Robin Hood

Heinroth,[1] Sehaumann,[2] Mnch,[3] Eckartshausen,[4] 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,[5] 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,[6] still later,
attempted to recover it for philosophy, as is pointed out in Friedreich's[7]
well-known text-book (cf. moreover V. Wilbrand's[8] text-book).
Nowadays, criminal psychology, as represented by Kraus,[9] Krafft-
Ebing,[10] Maudsley,[11] Holtzendorff,[12] Lombroso,[13] 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.[14] How utterly criminal psychology has
become incorporated in criminal anthropology is demonstrated by the
works of Ncke,[15] Kurella,[16] Bleuler,[17] Dallemagne,[18] Marro,[19] Ellis,[20]
Baer,[21] Koch,[22] Maschka,[23] Thomson,[24] Ferri,[25] Bonfigli,[26] Corre,[27] etc.

[1] Johann Heinroth: Grundzuge der Kriminalpsychologie. Berlin 1833.

[2] Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792.

[3] Mnch: ber den Einfluss der Kriminalpsychologie auf Pin System der
Kriminal-Rechts. Nrnberg 1790.

[4] Eckartshausen. ber die Notwendigkeit psychologiseher Kenntnisse bei
Beurteilung von Verbreehern. Mnchen, 1791.

[5] J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820.

[6] E. Regnault: Das gerichtliche Urteil der rzte ber psychologische Zustande.
Cln, 1830.

[7] J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg 1832.

[8] Wilbrand: Gerichtliche Psychologie. 1858.

[9] Kraus: Die Psychologie des Verbrechens. Tbingen, 1884.

[10] v. Krafft-Ebing: Die zweifelhaften Geisteszustnde. Erlangen 1873.

[11] Maudsley: Physiology and Pathology of the Mind.

[12] v. Holtzendorff--articles in ``Rechtslexikon.''

[13] Lombroso: L'uomo delinquente, ete.

[14] Asehaffenburg: Articles in Zeitscheift f. d. gesamten Strafreehtwissensehaften,
especially in. XX, 201.

[15] Dr. P. Ncke: ber Kriminal Psychologie, in the above-mentioned
Zeitschrift, Vol. XVII.
Verbrechen und Wahnsinn beim Weibe. Vienna, Leipsig, 1884.
Moral Insanity: rztliche Sachverstndigen-Zeitung, 1895;
Neurologisches Zentralblatt, Nos. 11 and 16. 1896

[16] Kurella: Naturgesehichte des Verbreehers. Stuttgart 1893.

[17] Blenler: Der geborene Verbrecher. Munchen 1896.

[18] Dallemagne. Kriminalanthropologie. Paris 1896.

19] Marro: I caratteri dei deliquenti. Turin 1887. I carcerati. Turin 1885.

[20] Havelock Ellis: The Criminal. London 1890.

[21] A. Baer: Der Verbrecher Leipzig 1893.

[22] Koch. Die Frage nach dem geborenen Verbrecher. Ravensberg 1894.

[23] Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). Tbingen 1883.

[24] Thomson. Psychologie der Verbrecher.

[25] Ferri: Gerichtl. Psychologie. Mailand 1893.

[26] Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892.

[27] Corre: Les Criminels. Paris 1889.

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 where-
ever 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:[1]

1. The preparation of a review of psychological phenomena.

[1] P. Jessen: Versuch einer wissenschaftlichen Begrundung der Psychologie.
Berlin 1855.

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 Abb
de Bats, 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[1]
who complained: ``The contemporary low stage of legal education
is to be explained like much else by that historical continuity which
plays the foremost rle in the administration of justice.'' Menger[2]
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 Stlzel[3] 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[4] 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.''

[1] R. Gneist: Aphorismen zur Reform des Rechtestudiums. Berlin 1887.

[2] A. Menger: in Archiv fin soziale Gesetzgebung v. Braun II.

[3] A. Stlsel: Schulung fin die Zivilistiche Praxis. 2d Ed. Berlin 1896.

[4] S. Goldschmidt: Rechtestudium und Priifungsordnung. Stuttgart 1887.

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,[1] 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.

[1] A. v. Brinz: ber Universalitt. Rektorsrede 1876.




PART I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE
MENTAL ACTIVITIES OF THE JUDGE.

TITLE A. THE CONDITIONS OF TAKING EVIDENCE.

Topic I. METHOD.

Section I. (a) General Considerations.


SOCRATES, dealing in the Meno with the teachability of virtue,
sends for one of Meno's slaves, to prove by him the possibility of
absolutely certain a priori knowledge. The slave is to determine the
length of a rectangle, the contents of which is twice that of one
measuring two feet; but he is to have no previous knowledge of the
matter, and is not to be directly coached by Socrates. He is to
discover the answer for himself. Actually the slave first gives out
an incorrect answer. He answers that the length of a rectangle
having twice the area of the one mentioned is four feet, thinking
that the length doubles with the area. Thereupon Socrates triumphantly
points out to Meno that the slave does as a matter of
fact not yet quite know the truth under consideration, but that he
really thinks he knows it; and then Socrates, in his own Socratic
way, leads the slave to the correct solution. This very significant
procedure of the philosopher is cited by Guggenheim[1] as an
illustration of the essence of a priori knowledge, and when we properly
consider what we have to do with a witness who has to relate
any fact, we may see in the Socratic method the simplest example
of our task. We must never forget _that the majority of mankind
dealing with any subject whatever always believe that they know and
repeat the truth_, and even when they say doubtfully: ``I believe.--
It seems to me,'' there is, in this tentativeness, more meant than
meets the ear. When anybody says: ``I believe that--'' it merely
means that he intends to insure himself against the event of being
contradicted by better informed persons; but he certainly has not

[1] M. Guggenheim: Die Lehre vom aprioristischen Wissen. Berlin 1885.

the doubt his expression indicates. When, however, the report of
some bare fact is in question (``It rained,'' ``It was 9 o'clock,''
``His beard was brown,'' or ``It was 8 o'clock,'') it does not matter
to the narrator, and if he imparts _*such_ facts with the introduction,
``I believe,'' then he was really uncertain. The matter becomes
important only where the issue involves partly-concealed observations,
conclusions and judgments. In such cases another factor
enters--conceit; what the witness asserts he is fairly certain of
just because he asserts it, and all the ``I believes,'' ``Perhapses,''
and ``It seemeds,'' are merely insurance against all accidents.

Generally statements are made without such reservations and,
even if the matter is not long certain, with full assurance. What
thus holds of the daily life, holds also, and more intensely, of court-
witnesses, particularly in crucial matters. Anybody experienced
in their conduct comes to be absolutely convinced that witnesses
do not know what they know. A series of assertions are made
with utter certainty. Yet when these are successively subjected to
closer examinations, tested for their ground and source, only a very
small portion can be retained unaltered. Of course, one may here
overshoot the mark. It often happens, even in the routine of daily
life, that a man may be made to feel shaky in his most absolute
convictions, by means of an energetic attack and searching questions.
Conscientious and sanguine people are particularly easy subjects
of such doubts. Somebody narrates an event; questioning begins
as to the indubitability of the fact, as to the exclusion of possible
deception; the narrator becomes uncertain, he recalls that, because
of a lively imagination, he has already believed himself to have
seen things otherwise than they actually were, and finally he admits
that the matter might probably have been different. During trials
this is still more frequent. The circumstance of being in court of
itself excites most people; the consciousness that one's statement is,
or may be, of great significance increases the excitement; and the
authoritative character of the official subdues very many people
to conform their opinions to his. What wonder then, that however
much a man may be convinced of the correctness of his evidence,
he may yet fail in the face of the doubting judge to know anything
certainly?

Now one of the most difficult tasks of the criminalist is to hit,
in just such cases, upon the truth; neither to accept the testimony
blindly and uncritically; nor to render the witness, who otherwise

is telling the truth, vacillating and doubtful. But it is still more
difficult to lead the witness, who is not intentionally falsifying, but
has merely observed incorrectly or has made false conclusions, to a
statement of the truth as Socrates leads the slave in the Meno.
It is as modern as it is comfortable to assert that this is not the
judge's business--that the witness is to depose, his evidence is to
be accepted, and the judge is to judge. Yet it is supposed before
everything else that the duty of the court is to establish the material
truth--that the formal truth is insufficient. Moreover, if we notice
false observations and let them by, then, under certain circumstance,
we are minus one important piece of evidence _*pro_ and _*con_,
and the whole case may be turned topsy turvy. At the very least
a basis of development in the presentation of evidence is so excluded.
We shall, then, proceed in the Socratic fashion. But, inasmuch as
we are not concerned with mathematics, and are hence more badly
placed in the matter of proof, we shall have to proceed more cautiously
and with less certainty, than when the question is merely
one of the area of a square. On the one hand we know only in the
rarest cases that we are not ourselves mistaken, so that we must
not, without anything further, lead another to agree with us; on
the other hand we must beware of perverting the witness from his
possibly sound opinions. It is not desirable to speak of suggestion
in this matter, since, if I believe that the other fellow knows a matter
better than I and conform to his opinion, there is as yet no suggestion.
And this pure form of change of opinion and of openness to
conviction is commonest among us. Whoever is able to correct
the witness's apparently false conceptions and to lead him to discover
his error of his own accord and then to speak the truth--
whoever can do this and yet does not go too far, deducing from the
facts nothing that does not actually follow from them--that man
is a master among us.