Criminal Psychology
by Hans Gross
Hypertext Meanings and Commentaries
from the Encyclopedia of the Self
by Mark Zimmerman
Go to Part 2 of 2

A MANUAL FOR
JUDGES, PRACTITIONERS, AND STUDENTS

BY HANS GROSS, J. U. D.
_Professor of Criminal Law at the University of
Graz, Austria. Formerly Magistrate of the
Criminal Court at Czernovitz, Austria_

Translated from the Fourth German Edition
BY HORACE M. KALLEN, PH. D.
_Assistant and Lecturer in Philosophy in Harvard University_

WITH AN INTRODUCTION BY JOSEPH JASTROW, PH.D.
PROFESSOR OF PSYCHOLOGY IN THE UNIVERSITY OF WISCONSIN

PUBLICATION NO. 13: PATTERSON SMITH REPRINT SERIES IN
CRIMINOLOGY, LAW ENFORCEMENT, AND SOCIAL PROBLEMS
_Montclair, New Jersey_

GENERAL INTRODUCTION TO THE
MODERN CRIMINAL SCIENCE SERIES.

AT the National Conference of Criminal Law and Criminology,
held in Chicago, at Northwestern University, in June, 1909,
the American Institute of Criminal Law and Criminology was
organized; and, as a part of its work, the following resolution was
passed:

``_Whereas_, it is exceedingly desirable that important treatises
on criminology in foreign languages be made readily accessible in
the English language, _Resolved_, that the president appoint a committee
of five with power to select such treatises as in their judgment
should be translated, and to arrange for their publication.''

The Committee appointed under this Resolution has made careful
investigation of the literature of the subject, and has consulted
by frequent correspondence. It has selected several works from
among the mass of material. It has arranged with publisher, with
authors, and with translators, for the immediate undertaking and
rapid progress of the task. It realizes the necessity of educating
the professions and the public by the wide diffusion of information
on this subject. It desires here to explain the considerations which
have moved it in seeking to select the treatises best adapted to the
purpose.

For the community at large, it is important to recognize that
criminal science is a larger thing than criminal law. The legal
profession in particular has a duty to familiarize itself with the
principles of that science, as the sole means for intelligent and
systematic improvement of the criminal law.

Two centuries ago, while modern medical science was still young,
medical practitioners proceeded upon two general assumptions:
one as to the cause of disease, the other as to its treatment. As
to the cause of disease,--disease was sent by the inscrutable will
of God. No man could fathom that will, nor its arbitrary operation.
As to the treatment of disease, there were believed to be
a few remedial agents of universal efficacy. Calomel and bloodletting,
for example, were two of the principal ones. A larger or

smaller dose of calomel, a greater or less quantity of bloodletting,
--this blindly indiscriminate mode of treatment was regarded as
orthodox for all common varieties of ailment. And so his calomel
pill and his bloodletting lances were carried everywhere with him
by the doctor.

Nowadays, all this is past, in medical science. As to the causes
of disease, we know that they are facts of nature,--various, but
distinguishable by diagnosis and research, and more or less capable
of prevention or control or counter-action. As to the treatment,
we now know that there are various specific modes of treatment
for specific causes or symptoms, and that the treatment must
be adapted to the cause. In short, the individualization of disease,
in cause and in treatment, is the dominant truth of modern medical
science.

The same truth is now known about crime; but the understanding
and the application of it are just opening upon us. The old
and still dominant thought is, as to cause, that a crime is caused
by the inscrutable moral free will of the human being, doing or
not doing the crime, just as it pleases; absolutely free in advance,
at any moment of time, to choose or not to choose the criminal act,
and therefore in itself the sole and ultimate cause of crime. As to
treatment, there still are just two traditional measures, used in
varying doses for all kinds of crime and all kinds of persons,--
jail, or a fine (for death is now employed in rare cases only). But
modern science, here as in medicine, recognizes that crime also
(like disease) has natural causes. It need not be asserted for one
moment that crime is a disease. But it does have natural causes,--
that is, circumstances which work to produce it in a given case.
And as to treatment, modern science recognizes that penal or remedial
treatment cannot possibly be indiscriminate and machine-
like, but must be adapted to the causes, and to the man as affected
by those causes. Common sense and logic alike require, inevitably,
that the moment we predicate a specific cause for an undesirable
effect, the remedial treatment must be specifically adapted to that
cause.

Thus the great truth of the present and the future, for criminal
science, is the individualization of penal treatment,--for that man,
and for the cause of that man's crime.

Now this truth opens up a vast field for re-examination. It
means that we must study all the possible data that can be causes
of crime,--the man's heredity, the man's physical and moral

make-up, his emotional temperament, the surroundings of his
youth, his present home, and other conditions,--all the influencing
circumstances. And it means that the effect of different methods
of treatment, old or new, for different kinds of men and of causes,
must be studied, experimented, and compared. Only in this way
can accurate knowledge be reached, and new efficient measures
be adopted.

All this has been going on in Europe for forty years past, and in
limited fields in this country. All the branches of science that can
help have been working,--anthropology, medicine, psychology,
economics, sociology, philanthropy, penology. The law alone has
abstained. The science of law is the one to be served by all this.
But the public in general and the legal profession in particular
have remained either ignorant of the entire subject or indifferent
to the entire scientific movement. And this ignorance or indifference
has blocked the way to progress in administration.

The Institute therefore takes upon itself, as one of its aims, to
inculcate the study of modern criminal science, as a pressing duty
for the legal profession and for the thoughtful community at large.
One of its principal modes of stimulating and aiding this study is
to make available in the English language the most useful treatises
now extant in the Continental languages. Our country has started
late. There is much to catch up with, in the results reached elsewhere.
We shall, to be sure, profit by the long period of argument
and theorizing and experimentation which European thinkers and
workers have passed through. But to reap that profit, the results of
their experience must be made accessible in the English language.

The effort, in selecting this series of translations, has been to
choose those works which best represent the various schools of
thought in criminal science, the general results reached, the points
of contact or of controversy, and the contrasts of method--having
always in view that class of works which have a more than local
value and could best be serviceable to criminal science in our country.
As the science has various aspects and emphases--the anthropological,
psychological, sociological, legal, statistical, economic,
pathological--due regard was paid, in the selection, to a representation
of all these aspects. And as the several Continental countries
have contributed in different ways to these various aspects,--France,
Germany, Italy, most abundantly, but the others each its share,--
the effort was made also to recognize the different contributions as
far as feasible.

The selection made by the Committee, then, represents its
judgment of the works that are most useful and most instructive for
the purpose of translation. It is its conviction that this Series,
when completed, will furnish the American student of criminal
science a systematic and sufficient acquaintance with the controlling
doctrines and methods that now hold the stage of thought in Continental
Europe. Which of the various principles and methods
will prove best adapted to help our problems can only be told after
our students and workers have tested them in our own experience.
But it is certain that we must first acquaint ourselves with these
results of a generation of European thought.

In closing, the Committee thinks it desirable to refer the members
of the Institute, for purposes of further investigation of the
literature, to the ``Preliminary Bibliography of Modern Criminal
Law and Criminology'' (Bulletin No. 1 of the Gary Library of
Law of Northwestern University), already issued to members of
the Conference. The Committee believes that some of the Anglo-
American works listed therein will be found useful.

COMMITTEE ON TRANSLATIONS.

_Chairman_, WM. W. SMITHERS,

_Secretary of the Comparative Law Bureau of the American
Bar Association, Philadelphia, Pa_.

ERNST FREUND,

_Professor of Law in the University of Chicago_.
MAURICE PARMELEE,

_Professor of Sociology in the State University of Kansas_.
ROSCOE POUND,

_Professor of Law in the University of Chicago_.
ROBERT B. SCOTT,

_Professor of Political Science in the State University of
Wisconsin_.
JOHN H. WIGMORE,

_Professor of Law in Northwestern University, Chicago_.

INTRODUCTION TO THE ENGLISH VERSION.

WHAT Professor Gross presents in this volume is nothing less
than an applied psychology of the judicial processes,--a critical
survey of the procedures incident to the administration of justice
with due recognition of their intrinsically psychological character,
and yet with the insight conferred by a responsible experience with
a working system. There is nothing more significant in the history
of institutions than their tendency to get in the way of the very
purposes which they were devised to meet. The adoration of measures
seems to be an ineradicable human trait. Prophets and reformers
ever insist upon the values of ideals and ends--the spiritual
meanings of things--while the people as naturally drift to the
worship of cults and ceremonies, and thus secure the more superficial
while losing the deeper satisfactions of a duty performed. So
restraining is the formal rigidity of primitive cultures that the
mind of man hardly moves within their enforced orbits. In complex
societies the conservatism, which is at once profitably conservative
and needlessly obstructing, assumes a more intricate,
a more evasive, and a more engaging form. In an age for which
machinery has accomplished such heroic service, the dependence
upon mechanical devices acquires quite unprecedented dimensions.
It is compatible with, if not provocative of, a mental indolence,--
an attention to details sufficient to operate the machinery, but a
disinclination to think about the principles of the ends of its operation.
There is no set of human relations that exhibits more distinctively
the issues of these undesirable tendencies than those
which the process of law adjusts. We have lost utterly the older
sense of a hallowed fealty towards man-made law; we are not
suffering from the inflexibility of the Medes and the Persians. We
manufacture laws as readily as we do steam-rollers and change their
patterns to suit the roads we have to build. But with the profit of
our adaptability we are in danger of losing the underlying sense of
purpose that inspires and continues to justify measures, and to
lose also a certain intimate intercourse with problems of theory and
philosophy which is one of the requisites of a professional equipment

and one nowhere better appreciated than in countries loyal to
Teutonic ideals of culture. The present volume bears the promise
of performing a notable service for English readers by rendering
accessible an admirable review of the data and principles germane
to the practices of justice as related to their intimate conditioning
in the psychological traits of men.

The significant fact in regard to the procedures of justice is that
they are of men, by men, and for men. Any attempt to eliminate
unduly the human element, or to esteem a system apart from its
adaptation to the psychology of human traits as they serve the
ends of justice, is likely to result in a machine-made justice and a
mechanical administration. As a means of furthering the plasticity
of the law, of infusing it with a large human vitality--a movement
of large scope in which religion and ethics, economics and
sociology are worthily cooperating--the psychology of the party
of the first part and the party of the second part may well be considered.
The psychology of the judge enters into the consideration
as influentially as the psychology of the offender. The many-
sidedness of the problems thus unified in a common application is
worthy of emphasis. There is the problem of evidence: the ability
of a witness to observe and recount an incident, and the distortions
to which such report is liable through errors of sense, confusion of
inference with observation, weakness of judgment, prepossession,
emotional interest, excitement, or an abnormal mental condition.
It is the author's view that the judge should understand these
relations not merely in their narrower practical bearings, but in
their larger and more theoretical aspects which the study of psychology
as a comprehensive science sets forth. There is the allied
problem of testimony and belief, which concerns the peculiarly
judicial qualities. To ease the step from ideas to their expression,
to estimate motive and intention, to know and appraise at their
proper value the logical weaknesses and personal foibles of all kinds
and conditions of offenders and witnesses,--to do this in accord
with high standards, requires that men as well as evidence shall be
judged. Allied to this problem which appeals to a large range of
psychological doctrine, there is yet another which appeals to a
yet larger and more intricate range,--that of human character and
condition. Crimes are such complex issues as to demand the systematic
diagnosis of the criminal. Heredity and environment,
associations and standards, initiative and suggestibility, may all
be condoning as well as aggravating factors of what becomes a

``case.'' The peculiar temptations of distinctive periods of life,
the perplexing intrusion of subtle abnormalities, particularly when
of a sexual type, have brought it about that the psychologist has
extended his laboratory procedures to include the study of such
deviation; and thus a common set of findings have an equally pertinent
though a different interest for the theoretical student of
relations and the practitioner. There are, as well, certain special
psychological conditions that may color and quite transform the
interpretation of a situation or a bit of testimony. To distinguish
between hysterical deception and lying, between a superstitious
believer in the reality of an experience and the victim of an
actual hallucination, to detect whether a condition of emotional
excitement or despair is a cause or an effect, is no less a psychological
problem than the more popularly discussed question of compelling
confession of guilt by the analysis of laboratory reactions. It may
well be that judges and lawyers and men of science will continue to
differ in their estimate of the aid which may come to the practical
pursuits from a knowledge of the relations as the psychologist
presents them in a non-technical, but yet systematic analysis. Professor
Gross believes thoroughly in its importance; and those who
read his book will arrive at a clearer view of the methods and issues
that give character to this notable chapter in applied psychology.

The author of the volume is a distinguished representative of the
modern scientific study of criminology, or ``criminalistic'' as he
prefers to call it. He was born December 26th, 1847, in Graz (Steiermark),
Austria, pursued his university studies at Vienna and Graz,
and qualified for the law in 1869. He served as ``Untersuchungsrichter''
(examining magistrate) and in other capacities, and received
his first academic appointment as professor of criminal law
at the University of Czernowitz. He was later attached to the German
University at Prague, and is now professor in the University
of Graz. He is the author of a considerable range of volumes bearing
on the administration of criminal law and upon the theoretical
foundations of the science of criminology. In 1898 he issued his
``Handbuch fur Untersuchungsrichter, als System der Kriminalistik,''
a work that reached its fifth edition in 1908, and has been
translated into eight foreign languages. From 1898 on he has been
the editor of the ``Archiv fr Kriminalanthropologie und Kriminalistik,''
of which about twenty volumes have appeared. He is a
frequent contributor to this journal, which is an admirable representative
of an efficient technical aid to the dissemination of interest

in an important and difficult field. It is also worthy of mention
that at the University of Graz he has established a Museum of
Criminology, and that his son, Otto Gross, is well known as a
specialist in nervous and mental disorders and as a contributor to
the psychological aspects of his specialty. The volume here presented
was issued in 1897; the translation is from the second and
enlarged edition of 1905. The volume may be accepted as an authoritative
exposition of a leader in his ``Fach,'' and is the more acceptable
for purposes of translation, in that the wide interests of the writer
and his sympathetic handling of his material impart an unusually
readable quality to his pages.
                                                 JOSEPH JASTROW.
MADISON, WISCONSIN,
DECEMBER, 1910.

AUTHOR'S PREFACE TO THE AMERICAN EDITION.

THE present work was the first really objective Criminal Psychology
which dealt with the mental states of judges, experts, jury, witnesses,
etc., as well as with the mental states of criminals. And a
study of the former is just as needful as a study of the latter. The
need has fortunately since been recognized and several studies of
special topics treated in this book--e. g. depositions of witnesses,
perception, the pathoformic lie, superstition, probability, sensory
illusions, inference, sexual differences, etc.--have become the
subjects of a considerable literature, referred to in our second edition.

I agreed with much pleasure to the proposition of the American
Institute of Criminal Law and Criminology to have the book translated.
I am proud of the opportunity to address Americans and
Englishmen in their language. We of the German countries recognize
the intellectual achievements of America and are well aware
how much Americans can teach us.

I can only hope that the translation will justify itself by its
usefulness to the legal profession.
                                            HANS GROSS.

TRANSLATOR'S NOTE.

THE present version of Gross's Kriminal Psychologie differs from the
original in the fact that many references not of general psychological
or criminological interest or not readily accessible to English readers
have been eliminated, and in some instances more accessible ones
have been inserted. Prof. Gross's erudition is so stupendous that
it reaches far out into texts where no ordinary reader would be
able or willing to follow him, and the book suffers no loss from the
excision. In other places it was necessary to omit or to condense
passages. Wherever this is done attention is called to it in the
notes. The chief omission is a portion of the section on dialects.
Otherwise the translation is practically literal. Additional bibliography
of psychological and criminological works likely to be generally
helpful has been appended.

{NOTE: the TOC below is raw OCR and needs fixed}
CONTENTS.
                                                                       PAGE
GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE
SERIES . . . . . . . . . .   .   .   . V

INTRODUCTION TO THE ENGLISH VERSION . . .   .   . ix

AUTHOR'S PREFACE TO THE AMERICAN EDITION .  .   .   . xiii

TRANSLATOR'S NOTE . . . . . . . . .   .   . xiv

INTRODUCTION . . . . . . . . . .  .   .   .   1

PART I. THE SUBJECTIVE CONDITIONS OF EVIDENCE
     (THE MENTAL ACTIVITIES OF THE JUDGE)         .   .   7

TITLE A. CONDITIONS OF TAKING EVIDENCE  .   .   .   7

Topic 1. METHOD . . . . .    .   .   .   .   .   7
1 (a) General Considerations . .  .   .   .   .   .   7
2 (b) The Method of Natural Science     .   .   .   .   .   9

Topic 2. PSYCHOLOGIC LESSONS  .   .   .   .   . 14
3 (a) General Considerations . .  .   .   .   .   . 14
4 (b) Integrity of Witnesses . .  .   .   .   .   . 16
5 (c) Correctness of Testimony . . .   .   .   .   .   18
6 (d) Presuppositions of Evidence-Taking          .   .   .   .   20
7 (e) Egoism . . . . . .     .   .   .   .   25
8 (J) Secrets . . . . . . .       .   .   .   .   28
9 (9) Interest . . . . . . .      .   .   .   .   37

Topic 3. PHENOMENOLOGY: The Outward Expression
     of Mental States . . . . .   .   .   .   .   . 41
10 . . . . . . . . .   .   .   .   . 41
11 (a) General External Conditions .   .   .   .   .   . 42
12 (b) General Signs of Character .    .   .   .   .   . 53
13 (c) Particular Character-signs .    .   .   .   .   . 61
(d) Somatic Character-Units . .   .   .   .   . 69
14 (1) General Considerations .   .   .   .   . 69
15 (2) Causes of Irritation . .   .   .   .   . 71
16 (3) Cruelty . . .    .   .   .   .   . 76
17 (4) Nostalgia . . .  .   .   .   .   . 77
18 (5) Reflex Movements .    .   .   .   .   . 78
19   (6)  Dress     .   .   .   .   .   .   .   .   .   82

                                                                    PAGE
20 (7) Physiognomy and Related Subjects . . 83
21 (8) The Hand . . . . . . . . 100

TITLE B. THE CONDITIONS FOB DEFINING THEORIES . 105
     Topic I. THE MAKING OF INFERENCES  .   .   . 105
22 . . . . . . . . . .  .   .   . 105
23 (a) Proof . . . . . . . . .   .   . 106
24 (b) Causation . . . . . . . . . . 117
25 (c) Scepticism . . . . . . .   .   .   . 129
26 (d) The Empirical Method in the Study of Cases           .   . 136
27 (e) Analogy . . . . . . . . . . 144
28 (f) Probability. . . . .  .   . . .   . 147
29 (9) Chance . . . .   .   . . .   . 159
30 (h) Persuasion and Explanation . . . . . . 161
31 (i) Inference and Judgment . . . . . . . 165
32 O Mistaken Inferences . .. . . . . . . 176
33 (k) Statistics of the Moral Situation . . . . . 179

Topic 2. KNOWLEDGE . . . .   .   . . .   . 183
34 . . . . . . . . .   . . .   . 183

PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION
     (THE MENTAL ACTIVITY OF THE EXAMINEE) .               . 187
     TITLE A. GENERA1: CONDITIONS . .  .   . . .   . 187
     Topic I. OF SENSE PERCEPTION  .   . . .   . 187
     35 . . . . . . . .  .   . . .   . 187

36 (a) GeneralConsiderations . . . . . . . 187
     (b) The Sense of Sight . . . .   . . .   . 196
      37 (1) General Considerations .   . . .   . 196
      38 (2) Color-vision .   . . . . .   . 204
      39 (3) The Blind Spot . . . . . .   . 207
      40 (e) The Sense of Hearing . . . . . .   . 208
      41 (d) The Sense of Taste . . . . . . .   . 212
      42 (e) The Sense of Smell . . . . . . .   . 213
      43 (f) The Sense of Touch . . . . . . .   . 215
     Topic a. PERCEPTION AND CONCEPTION .             .   . 221
      44 . . . . . . . .      . . .   . 221
     Topic 3. IMAGINATION . . . .      . . .   . 232
      45 . . . . . . . . .         . . .   . 232
     Topic 4. INTELLECTUAL PROCESSES         . . .   . 238
      46 (a) General Considerations . . .         . . .   . 238
      47 (b) The Mechanism of Thinking . .        . . .   . 243
      48 (c) The Subconscious . . . .        . . .   . 215
     ~ 49 (d) Subjective Conditions     .   .   .   .   .   .   . 248

CONTENTS       xix
               PAGE
Topic 5. THE ASSOCIATION OF IDEAS  .   .. 254
50 . . . . . . . . . .  .   .. 254
Topic 6. RECOLLECTION AND MEMORY   .   .. 258
     51 . . . . . . . . .    . . .   . 258
      52 (a) The Essence of Memory . . . . . .   . 259
     53 (b) The Forms of Reproduction . .   . . .   . 263
     ~ 54 (c) The Peculiarities of Reproduction . . . .   . 268

55 (d) Illusions of Memory         .   .   .   .   .   .   . 275
56 (e) Mnemotechnique    .   .   .   .   .   .   .   . 279
Topic 7. THE WILL . .   .   .   .   .   .   .   . 281
57 . . . . .  .   .   .   .   .   .   .   . 281
Topic 8. EMOTION. . .   .   .   .   .   .   .   . 283
~ 58 . . . . . .   .   .   .   .   .   .   . 288
     Topic 9. THE FORMS OF GIVING TESTIMONY .              . 287
      59 . . . . . . .             . 287
     60 (a) General Study of Variety in Forms of Expression           . 288
     61 (b) Dialect Forms . . . . . . . .             . 293
      62 (c) Incorrect Forms . . . . . . .             . 296
     TITLE B. DIFFERENTIATING CONDITIONS OF GIVING
     TESTIMONY . . . . . . .      .. 300
     Topic I. GENERAL DIFFERENCES . . .     .. 300
     (a) Woman . . . . . . . .         .300
      63 1. General Considerations . . .     .. 300
      64 2. Difference between Man and Women       .. 307

3. Sexual Peouliaritiea .    .   . . .    . 311
65 (a) General . . .   . . .    . 311
66 (b) Menatruation .   . . .    . 311
67 (c) Pregnancy . .   . . .    . 317
68 (d) Erotic . .  .   . . . 319
     ~ 69 (e) Submerged Sexual Factors       .   . 322
     4. Particular Feminine Qualities . .        .   . 332
     70 (a) Intelligenee . . . .       .   . 332
     ~ 71 1. Conception . . .     .   . 333
      72 2. Judgment . . .         .   . 335
     73 3. Quarrels with Women .       .   . 337
     74 (b) Honesty . . . .       .   . 340
     75 (c) Love, Hate and Friendship        .   . 350

76 (d) Emotional Disposition and Related
     Subjects .         .   .   .   . 359
     77 (e) Weakness . .     .   .   .   . 361
     78 (b) Children. . . . . .        .   .   .   . 364
      79 1. General Considerations  .        .   .   .   . 364
      80 2. Chfldren as Witnesses   .        .   .   .   . 366
     ~ 81 3. Juvenile Delinquency .    .        .   .   .   . 369
     XX   CONTENTS
          82 (c) Senility . . . . . .  .   .   .   . 372
          583 (d) Differences in Conception . .  .   .   .   . 375
          84 (e) Nature and Nurture . . .   .   .   .   . 384
          85 1. The Influence of Nurture .  .   .   .   . 385
      86 2. The Viewa of the Uneducated .              .   .   . 388
          87 3. Onesided Education . . .   .   .   . 391
          88 4. Inclination . . . .    .   .   .   . 393
          89 5. Other Differences . .  .   .   .   . 395
          90 6. Intelligence and Stupidity             .   . 398
     Topic 2. ISOLATED INFLUENCES  .   .   .   .   . 406
      91 (a) IIabit . . . . . . . .   .   .   . 406
      92 (b) Heredity . . . . . . .   .   .   . 410
      93 (c) Prepossession . . .   . . .   .   .   . 412
      94 (d) Imitation and the Crowd.   . . .   .   .   . 415

595 (e) Passion and Emotion   . . .         .   .   . 416
96 (f) Honor . . . .    . . .    .   .   .   . 421
|97 (9) Superstition . . . . .    .   .   .   . 422
Topic 3. MISTAKES . .   . . .    .   .   .   . 422
(a) Mistakes of the Senses    . . .    .   .   .   . 422
     98 (1) General Considerations .        .   .   .   . 422
     99 (2) Optical Illusions . .      .   .   .   . 427
     100 (3) Auditory Illusions . .         .   .   .   . 493
      101 (4) Illusions of Touch . .         .   .   .   . 449
      102 (5) Illusions of the Sense of Taste           .   .   . 452
      103 (6) The Illusiona of the Olfactory Sense                .   . 453
     104 (b) Hallucinations and Illusions . .        .   .   . 454
     105 (c) Imaginative Ideas . . . . .        .   .   . 459
     (d) Misunderstandings . . . . .        .   .   . 467
     ~ 106 1. Verbal Misunderatandings  .        .   . . 467
      107 2. Other Misunderstandings     .        .   . . 470
     (e) The Lie . . . .                    474
      108 1. General Considerations .   .        .   . . 474
     ~ 109 2. The Pathoformic Lie .    .        .   . . 479
     Topic 4. ISOLATED SPECIAL CONDITIONS                   .   . 480
     110 (a) Sleep and Dream ù .                 .   . 480
     111 (b) Intoxication . . . . .                   .   . 484
     ~ 112 (c) Suggestion . . . .                .   . 491

APPENDIX A. BIBLIOGRAPHY, INCLIJDING TEXTS MORE EABILY

WITHIN REACH OF ENOEISH READERB . . 493

APPENDIX B. WORKS ON PSYCHOLOOY OF GENERAL INTEREST 500
INDEX . . . . . . . . . . . . . . 503

CRIMINAL PSYCHOLOGY.

INTRODUCTION.

OF all disciplines necessary to the criminal justice in addition to
the knowledge of law, the most important are those derived from
psychology. For such sciences teach him to know the type of man
it is his business to deal with. Now psychological sciences appear
in various forms. There is a native psychology, a keenness of vision
given in the march of experience, to a few fortunate persons, who
see rightly without having learned the laws which determine the
course of events, or without being even conscious of them. Of this
native psychological power many men show traces, but very few
indeed are possessed of as much as criminalists intrinsically require.
In the colleges and pre-professional schools we jurists may acquire
a little scientific psychology as a ``philosophical propaedeutic,'' but
we all know how insufficient it is and how little of it endures in the
business of life. And we had rather not reckon up the number of
criminalists who, seeing this insufficiency, pursue serious psychological
investigations.

One especial psychological discipline which was apparently created
for our sake is the psychology of law, the development of which,
in Germany, Volkmar[1] recounts. This science afterward developed,
through the instrumentality of Metzger[2] and Platner,[3] as criminal
psychology. From the medical point of view especially, Choulant's
collection of the latter's, ``Quaestiones,'' is still valuable. Criminal
psychology was developed further by Hoffbauer,[4] Grohmann,[5]

[1] W. Volkmann v. Volkmar: Lehrbuch der Psychologie (2 vols.). Cthen 1875

[2] J. Metzger: ``Gerichtlich-medizinische Abhandhingen.'' Knigsberg 1803

[3] Ernst Platner: Questiones medicinae forensic, tr. German by Hederich

[4] J. C. Hoffbauer Die Psychologie in ibren Hauptanwendungen auf die
Rechtspflege. Halle 1823.

[5] G. A. Grohmann: Ideen zu einer physiognomisehen Anthropologie. Leipzig
1791.

Heinroth,[1] Sehaumann,[2] Mnch,[3] Eckartshausen,[4] and others. In
Kant's time the subject was a bone of contention between faculties,
Kant representing in the quarrel the philosophic, Metzger, Hoffbauer,
and Fries,[5] the medical faculties. Later legal psychology was simply
absorbed by psychiatry, and thereby completely subsumed among the
medical disciplines, in spite of the fact that Regnault,[6] still later,
attempted to recover it for philosophy, as is pointed out in Friedreich's[7]
well-known text-book (cf. moreover V. Wilbrand's[8] text-book).
Nowadays, criminal psychology, as represented by Kraus,[9] Krafft-
Ebing,[10] Maudsley,[11] Holtzendorff,[12] Lombroso,[13] and others has become
a branch of criminal anthropology. It is valued as the doctrine
of motives in crime, or, according to Liszt, as the investigation of the
psychophysical condition of the criminal. It is thus only a part of the
subject indicated by its name.[14] How utterly criminal psychology has
become incorporated in criminal anthropology is demonstrated by the
works of Ncke,[15] Kurella,[16] Bleuler,[17] Dallemagne,[18] Marro,[19] Ellis,[20]
Baer,[21] Koch,[22] Maschka,[23] Thomson,[24] Ferri,[25] Bonfigli,[26] Corre,[27] etc.

[1] Johann Heinroth: Grundzuge der Kriminalpsychologie. Berlin 1833.

[2] Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792.

[3] Mnch: ber den Einfluss der Kriminalpsychologie auf Pin System der
Kriminal-Rechts. Nrnberg 1790.

[4] Eckartshausen. ber die Notwendigkeit psychologiseher Kenntnisse bei
Beurteilung von Verbreehern. Mnchen, 1791.

[5] J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820.

[6] E. Regnault: Das gerichtliche Urteil der rzte ber psychologische Zustande.
Cln, 1830.

[7] J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg 1832.

[8] Wilbrand: Gerichtliche Psychologie. 1858.

[9] Kraus: Die Psychologie des Verbrechens. Tbingen, 1884.

[10] v. Krafft-Ebing: Die zweifelhaften Geisteszustnde. Erlangen 1873.

[11] Maudsley: Physiology and Pathology of the Mind.

[12] v. Holtzendorff--articles in ``Rechtslexikon.''

[13] Lombroso: L'uomo delinquente, ete.

[14] Asehaffenburg: Articles in Zeitscheift f. d. gesamten Strafreehtwissensehaften,
especially in. XX, 201.

[15] Dr. P. Ncke: ber Kriminal Psychologie, in the above-mentioned
Zeitschrift, Vol. XVII.
Verbrechen und Wahnsinn beim Weibe. Vienna, Leipsig, 1884.
Moral Insanity: rztliche Sachverstndigen-Zeitung, 1895;
Neurologisches Zentralblatt, Nos. 11 and 16. 1896

[16] Kurella: Naturgesehichte des Verbreehers. Stuttgart 1893.

[17] Blenler: Der geborene Verbrecher. Munchen 1896.

[18] Dallemagne. Kriminalanthropologie. Paris 1896.

19] Marro: I caratteri dei deliquenti. Turin 1887. I carcerati. Turin 1885.

[20] Havelock Ellis: The Criminal. London 1890.

[21] A. Baer: Der Verbrecher Leipzig 1893.

[22] Koch. Die Frage nach dem geborenen Verbrecher. Ravensberg 1894.

[23] Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). Tbingen 1883.

[24] Thomson. Psychologie der Verbrecher.

[25] Ferri: Gerichtl. Psychologie. Mailand 1893.

[26] Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892.

[27] Corre: Les Criminels. Paris 1889.

Literally, criminal psychology should be _that form of psychology
used in dealing with crime_; not merely, the psychopathology of
criminals, the natural history of the criminal mind. But taken even
literally, this is not all the psychology required by the criminalist.
No doubt crime is an objective thing. Cain would actually have
slaughtered Abel even if at the time Adam and Eve were already
dead. But for us each crime exists only as we perceive it,--as we
learn to know it through all those media established for us in criminal
procedure. But these media are based upon sense-perception, upon
the perception of the judge and his assistants, i. e.: upon witnesses,
accused, and experts. Such perceptions must be psychologically
validated. The knowledge of the principles of this validation
demands again a special department of general psychology--even
such a _pragmatic applied psychology as will deal with all states of
mind that might possibly be involved in the determination and judgment
of crime_. It is the aim of this book to present such a psychology.
``If we were gods,'' writes Plato in the Symposium, ``there would
be no philosophy''--and if our senses were truer and our sense
keener, we should need no psychology. As it is we must strive hard
to determine certainly how we see and think; we must understand
these processes according to valid laws organized into a system--
otherwise we remain the shuttlecocks of sense, misunderstanding and
accident. We must know how all of us,--we ourselves, witnesses,
experts, and accused, observe and perceive; we must know how
they think,--and how they demonstrate; we must take into
account how variously mankind infer and perceive, what mistakes
and illusions may ensue; how people recall and bear in mind; how
everything varies with age, sex, nature, and cultivation. We must
also see clearly what series of influences can prevail to change all
those things which would have been different under normal conditions.
Indeed, the largest place in this book will be given to the
witness and the judge himself, since we want in fact, from the first
to keep in mind the creation of material for our instruction; but the
psychology of the criminal must also receive consideration where-
ever the issue is not concerned with his so-called psychoses, but
with the validation of evidence.

Our method will be that fundamental to all psychological investigation,
and may be divided into three parts:[1]

1. The preparation of a review of psychological phenomena.

[1] P. Jessen: Versuch einer wissenschaftlichen Begrundung der Psychologie.
Berlin 1855.

2. Study of causal relationships.

3. Establishment of the principles of psychic activity.

The subject-matter will be drawn on the one hand, from that
already presented by psychological science, but will be treated
throughout from the point of view of the criminal judge, and prepared
for his purposes. On the other hand, the material will be
drawn from these observations that alone the criminologist at work
can make, and on this the principles of psychology will be brought
to bear.

We shall not espouse either pietism, scepticism, or criticism.
We have merely to consider the individual phenomena, as they may
concern the criminalist; to examine them and to establish whatever
value the material may have for him; what portions may be of
use to him in the interest of discovering the truth; and where the
dangers may lurk that menace him. And just as we are aware
that the comprehension of the fundamental concepts of the exact
sciences is not to be derived from their methodology, so we must
keep clearly in mind that the truth which we criminalists have to
attain can not be constructed out of the _formal_ correctness of the
content presented us. We are in duty bound to render it _materially_
correct. But that is to be achieved only if we are acquainted with
principles of psychology, and know how to make them serve our
purposes. For our problem, the oft-quoted epigram of Bailey's,
``The study of physiology is as repugnant to the psychologist as
that of acoustics to the composer,'' no longer holds. We are not
poets, we are investigators. If we are to do our work properly, we
must base it completely upon modern psycho physical fundamentals.
Whoever expects unaided to find the right thing at the right moment
is in the position of the individual who didn't know whether he could
play the violin because he had not yet tried. We must gather
wisdom while we are not required to use it; when the time for
use arrives, the time for harvest is over.

Let this be our fundamental principle: _That we criminalists
receive from our main source, the witnesses, many more inferences
than observations_, and that this fact is the basis of so many mistakes
in our work. Again and again we are taught, in the deposition of
evidence, that only facts as plain sense-perceptions should be presented;
that inference is the judge's affair. But we only appear
to obey this principle; actually, most of what we note as fact
and sense-perception, is nothing but a more or less justified
judgment, which though presented in the honestest belief, still

offers no positive truth. ``Amicus Plato, sed magis amica
Veritas.''

There is no doubt that there is an increasing, and for us jurists,
a not unimportant demand for the study of psychology in its bearing
on our profession. But it must be served. The spirited Abb
de Bats, said at a meeting of criminalists in Brussels, that the
_present tendency of the science of criminal law demands the observation
of the facts of the daily life_. In this observation consists the alpha
and omega of our work; we can perform it only with the flux of
sensory appearances, and the law which determines this flux, and
according to which the appearances come, is the law of causation.
But we are nowhere so neglectful of causation as in the deeds of
mankind. A knowledge of that region only psychology can give us.
Hence, to become conversant with psychological principles, is the
obvious duty of that conscientiousness which must hold first place
among the forces that conserve the state. It is a fact that there
has been in this matter much delinquency and much neglect. If,
then, we were compelled to endure some bitterness on account of it,
let it be remembered that it was always directed upon the fact that
we insisted on studying our statutes and their commentaries, fearfully
excluding every other discipline that might have assisted us,
and have imported vitality into our profession. It was Gneist[1]
who complained: ``The contemporary low stage of legal education
is to be explained like much else by that historical continuity which
plays the foremost rle in the administration of justice.'' Menger[2]
does not mention ``historical continuity'' so plainly, but he points
sternly enough to the legal sciences as the most backward of all
disciplines that were in contact with contemporary tendencies.
That these accusations are justified we must admit, when we consider
what Stlzel[3] and the genial creator of modern civil teaching
demands: ``It must be recognized that jurisprudence in reality
is nothing but the thesis of the healthy human understanding in
matters of law.'' But what the ``healthy human mind'' requires
we can no longer discover from our statutory paragraphs only.
How shameful it is for us, when Goldschmidt[4] openly narrates how a
famous scientist exclaimed to a student in his laboratory: ``What
do you want here? You know nothing, you understand nothing,
you do nothing,--you had better become a lawyer.''

[1] R. Gneist: Aphorismen zur Reform des Rechtestudiums. Berlin 1887.

[2] A. Menger: in Archiv fin soziale Gesetzgebung v. Braun II.

[3] A. Stlsel: Schulung fin die Zivilistiche Praxis. 2d Ed. Berlin 1896.

[4] S. Goldschmidt: Rechtestudium und Priifungsordnung. Stuttgart 1887.

Now let us for once frankly confess why we are dealt these disgraceful
reproaches. Let us agree that we have not studied or dealt
with jurisprudence as a science, have never envisaged it as an empirical
discipline; that the aprioristic and classical tradition had kept
this insight at a distance, and that where investigation and effort
toward the recognition of the true is lacking, there lacks everything
of the least scientific importance. To be scientifically legitimate,
we need first of all the installation of the disciplines of research
which shall have direct relationships with our proper task. In this
way only can we attain that spiritual independence by means of
spiritual freedom, which Goldschmidt defines as the affair of the
higher institutions of learning, and which is also the ideal of our own
business in life. And this task is not too great. ``Life is movement,''
cried Alois von Brinz,[1] in his magnificent inaugural address. ``Life
is not the thought, but the thinking which comes in the fullness of
action.''

It may be announced with joy and satisfaction, that since the
publication of the first edition of this book, and bearing upon it,
there came to life a rich collection of fortuitous works which have
brought together valuable material. Concerning the testimony of
witnesses, its nature and value, concerning memory, and the types
of reproduction, there is now a considerable literature. Everywhere
industrious hands are raised,--hands of psychologists, physicians,
and lawyers, to share in the work. Should they go on unhurt we
may perhaps repair the unhappy faults committed by our ancestors
through stupid ignorance and destructive use of uncritically collected
material.

[1] A. v. Brinz: ber Universalitt. Rektorsrede 1876.

PART I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE
MENTAL ACTIVITIES OF THE JUDGE.

TITLE A. THE CONDITIONS OF TAKING EVIDENCE.

Topic I. METHOD.

Section I. (a) General Considerations.

SOCRATES, dealing in the Meno with the teachability of virtue,
sends for one of Meno's slaves, to prove by him the possibility of
absolutely certain a priori knowledge. The slave is to determine the
length of a rectangle, the contents of which is twice that of one
measuring two feet; but he is to have no previous knowledge of the
matter, and is not to be directly coached by Socrates. He is to
discover the answer for himself. Actually the slave first gives out
an incorrect answer. He answers that the length of a rectangle
having twice the area of the one mentioned is four feet, thinking
that the length doubles with the area. Thereupon Socrates triumphantly
points out to Meno that the slave does as a matter of
fact not yet quite know the truth under consideration, but that he
really thinks he knows it; and then Socrates, in his own Socratic
way, leads the slave to the correct solution. This very significant
procedure of the philosopher is cited by Guggenheim[1] as an
illustration of the essence of a priori knowledge, and when we properly
consider what we have to do with a witness who has to relate
any fact, we may see in the Socratic method the simplest example
of our task. We must never forget _that the majority of mankind
dealing with any subject whatever always believe that they know and
repeat the truth_, and even when they say doubtfully: ``I believe.--
It seems to me,'' there is, in this tentativeness, more meant than
meets the ear. When anybody says: ``I believe that--'' it merely
means that he intends to insure himself against the event of being
contradicted by better informed persons; but he certainly has not

[1] M. Guggenheim: Die Lehre vom aprioristischen Wissen. Berlin 1885.

the doubt his expression indicates. When, however, the report of
some bare fact is in question (``It rained,'' ``It was 9 o'clock,''
``His beard was brown,'' or ``It was 8 o'clock,'') it does not matter
to the narrator, and if he imparts _*such_ facts with the introduction,
``I believe,'' then he was really uncertain. The matter becomes
important only where the issue involves partly-concealed observations,
conclusions and judgments. In such cases another factor
enters--conceit; what the witness asserts he is fairly certain of
just because he asserts it, and all the ``I believes,'' ``Perhapses,''
and ``It seemeds,'' are merely insurance against all accidents.

Generally statements are made without such reservations and,
even if the matter is not long certain, with full assurance. What
thus holds of the daily life, holds also, and more intensely, of court-
witnesses, particularly in crucial matters. Anybody experienced
in their conduct comes to be absolutely convinced that witnesses
do not know what they know. A series of assertions are made
with utter certainty. Yet when these are successively subjected to
closer examinations, tested for their ground and source, only a very
small portion can be retained unaltered. Of course, one may here
overshoot the mark. It often happens, even in the routine of daily
life, that a man may be made to feel shaky in his most absolute
convictions, by means of an energetic attack and searching questions.
Conscientious and sanguine people are particularly easy subjects
of such doubts. Somebody narrates an event; questioning begins
as to the indubitability of the fact, as to the exclusion of possible
deception; the narrator becomes uncertain, he recalls that, because
of a lively imagination, he has already believed himself to have
seen things otherwise than they actually were, and finally he admits
that the matter might probably have been different. During trials
this is still more frequent. The circumstance of being in court of
itself excites most people; the consciousness that one's statement is,
or may be, of great significance increases the excitement; and the
authoritative character of the official subdues very many people
to conform their opinions to his. What wonder then, that however
much a man may be convinced of the correctness of his evidence,
he may yet fail in the face of the doubting judge to know anything
certainly?

Now one of the most difficult tasks of the criminalist is to hit,
in just such cases, upon the truth; neither to accept the testimony
blindly and uncritically; nor to render the witness, who otherwise

is telling the truth, vacillating and doubtful. But it is still more
difficult to lead the witness, who is not intentionally falsifying, but
has merely observed incorrectly or has made false conclusions, to a
statement of the truth as Socrates leads the slave in the Meno.
It is as modern as it is comfortable to assert that this is not the
judge's business--that the witness is to depose, his evidence is to
be accepted, and the judge is to judge. Yet it is supposed before
everything else that the duty of the court is to establish the material
truth--that the formal truth is insufficient. Moreover, if we notice
false observations and let them by, then, under certain circumstance,
we are minus one important piece of evidence _*pro_ and _*con_,
and the whole case may be turned topsy turvy. At the very least
a basis of development in the presentation of evidence is so excluded.
We shall, then, proceed in the Socratic fashion. But, inasmuch as
we are not concerned with mathematics, and are hence more badly
placed in the matter of proof, we shall have to proceed more cautiously
and with less certainty, than when the question is merely
one of the area of a square. On the one hand we know only in the
rarest cases that we are not ourselves mistaken, so that we must
not, without anything further, lead another to agree with us; on
the other hand we must beware of perverting the witness from his
possibly sound opinions. It is not desirable to speak of suggestion
in this matter, since, if I believe that the other fellow knows a matter
better than I and conform to his opinion, there is as yet no suggestion.
And this pure form of change of opinion and of openness to
conviction is commonest among us. Whoever is able to correct
the witness's apparently false conceptions and to lead him to discover
his error of his own accord and then to speak the truth--
whoever can do this and yet does not go too far, deducing from the
facts nothing that does not actually follow from them--that man
is a master among us.

Section 2. (b) The Method of Natural Science.[1]

If now we ask how we are to plan our work, what method we are
to follow, we must agree that to establish scientifically the principles
of our discipline alone is not sufficient. If we are to make progress,
the daily routine also must be scientifically administered. Every
sentence, every investigation, every official act must satisfy the same
demand as that made of the entire juristic science. In this way only

[1] Cf. H. Gross's Archiv VI, 328 and VIII, 84.

can we rise above the mere workaday world of manual labor, with
its sense-dulling disgust, its vexatious monotony, and its frightful
menace against law and justice. While jurists merely studied the
language of dead laws, expounding them with effort unceasing, and,
one may complain, propounding more, we must have despaired of
ever being scientific. And this because law as a science painfully
sought justification in deduction from long obsolete norms and in
the explanation of texts. To jurisprudence was left only the empty
shell, and a man like Ihering[1] spoke of a ``circus for dialectico-
acrobatic tricks.''

Yet the scientific quality is right to hand. We need only to take
hold of the method, that for nearly a century has shown itself to
us the most helpful. Since Warnknig (1819)[2] told us, ``Jurisprudence
must become a natural science,'' men have rung changes upon
this battle cry (cf. Spitzer[3]). And even if, because misunderstood,
it led in some directions wrongly, it does seem as if a genuinely
scientific direction might be given to our doctrines and their application.
We know very well that we may not hurry. Wherever people
delayed in establishing the right thing and then suddenly tried for
it, they went in their haste too far. This is apparent not only in
the situations of life; it is visible, in the very recent hasty conclusions
of the Lombrosists, in their very good, but inadequate observations,
and unjustified and strained inferences. We are not to figure the
scientific method from these.[4] It is for us to gather facts and to
study them. The drawing of inferences we may leave to our more
fortunate successors. But in the daily routine we may vary this
procedure a little. We draw there _*particular_ inferences from correct
and simple observations. ``From facts to ideas,'' says ttingen.[5]
``The world has for several millenniums tried to subdue matter to
preconceptions and the world has failed. Now the procedure is
reversed.'' ``From facts to ideas''--there lies our road, let us
for once observe the facts of life without prejudice, without maxims
built on preconceptions; let us establish them, strip them of all
alien character. Then finally, when we find nothing more in the
least doubtful, we may theorize about them, and draw inferences,
modestly and with caution.

Every fundamental investigation must first of all establish the

[1] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.

[2] Warnkonig. Versuch einer Begrndung des Rechtes. Bonn 1819.

[3] H. Spitzer: ber das Verhltnis der Philosophie zu den organischen
Naturwissensehaften. Leipzig 1883.

[4] Cf. Gross's Archiv VIII 89.

[5] A. v. ttingen: Moralstatistik. Erlangen 1882.

nature of its subject matter. This is the maxim of a book, ``ber
die Dummheit''[1] (1886), one of the wisest ever written. The same
axiomatic proposition must dominate every legal task, but especially
every task of criminal law. It is possible to read thousands upon
thousands of testimonies and to make again this identical, fatiguing,
contrary observation: The two, witness and judge, have not defined
the nature of this subject; they have not determined what they
wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been
established, the one did not know and the other did not tell him.
But the blame for this defective formulation does not rest with the
witness--formulation was the other man's business.

When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[2] I believe, has for our purpose
defined it best. It consists in trying to keep constant the complex
of conditions demonstrated to be necessary for the realization of a
given effect. It consists in varying these conditions, in isolating one
from the other in a numerically determinable order, and finally,
in establishing the accompanying changes with regard to the effect,
in a quantified or countable order.

I can not here say anything further to show that this is the sole
correct method of establishing the necessary principles of our science.
The aim is only to test the practicality of this method in the routine
of a criminal case, and to see if it is not, indeed, the only one by
which to attain complete and indubitable results. If it is, it must
_*be of use_ not only during the whole trial--not only in the testing
of collected evidence, but also in the testing of every individual
portion thereof, analyzed into its component elements.

Let us first consider the whole trial.

The _*effect_ is here the evidence of A's guilt. The complex conditions
for its establishment are the collective instruments in getting
evidence; the individual conditions are to be established by means
of the individual sources of evidence--testimony of witnesses,
examination of the premises, obduction, protocol, etc.

_The constantification of conditions_ now consists in standardizing
the present instance, thus: Whenever similar circumstances are
given, i. e.: the same instruments of evidence are present, the evidence
of guilt is established. Now the accompanying changes with
regard to the effect, i. e.: proof of guilt through evidence, have to

[1] Erdmann ber die Dummheit. 1886.

[2] Ebbinghaus: ber das Gedchtniss. Leipzig 1885.

be tested--therefore the individual conditions--i.e.: the individual
sources of evidence have to be established and their values
to be determined and _*varied_. Finally, the accompanying change in
effect (conviction by evidence) is to be tested. The last procedure
requires discussion; the rest is self evident. In our business isolation
is comparatively easy, inasmuch as any individual statement, any
visual impression, any effect, etc., may be abstracted without difficulty.
Much harder is the determination of its value. If, however,
we clearly recognize that it is necessary to express the exact value
of each particular source of evidence, and that the task is only to
determine comparative valuation, the possibility of such a thing, in
at least a sufficiently close degree of certainty, must be granted.
The valuation must be made in respect of two things--(1) its
_*reliability_ (subjective and relative); (2) its _*significance_ (objective and
absolute). On the one hand, the value of the evidence itself must
be tested according to the appraisement of the person who presents
it and of the conditions under which he is important; on the other,
what influence evidence accepted as reliable can exercise upon the
_*effect_, considered in and for itself. So then, when a testimony is
being considered, it must first be determined whether the witness
was able and willing to speak the truth, and further, what the importance
of the testimony may be in terms of the changes it may
cause in the _*organization_ of the case.

Of greatest importance and most difficult is the variation of conditions
and the establishment of the changes thereby generated,
with regard to the _*effect_,--i. e.: the critical interpretation of the
material in hand. Applied to a case, the problem presents itself
in this wise: I consider each detail of evidence by itself and cleared
of all others, and I vary it as often as it is objectively possible to do
so. Thus I suppose that each statement of the witness might be a
lie, entirely or in part; it might be incorrect observation, false
inference, etc.--and then I ask myself: Does the evidence of guilt,
the establishment of an especial trial, now remain just? If not, is
it just under other and related possible circumstances? Am I in
possession of these circumstances? If now the degree of apparent
truth is so far tested that these variations may enter and the accusation
still remain just, the defendant is convicted: but only under
these circumstances.

The same procedure here required for the conduct of a complete
trial, is to be followed also, in miniature, in the production
of particulars of evidence. Let us again construe an instance.

The _*effect_ now is the establishment of the objective correctness
of some particular point (made by statements of witnesses, looks,
etc.). The _*complex of conditions_ consists in the collection of these
influences which might render doubtful the correctness--i. e.,
dishonesty of witnesses, defective examination of locality, unreliability
of the object, ignorance of experts, etc. It is necessary
to know clearly which of these influences might be potent in the
case in hand, and to what degree. The _*standardization_ consists,
also this time, in the comparison of the conditions of the present
case with those of other cases. The _*variation_, again, consists in the
abstraction from the evidence of those details which might possibly
be incorrect, thus correcting it, from various points of view, and
finally, in observing the _*effect_ as it defines itself under this variety
of formulation.

This procedure, adopted in the preparation and judgment of
each new piece of evidence, excludes error as far as our means
conceivably permit. Only one thing more is needful--a narrow and
minute research into that order of succession which is of
indispensable importance in every natural science. ``Of all truths
concerning natural phenomena, those which deal with the order of
succession are for us the most important. Upon a knowledge of
them is grounded every intelligent anticipation of the future'' (J.
S. Mill).[1] The oversight of this doctrine is the largest cause of our
failures. We must, in the determination of evidence, cleave to it.
Whenever the question of influence upon the ``_*effect_'' is raised, the
problem of order is found invariably the most important. Mistakes
and impossibilities are in the main discovered only when the examination
of the order of succession has been undertaken.

In short: We have confined ourselves long enough to the mere
study of our legal canons. We now set out upon an exact consideration
of their material. To do this, obviously demands a retreat to
the starting-point and a beginning we ought to have made long ago;
but natural sciences, on which we model ourselves, have had to do
the identical thing and are now at it openly and honestly. Ancient
medicine looked first of all for the universal panacea and boiled
theriac; contemporary medicine dissects, uses the microscope, and
experiments, recognizes no panacea, accepts barely a few specifics.
Modern medicine has seen the mistake. But we lawyers boil our
theriac even nowadays and regard the most important study, the
study of reality, with arrogance.

[1] J. S. Mill: System of Logic.

Topic II. PSYCHOLOGIC LESSONS.

Section 3. (a) General Considerations.

Of the criminalist's tasks, the most important are those involving
his dealings with the other men who determine his work, with witnesses,
accused, jurymen, colleagues, etc. These are the most
pregnant of consequences. In every case his success depends on his
skill, his tact, his knowledge of human nature, his patience, and his
propriety of manner. Anybody who takes the trouble, may note
speedily the great differences in efficiency between those who do
and those who do not possess such qualities. That they are important
to witnesses and accused is undoubted. But this importance
is manifest to still others. The intercourse between various examining
judges and experts is a matter of daily observation. One judge
puts the question according to law and expects to be respected. He
does not make explicit how perfectly indifferent the whole affair is
to him, but experts have sufficient opportunity to take note of that
fact. The other narrates the case, explains to the experts its various
particular possibilities, finds out whether and what further elucidation
they demand, perhaps inquires into the intended manner and
method of the expert solution of the problem, informs himself of
the case by their means, and manifests especial interest in the difficult
and far too much neglected work of the experts. It may be
said that the latter will do their work in the one case as in the other,
with the same result. This would be true if, unfortunately, experts
were not also endowed with the same imperfections as other mortals,
and are thus far also infected by interest or indifference. Just
imagine that besides the examining magistrate of a great superior
court, every justice and, in addition, all the chiefs and officials
manifested equal indifference! Then even the most devoted experts
would grow cool and do only what they absolutely had to. But if
all the members of the same court are actuated by the same keen
interest and comport themselves as described, how different the
affair becomes! It would be impossible that even the indifferent,
and perhaps least industrious experts, should not be carried out of
themselves by the general interest, should not finally realize the
importance of their position, and do their utmost.

The same thing is true of the president, the jurymen and their
fellow-judges. It is observable that here and there a presiding justice
succeeds in boring all concerned during even criminal cases interesting

in themselves; the incident drags on, and people are interested only
in finally seeing the end of the matter. Other presiding justices
again, fortunately the majority, understand how to impart apparent
importance to even the simplest case. Whatever office anybody
may hold,--he and his mates are commissioned in the common
task, and should the thing come up for judgment, everybody does
his best. The difference here is not due to temperamental freshness
or tediousness; the result depends only upon a correct or incorrect
psychological handling of the participants. The latter must in
every single case be led and trained anew to interest, conscientiousness
and co-operation. In this need lies the educational opportunity
of the criminal judge. Whether it arises with regard to the
accused, the witness, the associate justice, or the expert, is all one;
it is invariably the same.

That knowledge of human nature is for this purpose most important
to the criminalist will be as little challenged as the circumstance
that such knowledge can not be acquired from books. Curiously
enough, there are not a few on the subject, but I suspect that
whoever studies or memorizes them, (such books as Pockel's,
Herz's, Meister's, Engel's, Jassoix's, and others, enumerated by
Volkmar) will have gained little that is of use. A knowledge of
human nature is acquired only (barring of course a certain talent
thereto) by persevering observation, comparison, summarization,
and further comparison. So acquired, it sets its possessor to the
fore, and makes him independent of a mass of information with
which the others have to repair their ignorance of mankind. This
is to be observed in countless cases in our profession. Whoever has
had to deal with certain sorts of swindlers, lying horsetraders,
antiquarians, prestidigitators, soon comes to the remarkable conclusion,
that of this class, exactly those who flourish most in their profession
and really get rich understand their trade the least. The horsedealer
is no connoisseur whatever in horses, the antiquarian can not
judge the value nor the age and excellence of antiquities, the cardsharp
knows a few stupid tricks with which, one might think, he
ought to be able to deceive only the most innocent persons. Nevertheless
they all have comfortable incomes, and merely because they
know their fellows and have practiced this knowledge with repeatedly
fresh applications.

I do not of course assert that we criminalists need little scholarly
knowledge of law, and ought to depend entirely upon knowledge of
men. We need exactly as much more knowledge as our task exceeds

that of the horse-dealer, but we can not do without knowledge of
humanity. The immense onerousness of the judge's office lies in
just the fact that he needs so very much more than his bare legal
knowledge. He must, before all things, be a jurist and not merely a
criminalist; he must be in full possession not only of the knowledge
he has acquired in his academy, but of the very latest up-to-date
status of his entire science. If he neglects the purely theoretical,
he degenerates into a mere laborer. He is in duty bound not only
to make himself familiar with hundreds of things, to be able to
consort with all sorts of crafts and trades, but also, finally, to form
so much out of the material supplied him by the law as is possible
to human power.

Section 4. (b) Integrity of Witnesses.

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 assert
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 sexes,
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 class 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 class belong peddlers, street merchants, innkeepers,
certain shop-keepers, hack-drivers, artists, etc., and especially
prostitutes (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 analogous 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. Lwenstimm, in H. Gross's Archiv, VII, 191.

recognize that the world has no place for idlers and that life on God'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
sexes 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 substitution 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 coarse falsehoods. If, contrary to expectation, he
does notice them, he is too chary of words to call attention to them,
assents, 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, Frbel[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 fr Psychiatrie
u. Neurologie, 1902, XII, 359.)

[2] Frbel: Die. Mensehenersiehung. Keilhau 1826.

[3] K. Lange: 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
circumstantial, 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, superstitions, 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 circumstances 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 astonishing 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, nobody had ever told him
of the pangs and passions 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