But we must not reconstruct his maxims theoretically. We must study everything that surrounds, alters, and determines him, for it is at this point that a man"s environments and relationships most influence him. As Grohmann said, half a century ago, "If you could find an elixir, which could cause the vital organs to work otherwise, if you could alter the somatic functions of the body, you would be the master of the will." Therefore it is never superfluous to study the individual"s environmental conditions, surroundings, all his outer influences. That the effort required in such a study is great, is of course obvious, but the criminal lawyer must make it if he is to perform his task properly.[1]
[1] H. Mnsterberg: Die Willeshandlung and various chapters on will in the psychologies of James, t.i.tchener, etc.Topic 8. EMOTION.
Section 58.
Little as emotion, as generally understood, may have to do with the criminalist, it is, in its intention, most important for him. The motive of a series of phenomena and events, both in prisoners and witnesses, is emotion. In what follows, therefore, we shall attempt to show that feeling, in so far as we need to consider it, need not be taken as an especial function. This is only so far significant as to
make our work easier by limiting it to fewer subjects. If we can reduce some one psychic function to another category we can explain many a thing even when we know only the latter. In any event, the study of a single category is simpler than that of many.[1]
[1] A. Lehman: Die Hauptgesetze des menschlichen Gefhlsleben. Leipzig 1892.Abstractly, the word emotion is the property or capacity of the mind to be influenced pleasantly or unpleasantly by sensations, perceptions, and ideas. Concretely, it means the conditions of desire or disgust which are developed by the complex of conditions thereby aroused. We have first to distinguish between the so-called animal and the higher emotions. We will a.s.sume that this distinction is incorrect, inasmuch as between these cla.s.ses there is a series of feelings which may be counted as well with one as with the other, so that the transition is incidental and no strict differentiation is possible. We will, however, retain the distinction, as it is easier by means of it to pa.s.s from the simpler to the more difficult emotions. The indubitably animal pa.s.sions we shall take to be hunger, thirst, cold, etc. These are first of all purely physiological stimuli which act on our body. But it is impossible to imagine one of them, without, at the same time, inevitably bringing in the idea of the defense against this physiological stimulus. It is impossible to think of the feeling of hunger without sensing also the strain to find relief from this feeling, for without this sensation hunger would not appear as such. If I am hungry I go for food; if I am cold I seek for warmth; if I feel pain I try to wipe it out. How to satisfy these desiderative actions is a problem for the understanding, whence it follows that successful satisfaction, intelligent or unintelligent, may vary in every possible degree. We see that the least intelligent-real cretins-sometimes are unable to satisfy their hunger, for when food is given the worst of them, they stuff it, in spite of acute sensations of hunger, into their ears and noses, but not into their mouths. We must therefore say that there is always a demand for a minimum quant.i.ty of intelligence in order to know that the feeling of hunger may be vanquished by putting food into the mouth.
One step further: In the description of the conduct of anthropoid apes which are kept in menageries, etc., especial intelligence is a.s.signed to those who know how to draw a blanket over themselves as protection against cold. The same action is held to be a sign of intelligence in very young children.
Still more thoroughly graded is the att.i.tude toward pain, inasmuch
as barely a trace of intelligence is required, in order to know that it is necessary to wipe away a hot liquid drop that has fallen on the body. Every physiological text-book mentions the fact that a decapitated frog makes such wiping movements when it is wet with acid. From this unconscious activity of the understanding to the technically highest-developed treatment of a burn, a whole series of progressively higher expressions of intelligence may be interpolated, a series so great as to defy counting.
Now take another, still animal, but more highly-developed feeling, for example, the feeling of comfort. We lay a cat on a soft bolster- she stretches herself, spreads and thins herself out, in order to bring as many nerve termini as possible into contact with the pleasant stimuli of the bolster. This behavior of the cat may be construed as instinctive, also as the aboriginal source of the sense of comfort and as leading to luxury in comfort, the stage of comfort which Roscher calls highest. (I. Luxury in eating and drinking. II. Luxury in dress. III. Luxury in comfort.)
Therefore we may say that the reaction of the understanding to the physiological stimulus aims to set it aside when it is unpleasant, and to increase and exhaust it when it is pleasant, and that in a certain sense both coincide (the ousting of unpleasant darkness is equivalent to the introduction of pleasant light). We may therefore say generally, that feeling is a physiological stimulus indivisibly connected with the understanding"s sensitive att.i.tude thereto. Of course there is a far cry from instinctive exclusion and inclusion to the most refined defensive preparation or interpretation, but the differences which lie next to each, on either side, are only differences in degree.
Now let us think of some so-called higher feeling and consider a special case of it. I meet for the first time a man who is unpleasantly marked, e. g., with badly colored hair. This stimulates my eyes disagreeably, and I seek either by looking away or by wishing the man away to protect myself from this physiologically-inimical influence, which already eliminates all feeling of friendship for this harmless individual. Now I see that the man is torturing an animal,-I do not like to see this, it affects me painfully; hence I wish him out of the way still more energetically. If he goes on so, adding one disagreeable characteristic to another, I might break his bones to stop him, bind him in chains to hinder him; I even might kill him, to save myself the unpleasant excitation he causes me. I strain my intelligence to think of some means of opposing him, and clearly, in
this case, also, physiological stimulus and activity of the understanding are invincibly united.
The emotion of anger is rather more difficult to explain. But it is not like suddenly-exploding hatred for it is acute, while hatred is chronic. I might be angry with my beloved child. But though at the moment of anger, the expression is identical with that of hatred, it is also transitive. In the extremest cases the negating action aims to destroy the stimulus. This is the most radical means of avoiding physiological excitation, and hence I tear in pieces a disagreeable letter, or stamp to powder the object on which I have hurt myself. Where persons are involved, I proceed either directly or symbolically when I can not, or may not, get my hands on the responsible one.
The case is the same with feeling of attraction. I own a dog, he has beautiful lines which are pleasant to my eye, he has a bell- like bark that stimulates my ear pleasantly, he has a soft coat which is pleasant to my stroking hand, I know that in case of need the dog will protect me (and that is a calming consideration), I know that he may be otherwise of use to me-in short my understanding tells me all kinds of pleasant things about the beast. Hence I like to have him near me; i. e., I like him. The same explanation may be applied to all emotions of inclination or repulsion. Everywhere we find the emotion as physiological stimulus in indivisible union with a number of partly known, partly unknown functions of the understanding. The unknown play an important rle. They are serial understandings, i. e., inherited from remote ancestors, and are characterized by the fact that they lead us to do the things we do when we recognize intelligently any event and its requirements.When one gets thirsty, he drinks. Cattle do the same. And they drink even when n.o.body has told them to, because this is an inherited action of countless years. If a man is, however, to proceed intelligently about his drinking, he will say, "By drying, or other forms of segregation, the water will be drawn from the cells of my body, they will become arid, and will no longer be sufficiently elastic to do their work. If, now, by way of my stomach, through endosmosis and exosmosis, I get them more water, the proper conditions will return." The consequences of this form of consideration will not be different from the instinctive action of the most elementary of animals-the wise man and the animal drink. So the whole content of every emotion is physiological stimulation and function of the understanding.
And what good is all this to the criminal lawyer? n.o.body
doubts that both prisoners and witnesses are subject to the powerful influence of emotional expression. n.o.body doubts that the determination, interpretation, and judgment of these expressions are as difficult as they are important to the judge. And when we consider these emotions as especial conditions of the mind it is indubitable that they are able to cause still greater difficulty because of their elusiveness, their very various intensity, and their confused effect. Once, however, we think of them as functions of the understanding, we have, in its activities, something better known, something rather more disciplined, which offers very many fewer difficulties in the judgment concerning the fixed form in which it acts. Hence, every judgment of an emotional state must be preceded by a reconstruction in terms of the implied functions of the understanding. Once this is done, further treatment is no longer difficult.
Topic 9. THE FORMS OF GIVING TESTIMONY.
Section 59.
Wherever we turn we face the absolute importance of language for our work. Whatever we hear or read concerning a crime is expressed in words, and everything perceived with the eye, or any other sense, must be clothed in words before it can be put to use. That the criminalist must know this first and most important means of understanding, completely and in all its refinements, is self- evident. But still more is required of him. He must first of all undertake a careful investigation of the essence of language itself. A glance over literature shows how the earliest scholars have aimed to study language with regard to its origins and character. Yet, who needs this knowledge? The lawyer. Other disciplines can find in it only a scientific interest, but it is practically and absolutely valuable only for us lawyers, who must, by means of language, take evidence, remember it, and variously interpret it. A failure in a proper understanding of language may give rise to false conceptions and the most serious of mistakes. Hence, n.o.body is so bound as the criminal lawyer to study the general character of language, and to familiarize himself with its force, nature, and development. Without this knowledge the lawyer may be able to make use of language, but failing to understand it, will slip up before the slightest difficulty. There is an exceedingly rich literature open to everybody.[1]
[1] Cf. Darwin: Descent of Man. Jakob Grimm: ber den Ursprung der Sprache. E. Renan: De l"Origine du Language, etc., etc. Section 60. (a) General Study of Variety in Forms of Expression.
Men being different in nature and bringing-up on the one hand, and language, being on the other, a living organism which varies with its soil, i. e., with the human individual who makes use of it, it is inevitable that each man should have especial and private forms of expression. These forms, if the man comes before us as witness or prisoner, we must study, each by itself. Fortunately, this study must be combined with another that it implies, i. e., the character and nature of the individual. The one without the other is unthinkable. Whoever aims to study a man"s character must first of all attend to his ways of expression, inasmuch as these are most significant of a man"s qualities, and most illuminating. A man is as he speaks. It is not possible, on the other hand, to study modes of expression in themselves. Their observation requires the study of a group of other conditions, if the form of speech is to be explained, or its a.n.a.lysis made even possible. Thus, one is involved in the other, and once you know clearly the tricks of speech belonging to an individual, you also have a clear conception of his character and conversely. This study requires, no doubt, considerable skill. But that is at the command of anybody who is devoted to the lawyer"s task.
Tylor is correct in his a.s.sertion, that a man"s speech indicates his origin much less than his bringing-up, his education, and his power. Much of this fact is due to the nature of language as a living growth and moving organism which acquires new and especial forms to express new and especial events in human life. Geiger[1] cites the following example of such changes in the meaning of words. "Mriga" means in Sanscrit, "wild beast;" in Zend it means merely "bird," and the equivalent Persian term "mrug" continues to mean only "bird," so that the barnyard fowls, song-birds, etc., are now called "mrug." Thus the first meaning, "wild animal" has been trans.m.u.ted into its opposite, "tame animal." In other cases we may incorrectly suppose certain expressions to stand for certain things. We say, "to bake bread, to bake cake, to bake certain meats," and then again, "to roast apples, to roast potatoes, to roast certain meats." We should laugh if some foreigner told us that he had "roasted" bread.
[1] Ursprung u. Eutwieklung der Sprache. Stuttgart, 1869.
These forms of expression have, as yet, no relation to character,
but they are the starting-point of quite characteristic modes which establish themselves in all corporations, groups, cla.s.ses, such as students, soldiers, hunters, etc., as well as among the middle cla.s.ses in large cities. Forms of this kind may become so significant that the use of a single one of them might put the user in question into jeopardy. I once saw two old gentlemen on a train who did not know each other. They fell into conversation and one told the other that he had seen an officer, while jumping from his horse, trip over his sword and fall. But instead of the word sword he made use of the old couleur-student slang word "speer," and the other old boy looked at him with shining eyes and cried out "Well, brother, what color?"
Still more remarkable is the mutation and addition of new words of especially definite meaning among certain cla.s.ses. The words become more modern, like so much slang.
The especial use of certain forms is individual as well as social. Every person has his private usage. One makes use of "certainly," another of "yes, indeed," one prefers "dark," another "darkish." This fact has a double significance. Sometimes a man"s giving a word a definite meaning may explain his whole nature. How heartless and raw is the statement of a doctor who is telling about a painful operation, "The patient sang!" In addition, it is frequently necessary to investigate the connotation people like to give certain words, otherwise misunderstandings are inevitable This investigation is, as a rule, not easy, for even when it is simple to bring out what is intended by an expression, it is still quite as simple to overlook the fact that people use peculiar expressions for ordinary things. This occurs particularly when people are led astray by the subst.i.tution of similars and by the repet.i.tion of such a subst.i.tution. Very few persons are able to distinguish between ident.i.ty and similarity; most of them take these two characters to be equivalent. If A and B are otherwise identical, save that B is a little bigger, so that they appear similar, there is no great mistake if I hold them to be equivalent and subst.i.tute B for A. Now I compare B with C, C with D, D with E, etc., and each member of the series is progressively bigger than its predecessor. If now I continue to repeat my first mistake, I have in the end subst.i.tuted for A the enormously bigger E and the mistake has become a very notable one. I certainly would not have subst.i.tuted E for A at the beginning, but the repeated subst.i.tution of similars has led me to this complete incommensurability.
Such subst.i.tutions occur frequently during the alterations of meanings, and if you wish to see how some remarkable signification of a term has arisen you will generally find it as a progression through gradually remoter similarities to complete dissimilarity. All such extraordinary alterations which a word has undergone in the course of long usage, and for which each linguistic text-book contains numerous examples, may, however, develop with comparative speed in each individual speaker, and if the development is not traced may lead, in the law-court, to very serious misunderstandings.
Subst.i.tutions, and hence, sudden alterations, occur when the material of language, especially in primitive tongues, contains only simple differentiations. So Tylor mentions the fact, that the language of the West African Wolofs contains the word "d tonda," I love, and "mi tnda," I do not love. Such differentiations in tone our own people make also, and the mutation of meaning is very close. But who observes it at all?Important as are the changes in the meanings of words, they fall short beside the changes of meaning of the conception given in the mode of exposition. Hence, there are still greater mistakes, because a single error is neither easily noticeable nor traceable. J. S. Mill says, justly, that the ancient scientists missed a great deal because they were guided by linguistic cla.s.sification. It scarcely occurred to them that what they a.s.signed abstract names to really consisted of several phenomena. Nevertheless, the mistake has been inherited, and people who nowadays name abstract things, conceive, according to their intelligence, now this and now that phenomenon by means of it. Then they wonder at the other fellow"s not understanding them. The situation being so, the criminalist is coercively required, whenever anything abstract is named, first of all to determine accurately what the interlocutor means by his word. In these cases we make the curious discovery that such determination is most necessary among people who have studied the object profoundly, for a technical language arises with just the persons who have dealt especially with any one subject.
As a rule it must be maintained that time, even a little time, makes an essential difference in the conception of any object. Mittermaier, and indeed Bentham, have shown what an influence the interval between observation and announcement exercises on the form of exposition. The witness who is immediately examined may,
perhaps, say the same thing that he would say several weeks after- but his presentation is different, he uses different words, he understands by the different words different concepts, and so his testimony becomes altered.
A similar effect may be brought about by the conditions under which the evidence is given. Every one of us knows what surprising differences occur between the statements of the witness made in the silent office of the examining justice and his secretary, and what he says in the open trial before the jury. There is frequently an inclination to attack angrily the witnesses who make such divergent statements. Yet more accurate observation would show that the testimony is essentially the same as the former but that the manner of giving it is different, and hence the apparently different story. The difference between the members of the audience has a powerful influence. It is generally true that reproductive construction is intensified by the sight of a larger number of attentive hearers, but this is not without exception. In the words "attentive hearers" there is the notion that the speaker is speaking interestingly and well, for otherwise his hearers would not be attentive, and if anything is well done and is known to be well done, the number of the listeners is exciting, inasmuch as each listener is reckoned as a stimulating admirer. This is invariably the case. If anybody is doing a piece of work under observation he will feel pleasant when he knows that he is doing it well, but he will feel disturbed and troubled if he is certain of his lack of skill. So we may grant that a large number of listeners increases reproductive constructivity, but only when the speaker is certain of his subject and of the favor of his auditors. Of the latter, strained attention is not always evidence. When a scholar is speaking of some subject chosen by himself, and his audience listens to him attentively, he has chosen his subject fortunately, and speaks well; the attention acts as a spur, he speaks still better, etc. But this changes when, in the course of a great trial which excites general interest, the witness for the government appears. Strained attention will also be the rule, but it does not apply to him, it applies to the subject. He has not chosen his topic, and no recognition for it is due him-it is indifferent to him whether he speaks ill or well. The interest belongs only to the subject, and the speaker himself receives, perhaps, the undivided antipathy, hatred, disgust, or scorn, of all the listeners. Nevertheless, attention is intense and strained, and inasmuch as the speaker knows that this does not pertain to him or his merits, it confuses and depresses him.
It is for this reason that so many criminal trials turn out quite contrary to expectation. Those who have seen the trial only, and were not at the prior examination, understand the result still less when they are told that "nothing" has altered since the prior examination-and yet much has altered; the witnesses, excited or frightened by the crowd of listeners, have spoken and expressed themselves otherwise than before until, in this manner, the whole case has become different.
In a similar fashion, some fact may be shown in another light by the manner of narration used by a particular witness. Take, as example, some energetically influential quality like humor. It is self-evident that joke, witticism, comedy, are excluded from the court-room, but if somebody has actually introduced real, genuine humor by way of the dry form of his testimony, without having crossed in a single word the permissible limit, he may, not rarely, narrate a very serious story so as to reduce its dangerous aspect to a minimum. Frequently the testimony of some funny witness makes the rounds of all the newspapers for the pleasure of their readers. Everybody knows how a really humorous person may so narrate experiences, doubtful situations of his student days, unpleasant traveling experiences, difficult positions in quarrels, etc., that every listener must laugh. At the same time, the events told of were troublesome, difficult, even quite dangerous. The narrator does not in the least lie, but he manages to give his story the twist that even the victim of the situation is glad to laugh at.[1] As Kr
[1] E. Regnault: La Langage par Gestes. La Nature XXVI, 315.
Now suppose that a really humorous witness tells a story which involves very considerable consequences, but which he does not really end with tragic conclusions. Suppose the subject to be a great brawl, some really cra.s.s deception, some story of an attack on honor, etc. The att.i.tude toward the event is altered with one turn, even though it would seem to have been generated progressively by ten preceding witnesses and the new view of the matter makes itself valid at least mildly in the delivery of the sentence. Then whoever has not heard the whole story understands the results least of all.
In the same way we see really harmless events turned into tragedies
by the testimony of a black-visioned, melancholy witness, without his having used, in this case or any other, a single untrue word. In like manner the bitterness of a witness who considers his personal experiences to be generally true, may color and determine the att.i.tude of some, not at all serious, event. Nor is this exaggeration. Every man of experience will, if he is only honest enough, confirm the fact, and grant that he himself was among those whose att.i.tude has been so altered; I avoid the expression-"duped."
It is necessary here, also, to repeat that the movements of the hands and other gestures of the witnesses while making their statements will help much to keep the correct balance. Movements lie much less frequently than words.[1]
[1] Paragraph omitted.
Another means of discovering whether a witness is not seduced by his att.i.tude and his own qualities is the careful observation of the impression his narrative makes on himself. Stricker has controlled the conditions of speech and has observed that so long as he continued to bring clearly described complexes into a causal relation, *satisfactory to him, he could excite his auditors; as soon as he spoke of a relation which *did not satisfy him the att.i.tude of the audience altered. We must invert this observation; we are the auditors of the witness and must observe whether his own causal connections satisfy him. So long as this is the case, we believe him. When it fails to be so he is either lying, or he himself knows that he is not expressing himself as he ought to make us correctly understand what he is talking about.
Section 61. (b) Dialect Forms.
What every criminal lawyer must unconditionally know is the dialect of those people he has most to deal with. This is so important that I should hold it conscienceless to engage in the profession of criminology without knowing the dialects. n.o.body with experience would dispute my a.s.sertion that nothing is the cause of so great and so serious misunderstandings, of even inversions of justice, as ignorance of dialects, ignorance of the manner of expression of human groups. Wrongs so caused can never be rectified because their primary falsehood starts in the protocol, where no denial, no dispute and redefinition can change them.
It is no great difficulty to learn dialects, if only one is not seduced
by comic pride and foolish ignorance of his own advantage into believing that popular speech is something low or common. Dialect has as many rights as literary language, is as living and interesting an organism as the most developed form of expression. Once the interest in dialect is awakened, all that is required is the learning of a number of meanings. Otherwise, there are no difficulties, for the form of speech of the real peasant (and this is true all over the world), is always the simplest, the most natural, and the briefest. Tricks, difficult construction, circ.u.mlocutions are unknown to the peasant, and if he is only left to himself he makes everything definite, clear, and easily intelligible.
There are many more difficulties in the forms of expression of the uncultivated city man, who has snapped up a number of uncomprehended phrases and tries to make use of them because of their suppositious beauty, regardless of their fitness. Unpleasant as it is to hear such a screwed and twisted series of phrases, without beginning and without end, it is equally difficult to get a dear notion of what the man wanted to say, and especially whether the phrases used were really brought out with some purpose or simply for the sake of showing off, because they sound "educated."
In this direction nothing is more significant than the use of the imperfect in countries where its use is not customary and where as a rule only the perfect is used; not "I was going," but "I have gone" (went). In part the reading of newspapers, but partly also the unfortunate habit of our school teachers, compel children to the use of the imperfect, which has not an iota more justification than the perfect, and which people make use of under certain circ.u.mstances, i. e., when they are talking to educated people, and then only before they have reached a certain age.
I confess that I regularly mistrust a witness who makes use of an imperfect or some other form not habitual to him. I presuppose that he is a weak-minded person who has allowed himself to be persuaded; I believe that he is not altogether reliable because he permits untrue forms to express his meaning, and I fear that he neglects the content for the sake of the form. The simple person who quietly and without shame makes use of his natural dialect, supplies no ground for mistrust.
There are a few traits of usage which must always be watched. First of all, all dialects are in certain directions poorer than the literary language. E. g., they make use of fewer colors. The blue grape, the red wine, may be indicated by the word black, the light
wine by the word white. Literary language has adopted the last term from dialect. n.o.body says water-colored or yellow wine, although n.o.body has ever yet seen white wine. Similarly, no peasant says a "brown dog," a "brown-yellow cow"-these colors are always denoted by the word red. This is important in the description of clothes. There is, however, no contradiction between this trait and the fact that the dialect may be rich in terms denoting objects that may be very useful, e. g. the handle of a tool may be called handle, grasp, heft, stick, clasp, etc.
When foreign words are used it is necessary to observe in what tendency, and what meaning their adoption embodies.[1]
[1] Paragraph omitted.
The great difficulty of getting uneducated people to give their testimony in direct discourse is remarkable. You might ask for the words of the speaker ten times and you always hear, "He told me, I should enter," you never hear "He told me, `Go in." " This is to be explained by the fact, already mentioned, that people bear in mind only the meaning of what they have heard. When the question of the actual words is raised, the sole way to conquer this disagreeable tendency is to develop dialogue and to say to the witness, "Now you are A and I am B; how did it happen?" But even this device may fail, and when you finally do compel direct quotation, you can not be certain of its reliability, for it was too extraordinary for the witness to quote directly, and the extraordinary and unhabitual is always unsafe.
What especially wants consideration in the real peasant is his silence. I do not know whether the reasons for the silence of the countrymen all the world over have ever been sought, but a gossiping peasant is rare to find. This trait is unfortunately exhibited in the latter"s failure to defend himself when we make use of energetic investigation. It is said that not to defend yourself is to show courage, and this may, indeed, be a kind of n.o.bility, a disgust at the accusation, or certainty of innocence, but frequently it is mere incapacity to speak, and inexperienced judges may regard it as an expression of cunning or conviction. It is wise therefore, in this connection, not to be in too great a hurry, and to seek to understand clearly the nature of the silent person. If we become convinced that the latter is by nature uncommunicative, we must not wonder that he does not speak, even when words appear to be quite necessary.