University of Virginia Library

CRIMINAL PSYCHOLOGY.
INTRODUCTION.

OF all disciplines necessary to the criminal justice in addition to the knowledge of law, the most important are those derived from psychology. For such sciences teach him to know the type of man it is his business to deal with. Now psychological sciences appear in various forms. There is a native psychology, a keenness of vision given in the march of experience, to a few fortunate persons, who see rightly without having learned the laws which determine the course of events, or without being even conscious of them. Of this native psychological power many men show traces, but very few indeed are possessed of as much as criminalists intrinsically require. In the colleges and pre-professional schools we jurists may acquire a little scientific psychology as a "philosophical propaedeutic," but we all know how insufficient it is and how little of it endures in the business of life. And we had rather not reckon up the number of criminalists who, seeing this insufficiency, pursue serious psychological investigations.

One especial psychological discipline which was apparently created for our sake is the psychology of law, the development of which, in Germany, Volkmar[1] recounts. This science afterward developed, through the instrumentality of Metzger[2] and Platner,[3] as criminal psychology. From the medical point of view especially, Choulant's collection of the latter's, "Quaestiones," is still valuable. Criminal psychology was developed further by [4]Hoffbauer, Grohmann,[5]

Heinroth,[6] [7]Sehaumann, [8]Münch, [9]Eckartshausen, and others. In Kant's time the subject was a bone of contention between faculties, Kant representing in the quarrel the philosophic, Metzger, Hoffbauer, and Fries,[10] the medical faculties. Later legal psychology was simply absorbed by psychiatry, and thereby completely subsumed among the medical disciplines, in spite of the fact that Regnault,[11] still later, attempted to recover it for philosophy, as is pointed out in Friedreich's[12] well-known text-book (cf. moreover V. Wilbrand's[13] text-book). Nowadays, criminal psychology, as represented by Kraus,[14] Krafft-Ebing,[15] Maudsley,[16] Holtzendorff,[17] Lombroso,[18] and others has become a branch of criminal anthropology. It is valued as the doctrine of motives in crime, or, according to Liszt, as the investigation of the psychophysical condition of the criminal. It is thus only a part of the subject indicated by its name.[19] How utterly criminal psychology has become incorporated in criminal anthropology is demonstrated by the works of Näcke,[20] Kurella,[21] Bleuler,[22] Dallemagne,[23] Marro,[24] Ellis,[25] Baer,[26] Koch,[27] Maschka,[28] Thomson,[29] Ferri,[30] Bonfigli,[31] Corre,[32] etc.

Literally, criminal psychology should be that form of psychology used in dealing with crime; not merely, the psychopathology of criminals, the natural history of the criminal mind. But taken even literally, this is not all the psychology required by the criminalist. No doubt crime is an objective thing. Cain would actually have slaughtered Abel even if at the time Adam and Eve were already dead. But for us each crime exists only as we perceive it,—as we learn to know it through all those media established for us in criminal procedure. But these media are based upon sense-perception, upon the perception of the judge and his assistants, i. e.: upon witnesses, accused, and experts. Such perceptions must be psychologically validated. The knowledge of the principles of this validation demands again a special department of general psychology—even such a pragmatic applied psychology as will deal with all states of mind that might possibly be involved in the determination and judgment of crime. It is the aim of this book to present such a psychology. "If we were gods," writes Plato in the Symposium, "there would be no philosophy"—and if our senses were truer and our sense keener, we should need no psychology. As it is we must strive hard to determine certainly how we see and think; we must understand these processes according to valid laws organized into a system— otherwise we remain the shuttlecocks of sense, misunderstanding and accident. We must know how all of us,—we ourselves, witnesses, experts, and accused, observe and perceive; we must know how they think,—and how they demonstrate; we must take into account how variously mankind infer and perceive, what mistakes and illusions may ensue; how people recall and bear in mind; how everything varies with age, sex, nature, and cultivation. We must also see clearly what series of influences can prevail to change all those things which would have been different under normal conditions. Indeed, the largest place in this book will be given to the witness and the judge himself, since we want in fact, from the first to keep in mind the creation of material for our instruction; but the psychology of the criminal must also receive consideration whereever the issue is not concerned with his so-called psychoses, but with the validation of evidence.

Our method will be that fundamental to all psychological investigation, and may be divided into three parts:[33]

1. The preparation of a review of psychological phenomena.

2. Study of causal relationships.

3. Establishment of the principles of psychic activity.

The subject-matter will be drawn on the one hand, from that already presented by psychological science, but will be treated throughout from the point of view of the criminal judge, and prepared for his purposes. On the other hand, the material will be drawn from these observations that alone the criminologist at work can make, and on this the principles of psychology will be brought to bear.

We shall not espouse either pietism, scepticism, or criticism. We have merely to consider the individual phenomena, as they may concern the criminalist; to examine them and to establish whatever value the material may have for him; what portions may be of use to him in the interest of discovering the truth; and where the dangers may lurk that menace him. And just as we are aware that the comprehension of the fundamental concepts of the exact sciences is not to be derived from their methodology, so we must keep clearly in mind that the truth which we criminalists have to attain can not be constructed out of the formal correctness of the content presented us. We are in duty bound to render it materially correct. But that is to be achieved only if we are acquainted with principles of psychology, and know how to make them serve our purposes. For our problem, the oft-quoted epigram of Bailey's, "The study of physiology is as repugnant to the psychologist as that of acoustics to the composer," no longer holds. We are not poets, we are investigators. If we are to do our work properly, we must base it completely upon modern psycho physical fundamentals. Whoever expects unaided to find the right thing at the right moment is in the position of the individual who didn't know whether he could play the violin because he had not yet tried. We must gather wisdom while we are not required to use it; when the time for use arrives, the time for harvest is over.

Let this be our fundamental principle: That we criminalists receive from our main source, the witnesses, many more inferences than observations, and that this fact is the basis of so many mistakes in our work. Again and again we are taught, in the deposition of evidence, that only facts as plain sense-perceptions should be presented; that inference is the judge's affair. But we only appear to obey this principle; actually, most of what we note as fact and sense-perception, is nothing but a more or less justified judgment, which though presented in the honestest belief, still

offers no positive truth. "Amicus Plato, sed magis amica Veritas."

There is no doubt that there is an increasing, and for us jurists, a not unimportant demand for the study of psychology in its bearing on our profession. But it must be served. The spirited Abbé de Baëts, said at a meeting of criminalists in Brussels, that the present tendency of the science of criminal law demands the observation of the facts of the daily life. In this observation consists the alpha and omega of our work; we can perform it only with the flux of sensory appearances, and the law which determines this flux, and according to which the appearances come, is the law of causation. But we are nowhere so neglectful of causation as in the deeds of mankind. A knowledge of that region only psychology can give us. Hence, to become conversant with psychological principles, is the obvious duty of that conscientiousness which must hold first place among the forces that conserve the state. It is a fact that there has been in this matter much delinquency and much neglect. If, then, we were compelled to endure some bitterness on account of it, let it be remembered that it was always directed upon the fact that we insisted on studying our statutes and their commentaries, fearfully excluding every other discipline that might have assisted us, and have imported vitality into our profession. It was Gneist[34] who complained: "The contemporary low stage of legal education is to be explained like much else by that historical continuity which plays the foremost rôle in the administration of justice." Menger[35] does not mention "historical continuity" so plainly, but he points sternly enough to the legal sciences as the most backward of all disciplines that were in contact with contemporary tendencies. That these accusations are justified we must admit, when we consider what Stölzel[36] and the genial creator of modern civil teaching demands: "It must be recognized that jurisprudence in reality is nothing but the thesis of the healthy human understanding in matters of law." But what the "healthy human mind" requires we can no longer discover from our statutory paragraphs only. How shameful it is for us, when Goldschmidt[37] openly narrates how a famous scientist exclaimed to a student in his laboratory: "What do you want here? You know nothing, you understand nothing, you do nothing,—you had better become a lawyer."

Now let us for once frankly confess why we are dealt these disgraceful reproaches. Let us agree that we have not studied or dealt with jurisprudence as a science, have never envisaged it as an empirical discipline; that the aprioristic and classical tradition had kept this insight at a distance, and that where investigation and effort toward the recognition of the true is lacking, there lacks everything of the least scientific importance. To be scientifically legitimate, we need first of all the installation of the disciplines of research which shall have direct relationships with our proper task. In this way only can we attain that spiritual independence by means of spiritual freedom, which Goldschmidt defines as the affair of the higher institutions of learning, and which is also the ideal of our own business in life. And this task is not too great. "Life is movement," cried Alois von Brinz,[38] in his magnificent inaugural address. "Life is not the thought, but the thinking which comes in the fullness of action."

It may be announced with joy and satisfaction, that since the publication of the first edition of this book, and bearing upon it, there came to life a rich collection of fortuitous works which have brought together valuable material. Concerning the testimony of witnesses, its nature and value, concerning memory, and the types of reproduction, there is now a considerable literature. Everywhere industrious hands are raised,—hands of psychologists, physicians, and lawyers, to share in the work. Should they go on unhurt we may perhaps repair the unhappy faults committed by our ancestors through stupid ignorance and destructive use of uncritically collected material.