[1] Cf. Lohsing in H. Gross"s Archiv VII, 331.
will warn us of the presence of deception, and will prevent its playing a part. I have attempted to compile forms of it according to intent, and will here add a few words.[1]
That by the lie is meant the intentional deliverance of a conscious untruth for the purpose of deception is as familiar as the variety of opinion concerning the permissibility of so-called necessary lies, of the pious, of the pedagogic, and the conventional. We have to a.s.sume here the standpoint of absolute rigorism, and to say with Kant,[2] "The lie in its mere form is man"s crime against his own nature, and is a vice which must make a man disreputable in his own eyes." We can not actually think of a single case in which we find any ground for lying. For we lawyers need have no pedagogical duties, nor are we compelled to teach people manners, and a situation in which we may save ourselves by lying is unthinkable. Of course, we will not speak all we know; indeed, a proper silence is a sign of a good criminalist, but we need never lie. The beginner must especially learn that the "good intention" to serve the case and the so-called excusing "eagerness to do one"s duty," by which little lies are sometimes justified, have absolutely no worth. An incidental word as if the accomplice had confessed; an expression intending to convey that you know more than you do; a perversion of some earlier statement of the witness, and similar "permissible tricks," can not be cheaper than the cheapest things. Their use results only in one"s own shame, and if they fail, the defense has the advantage. The lost ground can never be regained.[3]
Nor is it permissible to lie by gestures and actions any more than by words. These, indeed, are dangerous, because a movement of the hand, a reaching for the bell, a sudden rising, may be very effective under circ.u.mstances. They easily indicate that the judge knows more about the matter than he really does, or suggest that his information is greater, etc. They make the witness or defendant think that the judge is already certain about the nature of the case; that he has resolved upon important measures, and other such things. Now movements of this kind are not recorded, and in case the denial of blame is not serious, a young criminalist allows himself easily to be misled by his desire for efficiency. Even accident may help. When I was examining justice I had to hear the testimony of a rather weak-minded lad, who was suspected of having stolen and hidden a large sum of money. The lad firmly and cleverly denied
[1] Cf. my Manual, "When the witness is unwilling to tell the truth."
[2] Kant : "ber ein vermeintliches Recht, aus Menschenliebe zu lgen."[3] A sentence is here omitted. [Translator.]
his guilt. During the examination a comrade entered who had something official to tell me, and inasmuch as I was in the midst of dictation he wanted to wait until the end of the sentence. Happening to see two swords that had just been brought from a student duel, he took one in his hand and examined the hilt, the point and the blade. The defendant hardly saw this action before he got frightened, raised his hands, ran to the sword-examiner, crying "I confess, I confess! I took the money and hid it in the hollow hickory tree."
This event was rather funny. Another, however, led, I will not say to self-reproach, but to considerable disquiet on my part. A man was suspected of having killed his two small children. As the bodies were not found I undertook a careful search of his home, of the oven, of the cellar, the drains, etc. In the latter we found a great deal of animal entrails, apparently rabbits. As at the time of this discovery I had no notion of where they belonged, I took them, and in the meantime had them preserved in alcohol. The great gla.s.s receptacle which contained them stood on my writing table when I had the accused brought in to answer certain questions about one or two suspicious matters we had discovered. He looked anxiously at the gla.s.s, and said suddenly, "Since you have got it all, I must confess." Almost reflexly I asked, "Where are the corpses?" and he immediately answered that he had hidden them in the environs of the city, where they were found. Clearly, the gla.s.s containing the intestines had led him to the notion that the bodies were found and in part preserved here, and when I asked him where they were he did not observe how illogical the question would be if the bodies had really been found. The whole thing was a matter of accident, but I still have the feeling that the confession was not properly obtained; that I should have thought of the effect of the gla.s.s and should have provided against it before the accused was brought before me.
In the daily life such an open procedure is, of course, impossible, and if the circ.u.mstances were to be taken for what they seem we should frequently make mistakes. Everybody knows, e. g., how very few happy marriages there are. But how do we know it? Only because the fortune of close observation always indicates that the relation is in no way so happy as one would like it to be. And externally? Has anybody ever seen in even half-educated circles a street quarrel between husband and wife? How well-mannered they are in society, and how little they show their disinclination for
each other. And all this is a lie in word and deed, and when we have to deal with it in a criminal case we judge according to the purely external things that we and others have observed. Social reasons, deference for public opinion which must often be deceived, the feeling of duty toward children, not infrequently compel deception of the world. The number of fortunate marriages is mainly overestimated.[1]
We see the same thing with regard to property, the att.i.tude of parents and children, the relation between superiors and inferiors, even in the condition of health,-conduct in all these cases does not reveal the true state of affairs. One after another, people are fooled, until finally the world believes what it is told and the court hears the belief sworn to as absolute truth. It is, perhaps, not too much to say that we are far more deceived by appearances than by words. Public opinion should least of all impose on us. And yet it is through public opinion that we learn the external relations of the people who come before us. It is called vox populi and is really rot. The phrases, "they say," "everybody knows," "n.o.body doubts," "as most neighbors agree," and however else these seeds of dishonesty and slander may be designated-all these phrases must disappear from our papers and procedure. They indicate only appearances-only what people *wanted to have seen. They do not reveal the real and the hidden. Law too frequently makes normative use of the maxim that the bad world says it and the good one believes it. It even constructs its judgments thereby.
Not infrequently the uttered lies must be supported by actions. It is well-known that we seem merry, angry, or friendly only when we excite these feelings by certain gestures, imitations and physical att.i.tudes. Anger is not easily simulated with an unclenched fist, immovable feet, and uncontracted brow. These gestures are required for the appearance of real anger. And how very real it becomes, and how very real all other emotions become because of the appropriate gestures and actions, is familiar. We learn, hence, that the earnest a.s.sertor of his innocence finally begins to believe in it a little, or altogether. And lying witnesses still more frequently begin to hold their a.s.sertions to be true. As these people do not show the common marks of the lie their treatment is extraordinarily difficult.
It is, perhaps, right to accuse our age of especial inclination for that far-reaching lie which makes its perpetrator believe in his own
[1] A. Moll: Die kontr
creation. Kiefer[1] cites examples of such "self-deceiving liars." What drives one to despair is the fact that these people are such clever liars that they make a game of the business. It is a piece of luck that these lies, like every lie, betray themselves by the characteristic intensity with which they seek to a.s.sume the appearance of truth. This important mark of the lie can not be too clearly indicated. The number and vigor of lies must show that we more frequently fail to think of their possibility than if they did not exist at all. A long time ago I read an apparently simple story which has helped me frequently in my criminalistic work. Karl was dining with his parents and two cousins, and after dinner said at school, "There were fourteen of us at table to-day." "How is it possible?" "Karl has lied again." How frequently does an event seem inexplicable, mysterious, puzzling. But if you think that here perhaps, "Karl has lied again," you may be led to more accurate observation and hence, to the discovery of some hiatus by means of which the whole affair may be cleared up.
But frequently contradictions are still more simply explained by the fact that they are not contradictions, and by the fact that we see them as such through inadequate comprehension of what has been said, and ignorance of the conditions. We often pay too much attention to lies and contradictions. There is the prejudice that the accused is really the criminal, and that moves us to give unjustified reasons for little accidental facts, which lead afterwards to apparent contradictions. This habit is very old.
If we inquire when the lie has least influence on mankind we find it to be under emotional stress, especially during anger, joy, fear, and on the death-bed.[2] We all know of various cases in which a man, angry at the betrayal of an accomplice, happy over approaching release, or terrified by the likelihood of arrest, etc., suddenly declares, "Now I am going to tell the truth." And this is a typical form which introduces the subsequent confession. As a rule the resolution to tell the truth does not last long. If the emotion pa.s.ses, the confession is regretted, and much thought is given to the withdrawal of a part of the confession. If the protocols concerning the matter are very long this regret is easily observable toward the end.
That it is not easy to lie during intoxication is well known.[3] What
[1] E. Kiefer: Die Lge u. der Irrtum vor Gericht. Beiblatt der "Magdeburgischen Zeitung," Nos. 17, 18, 19. 1895 [2] Cf. "Manual," "Die Aussage Sterbender."
[3] Cf. N
is said on the death-bed may always, especially if the confessor is positively religious, be taken to be true. It is known that under such circ.u.mstances the consciousness of even mentally disturbed people and idiots becomes remarkably clear, and very often astonishing illuminations result. If the mind of the dying be already clouded it is never difficult to determine the fact, inasmuch as particularly such confessions are distinguished by the great simplicity and clearness of the very few words used.
Section 109.(2) The Pathoformic lie.
As in many other forms of human expression, there is a stage in the telling of lies where the normal condition has pa.s.sed and the diseased one has not yet begun. The extreme limit on the one side is the harmless story-teller, the hunter, the tourist, the student, the lieutenant,-all of whom boast a little; on the other side there is the completely insane paralytic who tells about his millions and his monstrous achievements. The characteristic pseudologia phantastica, the lie of advanced hysteria, in which people write anonymous letters and send messages to themselves, to their servants, to high officials and to clergy, in order to cast suspicion on them, are all diseased. The characteristic lie of the epileptics, and perhaps also, the lies of people who are close to the idiocy of old age, mixes up what has been experienced, read and told, and represents it as the experience of the speaker.[1]
Still there is a cla.s.s of people who can not be shown to be in any sense diseased, and who still lie in such a fashion that they can not be well. The development of such lies may probably be best a.s.signed to progressive habituation. People who commit these falsehoods may be people of talent, and, as Goethe says of himself, may have "desire to fabulate." Most of them are people, I will not say who are desirous of honor, but who are still so endowed that they would be glad to play some grand part and are eager to push their own personality into the foreground. If they do not succeed in the daily life, they try to convince themselves and others by progressively broader stories that they really hold a prominent position. I had and still have opportunity to study accurately several well-developed types of these people. They not only have in common the fact that they lie, they also have common themes. They tell how important
[1] Delbrck: De pathologische Lge, etc. Stuttgart 1891. "Manual," "Das pathoforme Lgen. personages asked their advice, sought their company and honored them. They suggest their great influence, are eager to grant their patronage and protection, suggest their great intimacy with persons of high position, exaggerate when they speak of their property, their achievements, and their work, and broadly deny all events in which they are set at a disadvantage. The thing by which they are to be distinguished from ordinary "story-tellers," and which defines what is essentially pathoformic in them, is the fact that they lie without considering that the untrue is discovered immediately, or very soon. Thus they will tell somebody that he has to thank their patronage for this or that, although the person in question knows the case to be absolutely different. Or again, they tell somebody of an achievement of theirs and the man happens to have been closely concerned with that particular work and is able to estimate properly their relation to it. Again they promise things which the auditor knows they can not perform, and they boast of their wealth although at least one auditor knows its amount accurately. If their stories are objected to they have some extraordinarily unskilful explanation, which again indicates the pathoformic character of their minds. Their lies most resemble those of pregnant women, or women lying-in, also that particular form of lie which prost.i.tutes seem typically addicted to, and which are cited by Carlier, Lombroso, Ferrero, as representative of them, and as a professional mark of identification. I also suspect that the essentially pathoformic lie has some relation to s.e.x, perhaps to perversity or impotence, or exaggerated s.e.xual impulse. And I believe that it occurs more frequently than is supposed, although it is easily known in even its slightly developed stages. I once believed that the pathoformic lie was not of great importance in our work, because on the one hand, it is most complete and distinct when it deals with the person of the speaker, and on the other it is so characteristic that it must be recognized without fail by anybody who has had the slightest experience with it. But since, I have noticed that the pathoformic lie plays an enormous part in the work of the criminalist and deserves full consideration.
TOPIC IV. ISOLATED SPECIAL CONDITIONS.
Section 110. (a) Sleep and Dream.
If a phenomenon occurs frequently, its frequency must have a certain relation to its importance to the criminalist. Hence, sleep
and dream must in any event be of great influence upon our task. As we rarely hear them mentioned, we have underestimated their significance. The literature dealing with them is comparatively rich.[1]
The physician is to be called in not only when we are dealing with conditions of sleep and dream which are in the least diseased, i. e., abnormally intense sleepiness, sleep-walking, hallucinatory dreams, etc., but also when the physiological side of sleep and dream are in question, e. g., the need of sleep, the effect of insomnia, of normal sleepiness, etc. The criminalist must study also these things in order to know the kind of situation he is facing and when he is to call in the physician for a.s.sistance. Ignorance of the matter means spoiling a case by unskilful interrogation and neglect of the most important things. At the very least, it makes the work essentially more difficult.
But in many cases the criminalist must act alone since in those cases there is neither disease nor a physiological condition by way of explanation but merely a simple fact of the daily life which any educated layman must deal with for himself. Suppose, e. g., we are studying the influence of a dream upon our emotions. It has been shown that frequently one may spend a whole day under the influence of a dream, that one"s att.i.tude is happy and merry as if something pleasant had been learned, or one is cross, afraid, excited, as if something unhappy had happened. The reason and source of these att.i.tudes is frequently a pleasant or unpleasant dream, and sometimes this may be at work subconsciously and unremembered. We have already shown that so-called errors of memory are to a large extent attributable to dreams.[2]
This effect of the dream may be of significance in women, excitable men, and especially in children. There are children who consider their dreams as real experiences, and women who are unable to distinguish between dreams and real experience, while the senile and aged can not distinguish dreams and memories because their memories and the power to distinguish have become weakened.[3]
I know of an eight-year-old child who after dinner had gone looking for chestnuts with a man. In the evening it came home happy but woke up in tears and confessed that the man in question had
[1] Cf. S. Freud: Traumdeutung. Leipzig 1900 (for the complete bibliography). B. Sidis: An Experimental Study of Sleep: Journal of Abnormal Psychology.
[2] Maudsley. Physiology and Pathology of the Mind.
[3] Cf. Altmann in H. Gross"s Archiv. I, 261.
raped it. Another case concerns a great burglary which had caused its victims considerable excitement. The second day after the event the ten or twelve-year-old daughter of the victim a.s.serted with certainty that she had recognized the son of a neighbor among the thieves. In both cases there were serious legal steps taken against the suspects, and in both cases the children finally admitted, after much thinking, that they had possibly dreamed the whole matter of their complaints.
The character-mark of such cases is the fact that the children do not make their a.s.sertions immediately, but after one or two nights have pa.s.sed. Hence, whenever this occurs one must entertain at least the suspicion that reality and dreams have been confused.
Similarly, Taine narrates that Baillarger once dreamed that he had been made director of a certain journal, and believed it so definitely that he told it to a number of people. Then there is the familiar dream of Julius Scaliger. Leibnitz writes that Scaliger had praised in verse the famous men of Verona. In dream he saw a certain Brugnolus who complained that he had been forgotten. Later Scaliger"s son Joseph discovered that there really had been a Brugnolus who had distinguished himself as grammarian and critic. Obviously Scaliger senior had once known, and had completely forgotten about him. In this case the dream had been just a refreshing of the memory. Such a dream may be of importance, but is unreliable and must be dealt with carefully.
To get at a point of departure concerning the nature of the sleep and the dreams of any given person, we may cla.s.sify them with reference to the following propositions:[1] 1. The vividness of dreams increases with their frequency. 2. The lighter the sleep the more frequent the dreams. 3. Women sleep less profoundly than men and hence dream more. 4. With increasing age dreams become rarer and sleep less profound. b. Who sleeps lightly needs less sleep. 6. The feminine need of sleep is greater. I might add with regard to the last point that the fact that women are better able to endure nursing children or invalids const.i.tutes only an apparent contradiction of this point. The need of sleep is not decreased, but the goodwill and the joy of sacrifice is greater in woman than in man.
The extraordinary things people do in half-dream and in sleep are numerously exemplified by Jessen. Most of them are taken from the older literature, but are quite reliable. A comparison indicates
[1] F. Heerwazen Statistische Untersuchung ber Tr that such somnambulistic conduct occurs most frequently among the younger, more powerful, over-strained people, who, e. g., have not slept for two successive nights, and then have been awakened from deep sleep. It is remarkable that they often act intelligently under such circ.u.mstances-that the physician writes the proper prescription or the factory superintendent gives the proper orders, but neither knows anything about it later on. Criminalistically their significance lies on the one hand in the fact that they can be investigated with regard to their correctness; and on the other that they occur to people who had no reason to falsify. If a defendant tells about some such experience, we lack the means and the power to make an accurate examination of the matter, and tend for this reason to disbelieve him. Moreover, his very position throws doubt upon his statements. But this is just the ground for a careful study of similar occurrences in trustworthy people.[1] All authorities agree that actions during sleepiness[2] occur almost always in the first deep sleep, disturbed by dreams, of over-fatigued, strong individuals.
An important circ.u.mstance is the phenomenon cited by Jessen and others-the capacity of some people to fall calmly asleep in spite of tremendous excitement. Thus, Napoleon fell into deep sleep during the most critical moment at Leipzig. This capacity is sometimes cited as evidence of innocence. But it is not convincing.
We have yet to mention the peculiar illusions of the phenomena of movement which occur just before falling asleep. Panum tells how he once inhaled ether, and then observed, lying in bed, how the pictures on the wall went further and further back, came forward and withdrew, again and again. Similar things happen to sleepy people. Thus, the preacher in church seems progressively to withdraw and return. The criminalistic significance of such illusions may be in the observation of movements by people who are falling asleep, e. g., of thieves who seemed to be approaching the witnesses" beds, though standing still.
That sleeping people may be influenced in definite ways is indubitable. Cases are mentioned in which sleepers could be made to believe any story; they would dream of it, and later on believe it. There is in this connection the story of the officer who acquired the love of a young girl in this fashion; the girl had shown definite distaste for him at first, but after he had told her during her sleep,
[1] P. Jessen: Versuch einer wissenschaftlichen Begrndung der Psychologie. Berlin 1885.[2] Cf. H. Gross"s Archiv. XIII 161, XIV 189.
in her mother"s presence, of his love and loyalty, she began in the course of time to return it. It is a fact that certain of our burglars believe similar things, and carry them out in most cases with the a.s.sistance of red light, to which they a.s.sign hypnotic power. They claim that with a lantern with red gla.s.s they are able to do anything in the room containing a sleeping individual, and can intensify his sleep by letting the red light fall on his face, and speaking to him softly. Curiously enough this is corroborated by a custom of our mountain lads. They cover a lantern with a red cloth and go with it to the window of a sleeping girl. It is a.s.serted that when the red light falls on the latter"s face and it is suggested to her softly to go along, she does so. Then a pointed stone is placed in the girl"s way, she steps on it, it wakes her up, and the crude practical joke is finished. It would be interesting, at least, to get some scientific information concerning these cited effects of red light upon sleeping people.