Section 44.
What lawyers have to consider in the transition from purely
sensory impressions to intellectual conceptions of these impressions,
is the possibility of later reproducing any observed object or event.
Many so-called scientific distinctions have, under the impulse of
scientific psychology, lost their status. Modern psychology does
not see sharply-drawn boundaries between perception and memory,
and suggests that the proper solution of the problem of perception
is the solution of the problem of
knowledge.[1]
With regard to the relation of consciousness to perception we
will make the distinctions made by
Fischer.[2] There are two spheres
or regions of consciousness: the region of sensation, and of external
perception. The former involves the inner structure of the organism,
the latter passes from the organism into the objective world.
Consciousness has a sphere of action in which it deals with the external
world by means of the motor nerves and muscles, and a sphere
of perception which is the business of the senses.
External perception involves three principal functions: apprehension,
differentiation, and combination. Perception in the narrower
sense of the term is the simple sensory conscious apprehension
of some present object stimulating our eyes. We discover by means
of it what the object is, its relation to ourselves and other things,
its distance from us, its name, etc.
What succeeds this apprehension is the most important thing for
us lawyers, i. e. recognition. Recognition
indicates only that an
object has sufficiently impressed a mind to keep it known and identifiable.
It is indifferent what the nature of the recognized object
is. According to Hume the object may be an enduring thing
("non-interrupted
and non-dependent on mind"), or it may be identical
with perception itself. In the latter case the perception is considered
as a logical judgment like the judgment: "It is raining," or the
feeling that "it is raining," and there recognition is only the
recognition of a perception. Now judgments of this sort are what we
get from witnesses, and what we have to examine and evaluate.
This must be done from two points of view. First, from the point
of view of the observer and collector of instances who is seeking to
discover the principle which governs them. If this is not done the
deductions that we make are at least unreliable, and in most cases,
false. As Mach says, "If once observation has determined all the
facts of any natural science, a new period begins for that science,
the period of deduction." But how often do we lawyers distinguish
these two periods in our own work.
[3]
The second point of importance is the presence of mistakes in the
observations. The essential mistakes are classified by Schiel under
two headings. Mistakes in observation are positive or negative,
wrong observation or oversight. The latter occurs largely through
preconceived opinions. The opponents of Copernicus concluded that
the earth did not move because otherwise a stone dropped from the
top of a tower would reach the ground a little to the west. If the
adherents of Copernicus had made the experiment they would have
discovered that the stone does fall as the theory requires. Similar
oversights occur in the lawyer's work hundreds of times. We are
impressed with exceptions that are made by others or by ourselves,
and give up some already tried approach without actually testing
the truth of the exception which challenges it. I have frequently,
while at work, thought of the story of some one of the Georges,
who did not like scholars and set the following problem to a number
of philosophers and physicists: "When I put a ten pound stone
into a hundred pound barrel of water the whole weighs a hundred
and ten pounds, but when I put a live fish of ten pounds into the
barrel the whole still weighs only a hundred pounds?" Each one
of the scholars had his own convincing explanation, until finally
the king asked one of the foot-men, who said that he would like to
see the experiment tried before he made up his mind. I remember a
case in which a peasant was accused of having committed arson for
the sake of the insurance. He asserted that he had gone into a room
with a candle and that a long spider's web which was hanging down
had caught fire from it accidentally and had inflamed the straw which
hung from the roof. So the catastrophe had occurred. Only in the
second examination did it occur to anybody to ask whether spider's
web can burn at all, and the first experiment showed that that was
impossible.
Most experiences of this kind indicate that in recognizing events
we must proceed slowly, without leaping, and that we may construct
our notions only on the basis of knowledge we already possess. Saint
Thomas says, "Omnes cognitio fit secundum similitudinem cogniti
in cognoscente." If this bit of wisdom were kept in mind in the
examination of witnesses it would be an easier and simpler task than
usual. Only when the unknown is connected with the known is it
possible to understand the former. If it is not done the witness
will hardly be able to answer. He nowhere finds support, or he
seeks one of his own, and naturally finds the wrong one. So the
information that an ordinary traveler brings home is mainly identical
with what he carries away, for he has ears and eyes only for what he
expects to see. For how long a time did the negro believe that disease
pales the coral that he wears? Yet if he had only watched it he
would have seen how foolish the notion was. How long, since Adam
Smith, did people believe that extravagance helps industry, and
how much longer have people called Copernicus a fool because they
actually saw the sun rise and set. So J. S. Mill puts his opinions on
this matter. Benneke[4]
adds, "If anybody describes to me an
animal, a region, a work of art, or narrates an event, etc., I get
no notion through the words I hear of the appearance of the subject.
I merely have a problem set me by means of the words and
signs, in the conception of the subject, and hence it depends for
truth mainly upon the completeness of earlier conceptions of similar
things or events, and upon the material I have imaginatively at
hand. These are my perceptual capital and my power of representation."
It naturally is not necessary to ask whether a narrator has ever
seen the things he speaks of, nor to convince oneself in examination
that the person in question knows accurately what he is talking
about. At the same time, the examiner ought to be clear on the
matter and know what attitude to take if he is going to deal intelligibly
with the other. I might say that all of us, educated and
uneducated, have apprehended and remember definite and distinct
images of all things we have seen, heard, or learned from descriptions.
When we get new information we simply attach the new image to
the old, or extinguish a part of the old and put the new in its place, or
we retain only a more or less vigorous breath of the old with the new.
Such images go far back; even animals possess them. One day my
small son came with his exciting information that his guinea pig,
well known as a stupid beast, could count. He tried to prove this
by removing the six young from their mother and hiding them so
that she could not see what happened to them. Then he took one
of the six, hid it, and brought the remaining five back to the old
lady. She smelled them one after the other and then showed a good
deal of excitement, as if she missed something. Then she was again
removed and the sixth pig brought back; when she was restored to
her brood, she sniffed all six and showed a great deal of satisfaction.
"She could count at least six." Naturally the beast had only a fixed
collective image of her brood, and as one was missing the image was
disturbed and incorrect. At the same time, the image was such as
is created by the combination of events or circumstances. It is not
far from the images of low-browed humanity and differs only in degree
from those of civilized people.
The fact that a good deal of what is said is incorrect and yet not
consciously untrue, depends upon the existence of these images and
their association with the new material. The speaker and the
auditor have different sets of images; the first relates the new
material differently from a second, and so of course they can not
agree.[5] It is the
difficult task of the examiner so to adapt what is
said as to make it appropriate to the right images without making
it possible for incorrect interpretations to enter. When we have a
well-known money-lender as witness concerning some unspeakable
deal, a street-walker concerning some brawling in a peasant saloon,
a clubman concerning a duel, a game-warden concerning poaching,
the set of images of each one of these persons will be a bad foundation
for new perceptions. On the other hand, it will not be
difficult to abstract from them correctly. But cases of this sort are
not of constant occurrence and the great trouble consists in once for
all discovering what memory-images were present before the witness
perceived the event in question. The former have a great influence
upon the perception of the latter.
In this connection it should not be forgotten that the retention
of these images is somewhat pedantic and depends upon unimportant
things. In the city hall of Graz there is a secretary with thirty-six
sections for the thirty-six different papers. The name of the appropriate
journal was written clearly over each section and in spite
of the clearness of the script the depositing and removing of the
papers required certain effort, inasmuch as the script had to be read
and could not be apprehended. Later the name of the paper was
cut out of each and pasted on the secretary instead of the script,
and then, in spite of the various curly and twisted letters, the habitual
images of the titles were easily apprehended and their removal and
return became mechanical. The customary and identical things
are so habitual that they are apprehended with greater ease than
more distinct objects.
Inasmuch as we can conceive only on the basis of the constancy and
similarity of forms, we make these forms the essence of experience.
On the other hand, what is constant and similar for one individual
is not so for another, and essences of experience vary with the experiencer.
"When we behold a die of which we can see three sides at a time,
seven corners, and nine edges, we immediately induce the image
or schema of a die, and we make our further sense-perception accord
with this schema. In this way we get a series of schemes which we
may substitute for one another" (Aubert). For the same reason
we associate in description things unknown to the auditor, which
we presuppose in him, and hence we can make him rightly understand
only if we have named some appropriate object in comparison.
Conversely, we have to remember that everybody takes his
comparison from his own experience, so that we must have
had a like experience if we are to know what is compared.
It is disastrous to neglect the private nature of this experience.
Whoever has much to do with peasants, who like to make use of
powerful comparisons, must first comprehend their essential life,
if he is to understand how to reduce their comparisons to correct
meanings. And if he has done so he will find such comparisons
and images the most distinct and the most intelligible.
Sense-perception has a great deal to do in apprehension and no one
can determine the boundary where the sense activity ends and the
intellectual begins. I do not recall who has made note of the interesting
fact that not one of twenty students in an Egyptian museum
knew why the hands of the figures of Egyptian was pictures gave
the impression of being incorrect—nobody had observed the fact
that all the figures had two right hands.
I once paid a great deal of attention to card-sharping tricks and
as I acquired them, either of myself or from practiced gamblers, I
demonstrated them to the young criminalists. For a long time I
refused to believe what an old Greek told me: "The more foolish
and obvious a trick is, the more certain it is; people never see
anything." The man was right. When I told my pupils expressly,
"Now I am cheating," I was able to make with safety a false coup,
a false deal, etc. Nobody saw it. If only one has half a notion of
directing the eyes to some other thing, a card may be laid on the
lap, thrust into the sleeve, taken from the pocket, and God knows
what else. Now who can say in such a case whether the sensory
glance or the intellectual apprehension was unskilful or unpractised?
According to some authorities the chief source of error is the senses,
but whether something must not be attributed to that mysterious,
inexplicable moment in which sensory perception becomes intellectual
perception, nobody can say.
My favorite demonstration of how surprisingly little people
perceive is quite simple. I set a tray with a bottle of water and
several glasses on the table, call express attention to what is about
to occur, and pour a little water from the bottle into the glass.
Then the stuff is taken away and the astonishing question asked
what have I done? All the spectators reply immediately: you
have poured water into a glass. Then I ask further with what hand
did I do it? How many glasses were there? Where was the glass
into which I poured the water? How much did I pour? How much
water was there in the glass? Did I really pour or just pretend to?
How full was the bottle? Was it certainly water and not, perhaps,
wine? Was it not red wine? What did I do with my hand after
pouring the water? How did I look when I did it? Did you not
really see that I shut my eyes? Did you not really see that I stuck
my tongue out? Was I pouring the water while I did it? Or before,
or after? Did I wear a ring on my hand? Was my cuff visible?
What was the position of my fingers while I held the glass? These
questions may be multiplied. And it is as astonishing as amusing
to see how little correctness there is in the answers, and how people
quarrel about the answers, and what extraordinary things they
say. Yet what do we require of witnesses who have to describe
much more complicated matters to which their attention had not
been previously called, and who have to make their answers, not
immediately, but much later; and who, moreover, may, in the
presence of the fact, have been overcome by fear, astonishment,
terror, etc.! I find that probing even comparatively trained witnesses
is rather too funny, and the conclusions drawn from what is
so learned are rather too conscienceless.
[6]
Such introductions as:
"But you will know,"—"Just recall this one,"—"You wouldn't
be so stupid as not to have observed whether,"—"But my dear
woman, you have eyes,"—and whatever else may be offered in
this kindly fashion, may bring out an answer, but what real worth
can such an answer have?
One bright day I came home from court and saw a man step
out of a cornfield, remain a few instants in my field of vision, and
then disappear. I felt at once that the man had done something
suspicious, and immediately asked myself how he looked. I found
I knew nothing of his clothes, his dress, his beard, his size, in a
word, nothing at all about him. But how I would have punished a
witness who should have known just as little. We shall have, in
the course of this examination, frequently to mention the fact that
we do not see an event in spite of its being in the field of perception.
I want at this point merely to call attention to a single well-known
case, recorded by Hofmann.[7] At a
trial a circumstantial and accurate
attempt was made to discover whether it was a significant
alteration to bite a man's ear off. The court, the physician, the
witnesses, etc., dealt with the question of altering, until finally the
wounded man himself showed what was meant, because his other
ear had been bitten off many years before,—but then nobody
had noticed that mutilated ear.
In order to know what another person has seen and apprehended
we must first of all know how he thinks, and that is impossible.
We frequently say of another that he must have thought this or
that, or have hit upon such and such ideas, but what the events
in another brain may be we can never observe. As Bois-Reymond
says somewhere: "If Laplace's ghost could build a homunculus
according to the Leibnitzian theory, atom by atom and molecule
by molecule, he might succeed in making it think, but not in knowing
how it thinks." But if we know, at least approximately, the kind
of mental process of a person who is as close as possible to us in sex,
age, culture, position, experience, etc., we lose this knowledge with
every step that leads to differences. We know well what great
influence is exercised by the multiplicity of talents, superpositions,
knowledge, and apprehensions. When we consider the qualities
of things, we discover that we never apprehend them abstractly,
but always concretely. We do not see color but the colored object;
we do not see warmth, but something warm; not hardness, but
something hard. The concept warm, as such, can not be thought
of by anybody, and at the mention of the word each will think of
some particular warm object; one, of his oven at home; another,
of a warm day in Italy; another of a piece of hot iron which burnt
him once. Then the individual does not pay constant court to the
same object. To-day he has in mind this concrete thing, to-morrow,
he uses different names and makes different associations. But every
concrete object I think of has considerable effect on the new
apprehension; and my auditor does not know, perhaps even I myself do
not, what concrete object I have already in mind. And although
Berkeley has already shown that color can not be thought of without
space or space without color, the task of determining the concrete
object to which the witness attaches the qualities he speaks
of, will still be overlooked hundreds of times.
It is further of importance that everybody has learned to know
the object he speaks about through repetition, that different relations
have shown him the matter in different ways. If an object
has impressed itself upon us, once pleasurably and once unpleasantly,
we can not derive the history and character of the present impression
from the object alone, nor can we find it merely in the synthetic
memory sensations which are due to the traces of the former coalescing
impressions. We are frequently unable, because of this coalescing
of earlier impressions, to keep them apart and to study their effect
on present impressions. Frequently we do not even at all know why
this or that impression is so vivid. But if we are ignorant with
regard to what occurs in ourselves, how much can we know about
others?
Exner calls attention to the fact that it is in this direction
especially,
that the "dark perceptions" play a great rôle. "A great
part of our intelligence depends on the ability of these `dark
perceptions' to rise without requiring further attention, into the
field of consciousness. There are people, e. g., who recognize birds
in their flight without knowing clearly what the characteristic
flight for any definite bird may be. Others, still more intelligent,
know at what intervals the flyers beat their wings, for they can
imitate them with their hands. And when the intelligence is still
greater, it makes possible a correct description in words."
Suppose that in some important criminal case several people,
of different degrees of education and intelligence, have made observations.
We suppose that they all want to tell the truth, and we
also suppose that they have observed and apprehended their objects
correctly. Their testimonies, nevertheless, will be very different.
With the degree of intelligence rises the degree of effect of the "dark
subconscious perceptions." They give more definite presentation
and explanation of the testimony; they turn bare assertions into
well-ordered perceptions and real representations. But we generally
make the mistake of ascribing the variety of evidence to varying
views, or to dishonesty.
To establish the unanimity of such various data, or to find out
whether they have such unanimity, is not easy. The most comfortable
procedure is to compare the lesser testimonies with those
of the most intelligent of the witnesses. As a rule, anybody who
has a subconscious perception of the object will be glad to bring
it out if he is helped by some form of expression, but the danger of
suggestion is here so great that this assistance must be given only
in the rarest of cases. The best thing is to help the witness to his
full evidence gradually, at the same time taking care not to suggest
oneself and thus to cause agreement of several testimonies which were
really different but only appeared to look contradictory on account
of the effect of subconscious perceptions. The very best thing
is to take the testimony as it comes, without alteration, and later
on, when there is a great deal of material and the matter has grown
clearer, to test the stuff carefully and to see whether the less
intelligent persons gave different testimonies through lack of capacity
in expression, or because they really had perceived different things
and had different things to say.
This is important when the witnesses examined are experts in
the matter in which they are examined. I am convinced that the
belief that such people must be the best witnesses, is false, at least
as a generalization. Benneke (loco cit.), has also made similar
observations. "The chemist who perceives a chemical process,
the connoisseur a picture, the musician a symphony, perceive them
with more vigorous attention than the layman, but the actual
attention may be greater with the latter." For our own affair,
it is enough to know that the judgment of the expert will naturally
be better than that of the layman; his apprehension, however, is
as a rule one-sided, not so far-reaching and less uncolored. It is
natural that every expert, especially when he takes his work seriously,
should find most interest in that side of an event with which his
profession deals. Oversight of legally important matters is, therefore,
almost inevitable. I remember how an eager young doctor
was once witness of an assault with intent to kill. He had seen
how in an inn the criminal had for some time threatened his victim
with a heavy porcelain match-tray. "The os parietale may here
be broken," the doctor thought, and while he was thinking of the
surgical consequences of such a blow, the thing was done and the
doctor had not seen how the blow was delivered, whether a knife
had been drawn by the victim, etc. Similarly, during an examination
concerning breaking open the drawer of a table, the worst
witness was the cabinet-maker. The latter was so much interested
in the foreign manner in which the portions of the drawer had
been cemented and in the curious wood, that he had nothing to say
about the legally important question of how the break was made,
what the impression of the damaging tool was, etc. Most of us
have had such experiences with expert witnesses, and most of us
have also observed that they often give false evidence because they
treat the event in terms of their own interest and are convinced
that things must happen according to the principles of their trades.
However the event shapes itself, they model it and alter it so much
that it finally implies their own apprehension.
"Subconscious perceptions," somewhat altered, play another
rôle, according to Exner, in so-called orientation. If anybody is
able to orient himself, i. e., know where he is at any time and keep
in mind the general direction, it is important to be aware of the
fact when he serves as witness, for his information will, in consequence,
take a different form and assume a different value. Exner
says of himself, that he knows at each moment of his climb of
the Marcus' tower in what direction he goes. As for me, once I
have turned around, I am lost. Our perceptions of location and
their value would be very different if we had to testify concerning
relations of places, in court. But hardly anybody will assure the
court that in general he orients himself well or ill.
As Exner says, "If, when walking, I suddenly stop in front of
a house to look at it, I am definitely in possession, also, of the feeling
of its distance from where I left the road—the unconscious perception
of the road beyond is here at work." It might, indeed, be
compared with pure subconsciousness in which series of processes
occur without our knowing it.
But local orientation does not end with the feeling for place.
It is at work even in the cases of small memories of location, e. g.,
in learning things by heart, in knowing on what page and on what
line anything is printed, in finding unobserved things, etc. These
questions of perception-orientation are important, for there are
people all of whose perceptions are closely related to their sense of
location. Much may be learned from such people by use of this
specialty of theirs, while oversight thereof may render them hopeless
as witnesses. How far this goes with some people—as a rule
people with a sense of location are the more intelligent—I saw
some time ago when the Germanist Bernhardt Seuffert told me that
when he did not know how anything is spelled he imagined its appearance,
and when that did not help he wrote both the forms between
which he was vacillating and then knew which one was the correct
one. When I asked him whether the chirographic image appeared
printed or written and in what type, he replied significantly enough,
"As my writing-teacher wrote it." He definitely localized the
image on his writing book of many years ago and read it off in his
mind. Such specialties must be remembered in examining witnesses.
In conclusion, there is a word to say concerning
Cattell's[8]
investigations of the time required for apprehension. The better
a man knows the language the more rapidly can he repeat and read
its words. It is for this reason that we believe that foreigners speak
more rapidly than we. Cattell finds this so indubitable, that he
wants to use speed as a test in the examinations in foreign languages.
The time used in order to identify a single letter is a quarter of
a second, the time to pronounce it one-tenth of a second. Colors and
pictures require noticeably more, not because they are not recognized,
but because it is necessary to think what the right name is.
We are much more accustomed to reading words.
These observations might be carried a step further. The more
definitely an event to be described is conceived, the clearer the
deduction and the more certain the memory of it, the more rapidly
may it be reproduced. It follows that, setting aside individual
idiosyncrasies, the rapidity of speech of a witness will be of
importance when we want to know how much he has thought on
a question and is certain what he is going to say. It is conceivable
that a person who is trying to remember the event accurately will
speak slowly and stutteringly, or at least with hesitation at the
moment. The same will occur if he tries to conceive of various
possibilities, to eliminate some, and to avoid contradiction and
improbability. If, however, the witness is convinced and believes
truly what he is telling, so that he may go over it in his mind easily
and without interruption, he will tell his story as quickly as he can.
This may indeed be observed in public speakers, even judges, prosecutors,
and defense; if anyone of them is not clear with regard to the
case he represents, or not convinced of its correctness, he will speak
slowly; if the situation is reversed he will speak rapidly. Court and
other public stenographers confirm this observation.
[[ id="n44.1"]]
The first paragraph, pp. 78-79, is omitted in the translation.
[[ id="n44.2"]]
E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891.
[[ id="n44.3"]]
A sentence is here omitted.
[[ id="n44.4"]]
E. Benneke: Pragmatische Psychologie.
[[ id="n44.5"]]
Cf. H. Gross's Archiv, XV, 125.
[[ id="n44.6"]]
Cf. Borst u. Claparède: Sur divers Caractères du Temoigna e.
Archives des
Sciences Phys. et Nat. XVII. Diehl: zum Studium der Merktahugkeit. Beitr.
zur Psych. der Aussage, II, 1903
[[ id="n44.7"]]
Gericht. Medizin. Vienna 1898. p. 447.
[[ id="n44.8"]]
J. M. Cattell: Über die Zeit der Erkennung u. Benemlung von Schrift
etc. (in Wundt's: Philosophischen Studien II, 1883).