think, he ought to be able to deceive only the most innocent persons. Nevertheless they all have comfortable incomes, and merely because they know their fellows and have practiced this knowledge with repeatedly fresh applications.

I do not of course a.s.sert 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.

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Section 4. (b) Integrity of Witnesses.

The third part of the Frbelian 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 a.s.sertion. 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 a.s.sent vigorously that they have grasped, touched, counted or examined something, and on closer examination it is demonstrated that it was only a pa.s.sing 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 a.s.sert 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[1] who points out that a scholar ought not to be shown any object unless he can not discover it or its like for himself. Each power must have developed before it can be used. Difficult as this procedure generally is, it is necessary in the teaching of children, and is there successful. It is a form of education by examples. The child is taught to a.s.similate 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 a.n.a.logous to that under consideration. The a.n.a.logy should be discovered for each event, each motive, each opinion, each reaction, each appearance, if people are to understand and follow the case. Ideas, like [1] Carus: Psychologie. Leipzig 1823.

men, have an ancestry, and a knowledge of the ancestors leads to a discovery of the cousins.

Section 7. (e) Egoism.

It is possible that the inner character of egoism shall be as profoundly potent in legal matters as in the daily life. Goethe has experienced its effect with unparalleled keenness. "Let me tell you something," he writes (Conversations with Eckermann. Vol. 1). "All periods considered regressive or transitional are subjective. Conversely all progressive periods look outward. The whole of contemporary civilization is reactionary, because subjective.... The thing of importance is everywhere the individual who is trying to show off his lordliness. Nowhere is any mentionable effort to be found that subordinates itself through love of the whole."

These unmistakable terms contain a "discovery" that is applicable to our days even better than to Goethe's. It is characteristic of our time that each man has an exaggerated interest in himself. Consequently, he is concerned only with himself or with his immediate environment, he understands only what he already knows and feels, and he works only where he can attain some personal advantage. It is hence to be concluded that we may proceed with certainty only when we count on this exaggerated egoism and use it as a prime factor. The most insignificant little things attest this. A man who gets a printed directory will look his own name up, though he knows it is there, and contemplate it with pleasure; he does the same with the photograph of a group of which his worthy self is one of the immortalized. If personal qualities are under discussion, he is happy, when he can say,--"Now I am by nature so."-- If foreign cities are under discussion, he tells stories of his native city, or of cities that he has visited, and concerning things that can interest only him who has been there. Everyone makes an effort to bring something of his personal status to bear,--either the conditions of his life, or matters concerning only him. If anybody announces that he has had a good time, he means without exception, absolutely without exception, that he has had an opportunity to push his "I" very forcefully into the foreground.

Lazarus[1] has rightly given this human quality historical significance: "Pericles owed a considerable part of his political dictatorate to the circ.u.mstance of knowing practically all Athenian citizens by name. Hannibal, Wallenstein, Napoleon I, infected [1] M. Lazarus: Das Leben der Seele. Berlin 1856.

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 att.i.tude recurs very frequently, particularly among people of engrossing trades that require much time,--e. g., among soldiers, hors.e.m.e.n, 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 a.s.sist 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 quant.i.ty, 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 circ.u.mstances 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 n.o.ble--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 circ.u.mstance 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 coa.r.s.ely. Cla.s.sical 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 Krnberger) has chosen this fact for its princ.i.p.al motive. The universal difficulty of keeping silence is expressed by Lotze[1] in the dictum that we learn expression very young and silence very late. The fact is of use to the criminalist not only in regard to criminals, but also with regard to witnesses, who, for one reason or another, want to keep something back. The latter is the source of a good deal of danger, inasmuch as the witness is compelled to speak and circles around the secret in question without touching it, until he points it out and half reveals it. If he stops there, the matter requires consideration, for "a half truth is worse than a whole lie." The latter reveals its subject and intent and permits of defence, while the half truth may, by a.s.sociation and circ.u.mscriptive limitations, cause vexatious errors both as regards the ident.i.ty of the semi-accused [1] Lotze: Der Instinkt. Kleine Schriften. Leipzig 1885.

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