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 a.s.sert that it does immensely greater harm than obvious falsehood, because, indeed, the unvarnished lie is much more easily discoverable than the probable truth which is still untruth. Moreover, lies come generally from people with regard to whom one is, for one reason or another, already cautious, while these insinuating approximations are made by people who are not mistrusted at all.[1]
The lack of conscientiousness is common to all ages, both s.e.xes, 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 cla.s.s 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 cla.s.s belong peddlers, street merchants, innkeepers, certain shop-keepers, hack-drivers, artists, etc., and especially prost.i.tutes (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 a.n.a.logous persons in the higher walks of life.
The most hateful and most dangerous of these people are the congenital tramps-people who did not have to work and faithfully pursued the opportunity of doing nothing. Whoever does not
[1] Cf. Lwenstimm, in H. Gross"s Archiv, VII, 191. recognize that the world has no place for idlers and that life on G.o.d"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 s.e.xes 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 subst.i.tution of the essential observations for the opinionative ones, is always the most difficult of the judge"s tasks.
When the witness is both unwilling to tell the truth and unable to do so, the business of training may be approached from a few common view-points. Patience with the witness is perhaps the most important key to success. No doubt it is difficult to be patient where there is no time; and what with our contemporary overtasking, there is no time. But that must be altered. Justice must have strength to keep everybody"s labor proportional to his task. A nation whose representatives do not grant money enough for this purpose must not expect satisfactory law courts-"no checkee no washee;" no money no justice. People who have time will acquire patience.
Patience is necessary above all while taking evidence. A great many witnesses are accustomed to say much and redundantly, and again, most criminal justices are accustomed to try to shut them off and to require brief statements. That is silly. If the witness is wandering on purpose, as many a prisoner does for definite reasons of his own, he will spread himself still more as he recognizes that his examiner does not like it. To be disagreeable is his purpose. He is never led by impatience beyond his introduction, and some piece of evidence is lost because almost every accused who speaks
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,"[1] and these bare answers demand a patience most necessary with just this bareness, if the answers are to be pursued for some time and consecutively. The danger of impatience is the more obvious inasmuch as everyone recognizes more or less clearly that he is likely to set the reserved witness suggestive questions and so to learn things that the witness never would have said. Not everybody, indeed, who makes monosyllabic replies in court has this nature, but in the long run, this common characteristic is manifest, and these laconic people are really not able to deliver themselves connectedly in long speeches. If, then, the witness has made only the shortest replies and a coherent well-composed story be made of them, the witness will, when his testimony is read to him, often not notice the untruths it might contain. He is so little accustomed to his own prolonged discourse that at most he wonders at his excellent speech without noticing even coa.r.s.e falsehoods. If, contrary to expectation, he does notice them, he is too chary of words to call attention to them, a.s.sents, 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, Frbel[2] says, "Men must be drawn out, not probed." And this is the more valid in jurisprudence, and the more difficult, since the lawyers have at most only as many hours with the individual as the teacher has years. However, we must aim to draw the witness out, and if it does not work at first, we must nevertheless not despair of succeeding.The chief thing is to determine the witness"s level and then meet him on it. We certainly can not succeed, in the short time allowed us, to raise him to ours. "The object of instruction" (says Lange[3]) "is to endow the pupil with more apperceptive capacity, i. e., to
[1] Pathological conditions, if at all distinct, are easily recognizable, but there is a very broad and fully occupied border country between pathological and normal conditions. (Cf. O. Gross: Die Affeklage der Ablehnung. Monatschrift fr Psychiatrie u. Neurologie, 1902, XII, 359.) [2] Frbel: Die. Mensehenersiehung. Keilhau 1826.[3] K. Lange: ber Apperzeption. Plauen 1889. 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 circ.u.mstantial, had been at work on him. This result does not require merely the setting aside of special influences, nor the setting aside of all that others have said to him on the matter under discussion, nor the elucidation of the effect of fear,[1] of anger, of all such states of mind as might here have been operative,-it requires the establishment of his unbiased vision of the subject from a period antecedent to these above-mentioned influences. Opinions, valuations, prejudices, superst.i.tions, 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 circ.u.mstances 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
[1] Dichl in H. Gross"s Arehiv, XI, 240.
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, n.o.body had ever told him of the pangs and pa.s.sions 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 inst.i.tution 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 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.
and as regards the circ.u.mstances with which he is thus involved. For this reason the criminalist must consider the question of secrets carefully.
As for his own silence, this must be considered in both directions That he is not to blab official secrets is so obvious that it need not be spoken of. Such blabbing is so negligent and dishonorable that we must consider it intrinsically impossible. But it not infrequently happens that some indications are dropped or persuaded out of a criminal Judge, generally out of one of the younger and more eager men. They mention only the event itself, and not a name, nor a place, nor a particular time, nor some even more intimate matter- there seems no harm done. And yet the most important points have often been blabbed of in just such a way. And what is worst of all, just because the speaker has not known the name nor anything else concrete, the issue may be diverted and enmesh some guiltless person. It is worth considering that the effort above mentioned is made only in the most interesting cases, that crimes especially move people to disgusting interest, due to the fact that there is a more varied approach to synthesis of a case when the same story is repeated several times or by various witnesses. For by such means extrapolations and combinations of the material are made possible. By way of warning, let me remind you of an ancient and much quoted anecdote, first brought to light by Boccaccio: A young and much loved abb 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 confesse." 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-p.r.o.neness 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 circ.u.mstances 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 a.n.a.logy 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 cl.u.s.ter 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 a.s.sociated most suggestive establishment of it, the confession, is a very extraordinary psychological problem.[1] In many cases the reasons for confession are very obvious. The criminal sees that the evidence is so complete that he is soon to be convicted and seeks a mitigation of the sentence by confession, or he hopes through a more honest narration of the crime to throw a great degree of the guilt on another. In addition there is a thread of vanity in confession-as among young peasants who confess to a greater share in a burglary than they actually had (easily discoverable by the magniloquent manner of describing their actual crime). Then there are confessions made for the sake of care and winter lodgings: the confession arising from "firm conviction" (as among political criminals and others). There are even confessions arising from n.o.bility, from the wish to save an intimate, and confessions intended to deceive, and such as occur especially in conspiracy and are made to gain time (either for the flight of the real criminal or for the destruction of compromising objects). Generally, in the latter case, guilt is admitted only until the plan for which it was made has succeeded; then the judge is surprised with well-
[1] Cf. Lohsing: "Confession" in Gross"s Archiv, IV, 23, and Hausner: ibid. XIII, 267.