Part 3 (1/2)
founded, regular and successful establishment of an alibi. Not infrequently confession of small crimes is made to establish an alibi for a greater one. And finally there are the confessions Catholics[1] are required to make in confessional, and the death bed confessions. The first are distinguished by the fact that they are made freely and that the confessee does not try to mitigate his crime, but is aiming to make amends, even when he finds it hard; and desires even a definite penance. Death bed confessions may indeed have religious grounds, or the desire to prevent the punishment or the further punishment of an innocent person.
Although this list of explicable confession-types is long, it is in no way exhaustive. It is only a small portion of all the confessions that we receive; of these the greater part remain more or less unexplained. Mittermaier[2] has already dealt with these acutely and cites examples as well as the relatively well-studied older literature of the subject. A number of cases may perhaps be explained through pressure of conscience, especially where there are involved hysterical or nervous persons who are plagued with vengeful images in which the ghost of their victim would appear, or in whose ear the unendurable clang of the stolen money never ceases, etc. If the confessor only intends to free himself from these disturbing images and the consequent punishment by means of confession, we are not dealing with what is properly called conscience, but more or less with disease, with an abnormally excited imagination.[3] But where such hallucinations are lacking, and religious influences are absent, and the confession is made freely in response to mere pressure, we have a case of conscience,[4]-another of those terms which need explanation. I know of no a.n.a.logy in the inner nature of man, in which anybody with open eyes does himself exclusive harm without any contingent use being apparent, as is the case in this cla.s.s of confession. There is always considerable difficulty in explaining these cases. One way of explaining them is to say that their source is mere stupidity
[1] Cf. the extraordinary confession of the wife of the ”cannibal” Bratuscha. The latter had confessed to having stifled his twelve year old daughter, burned and part by part consumed her. He said his wife was his accomplice. The woman denied it at first but after going to confession told the judge the same story as her husband. It turned out that the priest had refused her absolution until she ”confessed the truth.” But both she and her husband had confessed falsely. The child was alive. Her father's confession was pathologically caused, her mother's by her desire for absolution.
[2] C. J. A. Mittermaier: Die Lehre vom Beweise im deutsehen Strafprozess. Darmstadt 1834.
[3] Poe calls such confessions pure perversities.
[4] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894.
and impulsiveness, or simply to deny their occurrence. But the theory of stupidity does not appeal to the pract.i.tioner, for even if we agree that a man foolishly makes a confession and later, when he perceives his mistake, bitterly regrets telling it, we still find many confessions that are not regretted and the makers of which can in no wise be accused of defective intelligence. To deny that there are such is comfortable but wrong, because we each know collections of cases in which no effort could bring to light a motive for the confession. The confession was made because the confessor wanted to make it, and that's the whole story.
The making of a confession, according to laymen, ends the matter, but really, the judge's work begins with it. As a matter of caution all statutes approve confessions as evidence only when they agree completely with the other evidence. Confession is a means of proof, and not proof. Some objective, evidentially concurrent support and confirmation of the confession is required. But the same legal requirement necessitates that the value of the concurrent evidence shall depend on its having been arrived at and established independently. The existence of a confession contains powerful suggestive influences for judge, witness, expert, for all concerned in the case. If a confession is made, all that is perceived in the case may be seen in the light of it, and experience teaches well enough how that alters the situation. There is so strong an inclination to pigeonhole and adapt everything perceived in some given explanation, that the explanation is strained after, and facts are squeezed and trimmed until they fit easily. It is a remarkable phenomenon, confirmable by all observers, that all our perceptions are at first soft and plastic and easily take form according to the shape of their predecessors. They become stiff and inflexible only when we have had them for some time, and have permitted them to reach an equilibrium. If, then, observations are made in accord with certain notions, the plastic material is easily molded, excrescences and unevenness are squeezed away, lacun
to this proposition. It fits. So does the autopsy, so do the depositions of the witnesses. Everything fits. There have indeed been difficulties, but they have been set aside, they are attributed to inaccurate observation and the like,-the point is,-that the evidence is against A. Now, suppose that soon after B confesses the crime; this event is so significant that it sets aside at once all the earlier reasons for suspecting A, and the theory of the crime involves B. Naturally the whole material must now be applied to B, and in spite of the fact that it at first fitted A, it does now fit B. Here again difficulties arise, but they are to be set aside just as before.
Now if this is possible with evidence, written and thereby unalterable, how much more easily can it be done with testimony about to be taken, which may readily be colored by the already presented confession. The educational conditions involve now the judge and his a.s.sistants on the one hand, and the witnesses on the other.
Concerning himself, the judge must continually remember that his business is not to fit all testimony to the already furnished confession, allowing the evidence to serve as mere decoration to the latter, but that it is his business to establish his proof by means of the confession, and by means of the other evidence, *independently. The legislators of contemporary civilization have started with the proper presupposition-that also false confessions are made,- and who of us has not heard such? Confessions, for whatever reason,-because the confessor wants to die, because he is diseased,[1] because he wants to free the real criminal,-can be discovered as false only by showing their contradiction with the other evidence. If, however, the judge only fits the evidence, he abandons this means of getting the truth. Nor must false confessions be supposed to occur only in case of homicide. They occur most numerously in cases of importance, where more than one person is involved. It happens, perhaps, that only one or two are captured, and they a.s.sume all the guilt, e. g., in cases of larceny, brawls, rioting, etc. I repeat: the suggestive power of a confession is great and it is hence really not easy to exclude its influence and to consider the balance of the evidence on its merits,-but this must be done if one is not to deceive oneself.
Dealing with the witness is still more ticklish, inasmuch as to the difficulties with them, is added the difficulties with oneself. The simplest thing would be to deny the existence of a confession, and
[1] Cf. above, the case of the ”cannibal” Bratuscha.
thus to get the witness to speak without prejudice. But aside from the fact of its impossibility as a lie, each examination of a witness would have to be a comedy and that would in many cases be impossible as the witness might already know that the accused had confessed. The only thing to be done, especially when it is permissible for other reasons, is to tell the witness that a confession exists and to call to his attention that it is *not yet evidence, and finally and above all to keep one's head and to prevent the witness from presenting his evidence from the point of view of the already-established. In this regard it can not be sufficiently demonstrated that the coloring of a true bill comes much less from the witness than from the judge. The most excited witness can be brought by the judge to a sober and useful point of view, and conversely, the most calm witness may utter the most misleading testimony if the judge abandons in any way the safe bottom of the indubitably established fact.
Very intelligent witnesses (they are not confined to the educated cla.s.ses) may be dealt with constructively and be told after their depositions that the case is to be considered as if there were no confession whatever. There is an astonis.h.i.+ng number of people- especially among the peasants-who are amenable to such considerations and willingly follow if they are led on with confidence. In such a case it is necessary to a.n.a.lyze the testimony into its elements. This a.n.a.lysis is most difficult and important since it must be determined what, taken in itself, is an element, materially, not formally, and what merely appears to be a unit. Suppose that during a great brawl a man was stabbed and that A confesses to the stabbing. Now a witness testified that A had first uttered a threat, then had jumped into the brawl, felt in his bag, and left the crowd, and that in the interval between A's entering and leaving, the stabbing occurred. In this simple case the various incidents must be evaluated, and each must be considered by itself. So we consider-Suppose A had not confessed, what would the threat have counted for? Might it not have been meant for the a.s.sailants of the injured man? May his feeling in the bag not be interpreted in another fas.h.i.+on? Must he have felt for a knife only? Was there time enough to open it and to stab? Might the man not have been already wounded by that time? We might then conclude that all the evidence about A contained nothing against him-but if we relate it to the confession, then this evidence is almost equal to direct evidence of A's crime.
But if individual sense-perceptions are mingled with conclusions, and if other equivalent perceptions have to be considered, which occurred perhaps to other people, then the a.n.a.lysis is hardly so simple, yet it must be made.
In dealing with less intelligent people, with whom this construction cannot be performed, one must be satisfied with general rules. By demanding complete accuracy and insisting, in any event, on the ratio sciendi, one may generally succeed in turning a perception, uncertain with regard to any individual, into a trustworthy one with regard to the confessor. It happens comparatively seldom that untrue confessions are discovered, but once this does occur, and the trouble is taken to subject the given evidence to a critical comparison, the manner of adaptation of the evidence to the confession may easily be discovered. The witnesses were altogether unwilling to tell any falsehood and the judge was equally eager to establish the truth, nevertheless the issue must have received considerable perversion in order to fix the guilt on the confessor. Such examinations are so instructive that the opportunity to make them should never be missed. All the testimony presents a typical picture. The evidence is consistent with the theory that the real confessor was guilty, but it is also consistent with the theory that the real criminal was guilty, but some details must be altered, often very many. If there is an opportunity to hear the same witnesses again, the procedure becomes still more instructive. The witnesses (supposing they want honestly to tell the truth) naturally confirm the evidence as it points to the second, more real criminal, and if an explanation is asked for the statements that pointed to the ”confessor,” the answers make it indubitably evident, that their incorrectness came as without intention; the circ.u.mstance that a confession had been made acted as a suggestion.[1]
Conditions similar to confessional circ.u.mstances arise when other types of persuasive evidence are gathered, which have the same impressive influence as confessions. In such cases the judge's task is easier than the witness's, since he need not tell them of evidence already at hand. How very much people allow themselves to be influenced by antecedent grounds of suspicion is a matter of daily observation. One example will suffice. An intelligent man was attacked at night and wounded. On the basis of his description
[1] We must not overlook those cases in which false confessions are the results of disease, vivid dreams, and toxications, especially toxication by coal-gas. People so poisoned, but saved from death, claim frequently to have been guilty of murder (Hofman. Gerichtliche Medizin, p. 676).
an individual was arrested. On the next day the suspect was brought before the man for identification. He identified the man with certainty, but inasmuch as his description did not quite hit off the suspect he was asked the reason for his certainty. ”Oh, you certainly would not have brought him here if he were not the right man,” was the astonis.h.i.+ng reply. Simply because the suspect was arrested on the story of the wounded man and brought before him in prison garb, the latter thought he saw such corroboration for his data as to make the identification certain-a pure <gr usteron=”” prwteron=””> which did not at all occur to him in connection with the vivid impression of what he saw. I believe that to keep going with merely what the criminalist knows about the matter, belongs to his most difficult tasks.
Section 9. (g) Interest.
Anybody who means to work honestly must strive to awaken and to sustain the interest of his collaborators. A judge's duty is to present his a.s.sociates material, well-arranged, systematic, and exhaustive, but not redundant; and to be himself well and minutely informed concerning the case. Whoever so proceeds may be certain in even the most ordinary and simplest cases, of the interest of his colleagues,-hence of their attention; and, in consequence, of the best in their power. These are essentially self-evident propositions. In certain situations, however, more is asked with regard to the experts. The expert, whether a very modest workman or very renowned scholar, must in the first instance become convinced of the judge's complete interest in his work; of the judge's power to value the effort and knowledge it requires; of the fact that he does not question and listen merely because the law requires it, and finally of the fact that the judge is endowed, so far as may be, with a definite comprehension of the expert's task.
However conscientiously and intensely the expert may apply himself to his problem, it will be impossible to work at it with real interest if he finds no co-operation, no interest, and no understanding among those for whom he, at least formally, is at work. We may be certain that the paucity of respect we get from the scientific representatives of other disciplines (let us be honest,-such is the case) comes particularly from those relations we have with them as experts, relations in which they find us so unintelligent and so indifferent with regard to matters of importance. If the experts
speak of us with small respect and the att.i.tude spreads and becomes general, we get only our full due. n.o.body can require of a criminal judge profound knowledge of all other disciplines besides his own- the experts supply that-but the judge certainly must have some insight into them in so far as they affect his own work, if he is not to meet the expert unintelligent and unintelligible, and if he is to co-operate with and succeed in appraising the expert's work. In a like fas.h.i.+on the judge may be required to take interest in the experts' result. If the judge receives their report and sticks to the statutes, if he never shows that he was anxious about their verdict, and merely views it as a number, it is no wonder that in the end the expert also regards his work as a mere number, and loses interest. No man is interested in a thing unless it is made interesting, and the expert is no exception. Naturally no one would say that the judge should pretend interest,-that would be worst of all;-he must be possessed of it, or he will not do for a judge. But interest may be intensified and vitalized. If the judge perceives that the finding of the experts is very important for his case he must at least meet them with interest in it. If that is present he will read their reports attentively, will note that he does not understand some things and ask the experts for elucidation. One question gives rise to another, one answer after another causes understanding, and understanding implies an ever-increasing interest. It never happens that there should be difficulties because of a request to judicial experts to explain things to the judge. I have never met any in my own practice and have never heard any complaints. On the contrary, pleasure and efficiency are generally noticeable in such connections, and the state, above all, is the gainer. The simple explanation lies here in the fact that the expert is interested in his profession, interested in just that concrete way in which the incomparably greater number of jurists are *not. And this again is based upon a sad fact, for us. The chemist, the physician, etc., studies his subject because he wants to become a chemist, physician, etc., but the lawyer studies law not because he wants to become a lawyer, but because he wants to become an official, and as he has no especial interest he chooses his state position in that branch in which he thinks he has the best prospects. It is a bitter truth and a general rule-that those who want to study law and the science of law are the exceptions, and that hence we have to acquire a real interest in our subject from laymen, from our experts. But the interest can be acquired, and with the growth of interest, there is growth of
knowledge, and therewith increase of pleasure in the work itself and hence success.
The most difficult problem in interest, is arousing the interest of witnesses-because this is purely a matter of training. Receiving the attention is what should be aimed at in rousing interest, inasmuch as full attention leads to correct testimony-i. e., to the thing most important to our tasks. ”No interest, no attention,” says Volkmar.[1] ”The absolutely new does not stimulate; what narrows appreciation, narrows attention also.” The significant thing for us is that ”the absolutely new does not stimulate”- a matter often overlooked. If I tell an uneducated man, with all signs of astonishment, that the missing books of Tacitus' ”Annals” have been discovered in Verona, or that a completely preserved Dinotherium has been cut out of the ice, or that the final explanation of the Martian ca.n.a.ls has been made at Manora observatory,- all this very interesting news will leave him quite cold; it is absolutely new to him, he does not know what it means or how to get hold of it, it offers him no matter of interest.[2] I should have a similar experience if, in the course of a trig case, I told a man, educated, but uninterested in the case, with joy, that I had finally discovered the important note on which the explanation of the events depended. I could not possibly expect interest, attention, and comprehension of a matter if my interlocutor knows nothing about the issue or the reason of the note's importance. And in spite of the fact that everything is natural and can be explained we have the same story every day. We put the witness a definite question that is of immense importance to us, who are fully acquainted with the problem, but is for the witness detached, incoherent, and therefore barren of interest. Then who can require of an uninterested witness, attention, and effective and well-considered replies?[3] I myself heard a witness answer a judge who asked him about the weather on a certain day, ”Look here, to drag me so many miles to this place in order to discuss the weather with me,-that's-.” The old man was quite right because the detached question had no particular purpose. But when it was circ.u.mstantially explained to him that the weather was of uttermost significance in this case, how it was related thereto, and how important his answer would be, he went at the question eagerly,
[1] v. Volkmar: Lehrbuch der Psychologie. Cothen 1875
[2] K. Haselbrunner: Die Lehre von der Aufmerkeamkeit Vienna 1901.
[3] E. Wiersma and K. Marbe: Untersuchungen <u:>ber die sogenannten Aufmerk- samkeitsschw.a.n.kungen. Ztseh. f. Psych. XXVI, 168 (1901).