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

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 <p 19>

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 <p 20>

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, Fr<o:>bel[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 f<u:>r Psychiatrie u. Neurologie, 1902, XII, 359.)

 

[2] Fr<o:>bel: Die. Mensehenersiehung. Keilhau 1826.

 

[3] K. Lange: <U:>ber Apperzeption. Plauen 1889.

 

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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.

 

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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 is most obviously necessary—

in the case of the jury, and the impossibility in this case turns the institution of trial by jury into a Utopian dream. The presiding officer of a jury court is in the best instances acquainted with a few of the jurymen, but never so far as to have been entrusted with their “funded thought.” Now and then, when a juryman asks a question, one gets a glimpse of it, and when the public prosecutor and the attorney for the defence make their speeches one catches something from the jury’s expressions; and then it is generally too late. Even if it be discovered earlier nothing can be done with it. Some success is likely in the case of single individuals, but it is simply impossible to define the mental habits of twelve men with whom one has no particular relations.

 

The third part of the Fr<o:>belian rule, “To presuppose as little as possible,” must be rigidly adhered to. I do not say this pessimistically, but simply because we lawyers, through endless practice, arrange the issue so much more easily, conceive its history better and know what to exclude and what, with some degree of certainty, to retain. In consequence we often forget our powers and present the unskilled laity, even when persons of education, too much of the material. Then it must be considered that most witnesses are uneducated, that we can not actually descend to their level, and their unhappiness under a flood of strange material we can grasp only with difficulty. Because we do not know the witness’s point of view we ask too much of him, and therefore fail in our purpose.

And if, in some exceptional case, an educated man is on the stand, we fail again, since, having the habit of dealing with the uneducated, <p 23>

we suppose this man to know our own specialties because he has a little education. Experience does not dispel this illusion. Whether actual training in another direction dulls the natural and free outlook we desire in the witness, or whether, in our profession, education presupposes tendencies too ideal, whatever be the reasons, it is a fact that our hardest work is generally with the most highly educated witnesses. I once had to write a protocol based on the testimony of a famous scholar who was witness in a small affair.

It was a