Section 93. (c) Prepossession.
Prepossession, prejudice, and anticipatory opinion are, perhaps,
the most dangerous foes of the criminalist. It is believed that the
danger from them is not great, since, in most cases, prepossession
controls only one individual, and a criminal case is dealt with by
several, but this proves nothing. When the elegant teacher of horseback
riding has performed his subtlest tricks, he gracefully removes
his hat and bows to the public, and only at that moment does the
public observe that it has been seeing something remarkable and
applauds heartily, not because it has understood the difficulty of
the performance, but because the rider has bowed. This happens
to us however good our will. One man has a case in hand; he develops
it, and if, at the proper time, he says "Voila," the others say, "Oh,
yes," and "Amen." He may have been led by a prepossession,
but its presence is now no longer to be perceived. Thus, though our
assumptions may be most excellently meant, we still must grant that
a conviction on false grounds, even when unconsciously arrived at,
so suffuses a mind that the event in itself can no longer be honestly
observed. To have no prejudices indicates a healthy, vigorous
mind in no sense. That is indicated by the power to set aside prejudices
as soon as their invalidity is demonstrated. Now this demonstration
is difficult, for when a thing is recognized as a prejudice, it
is one no longer. I have elsewhere,[1] under
the heading "anticipatory
opinion," indicated the danger to which the examining justice is
subject thereby, and have sought to show how even a false idea
of location may lead to a prepossession in favor of a certain view;
how vigorous the influence of the first witness is, inasmuch as we
easily permit ourselves to be taken in by the earliest information,
and later on lack time to convince ourselves that the matter may
not be as our earliest advice paints it. Hence, false information
necessarily conceals a danger, and it always is a matter of effort to
see that the crime is a fictitious one, or that something which has
been called accident may conceal a crime. The average man knows
this well, and after a brawl, after contradictory testimony, etc.,
both parties hurry to be beforehand in laying the information.
Whoever lays the information first has the advantage. His story
effects a prepossession in favor of his view, and it requires effort
to accustom oneself to the opposite view. And later it is difficult
to reverse the rôles of witness and defendant.
But we have to deal with prepossession in others besides ourself,
in witnesses, accused, experts, jury, colleagues, subordinates, etc.
The more we know, the newer new things seem. Where, however,
the apperceptive mass is hard and compact, the inner reconstruction
ceases, and therewith the capacity for new experiences, and hence,
we get those judges who can learn nothing and forget nothing.
Indefiniteness in the apperceptive masses results in the even movement
of apperception. Minds with confused ideational complexes
hit little upon the particular characteristic of presented fact, and
find everywhere only what they have in mind.
The one-sidedness of apperception frequently contains an error
in conception. In most cases, the effective influence is egoism, which
inclines men to presuppose their own experiences, views, and principles
in others, and to build according to them a system of prepossessions
and prejudices to apply to the new case. Especially
dangerous are the similar experiences, for these
tend to lead to the
firm conviction that the present case can in no sense be different
from former ones. If anybody has been at work on such earlier,
similar cases, he tends to behave now as then. His behavior at
that time sets the standard for the present, and whatever differs
from it he calls false, even though the similarity between the two
cases is only external and apparent.
It is characteristic of egoism that it causes people to permit
themselves to be bribed by being met half-way. The inclination and
favor of most men is won by nothing so easily and completely as
by real or apparent devotion and interest. If this is done at all
cleverly, few can resist it, and the prepossession in their favor is
complete. How many are free of prejudice against ugly, deformed,
red-haired, stuttering, individuals, and who has no prejudice in
favor of handsome, lovable people? Even the most just must make
an effort so to meet his neighbor as to be without prejudice for or
against him, because of his natural endowment.
Behavior and little pleasantnesses are almost as important. Suppose
that a criminalist has worked hard all morning. It is long
past the time at which he had, for one reason or another, hoped to
get home, and just as he is putting his hat on his head, along comes
a man who wants to lay information concerning some ancient apparent
perjury. The man had let it go for years, here he is with it
again at just this inconvenient moment. He has come a long distance
—he can not be sent away. His case, moreover, seems improbable
and the man expresses himself with difficulty. Finally, when the
protocol is made, it appears that he has not been properly understood,
and moreover, that he has added many irrelevant things—in short,
he strains one's patience to the limit. Now, I should like to know the
criminalist who would not acquire a vigorous prejudice against this
complainant? It would be so natural that nobody would blame one
for such a prejudice. At the same time it is proper to require that
it shall be only transitive, and that later, when the feeling has calmed,
everything shall be handled with scrupulous conscientiousness so
as to repair whatever in the first instance might have been harmed.
It is neither necessary nor possible to discuss all the particular
forms of prepossession. There is the unconditional necessity of
merely making a thoroughly careful search for their presence if
any indication whatever, even the remotest, shows its likelihood.
Of the extremest limit of possible prejudice, names may serve as
examples. It sounds funny to say that a man may be prejudiced
for or against an individual by the sound of his name, but it is true.
Who will deny that he has been inclined to favor people because they
bore a beloved name, and who has not heard remarks like, "The
very name of that fellow makes me sick." I remember clearly two
cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler
were accused of swindling, and my first notion was that such honorable
names could not possibly belong to people guilty of swindling.
The opposite case was one in which a deposition concerning some
attack upon him was signed by Arthur Filgré. I thought at first
that the whole complaint was as windy as the complainant's name.
Again, I know that one man did not get the job of private secretary
he was looking for because his name, as written, was Kilian Krautl.
"How can a man be decent, who has such a foolish name?" said
his would-be employer. Then again, a certain Augustinian monk, who
was a favorite in a large city, owed his popularity partly to his
rhythmical cognomen Pater Peter Pumm.
Our poets know right well the importance for us short-sighted
earth-worms of so indifferent a thing as a name, and the best among
them are very cautious about the selection and composition of names.
Not the smallest part of their effects lies in the successful tone of the
names they use. And it was not unjust to say that Bismark could
not possibly have attained his position if he had been called Maier.