Criminal Psychology, Hans Gross [motivational books for students .txt] 📗

have never been sorry for keeping silence, especially if I had already said something. The only rule in the matter is comparatively self-evident. Never move toward any incorrectness and never present the appearance of knowing more than you actually do. Setting aside the dishonesty of such a procedure, the danger of a painful exposure in such matters is great.

There is still another great danger which one may beware of, optima fide,—the danger of knowing something untrue. This danger also is greatest for the greatest talent and the greatest courage among us, because they are the readiest hands at synthesis, inference, and definition of possibilities, and see as indubitable and shut to contradiction things that at best are mere possibilities. It is indifferent to the outcome whether a lie has been told purposely or whether it has been the mere honest explosion of an over-sanguine temperament. It is therefore unnecessary to point out the occasion for caution. One need only suggest that something may be learned from people who talk too much. The over-communicativeness of a neighbor is quickly noticeable, and if the why and how much of it are carefully studied out, it is not difficult to draw a significant analogy for one’s own case. In the matter of secrets of other people, obviously the thing to be established first is what is actually a secret; what is to be suppressed, if one is to avoid damage to self or another. When an actual secret is recognized it is necessary to consider whether the damage is greater through keeping or through revealing the secret. If it is still possible, it is well to let the secret be—there is always damage, and generally, not insignificant damage, when it is tortured out of a witness. If, however, one is honestly convinced that the secret must be revealed—as when a guiltless person is endangered—every effort and all skill is to be applied in the revelation. Inasmuch as the least echo of bad faith is here impossible, the job is never easy.

The chief rule is not to be overeager in getting at the desired secret. The more important it is, the less ought to be made of it. It is best not directly to lead for it. It will appear of itself, especially if it is important. Many a fact which the possessor had set no great store by, has been turned into a carefully guarded secret by means of the eagerness with which it was sought. In cases of need, when every other means has failed, it may not be too much to tell the witness, cautiously of course, rather more of the crime than might otherwise have seemed good. Then those episodes must be carefully hit on, which cluster about the desired secret and from which its importance arises. If the witness understands that he presents something really important by giving up his secret, surprising consequences ensue.

The relatively most important secret is that of one’s own guilt, and the associated most suggestive establishment of it, the confession, is a very extraordinary psychological problem.[57] In many cases the reasons for confession are very obvious. The criminal sees that the evidence is so complete that he is soon to be convicted and seeks a mitigation of the sentence by confession, or he hopes through a more honest narration of the crime to throw a great degree of the guilt on another. In addition there is a thread of vanity in confession—as among young peasants who confess to a greater share in a burglary than they actually had (easily discoverable by the magniloquent manner of describing their actual crime). Then there are confessions made for the sake of care and winter lodgings: the confession arising from “firm conviction” (as among political criminals and others). There are even confessions arising from nobility, from the wish to save an intimate, and confessions intended to deceive, and such as occur especially in conspiracy and are made to gain time (either for the flight of the real criminal or for the destruction of compromising objects). Generally, in the latter case, guilt is admitted only until the plan for which it was made has succeeded; then the judge is surprised with well-founded, regular and successful establishment of an alibi. Not infrequently confession of small crimes is made to establish an alibi for a greater one. And finally there are the confessions Catholics[58] are required to make in confessional, and the death bed confessions. The first are distinguished by the fact that they are made freely and that the confessee does not try to mitigate his crime, but is aiming to make amends, even when he finds it hard; and desires even a definite penance. Death bed confessions may indeed have religious grounds, or the desire to prevent the punishment or the further punishment of an innocent person.

Although this list of explicable confession-types is long, it is in no way exhaustive. It is only a small portion of all the confessions that we receive; of these the greater part remain more or less unexplained. Mittermaier[59] has already dealt with these acutely and cites examples as well as the relatively well-studied older literature of the subject. A number of cases may perhaps be explained through pressure of conscience, especially where there are involved hysterical or nervous persons who are plagued with vengeful images in which the ghost of their victim would appear, or in whose ear the unendurable clang of the stolen money never ceases, etc. If the confessor only intends to free himself from these disturbing images and the consequent punishment by means of confession, we are not dealing with what is properly called conscience, but more or less with disease, with an abnormally excited imagination.[60] But where such hallucinations are lacking, and religious influences are absent, and the confession is made freely in response to mere pressure, we have a case of conscience,[61]—another of those terms which need explanation. I know of no analogy in the inner nature of man, in which anybody with open eyes does himself exclusive harm without any contingent use being apparent, as is the case in this class of confession. There is always considerable difficulty in explaining these cases. One way of explaining them is to say that their source is mere stupidity and impulsiveness, or simply to deny their occurrence. But the theory of stupidity does not appeal to the practitioner, for even if we agree that a man foolishly makes a confession and later, when he perceives his mistake, bitterly regrets telling it, we still find many confessions that are not regretted and the makers of which can in no wise be accused of defective intelligence. To deny that there are such is comfortable but wrong, because we each know collections of cases in which no effort could bring to light a motive for the confession. The confession was made because the confessor wanted to make it, and that’s the whole story.

The making of a confession, according to laymen, ends the matter, but really, the judge’s work begins with it. As a matter of caution all statutes approve confessions as evidence only when they agree completely with the other evidence. Confession is a means of proof, and not proof. Some objective, evidentially concurrent support and confirmation of the confession is required. But the same legal requirement necessitates that the value of the concurrent evidence shall depend on its having been arrived at and established independently. The existence of a confession contains powerful suggestive influences for judge, witness, expert, for all concerned in the case. If a confession is made, all that is perceived in the case may be seen in the light of it, and experience teaches well enough how that alters the situation. There is so strong an inclination to pigeon-hole and adapt everything perceived in some given explanation, that the explanation is strained after, and facts are squeezed and trimmed until they fit easily. It is a remarkable phenomenon, confirmable by all observers, that all our perceptions are at first soft and plastic and easily take form according to the shape of their predecessors. They become stiff and inflexible only when we have had them for some time, and have permitted them to reach an equilibrium. If, then, observations are made in accord with certain notions, the plastic material is easily molded, excrescences and unevenness are squeezed away, lacunæ are filled up, and if it is at all possible, the adaptation is completed easily. Then, if a new and quite different notion arises in us, the alteration of the observed material occurs as easily again, and only long afterwards, when the observation has hardened, do fresh alterations fail. This is a matter of daily experience, in our professional as well as in our ordinary affairs. We hear of a certain crime and consider the earliest data. For one reason or another we begin to suspect A as the criminal. The result of an examination of the premises is applied in each detail to this proposition. It fits. So does the autopsy, so do the depositions of the witnesses. Everything fits. There have indeed been difficulties, but they have been set aside, they are attributed to inaccurate observation and the like,—the point is,—that the evidence is against A. Now, suppose that soon after B confesses the crime; this event is so significant that it sets aside at once all the earlier reasons for suspecting A, and the theory of the crime involves B. Naturally the whole material must now be applied to B, and in spite of the fact that it at first fitted A, it does now fit B. Here again difficulties arise, but they are to be set aside just as before.

Now if this is possible with evidence, written and thereby unalterable, how much more easily can it be done with testimony about to be taken, which may readily be colored by the already presented confession. The educational conditions involve now the judge and his assistants on the one hand, and the witnesses on the other.

Concerning himself, the judge must continually remember that his business is not to fit all testimony to the already furnished confession, allowing the evidence to serve as mere decoration to the latter, but that it is his business to establish his proof by means of the confession, and by means of the other evidence, independently. The legislators of contemporary civilization have started with the proper presupposition—that also false confessions are made,—and who of us has not heard such? Confessions, for whatever reason,—because the confessor wants to die, because he is diseased,[62] because he wants to free the real criminal,—can be discovered as false only by showing their contradiction with the other evidence. If, however, the judge only fits the evidence, he abandons this means of getting the truth. Nor must false confessions be supposed to occur only in case of homicide. They occur most numerously in cases of importance, where more than one person is involved. It happens, perhaps, that only one or two are captured, and they assume all the guilt, e.g., in cases of larceny, brawls, rioting, etc. I repeat: the suggestive power of a confession is great and it is hence really not easy to exclude its influence and to consider the balance of the evidence on its merits,—but this must be done if one is not to deceive oneself.

Dealing with the witness is still more ticklish, inasmuch as to the difficulties with them, is added the difficulties with oneself. The simplest thing would be to deny the existence of a confession, and thus to get the witness to speak without prejudice. But aside from the fact of its impossibility as a lie, each examination of a