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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.