Part 13 (1/2)
We have yet to consider the question of the value of inferences made by a witness from his own combinations of facts, or his descriptions. The necessity, in such cases, of redoubled and numerous examinations is often overlooked. Suppose, for example, that the witness does not know a certain important date, but by combining what he does know, infers it to have been the second of June, on which day the event under discussion took place. He makes the inference because at the time he had a call from A, who was in the habit of coming on Wednesdays, but there could be no Wednesday after June seventh because the witness had gone on a long journey on that day, and it could not have been May 26 because this day preceded a holiday and the shop was open late, a thing not done on the day A called. Nor, moreover, could the date have been May 20, because it was very warm on the day in question, and the temperature began to rise only after May 20. In view of these facts the event under discussion must have occurred upon June 2nd and only on that day.
As a rule, such combinations are very influential because they appear cautious, wise and convincing. They impose upon people without inclination toward such processes. More so than they have a right to, inasmuch as they present little difficulty to anybody who is accustomed to them and to whom they occur almost spontaneously. As usually a thing that makes a great impression upon us is not especially examined, but is accepted as astounding and indubitable, so here. But how very necessary it is carefully to examine such things and to consider whether the single premises are sound, the example in question or any other example will show. The individual dates, the facts and a.s.sumptions may easily be mistaken, and the smallest oversight may render the result false, or at least not convincing.
The examination of ma.n.u.scripts is still more difficult. What is written has a certain convincing power, not only on others but on the writer, and much as we may be willing to doubt and to improve what has been written immediately or at most a short time ago, a ma.n.u.script of some age has always a kind of authority and we
give it correctness cheaply when that is in question. In any event there regularly arises in such a case the problem whether the written description is quite correct, and as regularly the answer is a convinced affirmative. It is impossible to give any general rule for testing such affirmation. Ordinarily some clearness may be attained by paying attention to the purpose of the ma.n.u.script, especially in order to ascertain its sources and the personality of the writer. There is much in the external form of the ma.n.u.script. Not that especial care and order in the notes are particularly significant; I once published the accounts of an old peasant who could neither read nor write, and his accounts with a neighbor were done in untrained but very clear fas.h.i.+on, and were accepted as indubitable in a civil case. The purposiveness, order, and continuity of a ma.n.u.script indicate that it was not written after the event; and are therefore, together with the reason for having written it and obviously with the personality of the writer, determinative of its value.
Section 32. (j) Mistaken Inferences.
It is true, as Huxley says, that human beings would have made fewer mistakes if they had kept in mind their tendency to false judgments which depend upon extraordinary combinations of real experiences. When people say: I felt, I heard, I saw this or that, in 99 cases out of 100 they mean only that they have been aware of some kind of sensation the nature of which they determine in a *judgment. Most erroneous inferences ensue in this fas.h.i.+on. They are rarely formal and rarely arise by virtue of a failure to use logical principles; their ground is the inner paucity of a premise, which itself is erroneous because of an erroneous perception or conception.[1] As Mill rightly points out, a large portion of mankind make mistakes because of tacit a.s.sumptions that the order of nature and the order of knowledge are identical and that things must exist as they are thought, so that when two things can not be thought together they are supposed not to exist together, and the inconceivable is supposed to be identical with the non-existent. But what they do not succeed in conceiving must not be confused with the absolutely inconceivable. The difficulty or impossibility of conceiving may be subjective and conditional, and may prevent us from understanding the relation of a series of events only because some otherwise proxi-
mate condition is unknown or overlooked. Very often in criminal cases when I can make no progress in some otherwise simple matter, I recall the well known story of an old peasant woman who saw the tail of a horse through an open stable door and the head of another through another door several yards away, and because the colors of both head and tail were similar, was moved to cry out: ”Dear Lord, what a long horse!” The old lady started with the presupposition that the rump and the head of the two horses belonged to one, and could make no use of the obvious solution of the problem of the inconceivably long horse by breaking it in two.
[1] Cf. O. Gross: Soziale Hemmungsvorstellungen. II Gross's Archiv: VII, 123.
Such mistakes may be cla.s.sified under five heads.[1]
[1] A paragraph is here omitted. Translator.
(1) Aprioristic mistakes. (Natural prejudices).
(2) Mistakes in observation.
(3) Mistakes in generalization. (When the facts are right and the inferences wrong).
(4) Mistakes of confusion. (Ambiguity of terms or mistakes by a.s.sociation).
(5) Logical fallacies.
All five fallacies play important r<o^>les in the lawyer's work.
We have very frequently to fight natural prejudices. We take certain cla.s.ses of people to be better and others to be worse than the average, and without clearly expressing it we expect that the first cla.s.s will not easily do evil nor the other good. We have prejudices about some one or another view of life; some definition of justice, or point of view, although we have sufficient opportunity to be convinced of their incorrectness. We have a similar prejudice in trusting our human knowledge, judgment of impressions, facts, etc., far too much, so far indeed, that certain relations and accidents occurring to any person we like or dislike will determine his advantage or disadvantage at our hands.
Of importance under this heading, too, are those inferences which are made in spite of the knowledge that the case is different; the power of sense is more vigorous than that of reflection. As Hartmann expresses it: ”The prejudices arising from sensation, are not conscious judgments of the understanding but instinctively practical postulates, and are, therefore, very difficult to destroy, or even set aside by means of conscious consideration. You may tell yourself a thousand times that the moon at the horizon is as big as at the zenith-nevertheless you see it smaller at the zenith.” Such fixed
impressions we meet in every criminal trial, and if once we have considered how the criminal had committed a crime we no longer get free of the impression, even when we have discovered quite certainly that he had no share in the deed. The second type of fallacy-mistakes in observation-will be discussed later under sense perception and similar matters.
Under mistakes of generalization the most important processes are those of arrangement, where the environment or accompanying circ.u.mstances exercise so determinative an influence that the inference is often made from them alone and without examination of the object in question. The Tanagra in the house of an art-connoisseur I take to be genuine without further examination; the golden watch in the pocket of a tramp to be stolen; a giant meteor, the skeleton of an iguana, a twisted-looking Nerva in the Royal Museum of Berlin, I take to be indubitably original, and indubitably imitations in the college museum of a small town. The same is true of events: I hear a child screeching in the house of the surly wife of the shoemaker so I do not doubt that she is spanking it; in the mountains I infer from certain whistles the presence of chamois, and a single long drawn tone that might be due to anything I declare to have come from an organ, if a church is near by.
All such processes are founded upon experience, synthesis, and, if you like, prejudices. They will often lead to proper conclusions, but in many cases they will have the opposite effect. It is a frequently recurring fact that in such cases careful examination is most of all necessary, because people are so much inclined to depend upon ”the first, always indubitably true impression.” The understanding has generalized simply and hastily, without seeking for justification.
The only way of avoiding great damage is to extract the fact in itself from its environment and accompanying circ.u.mstance, and to study it without them. The environment is only a means of proof, but no proof, and only when the object or event has been validated in itself may we adduce one means of proof after another and modify our point of view accordingly. Not to do so, means always to land upon false inferences, and what is worse, to find it impossible upon the recognition of an error later on, to discover at what point it has occurred. By that time it has been buried too deep in the heap of our inferential system to be discoverable.
The error of confusion Mill reduces especially to the unclear
representation of *what proof is, i. e., to the ambiguity of words. We rarely meet such cases, but when we do, they occur after we have compounded concepts and have united rather carelessly some symbol with an object or an event which ought not to have been united, simply because we were mistaken about its importance. A warning example may be found in the inference which is made from the sentence given a criminal because of ”identical motive.” The Pet.i.tio, the Ignorantia, etc., belong to this cla.s.s. The purely logical mistakes or mistakes of syllogism do not enter into these considerations.
Section 33. (k) Statistics of the Moral Situation.
Upon the first glance it might be a.s.serted that statistics and psychology have nothing to do with each other. If, however, it is observed that the extraordinary and inexplicable results presented by statistics of morals and general statistics influence our thought and reflection unconditionally, its importance for criminal psychology can not be denied. Responsibility, abundance of criminals, their distribution according to time, place, personality, and circ.u.mstances, the regularity of their appearance, all these have so profound an influence upon us both essentially and circ.u.mstantially that even our judgments and resolutions, no less than the conduct and thought of other people whom we judge, are certainly altered by them.[1] Moreover, probability and statistics are in such close and inseparable connection that we may not make use of or interpret the one without the other. Eminent psychological contributions by M<u:>nsterberg show the importance the statistical problems have for psychology. This writer warns us against the over-valuation of the results of the statistics of morality, and believes that its proper tendencies will be discovered only much later. In any event the real value of statistical synthesis and deduction can be discovered only when it is closely studied. This is particularly true with regard to criminal conditions. The works of many authors[2] teach us things that would not otherwise be learned, and they would not be dealt with here if only a systematic study of the works themselves could be of use. We speak here only of their importance for our own discipline. n.o.body doubts that there are mysteries in the figures and figuring of statistics. We admit honestly that we know no
more to-day than when Paul de Decker discussed Quetelet's labors in statistics of morality in the Brussels Academy of Science, and confessed what a puzzle it was that human conduct, even in its smallest manifestations, obeyed in their totality constant and immutable laws. Concerning this curious fact Adolf Wagner says: ”If a traveler had told us something about some people where a statute determines exactly how many persons per year shall marry, die, commit suicide, and crimes within certain cla.s.ses,-and if he had announced furthermore that these laws were altogether obeyed, what should we have said? And as a matter of fact the laws are obeyed all the world over.”[1]
[1] O. Gross: Zur Phyllogenese der Ethik. H. Gross's Archiv, IX, 100. [2] Cf. B. F<:>oldes: Einuge Ergebnisse der neueren Kriminalstatistik. Zeitschrift f. d. yes. Strafrechte-Wissenschaft, XI. 1891. [1] N
Of course the statistics of morality deal with quant.i.ties not qualities, but in the course of statistical examination the latter are met with. So, e. g., examinations into the relation of crime to school- attendance and education, into the cla.s.ses that show most suicides, etc., connect human qualities with statistical data. The time is certainly not far off when we shall seek for the proper view of the probability of a certain a.s.sumption with regard to some rare crime, doubtful suicide, extraordinary psychic phenomena, etc., with the help of a statistical table. This possibility is made clearer when the inconceivable constancy of some figures is considered. Suppose we study the number of suicides since 1819 in Austria, in periods of eight years. We find the following figures, 3000, 5000, 6000, 7000, 9000, 12000, 15000-i. e., a regular increase which is comparable to law.[2] Or suppose we consider the number of women, who, in the course of ten continuous years in France, shot themselves; we find 6, 6, 7, 7, 6, 6, 7; there is merely an alternation between 6 and 7. Should not we look up if in some one year eight or nine appeared? Should not we give some consideration to the possibility that the suicide is only a pretended one? Or suppose we consider the number of men who have drowned themselves within the same time: 280, 285, 292, 276, 257, 269, 258, 276, 278, 287,-Wagner says rightly of such figures ”that they contain the arithmetical relation of the mechanism belonging to a moral order which ought to call out even greater astonishment than the mechanism of stellar systems.”
[2] J. Gurnhill: The Morals of Suicide. London 1900.
Still more remarkable are the figures when they are so brought together that they may be seen as a curve. It is in this way that Drobisch brings together a table which distributes crime according