Section 9. (g) Interest.
Anybody who means to work honestly must strive to awaken
and to sustain the interest of his collaborators. A judge's duty is
to present his associates material, well-arranged, systematic, and
exhaustive, but not redundant; and to be himself well and minutely
informed concerning the case. Whoever so proceeds may be certain
in even the most ordinary and simplest cases, of the interest of his
colleagues,—hence of their attention; and, in consequence, of
the best in their power. These are essentially self-evident propositions.
In certain situations, however, more is asked with regard
to the experts. The expert, whether a very modest workman or
very renowned scholar, must in the first instance become convinced
of the judge's complete interest in his work; of the judge's power
to value the effort and knowledge it requires; of the fact that he
does not question and listen merely because the law requires it,
and finally of the fact that the judge is endowed, so far as may be,
with a definite comprehension of the expert's task.
However conscientiously and intensely the expert may apply
himself to his problem, it will be impossible to work at it with real
interest if he finds no co-operation, no interest, and no understanding
among those for whom he, at least formally, is at work. We may
be certain that the paucity of respect we get from the scientific
representatives of other disciplines (let us be honest,—such is
the case) comes particularly from those relations we have with
them as experts, relations in which they find us so unintelligent and
so indifferent with regard to matters of importance. If the experts
speak of us with small respect and the attitude spreads and becomes
general, we get only our full due. Nobody can require of a criminal
judge profound knowledge of all other disciplines besides his own—
the experts supply that—but the judge certainly must have some
insight into them in so far as they affect his own work, if he is not
to meet the expert unintelligent and unintelligible, and if he is to
co-operate with and succeed in appraising the expert's work. In
a like fashion the judge may be required to take interest in the
experts' result. If the judge receives their report and sticks to the
statutes, if he never shows that he was anxious about their verdict,
and merely views it as a number, it is no wonder that in the end the
expert also regards his work as a mere number, and loses interest.
No man is interested in a thing unless it is made interesting, and
the expert is no exception. Naturally no one would say that the
judge should pretend interest,—that would be worst of all;—he
must be possessed of it, or he will not do for a judge. But interest
may be intensified and vitalized. If the judge perceives that the
finding of the experts is very important for his case he must at
least meet them with interest in it. If that is present he will read
their reports attentively, will note that he does not understand some
things and ask the experts for elucidation. One question gives rise
to another, one answer after another causes understanding, and
understanding implies an ever-increasing interest. It never happens
that there should be difficulties because of a request to judicial
experts to explain things to the judge. I have never met any in my
own practice and have never heard any complaints. On the contrary,
pleasure and efficiency are generally noticeable in such connections,
and the state, above all, is the gainer. The simple explanation
lies here in the fact that the expert is interested in his profession,
interested in just that concrete way in which the incomparably
greater number of jurists are
not. And this again
is based upon a
sad fact, for us. The chemist, the physician, etc., studies his subject
because he wants to become a chemist, physician, etc., but the
lawyer studies law not because he wants to become a lawyer, but
because he wants to become an official, and as he has no especial
interest he chooses his state position in that branch in which he
thinks he has the best prospects. It is a bitter truth and a general
rule—that those who want to study law and the science of law are
the exceptions, and that hence we have to acquire a real interest in
our subject from laymen, from our experts. But the interest can
be acquired, and with the growth of interest, there is growth of
knowledge, and therewith increase of pleasure in the work itself
and hence success.
The most difficult problem in interest, is arousing the interest of
witnesses—because this is purely a matter of training. Receiving
the attention is what should be aimed at in rousing interest, inasmuch
as full attention leads to correct testimony—i. e., to the
thing most important to our tasks. "No interest, no attention,"
says Volkmar.[1] "The
absolutely new does not stimulate; what
narrows appreciation, narrows attention also." The significant
thing for us is that "the absolutely new does not stimulate"—
a matter often overlooked. If I tell an uneducated man, with all
signs of astonishment, that the missing books of Tacitus' "Annals"
have been discovered in Verona, or that a completely preserved
Dinotherium has been cut out of the ice, or that the final explanation
of the Martian canals has been made at Manora observatory,—
all this very interesting news will leave him quite cold; it is absolutely
new to him, he does not know what it means or how to get
hold of it, it offers him no matter of
interest.[2] I should have a
similar experience if, in the course of a trig case, I told a man, educated,
but uninterested in the case, with joy, that I had finally discovered
the important note on which the explanation of the events depended.
I could not possibly expect interest, attention, and comprehension
of a matter if my interlocutor knows nothing about the issue or the
reason of the note's importance. And in spite of the fact that everything
is natural and can be explained we have the same story every
day. We put the witness a definite question that is of immense
importance to us, who are fully acquainted with the problem, but
is for the witness detached, incoherent, and therefore barren of
interest. Then who can require of an uninterested witness, attention,
and effective and well-considered replies?[3]
I myself heard a witness
answer a judge who asked him about the weather on a certain day,
"Look here, to drag me so many miles to this place in order to discuss
the weather with me,—that's—." The old man was quite right
because the detached question had no particular purpose. But when
it was circumstantially explained to him that the weather was of
uttermost significance in this case, how it was related thereto, and
how important his answer would be, he went at the question eagerly,
and did everything thinkable in trying to recall the weather in
question by bringing to bear various associated events, and did
finally make a decidedly valuable addition to the evidence. And
this is the only way to capture the attention of a witness. If he is
merely ordered to pay attention, the result is the same as if he were
ordered to speak louder,—he does it, in lucky cases, for a moment,
and then goes on as before. Attention may be generated but not
commanded, and may be generated successfully with everybody, and
at all times, if only the proper method is hit upon. The first and
absolute requirement is to have and to show the same interest
oneself. For it is impossible to infect a man with interest when
you have no interest to infect with. There is nothing more deadly
or boresome than to see how witnesses are examined sleepily and with
tedium, and how the witnesses, similarly infected, similarly answer.
On the other hand, it is delightful to observe the surprising effect
of questions asked and heard with interest. Then the sleepiest
witnesses, even dull ones, wake up: the growth of their interest,
and hence of their attention, may be followed step by step; they
actually increase in knowledge and their statements gain in reliability.
And this simply because they have seen the earnestness of
the judge, the importance of the issue, the case, the weighty consequences
of making a mistake, the gain in truth through watchfulness
and effort, the avoidance of error through attention. In
this way the most useful testimony can be obtained from witnesses
who, in the beginning, showed only despairing prospects.
Now, if one is already himself endowed with keen interest and
resolved to awaken the same in the witnesses, it is necessary carefully
to consider the method of so doing and how much the witness is
to be told of what has already been established, or merely been said
and received as possibly valuable. On the one hand it is true that
the witness can be roused to attention and to more certain and
vigorous responses according to the quantity of detail told
him.[4] On
the other, caution and other considerations warn against telling
an unknown witness, whose trustworthiness is not ascertained,
delicate and important matters. It is especially difficult if the
witness is to be told of presuppositions and combinations, or if he
is to be shown how the case would alter with his own answer. The
last especially has the effect of suggestion and must occur in particular
and in general at those times alone when his statement,
or some part of it, is apparently of small importance but actually
of much. Often this importance can be made clear to the witness
only by showing him that the difference in the effect of his testimony
is pointed out to him because when he sees it he will find it worth
while to exert himself and to consider carefully his answer. Any one
of us may remember that a witness who was ready with a prompt,
and to him an indifferent reply, started thinking and gave an essentially
different answer, even contradictory to his first, when the
meaning and the effect of what he might say was made clear to
him.
How and when the witness is to be told things there is no rule for.
The wise adjustment between saying enough to awaken interest
and not too much to cause danger is a very important question of
tact. Only one certain device may be recommended—it is better
to be careful with a witness during his preliminary examination
and to keep back what is known or suspected; thus the attention
and interest of the witness may perhaps be stimulated. If, however,
it is believed that fuller information may increase and intensify the
important factors under examination, the witness is to be recalled
later, when it is safe, and his testimony is, under the new conditions
of interest, to be corrected and rendered more useful. In this case,
too, the key to success lies in increase of effort—but that is true in
all departments of law, and the interest of a witness is so important
that it is worth the effort.
[[1]]
v. Volkmar: Lehrbuch der Psychologie. Cothen 1875
[[2]]
K. Haselbrunner: Die Lehre von der Aufmerksamkeit Vienna 1901.
[[3]]
E. Wiersma and K. Marbe: Untersuchungen über die sogenannten
Aufmerksamkeitsschwankungen. Ztseh. f. Psych. XXVI, 168 (1901).
[[4]]
Slaughter: The
Fluctuations of Attention. Am. Jour. of Psych. XII,
313 (1901).