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.
n.o.body will a.s.sert 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 subst.i.tuted 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 cla.s.sical 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 ba.n.a.l 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 pa.s.ses 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 cla.s.sical 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 pa.s.ses 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 a.s.serts 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 a.s.sert that we have seen or heard or smelt or felt although we have only inferred these things.[1] Here belong all cases of correct or partly correct inference and of false inference from false sense perception. I recall the oft-cited story in which a whole judicial commission smelt a disgusting odor while a coffin was being exhumed only to discover that it was empty. If the coffin, for one reason or another, had not been opened all those present would have taken oath that they had an indubitable perception although the latter was only inferred from its precedent condition.
[1] Cf. H. Gross, Korrigierte Vorstellungen, in the Archiv, X, 109.
Exner[2] cites the excellent example in which a mother becomes frightened while her child cries, not because the cry as such sounds so terrible as because of its combination with the consciousness that it comes from her own child and that something might have happened to it. It is a.s.serted, and I think rightly, that verbal a.s.sociations have a considerable share in such cases. As Stricker[3] expresses it, the form of any conceptual complex whatever, brings out its appropriate word. If we see the *thing watch, we get the *word watch. If we see a man with a definite symptom of consumption the word tuberculosis occurs at once. The last example is rather more significant because when the whole complex appears mistakes are more remote than when merely one or another "safe" symptom permits the appearance of the word in question. What is safe to one mind need not be so to another, and the notion as to the certainty of any symptom changes with time and place and person. Mistakes are especially possible when people are so certain of their "safe" symptoms that they do not examine how they inferred from them. This inference, however, is directly related to the appearance of the word. Return to the example mentioned above, and suppose that A has discovered a "safe" symptom of consumption in B and the
word tuberculosis occurs to him. But the occurrence does not leave him with the word merely, there is a direct inference "B has tuberculosis." We never begin anything with the word alone, we attach it immediately to some fact and in the present case it has become, as usual, a judgment. The thought-movement of him who has heard this judgment, however, turns backward and he supposes that the judge has had a long series of sense-perceptions from which he has derived his inference. And in fact he has had only one perception, the reliability of which is often questionable.
[2] S. Exner: Entwurf zu einer physiologisehen Erkl
[3] Studien ber die a.s.soziation der Vorstellungen. Vienna 1883.Then there is the additional difficulty that in every inference there are leaps made by each inferer according to his character and training. And the maker does not consider whether the other fellow can make similar leaps or whether his route is different. E. g., when an English philosopher says, "We really ought not to expect that the manufacture of woolens shall be perfected by a nation which knows no astronomy,"-we are likely to say that the sentence is silly; another might say that it is paradoxical and a third that it is quite correct, for what is missing is merely the proposition that the grade of culture made possible by astronomy is such as to require textile proficiency also. "In conversation the simplest case of skipping is where the conclusion is drawn directly from the minor premise. But many other inferences are omitted, as in the case of real thinking. In giving information there is review of the thinking of other people; women and untrained people do not do this, and hence the disconnectedness of their conversation."[1] In this fact is the danger in examining witnesses, inasmuch as we involuntarily interpolate the missing details in the skipping inferences, but do it according to our own knowledge of the facts. Hence, a test of the correctness of the other man"s inference becomes either quite impossible or is developed coa.r.s.ely. In the careful observation of leaping inferences made by witnesses-and not merely by women and the uneducated-it will be seen that the inference one might oneself make might either have been different or have proceeded in a different way. If, then, all the premises are tested a different result from that of the witness is obtained. It is well known how identical premises permit of different conclusions by different people.
[1] von Hartmann: Philosophie des Unbewussten. Berlin 1869.
In such inferences certain remarkable things occur which, as a rule, have a given relation to the occupation of the witness. So, e. g., people inclined to mathematics make the greatest leaps, and though these may be comparatively and frequently correct, the
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 a.s.surance 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 pa.s.sing. Although I observe the image of only a small portion of the garden and therefore have no notion of its extent, still, in speaking of it, I shall proba-
bly speak of a very big garden. I have inferred swiftly and unconsciously that in the fact that a wagon and horses were present in the pictured portion of the garden, is implied great width of road, for even gardens of average size do not have such wide roads as to admit wagons; the latter occurring only in parks and great gardens. Hence my conclusion: the garden must be very big. Such inferences[1] are frequent, whence the question as to the source and the probability of the witness"s information, whether it is positive or only an impression. Evidently such an impression may be correct. It will be correct often, inasmuch as impressions occur only when inferences have been made and tested repeatedly. But it is necessary in any case to review the sequence of inferences which led to this impression and to examine their correctness. Unfortunately the witness is rarely aware whether he has perceived or merely inferred.
[1] Cf. Gross"s Archiv, I, 93, II, 140, III, 250, VII, 155.
Examination is especially important when the impression has been made after the observation of a few marks or only a single one and not very essential one at that. In the example of the team the impression may have been attained by inference, but frequently it will have been attained through some unessential, purely personal, determinative characteristic. "Just as the ancient guest recognizes his friend by fitting halves of the ring, so we recognize the object and its const.i.tution from one single characteristic, and hence the whole vision of it is vivified by that characteristic."[2]
[2] H. Aubert: Physiologie der Netzhaut. Breslau 1865.
All this is very well if no mistakes are made. When Tertullian said, "Credo quia impossibile est," we will allow honesty of statement to this great scholar, especially as he was speaking about matters of religion, but when Socrates said of the works of Herac.l.i.tus 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 a.s.sertion 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 coa.r.s.e 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 a.s.serted is also of importance in this matter. The inference that a thing is impossible is generally made by most people in such wise that they first consider the details of the eventualities they already know, or immediately present. Then, when these are before them, they infer that the matter is quite impossible-and whether one or more different eventualities have missed of consideration, is not studied at all. Our kindly professor of physics once told us: "Today I intended to show you the beautiful experiments in the interference of light-but it can not be observed in daylight and when
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 a.s.sertion that a thing is impossible must never be trusted. Take the simplest example. The witness a.s.sures 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 ma.s.s of details, unite them, and succeed by means of this union and test in attaining a result which permits us to judge concerning the existence and the characteristics of past events." The material of our work lies in the ma.s.s of details, and the manner and reliability of its presentation determines the certainty of our inferences.
Seen more closely the winning of this material may be described as Hume describes it:[1] "If we would satisfy ourselves, therefore, concerning the nature of that evidence which a.s.sures 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, una.s.sisted by experience, ever draw any inference concerning real existence and matter of fact."
[1] David Hume: Enquiry, p. 33 (Open Court Ed.).
In the course of his explanation Hume presents two propositions,
(1) I have found that such an object has always been attended with such an effect.
(2) I foresee that other objects which are in appearance similar, will be attended with similar effects.
He goes on: "I shall allow, if you please, that the one proposition may justly be inferred from the other; I know in fact that it always
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, pa.s.ses my comprehension; and it is inc.u.mbent on those to produce it who a.s.sert 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 pa.s.sed into the a.s.sertion 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 ident.i.ty 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 ent.i.tled 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 a.s.sertion, 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
a.s.serts: "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 a.s.sert that we are generally inclined to consider an inference wrong which indicates that accidental matters have occurred in regular numerical relation. Who believes the hunter"s story that he has shot 100 hares in the past week, or the gambler"s that he has won 1000 dollars; or the sick man"s, that he was sick ten times? It will be supposed at the very least that each is merely indicating an approximately round sum. Ninety-six hares, 987 dollars, and eleven illnesses will sound more probable. And this goes so far that during examinations, witnesses are shy of naming such "improbable ratios," if they at all care to have their testimony believed. Then again, many judges are in no wise slow to jump at such a number and to demand an "accurate statement," or eves immediately to decide that the witness is talking only "about." How deep-rooted such views are is indicated by the circ.u.mstance 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 a.n.a.logously 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 a.s.serted 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 a.s.sociates, 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 a.s.serted 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 a.s.sociations brought to bear in establishing it. The value of knowledge is judicially const.i.tuted in this fact, for it is in essence the expansion of the scope of a.s.sociation. And the value is proportional to the richness of the a.s.sociations 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 a.s.sert that the content represented is identical in spite of two different a.s.sociative relationships,"[1] it must become clear what dangers we undergo if the a.s.sociative 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.
[1] H. Mnsterberg: Beitr