ptique. Toulouse 1901.The best known is the story of an Irish servant girl, who, during fever, recited Hebrew sentences which she had heard from a preacher when a child. Another case tells of a very great fool who, during fever, repeated prolonged conversations with his master, so that the latter decided to make him his secretary. But when the servant got well he became as foolish as ever. The criminalist who has the opportunity of examining deeply wounded, feverish persons, makes similar, though not such remarkable observations. These people give him the impression of being quite intelligent persons who tell their stories accurately and correctly. Later on, after they are cured, one gets a different opinion of their intelligence. Still more frequently one observes that these feverish, wounded victims know
more, and know more correctly about the crime than they are able to tell after they have recovered. What they tell, moreover, is quite reliable, provided, of course, they are not delirious or crazy.
The cases are innumerable in which people have lost their memory for a short time, or for ever. I have already elsewhere mentioned an event which happened to a friend of mine who received a sudden blow on the head while in the mountains and completely lost all memory of what had occurred a few minutes before the blow. After this citation I got a number of letters from my colleagues who had dealt with similar cases. I infer, therefore, that the instances in which people lose their memory of what has occurred before the event by way of a blow on the head, are numerous.[1]
[1] Cf. H. Gross"s Archiv. I, 337.
Legally such cases are important because we would not believe statements in that regard made by accused, inasmuch as there seems to be no reason why the events *before the wound should disappear, just as if each impression needed a fixative, like a charcoal drawing. But as this phenomenon is described by the most reliable persons, who have no axe to grind in the matter, we must believe it, other things being equal, even when the defendant a.s.serts it. That such cases are not isolated is shown in the fact that people who have been stunned by lightning have later forgotten everything that occurred shortly before the flash. The case is similar in poisoning with carbonic-acid gas, with mushrooms, and in strangulation. The latter cases are especially important, inasmuch as the wounded person, frequently the only witness, has nothing to say about the event.
I cannot omit recalling in this place a case I have already mentioned elsewhere, that of Brunner. In 1893 in the town of Dietkirchen, in Bavaria, the teacher Brunner"s two children were murdered, and his wife and servant girl badly wounded. After some time the woman regained consciousness, seemed to know what she was about, but could not tell the investigating justice who had been sent on to take charge of the case, anything whatever concerning the event, the criminal, etc. When he had concluded his negative protocol she signed it, Martha Guttenberger, instead of Martha Brunner. Fortunately the official noted this and wanted to know what relation she had to the name Guttenberger. He was told that a former lover of the servant girl an evil-mouthed fellow, was called by that name. He was traced to Munich and there arrested. He immediately confessed to the crime. And when Mrs. Brunner
became quite well she recalled accurately that she had definitely recognized Guttenberger as the murderer.[1]
[1] J. Hubert: Das Verhalten des Ged
The psychological process was clearly one in which the idea, "Guttenberger is the criminal," had sunk into the secondary sphere of consciousness, the subconsciousness,-so that it was only clear to the real consciousness that the name Guttenberger had something to do with the crime. The woman in her weakened mental condition thought she had already sufficiently indicated this fact, so that she overlooked the name, and hence wrote it unconsciously. Only when the pressure on her brain was reduced did the idea that Guttenberger was the murderer pa.s.s from the subconscious to the conscious. Psychiatrists explain the case as follows:
The thing here involved is retrograde amnesia. It is nowadays believed that this phenomenon in the great majority of cases occurs according to the rule which defines traumatic hysteria, i. e., as ideogen. The ideational complexes in question are forced into the subconsciousness, whence, on occasion, by aid of a.s.sociative processes, hypnotic concentration, and such other similar elements, they can be raised into consciousness. In this case, the suppressed ideational complex manifested itself in signing the name.
All legal medicine discusses the fact that wounds in the head make people forget single words. Taine, Guerin, Abercrombie, etc., cite many examples, and Winslow tells of a woman who, after considerable bleeding, forgot all her French. The story is also told that Henry Holland had so tired himself that he forgot German. When he grew stronger and recovered he regained all he had forgotten.
Now would we believe a prisoner who told us any one of these things?
The phenomena of memories which occur in dying persons who have long forgotten and never even thought of these memories, are very significant. English psychologists cite the case of Dr. Rush, who had in his Lutheran congregation Germans and Swedes, who prayed in their own language shortly before death, although they had not used it for fifty or sixty years. I can not prevent myself from thinking that many a death-bed confession has something to do with this phenomenon.[2]
[2] Cf. H. Gross"s Archiv. XV, 123.
At the boundary between incorrect perception and forgetting are those cases in which, under great excitement, important events
do not reach consciousness. I believe that the responsibility is here to be borne by the memory rather than by sense-perception. There seems to be no reason for failing to perceive with the senses under the greatest excitement, but there is some clearness in the notion that great excitement causes what has just been perceived to be almost immediately forgotten. In my "Manual" I have discussed a series of cases of this sort, and show how the memory might come into play. None of the witnesses, e. g., had seen that Mary Stuart received, when being executed, two blows. In the case of an execution of many years ago, not one of those present could tell me the color of the gloves of the executioner, although everyone had noticed the gloves. In a train wreck, a soldier a.s.serted that he had seen dozens of smashed corpses, although only one person was harmed. A prison warden who was attacked by an escaping murderer, saw in the latter"s hand a long knife, which turned out to be a herring. When Carnot was murdered, neither one of the three who were in the carriage with him, nor the two footmen, saw the murderer"s knife or the delivery of the blow, etc.
How often may we make mistakes because the witnesses-in their excitement-have forgotten the most important things!
Section 55. (d) Illusions of Memory.
Memory illusion, or paramnesia, consists in the illusory opinion of having experienced, seen, or heard something, although there has been no such experience, vision, or sound. It is the more important in criminal law because it enters un.o.btrusively and unnoticed into the circle of observation, and not directly by means of a demonstrated mistake. Hence, it is the more difficult to discover and has a disturbing influence which makes it very hard to perceive the mistakes that have occurred in consequence of it.
It may be that Leibnitz meant paramnesia with his "perceptiones insensibiles." Later, Lichtenberg must have had it in mind when he repeatedly a.s.serted that he must have been in the world once before, inasmuch as many things seemed to him so familiar, although, at the time, he had not yet experienced them. Later on, Jessen concerned himself with the question, and Sander[1] a.s.serts him to have been the first. According to Jessen, everybody is familiar with the phenomenon in which the sudden impression occurs, that
what is experienced has already been met with before so that the future might be predicted. Langwieser a.s.serts that one always has the sensation that the event occurred a long time ago, and Dr. Karl Neuhoff finds that his sensation is accompanied with unrest and contraction. The same thing is discussed by many other authors.[1b]
[1] W. Sander: ber Erinnerungstr Psychiatrie u. Nervenkrankheiten.[1b] Sommer: Zur a.n.a.lyse der Erinnerungst
Various explanations have been offered. Wigand and Maudsley think they see in paramnesia a simultaneous functioning of both relations. Anje believes that illusory memory depends on the differentiation which sometimes occurs between perception and coming-into-consciousness. According to Klpe, these are the things that Plato interpreted in his doctrine of pre-existence.Sully,[2] in his book on illusions, has examined the problem most thoroughly and he draws simple conclusions. He finds that vivacious children often think they have experienced what is told them. This, however, is retained in the memory of the adult, who continues to think that he has actually experienced it. The same thing is true when children have intensely desired anything. Thus the child- stories given us by Rousseau, Goethe, and De Quincey, must come from the airy regions of the dream life or from waking revery, and d.i.c.kens has dealt with this dream life in "David Copperfield." Sully adds, that we also generate illusions of memory when we a.s.sign to experiences false dates, and believe ourselves to have felt, as children, something we experienced later and merely set back into our childhood.
[2] James Sully: Illusions. London.
So again, he reduces much supposed to have been heard, to things that have been read. Novels may make such an impression that what has been read or described there appears to have been really experienced. A name or region then seems to be familiar because we have read of something similar.
It will perhaps be proper not to reduce all the phenomena of paramnesia to the same conditions. Only a limited number of them seem to be so reducible. Impressions often occur which one is inclined to attribute to illusory memory, merely to discover later that they were real but unconscious memory; the things had been actually experienced and the events had been forgotten. So, for example, I visit some region for the first time and get the impression that I have seen it before, and since this, as a matter of fact, is not the case, I believe myself to have suffered from an illusion of memory.
Later, I perceive that perhaps in early childhood I had really been in a country that resembled this one. Thus my memory was really correct; I had merely forgotten the experience to which it referred.
Aside from these unreal illusions of memory, many, if not all others, are explicable, as Sully indicates, by the fact that something similar to what has been experienced, has been read or heard, while the fact that it has been read or heard is half forgotten or has sunk into the subconsciousness. Only the sensation has remained, not the recollection that it was read, etc. Another part of this phenomenon may possibly be explained by vivid dreams, which also leave strong impressions without leaving the memory of their having been dreams. Whoever is in the habit of dreaming vividly will know how it is possible to have for days a clear or cloudy feeling of the discovery of something excellent or disturbing, only to find out later that there has been no real experience, only a dream. Such a feeling, especially the memory of things seen or heard in dreams, may remain in consciousness. If, later, some similar matter is really met with, the sensation may appear as a past event.[1] This is all the easier since dreams are never completely rigid, but easily modeled and adaptable, so that if there is the slightest approximation to similarity, memory of a dream lightly attaches itself to real experience.
[1] H Gross"s Archiv I, 261, 335.
All this may happen to anybody, well or ill, nervous or stolid. Indeed, Kr
a village always looked like that-although I had never before seen such a Turkish street-hotel "in nature" or pictured.
Another mode of explanation may be mentioned, i. e., explanation by heredity. Hering[1] and Sully have dealt with it. According to the latter, especially, we may think that we have undergone some experience that really belongs to some ancestor. Sully believes that this contention can not be generically contradicted because a group of skilled activities (nest-building, food-seeking, hiding from the enemy, migration, etc.) have been indubitably inherited from the animals, but on the other hand, that paramnesia is inherited memory can be proved only with, e. g., a child which had been brought up far from the sea but whose parents and grandparents had been coast-dwellers. If that child should at first sight have the feeling that he is familiar with the sea, the inheritance of memory would be proved. So long as we have not a larger number of such instances the a.s.sumption of hereditary influence is very suggestive but only probable.
[1] E. Hering: ber das GedWith regard to the bearing of memory-illusions on criminal cases I shall cite only one possible instance. Somebody just waking from sleep has perceived that his servant is handling his purse which is lying on the night-table, and in consequence of the memory-illusion he believes that he has already observed this many times before. The action of the servant was perhaps harmless and in no way directed toward theft. Now the evidence of the master is supposed to demonstrate that this has repeatedly occurred, then perhaps no doubt arises that the servant has committed theft frequently and has had the intention of doing so this time.
To generalize this situation would be to indicate that illusions of memory are always likely to have doubtful results when they have occurred only once and when the witness in consequence of paramnesia believes the event to have been repeatedly observed. It is not difficult to think of numbers of such cases but it will hardly be possible to say how the presence of illusions of memory is to be discovered without the knowledge *that they exist.
When we consider all the qualities and idiosyncrasies of memory, this so varied function of the mind, we must wonder that its estimation in special cases is frequently different, although proceeding from a second person or from the very owner of the questionable memory. Sully finds rightly, that one of the keenest tricks in fighting deep-
rooted convictions is to attack the memory of another with regard to its reliability. Memory is the private domain of the individual. From the secret council-chamber of his own consciousness, into which no other may enter, it draws all its values.
The case is altered, however, when a man speaks of his personal memory. It must then a.s.sume all the deficiencies which belong to other mental powers. We lawyers, especially, hear frequently from witnesses: "My memory is too weak to answer this question," "Since receiving the wound in question my memory has failed," "I am already too old, my memory is leaving me," etc. In each of these cases, however, it is not the memory that is at fault. As a matter of fact the witness ought to have said "I am too stupid to answer this question," "Since the wound in question, my intellectual powers have failed," "I am already old, I am growing silly," etc. But of course no one will, save very rarely, underestimate his good sense, and it is more comfortable to a.s.sign its deficiencies to the memory. This occurs not only in words but also in construction. If a man has incorrectly reproduced any matter, whether a false observation, or a deficient combination, or an unskilled interpretation of facts, he will not blame these things but will a.s.sign the fault to memory. If he is believed, absolutely incorrect conclusions may result.
Section 56. (e) Mnemotechnique.
Just a few words concerning mnemotechnique, mnemonic, and anamnestic. The discovery of some means of helping the memory has long been a human purpose. From Simonides of Chios, to the Sophist Hippias of Elis, experiments have been made in artificial development of the memory, and some have been remarkably successful. Since the middle ages a large group of people have done this. We still have the figures of the valid syllogisms in logic, like Barbara, etc. The rules for remembering in the Latin grammar, etc., may still be learned with advantage. The books of Kothe and others, have, in their day, created not a little discussion.
As a rule, modern psychology pays a little attention to memory devices. In a certain sense, n.o.body can avoid mnemonic, for whenever you tie a knot in your handkerchief, or stick your watch into your pocket upside down, you use a memory device. Again, whenever you want to bear anything in mind you reduce difficulties and bring some kind of order into what you are trying to retain.
Thus, some artificial grip on the object is applied by everybody, and the utility and reliability of this grip determines the trustworthiness of a man"s memory. This fact may be important for the criminal lawyer in two ways. On the one hand, it may help to clear up misunderstandings when false mnemonic has been applied. Thus, once somebody called an aniline dye, which is soluble in water and is called "nigrosin," by the name "moorosin," and asked for it under that name in the store. In order to aid his memory he had a.s.sociated it with the word for black man = niger = negro = moor, and thus had subst.i.tuted moor for nigro in the construction of the word he wanted. Again, somebody asked for the "Duke Salm" or the "Duke Schmier." The request was due to the fact that in the Austrian dialect salve is p.r.o.nounced like salary and the colloquial for "salary" is "schmier" (to wipe). Dr. Ernst Lohsing tells me that he was once informed that a Mr. Schnepfe had called on him, while, as a matter of fact the gentleman"s name was Wachtel. Such misunderstandings, produced by false mnemonic, may easily occur during the examination of witnesses. They are of profound significance. If once you suspect that false memory has been in play, you may arrive at the correct idea by using the proper synonyms and by considering similarly-p.r.o.nounced words. If attention is paid to the determining conditions of the special case, success is almost inevitable.
The second way in which false mnemotechnique is important is that in which the technique was correct, but in which the key to the system has been lost, i. e., the witness has forgotten how he proceeded. Suppose, for example, that I need to recall the relation of the ages of three people to each other. Now, if I observe that M is the oldest, N the middle one, and O the youngest, I may suppose, in order to help my memory, that their births followed in the same order as their initials, M, N, O. Now suppose that at another time, in another case I observe the same relation but find the order of the initials reversed O N, M. If now, in the face of the facts, I stop simply with this technique, I may later on subst.i.tute the two cases for each other. Hence, when a witness says anything which appears to have been difficult to remember, it is necessary to ask him how he was able to remember it. If he a.s.signs some aid to memory as the reason, he must be required to explain it, and he must not be believed unless it is found reliable. If the witness in the instance above, for example, says, "I never make use of converse relations," then his testimony will seem comparatively trustworthy. And it is not
difficult to judge the degree of reliability of any aid to memory whatever.
Great liars are frequently characterized by their easy use of the most complicated mnemotechnique. They know how much they need it.
Topic 7. THE WILL.
Section 57.
Of course, we do not intend to discuss here either the "will" of the philosopher, or the "malice" or "ill-will" of criminal law, nor yet the "freedom of the will" of the moralist. We aim only to consider a few facts that may be of significance to the criminal lawyer. Hence, we intend by "will" only what is currently and popularly meant. I take will to be the *inner effect of the more powerful impulses, while action is the *external effect of those impulses. When Hartmann says that will is the transposition of the ideal into the real, he sounds foolish, but in one sense the definition is excellent. You need only understand by ideal that which does not yet exist, and by real that which is a fact and actual. For when I voluntarily compel myself to think about some subject, something has actually happened, but this event is not "real" in the ordinary sense of that word. We are to bear in mind, however, that Locke warned us against the contrast between intelligence and will, as real, spiritual essences, one of which gives orders and the other of which obeys. From this conception many fruitless controversies and confusions have arisen. In this regard, we criminalists must always remember how often the common work of will and intelligence opposes us in witnesses and still more so in defendants, causing us great difficulties. When the latter deny their crime with iron fort.i.tude and conceal their guilt by rage, or when for months they act out most difficult parts with wonderful energy, we must grant that they exhibit aspects of the will which have not yet been studied. Indeed, we can make surprising observations of how effectively prisoners control the muscles of their faces, which are least controllable by the will. The influence the will may have on a witness"s power even to flush and grow pale is also more extensive than may be established scientifically. This can be learned from quite remote events. My son happens to have told me that at one time he found himself growing pale with cold, and as under the circ.u.mstance he was afraid of being accused of lacking courage to pursue his task, he tried with all his power to
suppress his pallor, and succeeded perfectly. Since then, at court, I have seen a rising blush or beginning pallor suppressed completely; yet this is theoretically impossible.
But the will is also significant in judging the man as a whole. According to Drobisch,[1] the abiding qualities and ruling "set" of a man"s volition const.i.tute his character. Not only inclination, and habits, and guiding principles determine the character, but also meanings, prejudices, convictions, etc. of all kinds. Since, then, we can not avoid studying the character of the individual, we must trace his volitions and desires. This in itself is not difficult; the idea of his character develops spontaneously when so traced. But the will contains also the characteristic signs of difference which are important for our purposes. We are enabled to work intelligently and clearly only by our capacity for distinguishing indifferent, from criminal and logically interpretable deeds. Nothing makes our work so difficult as the inconceivably superfluous ma.s.s of details. Not every deed or activity is an action; only those are such which are determined by will and knowledge. So Abegg[2] teaches us, what is determined by means of the will may be discovered by a.n.a.lysis.
Of course, we must find the proper approach to this subject and not get lost in the libertarian-deterministic quarrel, which is the turning-point in contemporary criminal law. Forty years ago Renan said that the error of the eighteenth century lay generally in a.s.signing to the free and self-conscious will what could be explained by means of the natural effects of human powers and capacities. That century understood too little the theory of instinctive activity. n.o.body will claim that in the transposition of willing into the expression of human capacity, the question of determinism is solved. The solution of this question is not our task. We do get an opening however through which we can approach the criminal,-not by having to examine the elusive character of his will, but by apprehending the intelligible expression of his capacity. The weight of our work is set on the application of the concept of causality, and the problem of free-will stands or falls with that.
[1] M. W. Drobisch: Die moralische Statistik. Leipzig 1867.
[2] Neues Archiv des Kriminal-Rechts. Vol. 14.
Bois-Reymond in his "Limits of the Knowledge of Nature" has brought some clearness into this problem: "Freedom may be denied, pain and desire may not; the appet.i.te which is the stimulus to action necessarily precedes sense-perception. The problem, therefore, is that of sense-perception, and not as I had said a minute
ago, that of the freedom of the will. It is to the former that a.n.a.lytic mechanics may be applied." And the study of sense-perception is just what we lawyers may be required to undertake.
Of course, it is insufficient merely to study the individual manifestations of human capacities, for these may be accidental results or phenomena, determined by unknown factors. Our task consists in attaining abstractions in accord with careful and conscientious perceptions, and in finding each determining occasion in its particular activities.
According to Drobisch, "maxims and the subjective principles of evolution are, as Kant calls them, laws of general content required to determine our own volitions and actions. Then again, they are rules of our own volition and action which we ourselves construct, and which hence are subjectively valid. When these maxims determine our future volitions and actions they are postulates." We may, therefore, say that we know a man when we know his will, and that we know his will when we know his maxims. By means of his maxims we are able to judge his actions.