Section 6. (d) Presuppositions of Evidence-Taking.
One of the most important rules of evidence-taking is not to
suppose that practically any witness is skilled in statement of what
he remembers. Even of child training,
Fröbel[1] says, "Men must
be drawn out, not probed." And this is the more valid in jurisprudence,
and the more difficult, since the lawyers have at most only
as many hours with the individual as the teacher has years. However,
we must aim to draw the witness out, and if it does not work
at first, we must nevertheless not despair of succeeding.
The chief thing is to determine the witness's level and then meet
him on it. We certainly can not succeed, in the short time allowed
us, to raise him to ours. "The object of instruction" (says
Lange[2])
"is to endow the pupil with more apperceptive capacity, i. e., to
make him intellectually free. It is therefore necessary to discover
his `funded thoughts,' and to beware of expounding too much."
This is not a little true. The development of apperceptive capacity
is not so difficult for us, inasmuch as our problem is not to prepare
our subject for life, but for one present purpose. If we desire, to
this end, to make one more intellectually free, we have only to get
him to consider with independence the matter with which we are
concerned, to keep him free of all alien suggestions and inferences,
and to compel him to see the case as if no influences, personal or
circumstantial, had been at work on him. This result does not
require merely the setting aside of special influences, nor the setting
aside of all that others have said to him on the matter under discussion,
nor the elucidation of the effect of
fear,
[3] of anger, of all
such states of mind as might here have been operative,—it requires
the establishment of his unbiased vision of the subject from
a period antecedent to these above-mentioned influences. Opinions,
valuations, prejudices, superstitions, etc., may here be to a high
degree factors of disturbance and confusion. Only when the whole
Augean stable is swept out may the man be supposed capable of
apperception, may the thing he is to tell us be brought to bear
upon him and he be permitted to reproduce it.
This necessary preliminary is not so difficult if the second of the
above-mentioned rules is observed and the "funded thought"
of the witness is studied out. It may be said, indeed, that so long
as two people converse, unaware of each other's "funded thought,"
they speak different languages. Some of the most striking misunderstandings
come from just this reason. It is not alone a matter
of varying verbal values, leading to incompatible inferences; actually
the whole of a man's mind is involved. It is generally supposed to
be enough to know the meaning of the words necessary for telling a
story. But such knowledge leads only to external and very superficial
comprehension; real clearness can be attained only by knowing
the witness's habits of thought in regard to all the circumstances of
the case. I remember vividly a case of jealous murder in which the
most important witness was the victim's brother, an honest, simple,
woodsman, brought up in the wilderness, and in every sense
far-removed from idiocy. His testimony was brief, decided and intelligent.
When the motive for the murder, in this case most important,
came under discussion, he shrugged his shoulders and
answered my question—whether it was not committed on account of
a girl—with, "Yes, so they say." On further examination I reached
the astonishing discovery that not only the word "jealousy," but
the very notion and comprehension of it were totally foreign to the
man. The single girl he at one time thought of was won away from
him without making him quarrelsome, nobody had ever told him
of the pangs and passions of other people, he had had no occasion
to consider the theoretic possibility of such a thing, and so
"jealousy" remained utterly foreign to him. It is clear that his
hearing now took quite another turn. All I thought I heard from
him was essentially wrong; his "funded thought" concerning a
very important, in this case a regulative concept, had been too
poor.
The discovery of the "funded thought" is indubitably not easy.
But its objective possibility with witness and accused is at least a
fact. It is excluded only where it is most obviously necessary—
in the case of the jury, and the impossibility in this case turns the
institution of trial by jury into a Utopian dream. The presiding
officer of a jury court is in the best instances acquainted with a
few of the jurymen, but never so far as to have been entrusted with
their "funded thought." Now and then, when a juryman asks
a question, one gets a glimpse of it, and when the public prosecutor
and the attorney for the defence make their speeches one catches
something from the jury's expressions; and then it is generally
too late. Even if it be discovered earlier nothing can be done with
it. Some success is likely in the case of single individuals, but it is
simply impossible to define the mental habits of twelve men with
whom one has no particular relations.
The third part of the Fröbelian rule, "To presuppose as little
as possible," must be rigidly adhered to. I do not say this pessimistically,
but simply because we lawyers, through endless practice,
arrange the issue so much more easily, conceive its history better
and know what to exclude and what, with some degree of certainty,
to retain. In consequence we often forget our powers and present
the unskilled laity, even when persons of education, too much of
the material. Then it must be considered that most witnesses are
uneducated, that we can not actually descend to their level, and
their unhappiness under a flood of strange material we can grasp
only with difficulty. Because we do not know the witness's point
of view we ask too much of him, and therefore fail in our purpose.
And if, in some exceptional case, an educated man is on the stand,
we fail again, since, having the habit of dealing with the uneducated,
we suppose this man to know our own specialties because he has
a little education. Experience does not dispel this illusion. Whether
actual training in another direction dulls the natural and free outlook
we desire in the witness, or whether, in our profession, education
presupposes tendencies too ideal, whatever be the reasons, it
is a fact that our hardest work is generally with the most highly
educated witnesses. I once had to write a protocol based on the
testimony of a famous scholar who was witness in a small affair.
It was a slow job. Either he did not like the terms as I dictated
them, or he was doubtful of the complete certainty of this or that
assertion. Let alone that I wasted an hour or two, that protocol,
though rewritten, was full of corrections and erasures. And the
thing turned out to be nonsense at the end. The beginning contradicted
the conclusion; it was unintelligible, and still worse,
untrue. As became manifest later, through the indubitable testimony
of many witnesses, the scholar had been so conscientious,
careful and accurate that he simply did not know what he had
seen. His testimony was worthless. I have had such experiences
repeatedly and others have confessed them. To the question: Where
not presuppose too much? the answer is: everywhere. First of
all, little must be presupposed concerning people's powers of observation.
They claim to have heard, seen or felt so and so, and they
have not seen, heard, or felt it at all, or quite differently. They
assent vigorously that they have grasped, touched, counted or
examined something, and on closer examination it is demonstrated
that it was only a passing glance they threw on it. And it is still
worse where something more than ordinary perception is being
considered, when exceptionally keen senses or information are
necessary. People trust the conventional and when close observation
is required often lack the knowledge proper to their particular
status. In this way, by presupposing especial professional knowledge
in a given witness, great mistakes are made. Generally he
hasn't such knowledge, or has not made any particular use of it.
In the same way too much attention and interest are often presupposed,
only to lead later to the astonishing discovery of how
little attention men really pay to their own affairs. Still less, therefore,
ought knowledge in less personal things be presupposed,
for in the matter of real understanding, the ignorance of men far
exceeds all presuppositions. Most people know the looks of all
sorts of things, and think they know their essences, and when questioned,
invariably assert it, quite in good faith. But if you depend
on such knowledge bad results arise that are all the more dangerous
because there is rarely later opportunity to recognize their badness.
As often as any new matter is discussed with a witness, it is necessary,
before all, to find out his general knowledge of it, what he
considers it to be, and what ideas he connects with it. If you judge
that he knows nothing about it and appraise his questions and conclusions
accordingly, you will at least not go wrong in the matter,
and all in all attain your end most swiftly.
At the same time it is necessary to proceed as slowly as possible.
It is Carus[4] who points out that a
scholar ought not to be shown
any object unless he can not discover it or its like for himself. Each
power must have developed before it can be used. Difficult as this
procedure generally is, it is necessary in the teaching of children,
and is there successful. It is a form of education by examples. The
child is taught to assimilate to its past experience the new fact,
e. g.: in a comparison of some keen suffering of the child with that
it made an animal suffer. Such parallels rarely fail, whether in
the education of children or of witnesses. The lengthy description
of an event in which, e. g., somebody is manhandled, may become
quite different if the witness is brought to recall his own experience.
At first he speaks of the event as perhaps a "splendid joke," but
as soon as he is brought to speak of a similar situation of his own,
and the two stories are set side by side, his description alters. This
exemplification may be varied in many directions and is always
useful. It is applicable even to accused, inasmuch as the performer
himself begins to understand his deed, when it can be attached to
his fully familiar inner life.
The greatest skill in this matter may be exercised in the case of
the jury. Connect the present new facts with similar ones they
already know and so make the matter intelligible to them. The
difficulty here, is again the fact that the jury is composed of strangers
and twelve in number. Finding instances familiar to them all and
familiar in such wise that they may easily link them with the case
under consideration, is a rare event. If it does happen the success
is both significant and happy.
It is not, however, sufficient to seek out a familiar case analogous
to that under consideration. The analogy should be discovered for
each event, each motive, each opinion, each reaction, each appearance,
if people are to understand and follow the case. Ideas, like
men, have an ancestry, and a knowledge of the ancestors leads to a
discovery of the cousins.
[[1]]
Fröbel: Die. Mensehenersiehung. Keilhau 1826.
[[2]]
K. Lange: Über Apperzeption. Plauen 1889.
[[3]]
Dichl in H. Gross's Archiv, XI, 240.
[[4]]
Carus: Psychologie. Leipzig 1823.