Criminal Psychology by Hans Gross (best book club books for discussion TXT) 📖

be presupposed ought to be substituted for the result, but it is a fact that the layman presupposes much more knowledge, acuteness, and power in the criminalist than he really possesses. Then again, it is conceivable that a single word spoken by the judge has more weight than it should have, and then when a real persuasion—evidently in the best sense of the word—is made use of, it must be influential. I am certain that every one of us has made the frightful observation that by the end of the examination the witness has simply taken the point of view of the examiner, and the worst thing about this is that the witness still thinks that he is thinking in his own way.

The examiner knows the matter in its relation much better, knows how to express it more beautifully, and sets pretty theories going. The witness, to whom the questions are suggestive, becomes conceited, likes to think that he himself has brought the matter out so excellently, and therefore is pleased to adopt the point of view and the theories of the examiner who has, in reality, gone too far in his eagerness. There is less danger of this when educated people are examined for these are better able to express themselves; or again when women are examined for these are too obstinate to be persuaded, but with the great majority the danger is great, and therefore the criminalist can not be told too often how necessary it is that he shall meet his witness with the least conceivable use of eloquence.

Forensic persuasion is of especial importance and has been considered so since classical days, whether rightly, is another question. The orations of state prosecutors and lawyers for the defense, when made before scholarly judges, need not be held important. If individuals are ever asked whether they were persuaded or made doubtful by the prosecutor or his opponent they indicate very few instances. A scholarly and experienced judge who has not drawn any conclusions about the case until the evidence was all in need hardly pay much attention to the pleaders. It may indeed be that the prosecution or defense may belittle or intensify one or another bit of evidence which the bench might not have thought of; or they may call attention to some reason for severity or mercy. But on the one hand if this is important it will already have been touched in the adduction of evidence, and on the other hand such points are generally banal and indifferent to the real issue in the case. If this be not so it would only indicate that either we need a larger number of judges, or even when there are many judges that one thing or another may be overlooked.

But with regard to the jury the case is quite different; it is easily influenced and more than makes up for the indifference of the bench. Whoever takes the trouble to study the faces of the jury during trial, comes to the conclusion that the speeches of the prosecution and defense are the most important things in the trial, that they absorb most of the attention of the jury, and that the question of guilt or innocence does not depend upon the number and weight of the testimony but upon the more or less skilful interpretation of it. This is a reproach not to the jury but to those who demand from it a service it can not render. It is first necessary to understand how difficult the conduct of a trial is. In itself the conduct of a jury trial is no art, and when compared with other tasks demanded of the criminalist may be third or fourth in difficulty. What is difficult is the determination of the chronological order in which to present evidence, i.e., the drawing of the brief. If the brief is well drawn, everything develops logically and psychologically in a good way and the case goes on well; but it is a great and really artistic task to draw this brief properly. There are only two possibilities. If the thing is not done, or the brief is of no use, the case goes on irrelevantly, illogically and unintelligibly and the jury can not understand what is happening. If the trick is turned, however, then like every art it requires preparation and intelligence. And the jury do not possess these, so that the most beautiful work of art passes by them without effect. They therefore must turn their attention, to save what can be saved, upon the orations of the prosecution and defense. These reproduce the evidence for them in some intelligible fashion and the verdict will be innocence or guilt according to the greater intelligence of one or the other of the contending parties. Persuasiveness at its height, Hume tells us, leaves little room for intelligence and consideration. It addresses itself entirely to the imagination and the affections, captures the well-inclined auditors, and dominates their understanding. Fortunately this height is rarely reached. In any event, this height, which also dominates those who know the subject, will always be rare, yet the jury are not people of knowledge and hence dominations ensue, even through attempts at persuasiveness which have attained no height whatever. Hence the great danger.

The only help against this is in the study by the presiding justice, not as lawyer but as psychologist, of the faces of the jury while the contending lawyers make their addresses. He must observe very narrowly and carefully every influence exercised by the speeches, which is irrelevant to the real problem, and then in summing up call it to the attention of the jury and bring them back to the proper point of view. The ability to do this is very marvelous, but it again is an exceedingly difficult performance.

Nowadays persuadability is hardly more studied but anybody who has empirically attained some proficiency in it has acquired the same tricks that are taught by theory. But these must be known if they are to be met effectively. Hence the study of the proper authors can not be too much recommended. Without considering the great authors of the classical period, especially Aristotle and Cicero, there are many modern ones who might be named.

Section 31. (i) Inference and Judgment.

The judgment to be discussed in the following section is not the judgment of the court but the more general judgment which occurs in any perception. If we pursue our tasks earnestly we draw from the simplest cases innumerable inferences and we receive as many inferences from those we examine. The correctness of our work depends upon the truth of both. I have already indicated how very much of the daily life passes as simple and invincible sense-perception even into the determination of a sentence, although it is often no more than a very complicated series of inferences each of which may involve a mistake even if the perception itself has been correct. The frequency with which an inference is made from sense-perception is the more astonishing inasmuch as it exceeds all that the general and otherwise valid law of laziness permits. In fact, it contradicts that law, though perhaps it may not do so, for a hasty inference from insufficient premises may be much more comfortable than more careful observation and study. Such hasty inference is made even with regard to the most insignificant things. In the course of an investigation we discover that we have been dealing only with inferences and that our work therefore has been for nothing. Then again, we miss that fact, and our results are false and their falsehood is rarely sought in these petty mistakes. So the witness may have “seen” a watch in such and such a place when in reality he has only heard a noise that he took for the ticking of a watch and hence inferred that there had really been a watch, that he had seen it, and finally believed that he had seen it. Another witness asserts that X has many chickens; as a matter of fact he has heard two chickens cluck and infers a large number. Still another has seen footprints of cattle and speaks of a herd, or he knows the exact time of a murder because at a given time he heard somebody sigh, etc. There would be little difficulty if people told us how they had inferred, for then a test by means of careful questions would be easy enough—but they do not tell, and when we examine ourselves we discover that we do exactly the same thing and often believe and assert that we have seen or heard or smelt or felt although we have only inferred these things.[153] Here belong all cases of correct or partly correct inference and of false inference from false sense-perception. I recall the oft-cited story in which a whole judicial commission smelt a disgusting odor while a coffin was being exhumed only to discover that it was empty. If the coffin, for one reason or another, had not been opened all those present would have taken oath that they had an indubitable perception although the latter was only inferred from its precedent condition.

Exner[154] cites the excellent example in which a mother becomes frightened while her child cries, not because the cry as such sounds so terrible as because of its combination with the consciousness that it comes from her own child and that something might have happened to it. It is asserted, and I think rightly, that verbal associations have a considerable share in such cases. As Stricker[155] expresses it, the form of any conceptual complex whatever, brings out its appropriate word. If we see the thing watch, we get the word watch. If we see a man with a definite symptom of consumption the word tuberculosis occurs at once. The last example is rather more significant because when the whole complex appears mistakes are more remote than when merely one or another “safe” symptom permits the appearance of the word in question. What is safe to one mind need not be so to another, and the notion as to the certainty of any symptom changes with time and place and person. Mistakes are especially possible when people are so certain of their “safe” symptoms that they do not examine how they inferred from them. This inference, however, is directly related to the appearance of the word. Return to the example mentioned above, and suppose that A has discovered a “safe” symptom of consumption in B and the word tuberculosis occurs to him. But the occurrence does not leave him with the word merely, there is a direct inference “B has tuberculosis.” We never begin anything with the word alone, we attach it immediately to some fact and in the present case it has become, as usual, a judgment. The thought-movement of him who has heard this judgment, however, turns backward and he supposes that the judge has had a long series of sense-perceptions from which he has derived his inference. And in fact he has had only one perception, the reliability of which is often questionable.

Then there is the additional difficulty that in every inference there are leaps made by each inferer according to his character and training. And the maker does not consider whether the other fellow can make similar leaps or whether his route is different. E. g., when an English philosopher says, “We really ought not to expect that the manufacture of woolens shall be perfected by a nation which knows no astronomy,”—we are likely to say that the sentence is silly; another might say that it is paradoxical and a third that it is quite correct, for what is missing is merely the proposition that the grade of culture made possible by astronomy is such