University of Virginia Library

Section 8. (f) Secrets.

The determination of the truth at law would succeed much less frequently than it does if it were not for the fact that men find it very difficult to keep secrets. This essentially notable and not clearly understood circumstance is popularly familiar. Proverbs of all people deal with it and point mainly to the fact that keeping secrets is especially difficult for women. The Italians say a woman who may not speak is in danger of bursting; the Germans, that the burden of secrecy affects her health and ages her prematurely; the English say similar things still more coarsely. Classical proverbs have dealt with the issue; numberless fairy tales, narratives, novels and poems have portrayed the difficulty of silence, and one very fine modern novel (Die Last des Schweigens, by Ferdinand Kürnberger) has chosen this fact for its principal motive. The universal difficulty of keeping silence is expressed by Lotze[1] in the dictum that we learn expression very young and silence very late. The fact is of use to the criminalist not only in regard to criminals, but also with regard to witnesses, who, for one reason or another, want to keep something back. The latter is the source of a good deal of danger, inasmuch as the witness is compelled to speak and circles around the secret in question without touching it, until he points it out and half reveals it. If he stops there, the matter requires consideration, for "a half truth is worse than a whole lie." The latter reveals its subject and intent and permits of defence, while the half truth may, by association and circumscriptive limitations, cause vexatious errors both as regards the identity of the semi-accused

and as regards the circumstances with which he is thus involved. For this reason the criminalist must consider the question of secrets carefully.

As for his own silence, this must be considered in both directions That he is not to blab official secrets is so obvious that it need not be spoken of. Such blabbing is so negligent and dishonorable that we must consider it intrinsically impossible. But it not infrequently happens that some indications are dropped or persuaded out of a criminal Judge, generally out of one of the younger and more eager men. They mention only the event itself, and not a name, nor a place, nor a particular time, nor some even more intimate matter— there seems no harm done. And yet the most important points have often been blabbed of in just such a way. And what is worst of all, just because the speaker has not known the name nor anything else concrete, the issue may be diverted and enmesh some guiltless person. It is worth considering that the effort above mentioned is made only in the most interesting cases, that crimes especially move people to disgusting interest, due to the fact that there is a more varied approach to synthesis of a case when the same story is repeated several times or by various witnesses. For by such means extrapolations and combinations of the material are made possible. By way of warning, let me remind you of an ancient and much quoted anecdote, first brought to light by Boccaccio: A young and much loved abbé was teased by a bevy of ladies to narrate what had happened in the first confession he had experienced. After long hesitation the young fellow decided that it was no sin to relate the confessed sin if he suppressed the name of the confessor, and so he told the ladies that his first confession was of infidelity. A few minutes later a couple of tardy guests appeared,—a marquis and his charming wife. Both reproached the young priest for his infrequent visits at their home. The marquise exclaimed so that everybody heard, "It is not nice of you to neglect me, your first confessée." This squib is very significant for our profession, for it is well known how, in the same way, "bare facts," as "completely safe," are carried further. The listener does not have to combine them, the facts combine themselves by means of others otherwise acquired, and finally the most important official matters, on the concealment of which much may perhaps have depended, become universally known. Official secrets have a general significance, and must therefore be guarded at all points and not merely in detail.

The second direction in which the criminal justice must maintain

silence looks toward witnesses and accused. If, in the first instance, the cause of too much communicativeness was an over-proneness to talk; its cause in this case is a certain conceit that teases one into talking. Whether the justice wants to show the accused how much he already knows or how correctly he has drawn his conclusions; whether he wishes to impress the witness by his confidences, he may do equally as much harm in one case as in the other. Any success is made especially impossible if the judge has been in too much of a hurry and tried to show himself fully informed at the very beginning, but has brought out instead some error. The accused naturally leaves him with his false suppositions, they suggest things to the witness—and what follows may be easily considered. Correct procedure in such circumstances is difficult. Never to reveal what is already known, is to deprive oneself of one of the most important means of examination; use of it therefore ought not to be belated. But it is much worse to be premature or garrulous. In my own experience, I have never been sorry for keeping silence, especially if I had already said something. The only rule in the matter is comparatively self-evident. Never move toward any incorrectness and never present the appearance of knowing more than you actually do. Setting aside the dishonesty of such a procedure, the danger of a painful exposure in such matters is great.

There is still another great danger which one may beware of, optima fide,—the danger of knowing something untrue. This danger also is greatest for the greatest talent and the greatest courage among us, because they are the readiest hands at synthesis, inference, and definition of possibilities, and see as indubitable and shut to contradiction things that at best are mere possibilities. It is indifferent to the outcome whether a lie has been told purposely or whether it has been the mere honest explosion of an over-sanguine temperament. It is therefore unnecessary to point out the occasion for caution. One need only suggest that something may be learned from people who talk too much. The over-communicativeness of a neighbor is quickly noticeable, and if the why and how much of it are carefully studied out, it is not difficult to draw a significant analogy for one's own case. In the matter of secrets of other people, obviously the thing to be established first is what is actually a secret; what is to be suppressed, if one is to avoid damage to self or another. When an actual secret is recognized it is necessary to consider whether the damage is greater through keeping or through revealing the secret. If it is still possible, it is well to let the secret

be—there is always damage, and generally, not insignificant damage, when it is tortured out of a witness. If, however, one is honestly convinced that the secret must be revealed—as when a guiltless person is endangered—every effort and all skill is to be applied in the revelation. Inasmuch as the least echo of bad faith is here impossible, the job is never easy.

The chief rule is not to be overeager in getting at the desired secret. The more important it is, the less ought to be made of it. It is best not directly to lead for it. It will appear of itself, especially if it is important. Many a fact which the possessor had set no great store by, has been turned into a carefully guarded secret by means of the eagerness with which it was sought. In cases of need, when every other means has failed, it may not be too much to tell the witness, cautiously of course, rather more of the crime than might otherwise have seemed good. Then those episodes must be carefully hit on, which cluster about the desired secret and from which its importance arises. If the witness understands that he presents something really important by giving up his secret, surprising consequences ensue.

The relatively most important secret is that of one's own guilt, and the associated most suggestive establishment of it, the confession, is a very extraordinary psychological problem.[2] In many cases the reasons for confession are very obvious. The criminal sees that the evidence is so complete that he is soon to be convicted and seeks a mitigation of the sentence by confession, or he hopes through a more honest narration of the crime to throw a great degree of the guilt on another. In addition there is a thread of vanity in confession—as among young peasants who confess to a greater share in a burglary than they actually had (easily discoverable by the magniloquent manner of describing their actual crime). Then there are confessions made for the sake of care and winter lodgings: the confession arising from "firm conviction" (as among political criminals and others). There are even confessions arising from nobility, from the wish to save an intimate, and confessions intended to deceive, and such as occur especially in conspiracy and are made to gain time (either for the flight of the real criminal or for the destruction of compromising objects). Generally, in the latter case, guilt is admitted only until the plan for which it was made has succeeded; then the judge is surprised with well-founded,

regular and successful establishment of an alibi. Not infrequently confession of small crimes is made to establish an alibi for a greater one. And finally there are the confessions Catholics[3] are required to make in confessional, and the death bed confessions. The first are distinguished by the fact that they are made freely and that the confessee does not try to mitigate his crime, but is aiming to make amends, even when he finds it hard; and desires even a definite penance. Death bed confessions may indeed have religious grounds, or the desire to prevent the punishment or the further punishment of an innocent person.

Although this list of explicable confession-types is long, it is in no way exhaustive. It is only a small portion of all the confessions that we receive; of these the greater part remain more or less unexplained. Mittermaier[4] has already dealt with these acutely and cites examples as well as the relatively well-studied older literature of the subject. A number of cases may perhaps be explained through pressure of conscience, especially where there are involved hysterical or nervous persons who are plagued with vengeful images in which the ghost of their victim would appear, or in whose ear the unendurable clang of the stolen money never ceases, etc. If the confessor only intends to free himself from these disturbing images and the consequent punishment by means of confession, we are not dealing with what is properly called conscience, but more or less with disease, with an abnormally excited imagination.[5] But where such hallucinations are lacking, and religious influences are absent, and the confession is made freely in response to mere pressure, we have a case of conscience,[6]—another of those terms which need explanation. I know of no analogy in the inner nature of man, in which anybody with open eyes does himself exclusive harm without any contingent use being apparent, as is the case in this class of confession. There is always considerable difficulty in explaining these cases. One way of explaining them is to say that their source is mere stupidity

and impulsiveness, or simply to deny their occurrence. But the theory of stupidity does not appeal to the practitioner, for even if we agree that a man foolishly makes a confession and later, when he perceives his mistake, bitterly regrets telling it, we still find many confessions that are not regretted and the makers of which can in no wise be accused of defective intelligence. To deny that there are such is comfortable but wrong, because we each know collections of cases in which no effort could bring to light a motive for the confession. The confession was made because the confessor wanted to make it, and that's the whole story.

The making of a confession, according to laymen, ends the matter, but really, the judge's work begins with it. As a matter of caution all statutes approve confessions as evidence only when they agree completely with the other evidence. Confession is a means of proof, and not proof. Some objective, evidentially concurrent support and confirmation of the confession is required. But the same legal requirement necessitates that the value of the concurrent evidence shall depend on its having been arrived at and established independently. The existence of a confession contains powerful suggestive influences for judge, witness, expert, for all concerned in the case. If a confession is made, all that is perceived in the case may be seen in the light of it, and experience teaches well enough how that alters the situation. There is so strong an inclination to pigeonhole and adapt everything perceived in some given explanation, that the explanation is strained after, and facts are squeezed and trimmed until they fit easily. It is a remarkable phenomenon, confirmable by all observers, that all our perceptions are at first soft and plastic and easily take form according to the shape of their predecessors. They become stiff and inflexible only when we have had them for some time, and have permitted them to reach an equilibrium. If, then, observations are made in accord with certain notions, the plastic material is easily molded, excrescences and unevenness are squeezed away, lacunæ are filled up, and if it is at all possible, the adaptation is completed easily. Then, if a new and quite different notion arises in us, the alteration of the observed material occurs as easily again, and only long afterwards, when the observation has hardened, do fresh alterations fail. This is a matter of daily experience, in our professional as well as in our ordinary affairs. We hear of a certain crime and consider the earliest data. For one reason or another we begin to suspect A as the criminal The result of an examination of the premises is applied in each detail

to this proposition. It fits. So does the autopsy, so do the depositions of the witnesses. Everything fits. There have indeed been difficulties, but they have been set aside, they are attributed to inaccurate observation and the like,—the point is,—that the evidence is against A. Now, suppose that soon after B confesses the crime; this event is so significant that it sets aside at once all the earlier reasons for suspecting A, and the theory of the crime involves B. Naturally the whole material must now be applied to B, and in spite of the fact that it at first fitted A, it does now fit B. Here again difficulties arise, but they are to be set aside just as before.

Now if this is possible with evidence, written and thereby unalterable, how much more easily can it be done with testimony about to be taken, which may readily be colored by the already presented confession. The educational conditions involve now the judge and his assistants on the one hand, and the witnesses on the other.

Concerning himself, the judge must continually remember that his business is not to fit all testimony to the already furnished confession, allowing the evidence to serve as mere decoration to the latter, but that it is his business to establish his proof by means of the confession, and by means of the other evidence, independently. The legislators of contemporary civilization have started with the proper presupposition—that also false confessions are made,— and who of us has not heard such? Confessions, for whatever reason,—because the confessor wants to die, because he is diseased,[7] because he wants to free the real criminal,—can be discovered as false only by showing their contradiction with the other evidence. If, however, the judge only fits the evidence, he abandons this means of getting the truth. Nor must false confessions be supposed to occur only in case of homicide. They occur most numerously in cases of importance, where more than one person is involved. It happens, perhaps, that only one or two are captured, and they assume all the guilt, e. g., in cases of larceny, brawls, rioting, etc. I repeat: the suggestive power of a confession is great and it is hence really not easy to exclude its influence and to consider the balance of the evidence on its merits,—but this must be done if one is not to deceive oneself.

Dealing with the witness is still more ticklish, inasmuch as to the difficulties with them, is added the difficulties with oneself. The simplest thing would be to deny the existence of a confession, and

thus to get the witness to speak without prejudice. But aside from the fact of its impossibility as a lie, each examination of a witness would have to be a comedy and that would in many cases be impossible as the witness might already know that the accused had confessed. The only thing to be done, especially when it is permissible for other reasons, is to tell the witness that a confession exists and to call to his attention that it is notyet evidence, and finally and above all to keep one's head and to prevent the witness from presenting his evidence from the point of view of the already-established. In this regard it can not be sufficiently demonstrated that the coloring of a true bill comes much less from the witness than from the judge. The most excited witness can be brought by the judge to a sober and useful point of view, and conversely, the most calm witness may utter the most misleading testimony if the judge abandons in any way the safe bottom of the indubitably established fact.

Very intelligent witnesses (they are not confined to the educated classes) may be dealt with constructively and be told after their depositions that the case is to be considered as if there were no confession whatever. There is an astonishing number of people— especially among the peasants—who are amenable to such considerations and willingly follow if they are led on with confidence. In such a case it is necessary to analyze the testimony into its elements. This analysis is most difficult and important since it must be determined what, taken in itself, is an element, materially, not formally, and what merely appears to be a unit. Suppose that during a great brawl a man was stabbed and that A confesses to the stabbing. Now a witness testified that A had first uttered a threat, then had jumped into the brawl, felt in his bag, and left the crowd, and that in the interval between A's entering and leaving, the stabbing occurred. In this simple case the various incidents must be evaluated, and each must be considered by itself. So we consider—Suppose A had not confessed, what would the threat have counted for? Might it not have been meant for the assailants of the injured man? May his feeling in the bag not be interpreted in another fashion? Must he have felt for a knife only? Was there time enough to open it and to stab? Might the man not have been already wounded by that time? We might then conclude that all the evidence about A contained nothing against him—but if we relate it to the confession, then this evidence is almost equal to direct evidence of A's crime.

But if individual sense-perceptions are mingled with conclusions, and if other equivalent perceptions have to be considered, which occurred perhaps to other people, then the analysis is hardly so simple, yet it must be made.

In dealing with less intelligent people, with whom this construction cannot be performed, one must be satisfied with general rules. By demanding complete accuracy and insisting, in any event, on the ratio sciendi, one may generally succeed in turning a perception, uncertain with regard to any individual, into a trustworthy one with regard to the confessor. It happens comparatively seldom that untrue confessions are discovered, but once this does occur, and the trouble is taken to subject the given evidence to a critical comparison, the manner of adaptation of the evidence to the confession may easily be discovered. The witnesses were altogether unwilling to tell any falsehood and the judge was equally eager to establish the truth, nevertheless the issue must have received considerable perversion in order to fix the guilt on the confessor. Such examinations are so instructive that the opportunity to make them should never be missed. All the testimony presents a typical picture. The evidence is consistent with the theory that the real confessor was guilty, but it is also consistent with the theory that the real criminal was guilty, but some details must be altered, often very many. If there is an opportunity to hear the same witnesses again, the procedure becomes still more instructive. The witnesses (supposing they want honestly to tell the truth) naturally confirm the evidence as it points to the second, more real criminal, and if an explanation is asked for the statements that pointed to the "confessor," the answers make it indubitably evident, that their incorrectness came as without intention; the circumstance that a confession had been made acted as a suggestion.[8]

Conditions similar to confessional circumstances arise when other types of persuasive evidence are gathered, which have the same impressive influence as confessions. In such cases the judge's task is easier than the witness's, since he need not tell them of evidence already at hand. How very much people allow themselves to be influenced by antecedent grounds of suspicion is a matter of daily observation. One example will suffice. An intelligent man was attacked at night and wounded. On the basis of his description

an individual was arrested. On the next day the suspect was brought before the man for identification. He identified the man with certainty, but inasmuch as his description did not quite hit off the suspect he was asked the reason for his certainty. "Oh, you certainly would not have brought him here if he were not the right man," was the astonishing reply. Simply because the suspect was arrested on the story of the wounded man and brought before him in prison garb, the latter thought he saw such corroboration for his data as to make the identification certain—a pure υστερον πρωτερον which did not at all occur to him in connection with the vivid impression of what he saw. I believe that to keep going with merely what the criminalist knows about the matter, belongs to his most difficult tasks.