Section 4. (b) Integrity of Witnesses.
One of the criminal judge's grossest derelictions from duty consists
in his simply throwing the witness the question and in permitting
him to say what he chooses. If he contents himself in that,
he leaves to the witness's conscience the telling of the truth, and
the whole truth; the witness is, in such a case, certainly responsible
for one part of the untruthful and suppressed, but the responsibility
for the other, and larger part, lies with the judge who has failed to
do his best to bring out the uttermost value of the evidence,
indifferently for or against the prisoner. The work of education is
intended for this purpose,—not, as might be supposed, for training
the populace as a whole into good witnesses, but to make that
individual into a good, trustworthy witness who is called upon to
testify for the first, and, perhaps, for the last time in his life. This
training must in each case take two directions—it must make him
want to tell the truth; it
must make him able to tell the truth. The
first requirement deals not only with the lie alone, it deals with
the development of complete conscientiousness. How to face the
lie itself can not be determined by means of training, but conscientious
answers under examination can certainly be so acquired.
We are not here considering people to whom truth is an utter stranger,
who are fundamentally liars and whose very existence is a libel
on mankind. We consider here only those people who have been
unaccustomed to speaking the full and unadulterated truth, who
have contented themselves throughout their lives with "approximately,"
and have never had the opportunity of learning the value
of veracity. It may be said that a disturbingly large number of
people are given to wandering, in conversation, and in the reproduction
of the past. They do not go straight, quickly, and openly
to the point, they loiter toward it—"If I do not reach it in a bee
line, I can get along on by-paths, if not to-day, then to-morrow;
and if I really do not get to it at all, I do get somewhere else." Such
people have not homes but inns—if they are not in one place,
another will do.
These persons are characterized by the event that whenever
one has seen their loitering and puts the matter to them with just
anger, they either get frightened or say carelessly, "Oh, I thought
this was not so accurate." This famine of conscience, this indifference
to truth, does far-reaching damage in our profession. I assert
that it does immensely greater harm than obvious falsehood, because,
indeed, the unvarnished lie is much more easily discoverable than
the probable truth which is still untruth. Moreover, lies come
generally from people with regard to whom one is, for one reason or
another, already cautious, while these insinuating approximations
are made by people who are not mistrusted at
all.[1]
The lack of conscientiousness is common to all ages, both sexes,
and to all sorts and conditions of men. But it is most characteristically
frequent and sharply defined among people who have no
real business in life. Whoever romances in the daily life, romances
when he ought to be absolutely truthful. The most dangerous of
this class are those who make a living by means of show and exhibition.
They are not conscienceless because they do nothing
worth while; they do nothing worth while because they are conscienceless.
To this class belong peddlers, street merchants, innkeepers,
certain shop-keepers, hack-drivers, artists, etc., and especially
prostitutes (cf. Lombroso, etc., etc.). All these people follow
a calling perhaps much troubled, but they do no actual work and
have chosen their profession to avoid regular, actual work. They
have much unoccupied time, and when they are working, part of
the work consists of gossip, part of loafing about, or of a use of the
hands that is little more. In brief,—since they loiter about and
make a profit out of it, it is no wonder that in giving evidence they
also loaf and bring to light only approximate truth. Nor is it difficult
to indicate analogous persons in the higher walks of life.
The most hateful and most dangerous of these people are the
congenital tramps—people who did not have to work and faithfully
pursued the opportunity of doing nothing. Whoever does not
recognize that the world has no place for idlers and that life on God's
earth must be earned by labor, is without conscience. No conscientious
testimony need be expected from such. Among the few
rules without exception which in the course of long experience
the criminalist may make, this is one—that
the real tramps of both
sexes and all walks of life will never testify conscientiously;—hic
niger est, hunc Tu, Romane, caveto.
[[1]]
Cf. Löwenstimm, in H. Gross's Archiv, VII, 191.