Robin Hood

danger of mistake is not insignificant when the mathematician deals
in his mathematical fashion with unmathematical things.

Another danger lies in the testimony of witnesses who have a
certain sense of form in representation and whose inferential leaps
consists in their omitting the detailed expression and in inserting
the notion of form instead. I learned of this notable psychosis
from a bookkeeper of a large factory, who had to provide for the
test of numberless additions. It was his notion that if we were to
add two and three are five, and six are eleven, and seven are eighteen
we should never finish adding, and since the avoidance of mistakes
requires such adding we must so contrive that the image of two
and three shall immediately call forth the image of five. Now this
mental image of five is added with the actual six and gives eleven,
etc. According to this we do not add, we see only a series of images,
and so rapidly that we can follow with a pencil but slowly. And the
images are so certain that mistake is impossible. ``You know
how 9 looks? Well, just as certainly we know what the image of
27 and 4 is like; the image of 31 occurs without change.''

This, as it happens, is a procedure possible only to a limited type,
but this type occurs not only among bookkeepers. When any one
of such persons unites two events he does not consider what may
result from such a union; he sees, if I may say so, only a resulting
image. This image, however, is not so indubitably certain as in
the case of numbers; and it may take all kinds of forms, the correctness
of which is not altogether probable. E. g., the witness
sees two forms in the dark and the flash of a knife and hears a cry.
If he belongs to the type under discussion he does not consider that
he might have been so frightened by the flashing knife as to have
cried out, or that he had himself proceeded to attack with a stick
and that the other fellow did the yelling, or that a stab or cut had
preceded the cry--no, he saw the image of the two forms and the
knife and he heard the cry and these leap together into an image.
i. e., one of the forms has a cut above his brow. And these leaps occur
so swiftly and with such assurance that the witness in question
often believes himself to have seen what he infers and swears to it.

There are a great many similar processes at the bottom of impressions
that depend only upon swift and unconscious inference.
Suppose, e. g., that I am shown the photograph of a small section
of a garden, through which a team is passing. Although I observe
the image of only a small portion of the garden and therefore
have no notion of its extent, still, in speaking of it, I shall proba-

bly speak of a very big garden. I have inferred swiftly and
unconsciously that in the fact that a wagon and horses were
present in the pictured portion of the garden, is implied great
width of road, for even gardens of average size do not have such
wide roads as to admit wagons; the latter occurring only in parks
and great gardens. Hence my conclusion: the garden must be
very big. Such inferences[1] are frequent, whence the question as
to the source and the probability of the witness's information,
whether it is positive or only an impression. Evidently such an
impression may be correct. It will be correct often, inasmuch as
impressions occur only when inferences have been made and tested
repeatedly. But it is necessary in any case to review the sequence
of inferences which led to this impression and to examine their
correctness. Unfortunately the witness is rarely aware whether he
has perceived or merely inferred.


[1] Cf. Gross's Archiv, I, 93, II, 140, III, 250, VII, 155.


Examination is especially important when the impression has
been made after the observation of a few marks or only a single one
and not very essential one at that. In the example of the team the
impression may have been attained by inference, but frequently it
will have been attained through some unessential, purely personal,
determinative characteristic. ``Just as the ancient guest recognizes
his friend by fitting halves of the ring, so we recognize the object
and its constitution from one single characteristic, and hence the
whole vision of it is vivified by that characteristic.''[2]


[2] H. Aubert: Physiologie der Netzhaut. Breslau 1865.


All this is very well if no mistakes are made. When Tertullian
said, ``Credo quia impossibile est,'' we will allow honesty of statement
to this great scholar, especially as he was speaking about
matters of religion, but when Socrates said of the works of Heraclitus
the Obscure: ``What I understand of it is good; I think that what
I do not understand is also good''--he was not in earnest. Now
the case of many people who are not as wise as Tertullian and
Socrates is identical with theirs. Numerous examinations of witnesses
made me think of Tertullian's maxim, for the testimonies
presented the most improbable things as facts. And when they
even explained the most unintelligible things I thought: ``And what
you do not understand is also good.''

This belief of uncultured people in their own intelligence has
been most excellently portrayed by Wieland in his immortal ``Abderites.''
The fourth philosopher says: ``What you call the world

is essentially an infinite series of worlds which envelop one another
like the skin of an onion.'' ``Very clear,'' said the Abderites, and
thought they understood the philosopher because they knew perfectly
well what an onion looked like. The inference which is drawn
from the comprehension of one term in a comparison to the comprehension
of the other is one of the most important reasons for the
occurrence of so many misunderstandings. The example, as such,
is understood, but its application to the assertion and the question
whether the latter is also made clear by the example are forgotten.
This explains the well known and supreme power of examples and
comparisons, and hence the wise of all times have used comparisons
in speaking to the poor in spirit. Hence, too, the great effect of
comparisons, and also the numerous and coarse misunderstandings
and the effort of the untrained and unintelligent to clarify those
things they do not understand by means of comparisons. Fortunately
they have, in trying to explain the thing to other people,
the habit of making use of these difficultly discovered comparisons
so that the others, if they are only sufficiently observant, may
succeed in testing the correctness of the inference from one term in
a comparison to the other. We do this frequently in examining
witnesses, and we discover that the witness has made use of a figure
to clarify some unintelligible point and that he necessarily understands
it since it lies within the field of his instruments of thought.
But what is compared remains as confused to him as before. The
test of it, therefore, is very tiring and mainly without results, because
one rarely succeeds in liberating a man from some figure discovered
with difficulty. He always returns to it because he understands it,
though really not what he compares. But what is gained in such
a case is not little, for the certainty that, so revealed, the witness
does not understand the matter in hand, easily determines the value
of his testimony.

The fullness of the possibilities under which anything may be
asserted is also of importance in this matter. The inference that
a thing is impossible is generally made by most people in such wise
that they first consider the details of the eventualities they already
know, or immediately present. Then, when these are before them,
they infer that the matter is quite impossible--and whether one
or more different eventualities have missed of consideration, is not
studied at all. Our kindly professor of physics once told us: ``Today
I intended to show you the beautiful experiments in the interference
of light--but it can not be observed in daylight and when

I draw the curtains you raise rough-house. The demonstration is
therefore impossible and I take the instruments away.'' The good
man did not consider the other eventuality, that we might be depended
upon to behave decently even if the curtains were drawn.

Hence the rule that a witness's assertion that a thing is impossible
must never be trusted. Take the simplest example. The witness
assures us that it is impossible for a theft to have been committed
by some stranger from outside. If you ask him why, he will probably
tell you: ``Because the door was bolted and the windows barred.''
The eventuality that the thief might have entered by way of the
chimney, or have sent a child between the bars of the window, or
have made use of some peculiar instrument, etc., are not considered,
and would not be if the question concerning the ground of the inference
had not been put.

We must especially remember that we criminalists ``must not
dally with mathematical truth but must seek historical truth. We
start with a mass of details, unite them, and succeed by means of
this union and test in attaining a result which permits us to judge
concerning the existence and the characteristics of past events.''
The material of our work lies in the mass of details, and the manner
and reliability of its presentation determines the certainty of our
inferences.

Seen more closely the winning of this material may be described
as Hume describes it:[1] ``If we would satisfy ourselves, therefore,
concerning the nature of that evidence which assures us of matters
of fact, we must inquire how we arrive at the knowledge of cause and
effect. I shall venture to affirm as a general proposition which admits
of no exception, that the knowledge of this relation is not, in any
instance, attained by reasonings a priori; but arises entirely from
experience, when we find that any particular objects are constantly
conjoined with each other; . . . nor can our reason, unassisted by
experience, ever draw any inference concerning real existence and
matter of fact.''


[1] David Hume: Enquiry, p. 33 (Open Court Ed.).


In the course of his explanation Hume presents two propositions,

(1) I have found that such an object has always been attended
with such an effect.

(2) I foresee that other objects which are in appearance similar,
will be attended with similar effects.

He goes on: ``I shall allow, if you please, that the one proposition
may justly be inferred from the other; I know in fact that it always

is inferred. But if you insist that the inference is made by a chain
of reasoning, I desire you to produce that chain of reasoning. The
connection between these propositions is not intuitive. There is
required a medium which may enable the mind to draw such an
inference, if, indeed, it be drawn by reasoning and argument. What
the medium is, I must confess, passes my comprehension; and it
is incumbent on those to produce it who assert that it exists, and
is the origin of all our conclusions concerning matters of fact.''

If we regard the matter more closely we may say with certainty:
This medium exists not as a substance but as a transition. When
I speak in the proposition of ``such an object,'' I already have
``similar'' in mind, inasmuch as there is nothing absolutely like
anything else, and when I say in the first proposition, ``such an
object,'' I have already passed into the assertion made in the second
proposition.


Suppose that we take these propositions concretely:

(1) I have discovered that bread made of corn has a nourishing
effect.

(2) I foresee that other apparently similar objects, e. g., wheat,
will have a like effect.

I could not make various experiments with the same corn in
case (1). I could handle corn taken as such from one point of view,
or considered as such from another, i. e., I could only experiment
with very similar objects. I can therefore make these experiments
with corn from progressively remoter starting points, or soils, and
finally with corn from Barbary and East Africa, so that there can
no longer be any question of identity but only of similarity. And
finally I can compare two harvests of corn which have less similarity
than certain species of corn and certain species of wheat. I am
therefore entitled to speak of identical or similar in the first proposition
as much as in the second. One proposition has led into another
and the connection between them has been discovered.

The criminological importance of this ``connection'' lies in the
fact that the correctness of our inferences depends upon its discovery.
We work continuously with these two Humian propositions,
and we always make our assertion, first, that some things are
related as cause and effect, and we join the present case to that
because we consider it similar. If it is really similar, and the connection
of the first and the second proposition are actually correct,
the truth of the inference is attained. We need not count the unexplained
wonders of numerical relations in the result. D'Alembert

asserts: ``It seems as if there were some law of nature which more
frequently prevents the occurrence of regular than irregular combinations;
those of the first kind are mathematically, but not physically,
more probable. When we see that high numbers are thrown
with some one die, we are immediately inclined to call that die
false.'' And John Stuart Mill adds, that d'Alembert should have
set the problem in the form of asking whether he would believe in
the die if, after having examined it and found it right, somebody
announced that ten sixes had been cast with it.

We may go still further and assert that we are generally inclined
to consider an inference wrong which indicates that accidental
matters have occurred in regular numerical relation. Who believes
the hunter's story that he has shot 100 hares in the past week, or
the gambler's that he has won 1000 dollars; or the sick man's, that
he was sick ten times? It will be supposed at the very least that
each is merely indicating an approximately round sum. Ninety-six
hares, 987 dollars, and eleven illnesses will sound more probable. And
this goes so far that during examinations, witnesses are shy of naming
such ``improbable ratios,'' if they at all care to have their testimony
believed. Then again, many judges are in no wise slow to jump at
such a number and to demand an ``accurate statement,'' or eves
immediately to decide that the witness is talking only ``about.''
How deep-rooted such views are is indicated by the circumstance
that bankers and other merchants of lottery tickets find that
tickets with ``pretty numbers'' are difficult to sell. A ticket of
series 1000, number 100 is altogether unsalable, for such a
number ``can not possibly be sold.'' Then again, if one has to count
up a column of accidental figures and the sum is 1000, the correctness
of the sum is always doubted.

Here are facts which are indubitable and unexplained. We must
therefore agree neither to distrust so-called round numbers, nor to
place particular reliance on quite irregular figures. Both should be
examined.

It may be that the judgment of the correctness of an inference is
made analogously to that of numbers and that the latter exercise
an influence on the judgment which is as much conceded popularly
as it is actually combated. Since Kant, it has been quite discovered
that the judgment that fools are in the majority must lead
through many more such truths in judging--and it is indifferent
whether the judgment dealt with is that of the law court or of a
voting legislature or mere judgments as such.

Schiel says, ``It has been frequently asserted that a judgment is
more probably correct according to the number of judges and jury.
Quite apart from the fact that the judge is less careful, makes less
effort, and feels less responsibility when he has associates, this is a
false inference from an enormous average of cases which are necessarily
remote from any average whatever. And when certain prejudices
or weaknesses of mind are added, the mistake multiplies.
Whoever accurately follows, if he can avoid getting bored, the voting
of bodies, and considers by themselves individual opinions
about the subject, they having remained individual against large
majorities and hence worthy of being subjected to a cold and
unprejudiced examination, will learn some rare facts. It is especially
interesting to study the judgment of the full bench with regard
to a case which has been falsely judged; surprisingly often only
a single individual voice has spoken correctly. This fact is a
warning to the judge in such cases carefully to listen to the individual
opinion and to consider that it is very likely to deserve study just
because it is so significantly in the minority.

The same thing is to be kept in mind when a thing is asserted
by a large number of witnesses. Apart from the fact that they
depend upon one another, that they suggest to one another, it is
also easily possible, especially if any source of error is present, that
the latter shall have influenced all the witnesses.

Whether a judgment has been made by a single judge or is the
verdict of any number of jurymen is quite indifferent since the
correctness of a judgment does not lie in numbers. Exner says, ``The
degree of probability of a judgment's correctness depends upon the
richness of the field of the associations brought to bear in establishing
it. The value of knowledge is judicially constituted in this fact,
for it is in essence the expansion of the scope of association. And
the value is proportional to the richness of the associations between
the present fact and the knowledge required.'' This is one of the
most important of the doctrines we have to keep in mind, and it
controverts altogether those who suppose that we ought to be
satisfied with the knowledge of some dozens of statutes, a few
commentaries, and so and so many precedents.

If we add that ``every judgment is an identification and that in
every judgment we assert that the content represented is identical
in spite of two different associative relationships,''[1] it must become
clear what dangers we undergo if the associative relationships of

a judge are too poor and narrow. As Mittermaier said seventy
years ago: ``There are enough cases in which the weight of the
evidence is so great that all judges are convinced of the truth in the
same way. But in itself what determines the judgment is the essential
character of him who makes it.'' What he means by essential
character has already been indicated.


[1] H. Mnsterberg: Beitrge zur experimentellen Psychologie, III. Freiburg.


We have yet to consider the question of the value of inferences
made by a witness from his own combinations of facts, or his descriptions.
The necessity, in such cases, of redoubled and numerous
examinations is often overlooked. Suppose, for example, that the
witness does not know a certain important date, but by combining
what he does know, infers it to have been the second of June, on
which day the event under discussion took place. He makes the
inference because at the time he had a call from A, who was in the
habit of coming on Wednesdays, but there could be no Wednesday
after June seventh because the witness had gone on a long journey
on that day, and it could not have been May 26 because this
day preceded a holiday and the shop was open late, a thing not
done on the day A called. Nor, moreover, could the date have
been May 20, because it was very warm on the day in question, and
the temperature began to rise only after May 20. In view of these
facts the event under discussion must have occurred upon June
2nd and only on that day.

As a rule, such combinations are very influential because they
appear cautious, wise and convincing. They impose upon people
without inclination toward such processes. More so than they have
a right to, inasmuch as they present little difficulty to anybody
who is accustomed to them and to whom they occur almost spontaneously.
As usually a thing that makes a great impression upon
us is not especially examined, but is accepted as astounding and
indubitable, so here. But how very necessary it is carefully to
examine such things and to consider whether the single premises
are sound, the example in question or any other example will show.
The individual dates, the facts and assumptions may easily be mistaken,
and the smallest oversight may render the result false, or
at least not convincing.

The examination of manuscripts is still more difficult. What is
written has a certain convincing power, not only on others but on
the writer, and much as we may be willing to doubt and to improve
what has been written immediately or at most a short time ago,
a manuscript of some age has always a kind of authority and we

give it correctness cheaply when that is in question. In any event
there regularly arises in such a case the problem whether the written
description is quite correct, and as regularly the answer is a convinced
affirmative. It is impossible to give any general rule for testing
such affirmation. Ordinarily some clearness may be attained by
paying attention to the purpose of the manuscript, especially in
order to ascertain its sources and the personality of the writer.
There is much in the external form of the manuscript. Not that
especial care and order in the notes are particularly significant; I
once published the accounts of an old peasant who could neither
read nor write, and his accounts with a neighbor were done in untrained
but very clear fashion, and were accepted as indubitable in
a civil case. The purposiveness, order, and continuity of a manuscript
indicate that it was not written after the event; and are
therefore, together with the reason for having written it and obviously
with the personality of the writer, determinative of its value.


Section 32. (j) Mistaken Inferences.

It is true, as Huxley says, that human beings would have made
fewer mistakes if they had kept in mind their tendency to false
judgments which depend upon extraordinary combinations of real
experiences. When people say: I felt, I heard, I saw this or that,
in 99 cases out of 100 they mean only that they have been aware
of some kind of sensation the nature of which they determine in a
_*judgment_. Most erroneous inferences ensue in this fashion. They
are rarely formal and rarely arise by virtue of a failure to use logical
principles; their ground is the inner paucity of a premise, which
itself is erroneous because of an erroneous perception or conception.[1]
As Mill rightly points out, a large portion of mankind make mistakes
because of tacit assumptions that the order of nature and the
order of knowledge are identical and that things must exist as they
are thought, so that when two things can not be thought together
they are supposed not to exist together, and the inconceivable is
supposed to be identical with the non-existent. But what they do
not succeed in conceiving must not be confused with the absolutely
inconceivable. The difficulty or impossibility of conceiving may be
subjective and conditional, and may prevent us from understanding
the relation of a series of events only because some otherwise proxi-

mate condition is unknown or overlooked. Very often in criminal
cases when I can make no progress in some otherwise simple matter,
I recall the well known story of an old peasant woman who saw
the tail of a horse through an open stable door and the head of
another through another door several yards away, and because the
colors of both head and tail were similar, was moved to cry out:
``Dear Lord, what a long horse!'' The old lady started with the
presupposition that the rump and the head of the two horses
belonged to one, and could make no use of the obvious solution
of the problem of the inconceivably long horse by breaking it in
two.