Criminal Psychology, Hans Gross [jenna bush book club .txt] 📗

and that somebody lost his life on account of it, and if I made my local examination with this presupposition in mind, the description will certainly seem different from that made under the knowledge that the fire was intentional and made to kill. At trial the description of local conditions will be read and entered as important testimony.

It satisfies the law if it is taken according to form, has the correct content, and is read as prescribed. But for our conscience and in truth this manuscript can be correct only when it is logically and psychologically presented revised according to the viewpoint its writer would have had if he had been in possession of all the facts in possession of the reader. This work of reconstruction belongs to the most difficult of our psychological tasks—but it must be performed unless we want to go on superficially and without conscience.

 

The judgment and interpretation of the testimony of witnesses, (2), demand similar treatment. I am legally right if I base my judgment on the testimony of witnesses (provided there are enough of them and they are properly subpoenaed) if nothing suggestive is offered against their testimony, if they do not contradict each other, and especially if there are no contradictions in the testimony of any single individual. This inner contradiction is rather frequent, and the inattention with which the protocols, as a rule, are read, and the scanty degree in which the testimony is tested logically and psychologically, are shown clearly by the fact that the inner contradictions are not observed and worked over more frequently. As evidence of this, let us consider a few cases that are generally told as extravagant jokes. Suppose that a man dreamed that his head was cut off and that that dream so affected him that he died of apoplexy—

yet not everybody asks how the dream was discovered. In a like manner people hear with disgust that somebody who has lost his arm, in despair cut off his other arm with an axe in order more easily to get assistance, and yet they do not ask “how.” Or again when somebody is asked if he knows the romance “The Emperor Joseph and The Beautiful Railway-signal-man’s Daughter,” the anachronism of the title does not occur to him, and nobody thinks of the impossibilities of the vivid description of a man walking back and forth, with his hands behind his back, reading a newspaper.

 

Much testimony contains similar, if not so thoroughgoing contradictions.

If they are credited in spite of this fact the silly be-

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liever may be blamed, but he is justified in the eyes of the law if the above-mentioned legal conditions were satisfied. Hence, the frightfully frequent result: “Whether the witness’s deposition is true, is a matter for his own conscience; eventually he may be arrested for perjury, but he has made his statements and I judge accordingly.” What is intended with such a statement is this: “I hide behind the law, I am permitted to judge in such a case in such a way, and nobody can blame me.” But it is correct to assert that in such cases there is really no evidence, there is only a form of evidence. It can be actually evidential only when the testimony is tested logically and psychologically, and the ability and willingness of the witness to tell the truth is made clear. Of course it is true, as Mittermaier says, that the utterance of witnesses is tested by its consistency with other evidence, but that is neither the only test nor the most valid, for there is always the more important internal test, in the first place; and in the second place, it is not conclusive because the comparison may reveal only inconsistency, but can not establish which of the conflicting statements is correct. Correctness can be determined only through testing the single statements, the willingness and ability of each witness, both in themselves and in relation to all the presented material.

 

Let us take now the third condition of our suppositious case, i. e.

partial confession. It is generally self-evident that the value of the latter is to be judged according to its own nature. The confession must be accepted as a means of proof, not as proof, and this demands that it shall be consistent with the rest of the evidence, for in that way only can it become proof. But it is most essential that the confession shall be internally tested, i. e. examined for logical and psychological consistency. This procedure is especially necessary with regard to certain definite confessions.

 

(a) Confessions given without motive.

 

(b) Partial confessions.

 

(c) Confessions implying the guilt of another.

 

(a) Logic is, according to Schiel[1] the science of evidence—not of finding evidence but of rendering evidence evidential. This is particularly true with regard to confessions, if we substitute psychology for logic. It is generally true that many propositions hold so long only as they are not doubted, and such is the case with many confessions. The crime is confessed; he who confesses to it is always a criminal, and no man doubts it, and so the confession [1] J. Schiel: Die Methode der Induktiven Forschung. Braunschweig 1865.

 

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stands. But as soon as doubt, justified or unjustified, occurs, the question takes quite a different form. The confession has first served as proof, but now psychological examination alone will show whether it can continue to serve as proof.

 

The most certain foundation for the truth of confession in any case is the establishment of a clear motive for it—and that is rarely present. Of course the motive is not always absent because we do not immediately recognize it, but it is not enough to suppose that the confession does not occur without a reason. That supposition would be approximately true, but it need not be true.

If a confession is to serve evidentially the motive *must be clear and indubitable. Proof of its mere existence is insufficient; we must understand the confession in terms of all the factors that caused it. The process of discovering these factors is purely logical and generally established indirectly by means of an apagogue. This is essentially the proof by negation, but it may serve in connection with a disjunctive judgment which combines possible alternatives as a means of confirmation. We are, then, to bring together all conceivable motives and study the confession with regard to them.

If all, or most of them, are shown to be impossible or insufficient, we have left only the judgment of one or more conclusions, and with this we have an essentially psychological problem. Such a problem is seldom simple and easy, and as there is no possibility of contradiction, the danger is nowhere so great of making light of the matter.

“What is reasserted is half proved.” That is a comfortable assertion, and leads to considerable incorrectness. A confession is only established in truth when it is construed psychologically, when the whole inner life of the confessor and his external conditions are brought into relation with it, and the remaining motives established as at least possible. And this must be done to avoid the reproach of having condemned some confessor without evidence, for a confession having no motive may be untrue, and therefore not evidential.

 

(b) Partial confessions are difficult, not only because they make it harder to prove the evidence for what is not confessed, but also because what is confessed appears doubtful in the light of what is not. Even in the simplest cases where the reason for confession and silence seems to be clear, mistakes are possible. If, for example, a thief confesses to having stolen only what has been found in his possession but denies the rest, it is fairly probable that he hopes some gain from the evidence in which there appears to be no proof <p 111>

of his having stolen what has not been found upon him. But though this is generally the case, it might occur that the thief wants to assume the guilt of another person, and hence naturally can confess only to what he is accused of, inasmuch as he either has insufficient or no evidence whatever of his guilt for the rest of the crime.

 

Another fairly clear reason for partial confession, is shown in the confession to a certain degree of malicious intent, as the denial of the intent to kill. If this is made by a person who may be supposed to know the legal situation, either because of earlier experience or for other reasons, there is sufficient justification for doubting the honesty of his confession. Most of such cases belong to the numerous class in which the defendant confesses to a series of facts or a number of things, and denies a few of them without any apparent reason; he may confess to a dozen objects used in an assault and simply refuse to discuss two probably quite insignificant ones. If such a case comes up for judgment to the full bench, half the judges say that since he has stolen twelve he must have taken the other two, and the other half say that since he has confessed to twelve he would have confessed to the other two if he had taken them.

Generally speaking, both sides are right; one inference is as justified as the other. As a rule, such cases do not repay a great deal of troublesome examination, inasmuch as the question of A’s having stolen twelve or fourteen objects can little affect either his guilt or his sentence. But it is to be remembered that it is never indifferent whether a man pleads guilty or not guilty, and later on, especially in another case, it may be quite the reverse of indifferent whether a man is condemned because of a matter indifferent to-day. Suppose that the denied theft was of a worthless but characteristic thing, e. g. an old prayerbook. If now the thief is again suspected of a robbery which he denies and the theft is again that of an old prayerbook, then it is not indifferent as a matter of proof whether the man was condemned for stealing a prayerbook or not. If he was so condemned, there will already be remarks about, “a certain passion for old prayerbooks,” and the man will be suspected of the second theft.

 

In regard to the possession of stolen goods, such a sentence may have similar significance. I recall a case in which several people were sentenced for the theft of a so-called fokos (a Hungarian cane with a head like an ax). Later a fokos was used in murder in the same region and the first suspicion of the crime was attached to the thief, who might, because of his early crime, have been in possession <p 112>

of a fokos. Now suppose that the man had confessed to theft of everything but the fokos, and that he had been condemned on the basis of the confession, the fact would be of far-reaching significance in the present case. Of course it is not intended that the old case is to be tried again before the new. That would be a difficult job after the lapse of some time, and in addition, would be of little use, for everybody recalls the old judgment anyway and supposes that the circumstances must have been such as to show the man guilty.

If a man is once sentenced for something he has not confessed to, the stigma remains no matter how the facts may be against it.

 

Experience has shown that the victims of theft count everything stolen that they do not discover at the first glance. And it might have been lost long before the theft, or have been stolen at an earlier or a later time. For this