Section 23. (a) Proof.
Mittermaier[1] holds
that "as a means of testimony in the legal
sense of that term every possible source must be examined which
may suffice the judge according to law. And from such examination
only may the requisite certainties be attained from which
the judge is to assume as determined, facts relevant to his judgment."
Only the phrase "according to law" needs explanation,
inasmuch as the "source" of reasons and certainties must satisfy
the legal demands not only formally but must sustain materially
every possible test, whether circumstantial or logico-psychologic.
If, for example, the fundamental sources should be a combination
of (1) a judicial examination of premises (lokalaugenschein), (2)
testimony of witnesses, and (3) a partial confession, the requirements
of the law would be satisfied if the protocol, (1), were
written or made according to prescribed forms, if a sufficient
number of properly summoned witnesses unanimously confirmed
the point in question, and if finally the confession were made
and protocoled according to law. Yet, though the law be satisfied,
not only may the conclusion be wholly false but every
particular part of the evidence may be perfectly useless, without the
presence anywhere of intentional untruth. The personal examination
may have been made by a judge who half the time, for some
sufficiently cogent reason, had a different conception of the case than
the one which later appeared to be true. It need not have been
necessary that there should be mixed therewith false information of
witnesses, incorrect observation, or such other mistakes. There need
only have been a presupposition, accepted at the beginning of the
examination, when the examination of the premises took place, as to
the visible condition of things; and this might have given apparent
justification to doubtful material and have rendered it intelligible,
only to be shown later as false. The so-called "local examination"
however, is generally supposed to be "objective." It is supposed
to deal only with circumstantial events, and it does not occur to
anybody to modify and alter it when it is certainly known that at
another point the situation has taken an altogether different form.
The objectivity of the local examination is simply non-existent, and
if it were really objective, i. e., contained merely dry description
with so and so many notations of distances and other figures, it
would be of no use. Every local examination, to be of use, must
give an accurate picture of the mental process of him who made it.
On the one hand it must bring vividly to the mind of the reader,
even of the sentencing judge, what the situation was; on the other,
it must demonstrate what the examiner thought and represented
to himself in order that the reader, who may have different opinions,
may have a chance to make corrections. If I, for example, get the
impression that a fire was made through carelessness, and that
somebody lost his life on account of it, and if I made my local
examination with this presupposition in mind, the description will
certainly seem different from that made under the knowledge that
the fire was intentional and made to kill. At trial the description
of local conditions will be read and entered as important testimony.
It satisfies the law if it is taken according to form, has the correct
content, and is read as prescribed. But for our conscience and in
truth this manuscript can be correct only when it is logically and
psychologically presented revised according to the viewpoint its
writer would have had if he had been in possession of all the facts
in possession of the reader. This work of reconstruction belongs to
the most difficult of our psychological tasks—but it must be performed
unless we want to go on superficially and without conscience.
The judgment and interpretation of the testimony of witnesses, (2),
demand similar treatment. I am legally right if I base my judgment
on the testimony of witnesses (provided there are enough of them
and they are properly subpoenaed) if nothing suggestive is offered
against their testimony, if they do not contradict each other, and
especially if there are no contradictions in the testimony of any
single individual. This inner contradiction is rather frequent, and
the inattention with which the protocols, as a rule, are read, and the
scanty degree in which the testimony is tested logically and psychologically,
are shown clearly by the fact that the inner contradictions
are not observed and worked over more frequently. As evidence of
this, let us consider a few cases that are generally told as extravagant
jokes. Suppose that a man dreamed that his head was cut
off and that that dream so affected him that he died of apoplexy—
yet not everybody asks how the dream was discovered. In a like
manner people hear with disgust that somebody who has lost his
arm, in despair cut off his other arm with an axe in order more
easily to get assistance, and yet they do not ask "how." Or again
when somebody is asked if he knows the romance "The Emperor
Joseph and The Beautiful Railway-signal-man's Daughter," the
anachronism of the title does not occur to him, and nobody thinks
of the impossibilities of the vivid description of a man walking
back and forth, with his hands behind his back, reading a newspaper.
Much testimony contains similar, if not so thorough-going
contradictions.
If they are credited in spite of this fact the silly believer
may be blamed, but he is justified in the eyes of the law if
the above-mentioned legal conditions were satisfied. Hence, the
frightfully frequent result: "Whether the witness's deposition is
true, is a matter for his own conscience; eventually he may be
arrested for perjury, but he has made his statements and I judge
accordingly." What is intended with such a statement is this: "I
hide behind the law, I am permitted to judge in such a case in such
a way, and nobody can blame me." But it is correct to assert that
in such cases there is really no evidence, there is only a form of
evidence. It can be actually evidential only when the testimony is
tested logically and psychologically, and the ability and willingness
of the witness to tell the truth is made clear. Of course it is true, as
Mittermaier says, that the utterance of witnesses is tested by its
consistency with other evidence, but that is neither the only test
nor the most valid, for there is always the more important internal
test, in the first place; and in the second place, it is not conclusive
because the comparison may reveal only inconsistency, but can
not establish which of the conflicting statements is correct. Correctness
can be determined only through testing the single statements,
the willingness and ability of each witness, both in themselves
and in relation to all the presented material.
Let us take now the third condition of our suppositious case, i. e.
partial confession. It is generally self-evident that the value of the
latter is to be judged according to its own nature. The confession
must be accepted as a means of proof, not as proof, and this demands
that it shall be consistent with the rest of the evidence, for in that
way only can it become proof. But it is most essential that the confession
shall be internally tested, i. e. examined for logical and psychological
consistency. This procedure is especially necessary
with regard to certain definite confessions.
(a) Confessions given without motive.
(b) Partial confessions.
(c) Confessions implying the guilt of another.
(a) Logic is, according to
Schiel[2] the science of evidence—not
of finding evidence but of rendering evidence evidential. This is
particularly true with regard to confessions, if we substitute psychology
for logic. It is generally true that many propositions hold
so long only as they are not doubted, and such is the case with
many confessions. The crime is confessed; he who confesses to it
is always a criminal, and no man doubts it, and so the confession
stands. But as soon as doubt, justified or unjustified, occurs, the
question takes quite a different form. The confession has first
served as proof, but now psychological examination alone will show
whether it can continue to serve as proof.
The most certain foundation for the truth of confession in any
case is the establishment of a clear motive for it—and that is rarely
present. Of course the motive is not always absent because we
do not immediately recognize it, but it is not enough to suppose
that the confession does not occur without a reason. That supposition
would be approximately true, but it need not be true.
If a confession is to serve evidentially the
motive must be clear
and indubitable. Proof of its mere existence is insufficient; we
must understand the confession in terms of all the factors that
caused it. The process of discovering these factors is purely logical
and generally established indirectly by means of an apagogue. This
is essentially the proof by negation, but it may serve in connection
with a disjunctive judgment which combines possible alternatives
as a means of confirmation. We are, then, to bring together all
conceivable motives and study the confession with regard to them.
If all, or most of them, are shown to be impossible or insufficient,
we have left only the judgment of one or more conclusions, and with
this we have an essentially psychological problem. Such a problem
is seldom simple and easy, and as there is no possibility of contradiction,
the danger is nowhere so great of making light of the matter.
"What is reasserted is half proved." That is a comfortable assertion,
and leads to considerable incorrectness. A confession is only established
in truth when it is construed psychologically, when the whole
inner life of the confessor and his external conditions are brought
into relation with it, and the remaining motives established as at
least possible. And this must be done to avoid the reproach of
having condemned some confessor without evidence, for a confession
having no motive may be untrue, and therefore not evidential.
(b) Partial confessions are difficult, not only because they
make
it harder to prove the evidence for what is not confessed, but also
because what is confessed appears doubtful in the light of what is
not. Even in the simplest cases where the reason for confession and
silence seems to be clear, mistakes are possible. If, for example, a
thief confesses to having stolen only what has been found in his
possession but denies the rest, it is fairly probable that he hopes
some gain from the evidence in which there appears to be no proof
of his having stolen what has not been found upon him. But though
this is generally the case, it might occur that the thief wants to
assume the guilt of another person, and hence naturally can confess
only to what he is accused of, inasmuch as he either has insufficient
or no evidence whatever of his guilt for the rest of the crime.
Another fairly clear reason for partial confession, is shown in the
confession to a certain degree of malicious intent, as the denial of
the intent to kill. If this is made by a person who may be supposed
to know the legal situation, either because of earlier experience or
for other reasons, there is sufficient justification for doubting the
honesty of his confession. Most of such cases belong to the numerous
class in which the defendant confesses to a series of facts or a number
of things, and denies a few of them without any apparent reason;
he may confess to a dozen objects used in an assault and simply
refuse to discuss two probably quite insignificant ones. If such
a case comes up for judgment to the full bench, half the judges
say that since he has stolen twelve he must have taken the other
two, and the other half say that since he has confessed to twelve
he would have confessed to the other two if he had taken them.
Generally speaking, both sides are right; one inference is as justified
as the other. As a rule, such cases do not repay a great deal of
troublesome examination, inasmuch as the question of A's having
stolen twelve or fourteen objects can little affect either his guilt or
his sentence. But it is to be remembered that it is never indifferent
whether a man pleads guilty or not guilty, and later on, especially
in another case, it may be quite the reverse of indifferent whether
a man is condemned because of a matter indifferent to-day. Suppose
that the denied theft was of a worthless but characteristic thing,
e. g. an old prayer-book. If now the thief is again suspected of a
robbery which he denies and the theft is again that of an old prayerbook,
then it is not indifferent as a matter of proof whether the man
was condemned for stealing a prayer-book or not. If he was so
condemned, there will already be remarks about, "a certain passion
for old prayer-books," and the man will be suspected of the second
theft.
In regard to the possession of stolen goods, such a sentence may
have similar significance. I recall a case in which several people
were sentenced for the theft of a so-called fokos (a Hungarian cane
with a head like an ax). Later a fokos was used in murder in the
same region and the first suspicion of the crime was attached to the
thief, who might, because of his early crime, have been in possession
of a fokos. Now suppose that the man had confessed to theft of
everything but the fokos, and that he had been condemned on the
basis of the confession, the fact would be of far-reaching significance
in the present case. Of course it is not intended that the old case
is to be tried again before the new. That would be a difficult job
after the lapse of some time, and in addition, would be of little use,
for everybody recalls the old judgment anyway and supposes that
the circumstances must have been such as to show the man guilty.
If a man is once sentenced for something he has not confessed to,
the stigma remains no matter how the facts may be against it.
Experience has shown that the victims of theft count everything
stolen that they do not discover at the first glance. And it might
have been lost long before the theft, or have been stolen at an earlier
or a later time. For this reason it often happens that servants, and
even the children of the house or other frequenters, take the robbery
as an opportunity for explaining the disappearance of things they
are responsible for or steal afresh and blame it upon "the thief."
The quantity stolen is generally exaggerated, moreover, in order
to excite universal sympathy and perhaps to invoke help. In general,
we must hold that there is no psychological reason that a confessor
should deny anything the confession of which can bring him no
additional harm. The last point must be carefully treated, for it
requires taking the attitude of the accused and not of the examiner.
It is the former's information and view-point that must be studied,
and it often contains the most perverted view-points; e. g., one
man denies out of mere obstinacy because he believes that his guilt
is increased by this or that fact. The proposition: who has stolen
one thing, has also stolen the rest, has slight justification.
(c) If a denying fellow-criminal is accused by a confession, the
interpretation of the latter becomes difficult. First of all, the pure
kernel of the confession must be brought to light, and everything
set aside that might serve to free the confessor and involve the other
in guilt. This portion of the work is comparatively the easiest,
inasmuch as it depends upon the circumstances of the crime. It
is more difficult to determine what degree of crime the confessor
attached to himself by accusing also the other man, because clearness
can be reached in such a case only by working out the situation
from beginning to end in two directions; first, by studying it without
reference to the fellow-criminal, second, with such reference. The
complete elimination of the additional circumstance is exceedingly
troublesome because it requires the complete control of the material
and because it is always psychologically difficult so to exclude an
event already known in its development and inference as to be able
to formulate a theory quite without reference to it.
If this is really accomplished and some positive fact is established
in the self-accusation, the question becomes one of finding the value
seen by the confessor in blaming himself together with his fellow.
Revenge, hatred, jealousy, envy, anger, suspicion, and other passions
will be the forces in which this value will be found. One man brings
his ancient comrade into jeopardy in revenge for the latter's injustice
in the division of the booty, or in deliberate anger at the commission
of some dangerous stupidity in a burglary. Again, it often happens
that he or she, through jealousy, accuses her or him in order that the
other may be also imprisoned, and so not become disloyal. Business
jealousy, again, is as influential as the attempt to prevent another
from disposing of some hidden booty, or from carrying out by himself
some robbery planned in partnership. These motives are not
always easy to discover but are conceivable. There are also cases,
not at all rare, in which the ordinary man is fully lacking in comprehension
of "the substitute value," which makes him confess the
complicity of his fellow. I am going to offer just one example, and
inasmuch as the persons concerned are long since dead, will, by way
of exception, mention their names and the improbability of their
stories. In 1879 an old man, Blasius Kern, was found one morning
completely snowed over and with a serious wound in the head.
There was no possible suspicion of robbery as motive of the murder,
inasmuch as the man was on his way home drunk, as usual, and it
was supposed that he had fallen down and had smashed his skull.
In 1881 a young fellow, Peter Seyfried, came to court and announced
that he had been hired by Blasius Kern's daughter, Julia Hauck,
and her husband August Hauck, to kill the old fellow, who had
become unendurable through his love of drink and his endless
quarrelsomeness; and accordingly he had done the deed. He had been
promised an old pair of trousers and three gulden, but they had
given him the trousers, not the money, and as all his attempts to
collect payment had failed he divulged the secret of the Hauck
people. When I asked him if he were unaware that he himself was
subject to the law he said, "I don't care; the others at least will
also be punished;—why haven't they kept their word." And this
lad was very stupid and microcephalic, but according to medico-legal
opinion, capable of distinguishing between right and wrong.
His statements proved themselves true to the very last point.
So significantly weak as this in fundamental reliability, very
few confessions will appear to be, but the reasons for confessions,
difficult both to find and to judge, are many indeed. The only
way to attain certainty is through complete and thorough-going
knowledge of all the external conditions, but primarily through
sound psychological insight into the nature of both the confessor
and those he accuses. Evidently the first is by far the more important:
what he is beneath the surface, his capacities, passions, intentions,
and purposes, must all be settled if any decision is to be arrived at
as to the advantage accruing to a man by the accusation of others.
For example, the passionate character of some persons may indicate
beyond a doubt that they might find pleasure in suffering provided
they could cause suffering to others at that price. Passion is almost
always what impels men, and what passion in particular lies behind
a confession will be revealed partly by the crime, partly by the
relation of the criminals one to the other, partly by the personality
of the new victim. If this passion was strong enough to deal, if
I may use the term, anti-egoistically, it can be discovered only
through the study of its possessor. It may be presupposed that
everybody acts according to his own advantage—the question
asks merely what this advantage is in the concrete, and whether he
who seeks it, seeks it prudently. Even the satisfaction of revenge
may be felt as an advantage if it is more pleasurable than the pain
which follows confession—the matter is one of relative weight and
is prudently sought as the substitution of an immediate and petty
advantage for a later and greater one.
Another series of procedures is of importance in determining proof,
where circumstances are denied which have no essential relation to
the crime. They bring the presentation of proof into a bypath so
that the essential problem of evidence is left behind. Then if the
denied circumstance is established as a fact it is falsely supposed
that the guilt is so established. And in this direction many mistakes
are frequently made. There are two suggestive examples.
Some years ago there lived in Vienna a very pretty bachelor girl,
a sales-person in a very respectable shop. One day she was found
dead in her room. Inasmuch as the judicial investigation showed
acute arsenic poisoning, and as a tumbler half full of sweetened
water and a considerable quantity of finely powdered arsenic was
found on her table, these two conditions were naturally correlated.
From the neighbors it was learned that the dead girl had for some
time been intimate with an unknown gentleman who visited her
frequently, but whose presence was kept as secret as possible by
both. This gentleman, it was said, had called on the girl on the
evening before her death. The police inferred that the man was a
very rich merchant, residing in a rather distant region, who lived
peaceably with his much older wife and therefore kept his illicit
relations with the girl secret. It was further established at the autopsy
that the girl was pregnant, and so the theory was formed that the
merchant had poisoned his mistress and in the examination this
deed was set down against him. Now, if the man had immediately
confessed that he knew the dead girl, and stood in intimate relation
with her and that he had called on her the last evening; if he had
asserted perhaps that she was in despair about her condition, had
quarreled with him and had spoken of suicide, etc., then suicide
would unconditionally have had to be the verdict. In any event,
he never could have been accused, inasmuch as there was no additional
evidence of poisoning. But the man conceived the unfortunate
notion of denying that he knew the dead girl or had any
relations with her, or that he had ever, even on that last evening,
called on her. He did this clearly because he did not want to
confess a culpable relation to public opinion, especially to his
wife. And the whole question turned upon this denied circumstance.
The problem of evidence was no longer, "Has he killed
her," but "Did he carry on an intimacy with her." Then it was
proved beyond reasonable doubt through a long series of witnesses
that his visits to the girl were frequent, that he had been there on
the evening before her death, and that there could be no possible
doubt as to his identity. That settled his fate and he was sentenced
to death. If we consider the case psychologically we have
to grant that his denial of having been present might have for motive
as much the fact that he had poisoned the girl, as that he did not
want to admit the relation at the beginning. Later on, when he
completely understood the seriousness of his situation, he thought
a change of front too daring and hoped to get on better by sticking
to his story. Now, as we have seen, what was proved was the fact
that he knew and visited the girl; what he was sentenced for was
the murder of the girl.
A similar case, particularly instructive in its development, and
especially interesting because of the significant study (of the
suggestibility of witnesses) of Dr. Von Schrenck-Notzing and Prof.
Grashey, kept the whole of Munich in excitement some years ago.
A widow, her grown-up daughter, and an old servant were stifled
and robbed in their home. The suspicion of the crime fell
upon a brick-layer who had once before made a confession
concerning another murder and of whom it was known that some
time before the deed was done he had been building a closet into
the house of the three murdered women. Through various combinations
of the facts the supposition was reached that the
mason got entry into the house on the pretense of examining
whether or not the work he had done on the closet had caused
any damage, and had then committed the thieving murder.
Now here again, if the mason had said: "Yes, I was without
a job, wanted to get work, entered the house under the assigned
pretense, and appeared to see about the closet and had myself paid
for the apparently repaired improvement, left the three women
unharmed, and they must only after that have been killed,"—if
he had said this, his condemnation would have been impossible,
for all the other testimony was of subordinate importance. Now
suppose the man was innocent, what could he have thought: "I
have already been examined once in a murder case, I found myself
in financial difficulties, I still am in such difficulties—if I admit
that I was at the place of the crime at the time the crime was committed,
I will get into serious trouble, which I won't, if I deny my
presence." So he really denied having been in the house or in
the street for some time, and inasmuch as this was shown by many
witnesses to be untrue, his presence at the place where the crime
was committed was identified with the unproved fact that he had
committed it, and he was condemned.
I do not assert that either one or the other of these persons was
condemned guiltlessly, or that such "side issues" have no value
and ought not to be proved. I merely point out that caution is
necessary in two directions. First of all, these side issues must not
be identified with the central issue. Their demonstration is only
preparatory work, the value of which must be established cautiously
and without prejudice. It may be said that the feeling of satisfaction
with what has been done causes jurists frequently to forget
what must yet be done, or to undervalue it. Further, a psychological
examination must seek out the motives which led or might have
led the accused to deny some point not particularly dangerous to
him. In most cases an intelligible ground for such action can be
discovered, and if the psychologically prior conditions are conceived
with sufficient narrowness to keep us from assuming unconditional
guilt, we are at least called upon to be careful.
This curious danger of identification of different issues as the
aim of presentation of evidence, occurs much more frequently and
with comparatively greater degree in the cases of individual witnesses
who are convinced of the principal issue when a side issue is
proved. Suppose a witness is called on to identify a man as somebody
who had stabbed him in a serious assault, and that he has also
to explain whether the quarrel he had had with this man a short
time ago was of importance. If the suspect is desirous of having
the quarrel appear as harmless, and the wounded person asserts
that the quarrel was serious, the latter will be convinced, the moment
his contention may be viewed as true, that his opponent was really
the person who had stabbed him. There is, of course, a certain
logical justification for this supposition, but the psychological difficulty
with it is the fact that this case, like many others, involves
the identification of what is inferred with what is perceived. It is
for this reason that the mere fact of arrest is to most people a conviction
of guilt. The witness who had first identified A as only the
probable criminal becomes absolutely convinced of it when A is
presented to him in stripes, even though he knows that A has been
arrested on his own testimony alone. The appearance and the
surroundings of the prisoner influence many, and not merely uneducated
people, against the prisoner, and they think, involuntarily,
"If he were not the one, they would not have him here."
[[ id="n23.1"]]
C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen Strafprozess.
Darmstadt 1834.
[[ id="n23.2"]]
J. Schiel: Die Methode der Induktiven Forschung. Braunschweig 1865.