Part 2 (1/2)

One of the criminal judge's grossest derelictions from duty consists in his simply throwing the witness the question and in permitting him to say what he chooses. If he contents himself in that, he leaves to the witness's conscience the telling of the truth, and the whole truth; the witness is, in such a case, certainly responsible for one part of the untruthful and suppressed, but the responsibility for the other, and larger part, lies with the judge who has failed to do his best to bring out the uttermost value of the evidence, indifferently for or against the prisoner. The work of education is intended for this purpose,-not, as might be supposed, for training the populace as a whole into good witnesses, but to make that individual into a good, trustworthy witness who is called upon to testify for the first, and, perhaps, for the last time in his life. This training must in each case take two directions-it must make him *want to tell the truth; it must make him *able to tell the truth. The first requirement deals not only with the lie alone, it deals with the development of complete conscientiousness. How to face the lie itself can not be determined by means of training, but conscientious answers under examination can certainly be so acquired. We are not here considering people to whom truth is an utter stranger, who are fundamentally liars and whose very existence is a libel on mankind. We consider here only those people who have been unaccustomed to speaking the full and unadulterated truth, who have contented themselves throughout their lives with ”approximately,” and have never had the opportunity of learning the value of veracity. It may be said that a disturbingly large number of

people are given to wandering, in conversation, and in the reproduction of the past. They do not go straight, quickly, and openly to the point, they loiter toward it-”If I do not reach it in a bee line, I can get along on by-paths, if not to-day, then to-morrow; and if I really do not get to it at all, I do get somewhere else.” Such people have not homes but inns-if they are not in one place, another will do.

These persons are characterized by the event that whenever one has seen their loitering and puts the matter to them with just anger, they either get frightened or say carelessly, ”Oh, I thought this was not so accurate.” This famine of conscience, this indifference to truth, does far-reaching damage in our profession. I a.s.sert that it does immensely greater harm than obvious falsehood, because, indeed, the unvarnished lie is much more easily discoverable than the probable truth which is still untruth. Moreover, lies come generally from people with regard to whom one is, for one reason or another, already cautious, while these insinuating approximations are made by people who are not mistrusted at all.[1]

The lack of conscientiousness is common to all ages, both s.e.xes, and to all sorts and conditions of men. But it is most characteristically frequent and sharply defined among people who have no real business in life. Whoever romances in the daily life, romances when he ought to be absolutely truthful. The most dangerous of this cla.s.s are those who make a living by means of show and exhibition. They are not conscienceless because they do nothing worth while; they do nothing worth while because they are conscienceless. To this cla.s.s belong peddlers, street merchants, innkeepers, certain shop-keepers, hack-drivers, artists, etc., and especially prost.i.tutes (cf. Lombroso, etc., etc.). All these people follow a calling perhaps much troubled, but they do no actual work and have chosen their profession to avoid regular, actual work. They have much unoccupied time, and when they are working, part of the work consists of gossip, part of loafing about, or of a use of the hands that is little more. In brief,-since they loiter about and make a profit out of it, it is no wonder that in giving evidence they also loaf and bring to light only approximate truth. Nor is it difficult to indicate a.n.a.logous persons in the higher walks of life.

The most hateful and most dangerous of these people are the congenital tramps-people who did not have to work and faithfully pursued the opportunity of doing nothing. Whoever does not

[1] Cf. L<o:>wenstimm, in H. Gross's Archiv, VII, 191.

recognize that the world has no place for idlers and that life on G.o.d's earth must be earned by labor, is without conscience. No conscientious testimony need be expected from such. Among the few rules without exception which in the course of long experience the criminalist may make, this is one-that the real tramps of both s.e.xes and all walks of life will never testify conscientiously;-hic niger est, hunc Tu, Romane, caveto.

Section 5. (c) The Correctness of Testimony.

The training of the witness into a *capacity for truth-telling must be based, (1) on the judge's knowledge of all the conditions that affect, negatively, correct observations and reproductions; (2) on his making clear to himself whether and which conditions are operative in the case in question; and (3) on his aiming to eliminate this negative influence from the witness. The last is in many cases difficult, but not impossible. That mistakes have been made is generally soon noted, but then, ”being called and being chosen” are two things; and similarly, the discovery of *what is correct and the subst.i.tution of the essential observations for the opinionative ones, is always the most difficult of the judge's tasks.

When the witness is both unwilling to tell the truth and unable to do so, the business of training may be approached from a few common view-points. Patience with the witness is perhaps the most important key to success. No doubt it is difficult to be patient where there is no time; and what with our contemporary overtasking, there is no time. But that must be altered. Justice must have strength to keep everybody's labor proportional to his task. A nation whose representatives do not grant money enough for this purpose must not expect satisfactory law courts-”no checkee no washee;” no money no justice. People who have time will acquire patience.

Patience is necessary above all while taking evidence. A great many witnesses are accustomed to say much and redundantly, and again, most criminal justices are accustomed to try to shut them off and to require brief statements. That is silly. If the witness is wandering on purpose, as many a prisoner does for definite reasons of his own, he will spread himself still more as he recognizes that his examiner does not like it. To be disagreeable is his purpose. He is never led by impatience beyond his introduction, and some piece of evidence is lost because almost every accused who speaks

unintelligibly on purpose, says too much in the course of his speech and brings things to light that no effort might otherwise have attained to. Besides, whoever is making a purposely long-winded testimony does not want to say anything superfluous, and if he actually does so, is unaware of it. And even when he knows that he is talking too much (most of the time he knows it from the impatient looks of his auditors), he never can tell just what exceeded the measure. If, then, he is asked to cut it short, he remains unmoved, or at most begins again at the beginning, or, if he actually condescends, he omits things of importance, perhaps even of the utmost importance. Nor must it be forgotten that at least a large proportion of such people who are brought to court have prepared their story or probably blocked it out in the rough. If they are not permitted to follow their plans, they get confused, and nothing coherent or half-coherent is discovered. And generally those who say most have thought their testimony over before. Those who merely have to say no more than *yes and *no at the trial do not reduce the little they are going to say to any great order; that is done only by such as have a story to tell. Once the stream of talk breaks loose it is best allowed to flow on, and only then interrupted with appropriate questions when it threatens to become exhausting. Help against too much talk can be found in one direction. But it must be made use of before the evil begins, and is in any event of use only in the description of a long chain of events,-e. g., a great brawl. There, if one has been put in complete possession of the whole truth, through one or more witnesses, the next witness may be told: ”Begin where X entered the room.” If that is not done, one may be compelled to hear all the witness did the day before the brawl and how these introductions, in themselves indifferent, have led to the event. But if you set the subject, the witness simply abandons the first part of possibly studied testimony without thereby losing his coherence. The procedure may be accurately observed: The witness is told, ”Begin at this or that point.” This deliverance is generally followed by a pause during which he obviously reviews and sets aside the part of his prepared speech dealing with the events preliminary to the required points. If, however, the setting of a starting point does not work and the witness says he must begin at the earlier stage, let him do so. Otherwise he tries so hard to begin according to request that, unable to go his own way, he confuses everything.

The patience required for taking testimony is needful also in

cross-examination. Not only children and slow-witted folk, but also bright persons often answer only ”yes” and ”no,”[1] and these bare answers demand a patience most necessary with just this bareness, if the answers are to be pursued for some time and consecutively. The danger of impatience is the more obvious inasmuch as everyone recognizes more or less clearly that he is likely to set the reserved witness suggestive questions and so to learn things that the witness never would have said. Not everybody, indeed, who makes monosyllabic replies in court has this nature, but in the long run, this common characteristic is manifest, and these laconic people are really not able to deliver themselves connectedly in long speeches. If, then, the witness has made only the shortest replies and a coherent well-composed story be made of them, the witness will, when his testimony is read to him, often not notice the untruths it might contain. He is so little accustomed to his own prolonged discourse that at most he wonders at his excellent speech without noticing even coa.r.s.e falsehoods. If, contrary to expectation, he does notice them, he is too chary of words to call attention to them, a.s.sents, and is glad to see the torture coming to an end. Hence, nothing but endless patience will do to bring the laconic witness to say at least enough to make his information coherent, even though brief. It may be presented in this form for protocol.

Section 6. (d) Presuppositions of Evidence-Taking.

One of the most important rules of evidence-taking is not to suppose that practically any witness is skilled in statement of what he remembers. Even of child training, Fr<o:>bel[2] says, ”Men must be drawn out, not probed.” And this is the more valid in jurisprudence, and the more difficult, since the lawyers have at most only as many hours with the individual as the teacher has years. However, we must aim to draw the witness out, and if it does not work at first, we must nevertheless not despair of succeeding.

The chief thing is to determine the witness's level and then meet him on it. We certainly can not succeed, in the short time allowed us, to raise him to ours. ”The object of instruction” (says Lange[3]) ”is to endow the pupil with more apperceptive capacity, i. e., to

[1] Pathological conditions, if at all distinct, are easily recognizable, but there is a very broad and fully occupied border country between pathological and normal conditions. (Cf. O. Gross: Die Affeklage der Ablehnung. Monatschrift f<u:>r Psychiatrie u. Neurologie, 1902, XII, 359.)

[2] Fr<o:>bel: Die. Mensehenersiehung. Keilhau 1826.

[3] K. Lange: <u:>ber Apperzeption. Plauen 1889.

make him intellectually free. It is therefore necessary to discover his `funded thoughts,' and to beware of expounding too much.” This is not a little true. The development of apperceptive capacity is not so difficult for us, inasmuch as our problem is not to prepare our subject for life, but for one present purpose. If we desire, to this end, to make one more intellectually free, we have only to get him to consider with independence the matter with which we are concerned, to keep him free of all alien suggestions and inferences, and to compel him to see the case as if no influences, personal or circ.u.mstantial, had been at work on him. This result does not require merely the setting aside of special influences, nor the setting aside of all that others have said to him on the matter under discussion, nor the elucidation of the effect of fear,[1] of anger, of all such states of mind as might here have been operative,-it requires the establishment of his unbiased vision of the subject from a period antecedent to these above-mentioned influences. Opinions, valuations, prejudices, superst.i.tions, etc., may here be to a high degree factors of disturbance and confusion. Only when the whole Augean stable is swept out may the man be supposed capable of apperception, may the thing he is to tell us be brought to bear upon him and he be permitted to reproduce it.

This necessary preliminary is not so difficult if the second of the above-mentioned rules is observed and the ”funded thought” of the witness is studied out. It may be said, indeed, that so long as two people converse, unaware of each other's ”funded thought,” they speak different languages. Some of the most striking misunderstandings come from just this reason. It is not alone a matter of varying verbal values, leading to incompatible inferences; actually the whole of a man's mind is involved. It is generally supposed to be enough to know the meaning of the words necessary for telling a story. But such knowledge leads only to external and very superficial comprehension; real clearness can be attained only by knowing the witness's habits of thought in regard to all the circ.u.mstances of the case. I remember vividly a case of jealous murder in which the most important witness was the victim's brother, an honest, simple, woodsman, brought up in the wilderness, and in every sense far- removed from idiocy. His testimony was brief, decided and intelligent. When the motive for the murder, in this case most important, came under discussion, he shrugged his shoulders and answered my question-whether it was not committed on account of

[1] Dichl in H. Gross's Arehiv, XI, 240.

a girl-with, ”Yes, so they say.” On further examination I reached the astonis.h.i.+ng discovery that not only the word ”jealousy,” but the very notion and comprehension of it were totally foreign to the man. The single girl he at one time thought of was won away from him without making him quarrelsome, n.o.body had ever told him of the pangs and pa.s.sions of other people, he had had no occasion to consider the theoretic possibility of such a thing, and so ”jealousy” remained utterly foreign to him. It is clear that his hearing now took quite another turn. All I thought I heard from him was essentially wrong; his ”funded thought” concerning a very important, in this case a regulative concept, had been too poor.

The discovery of the ”funded thought” is indubitably not easy. But its objective possibility with witness and accused is at least a fact. It is excluded only where it is most obviously necessary- in the case of the jury, and the impossibility in this case turns the inst.i.tution of trial by jury into a Utopian dream. The presiding officer of a jury court is in the best instances acquainted with a few of the jurymen, but never so far as to have been entrusted with their ”funded thought.” Now and then, when a juryman asks a question, one gets a glimpse of it, and when the public prosecutor and the attorney for the defence make their speeches one catches something from the jury's expressions; and then it is generally too late. Even if it be discovered earlier nothing can be done with it. Some success is likely in the case of single individuals, but it is simply impossible to define the mental habits of twelve men with whom one has no particular relations.

The third part of the Fr<o:>belian rule, ”To presuppose as little as possible,” must be rigidly adhered to. I do not say this pessimistically, but simply because we lawyers, through endless practice, arrange the issue so much more easily, conceive its history better and know what to exclude and what, with some degree of certainty, to retain. In consequence we often forget our powers and present the unskilled laity, even when persons of education, too much of the material. Then it must be considered that most witnesses are uneducated, that we can not actually descend to their level, and their unhappiness under a flood of strange material we can grasp only with difficulty. Because we do not know the witness's point of view we ask too much of him, and therefore fail in our purpose. And if, in some exceptional case, an educated man is on the stand, we fail again, since, having the habit of dealing with the uneducated,

we suppose this man to know our own specialties because he has a little education. Experience does not dispel this illusion. Whether actual training in another direction dulls the natural and free outlook we desire in the witness, or whether, in our profession, education presupposes tendencies too ideal, whatever be the reasons, it is a fact that our hardest work is generally with the most highly educated witnesses. I once had to write a protocol based on the testimony of a famous scholar who was witness in a small affair. It was a slow job. Either he did not like the terms as I dictated them, or he was doubtful of the complete certainty of this or that a.s.sertion. Let alone that I wasted an hour or two, that protocol, though rewritten, was full of corrections and erasures. And the thing turned out to be nonsense at the end. The beginning contradicted the conclusion; it was unintelligible, and still worse, untrue. As became manifest later, through the indubitable testimony of many witnesses, the scholar had been so conscientious, careful and accurate that he simply did not know what he had seen. His testimony was worthless. I have had such experiences repeatedly and others have confessed them. To the question: Where not presuppose too much? the answer is: everywhere. First of all, little must be presupposed concerning people's powers of observation. They claim to have heard, seen or felt so and so, and they have not seen, heard, or felt it at all, or quite differently. They a.s.sent vigorously that they have grasped, touched, counted or examined something, and on closer examination it is demonstrated that it was only a pa.s.sing glance they threw on it. And it is still worse where something more than ordinary perception is being considered, when exceptionally keen senses or information are necessary. People trust the conventional and when close observation is required often lack the knowledge proper to their particular status. In this way, by presupposing especial professional knowledge in a given witness, great mistakes are made. Generally he hasn't such knowledge, or has not made any particular use of it.

In the same way too much attention and interest are often presupposed, only to lead later to the astonis.h.i.+ng discovery of how little attention men really pay to their own affairs. Still less, therefore, ought knowledge in less personal things be presupposed, for in the matter of real understanding, the ignorance of men far exceeds all presuppositions. Most people know the looks of all sorts of things, and think they know their essences, and when questioned, invariably a.s.sert it, quite in good faith. But if you depend

on such knowledge bad results arise that are all the more dangerous because there is rarely later opportunity to recognize their badness.

As often as any new matter is discussed with a witness, it is necessary, before all, to find out his general knowledge of it, what he considers it to be, and what ideas he connects with it. If you judge that he knows nothing about it and appraise his questions and conclusions accordingly, you will at least not go wrong in the matter, and all in all attain your end most swiftly.