Rafael Sabatini - "Bardelys the Magnificent"

Elizabeth - "Elizabeth and her German Garden*"

Richard Harding Davis - "Princess Aline, by Richard Harding Davis"

Henry James - "An International Episode"

Robin Hood

cross-examination. Not only children and slow-witted folk, but
also bright persons often answer only ``yes'' and ``no,''[1] and these
bare answers demand a patience most necessary with just this bareness,
if the answers are to be pursued for some time and consecutively.
The danger of impatience is the more obvious inasmuch as
everyone recognizes more or less clearly that he is likely to set the
reserved witness suggestive questions and so to learn things that the
witness never would have said. Not everybody, indeed, who makes
monosyllabic replies in court has this nature, but in the long run,
this common characteristic is manifest, and these laconic people
are really not able to deliver themselves connectedly in long speeches.
If, then, the witness has made only the shortest replies and a coherent
well-composed story be made of them, the witness will,
when his testimony is read to him, often not notice the untruths
it might contain. He is so little accustomed to his own prolonged
discourse that at most he wonders at his excellent speech without
noticing even coarse falsehoods. If, contrary to expectation, he
does notice them, he is too chary of words to call attention to them,
assents, and is glad to see the torture coming to an end. Hence,
nothing but endless patience will do to bring the laconic witness
to say at least enough to make his information coherent, even
though brief. It may be presented in this form for protocol.


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, Frbel[2] 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[3])
``is to endow the pupil with more apperceptive capacity, i. e., to

[1] Pathological conditions, if at all distinct, are easily recognizable, but there
is a very broad and fully occupied border country between pathological and normal
conditions. (Cf. O. Gross: Die Affeklage der Ablehnung. Monatschrift fr Psychiatrie
u. Neurologie, 1902, XII, 359.)

[2] Frbel: Die. Mensehenersiehung. Keilhau 1826.

[3] K. Lange: ber Apperzeption. Plauen 1889.

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,[1] 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

[1] Dichl in H. Gross's Arehiv, XI, 240.

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 Frbelian 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[1] 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

[1] Carus: Psychologie. Leipzig 1823.

men, have an ancestry, and a knowledge of the ancestors leads to a
discovery of the cousins.


Section 7. (e) Egoism.


It is possible that the inner character of egoism shall be as profoundly
potent in legal matters as in the daily life. Goethe has
experienced its effect with unparalleled keenness. ``Let me tell
you something,'' he writes (Conversations with Eckermann. Vol.
1). ``All periods considered regressive or transitional are subjective.
Conversely all progressive periods look outward. The whole of
contemporary civilization is reactionary, because subjective....
The thing of importance is everywhere the individual who is trying
to show off his lordliness. Nowhere is any mentionable effort to
be found that subordinates itself through love of the whole.''

These unmistakable terms contain a ``discovery'' that is applicable
to our days even better than to Goethe's. _It is characteristic
of our time that each man has an exaggerated interest in himself_.
Consequently, he is concerned only with himself or with his immediate
environment, he understands only what he already knows and feels,
and he works only where he can attain some personal advantage.
It is hence to be concluded that we may proceed with certainty
only when we count on this exaggerated egoism and use it as a
prime factor. The most insignificant little things attest this. A
man who gets a printed directory will look his own name up, though
he knows it is there, and contemplate it with pleasure; he does the
same with the photograph of a group of which his worthy self is
one of the immortalized. If personal qualities are under discussion,
he is happy, when he can say,--``Now I am by nature so.''--
If foreign cities are under discussion, he tells stories of his native
city, or of cities that he has visited, and concerning things that can
interest only him who has been there. Everyone makes an effort
to bring something of his personal status to bear,--either the conditions
of his life, or matters concerning only him. If anybody
announces that he has had a good time, he means without exception,
absolutely without exception, that he has had an opportunity to
push his ``I'' very forcefully into the foreground.

Lazarus[1] has rightly given this human quality historical significance:
``Pericles owed a considerable part of his political dictatorate
to the circumstance of knowing practically all Athenian
citizens by name. Hannibal, Wallenstein, Napoleon I, infected

[1] M. Lazarus: Das Leben der Seele. Berlin 1856.

their armies, thanks to ambition, with more courage than could
the deepest love of arms, country and freedom, just through knowing
and calling by name the individual soldiers.''

Daily we get small examples of this egoism. The most disgusting
and boresome witness, who is perhaps angry at having been dragged
so far from his work, can be rendered valuable and useful through
the initial show of a little _*personal_ interest, of some comprehension
of his affairs, and of some consideration, wherever possible, of his
views and efficiency. Moreover, men judge their fellows according
to their comprehension of their own particular professions. The
story of the peasant's sneer at a physician, ``But what can he know
when he does not even know how to sow oats?'' is more than a
story, and is true of others besides illiterate boors. Such an attitude
recurs very frequently, particularly among people of engrossing
trades that require much time,--e. g., among soldiers, horsemen,
sailors, hunters, etc. If it is not possible to understand these human
vanities and to deal with these people as one of the trade, it is wise
at least to suggest such understanding, to show interest in their
affairs and to let them believe that really you think it needful for
everybody to know how to saddle a horse correctly, or to distinguish
the German bird-dog from the English setter at a thousand paces.
What is aimed at is not personal respect for the judge, but for the
judge's function, which the witness identifies with the judge's person.
If he has such respect, he will find it worth the trouble to help us
out, to think carefully and to assist in the difficult conclusion of the
case. There is an astonishing difference between the contribution
of a sulking and contrary witness and of one who has become interested
and pleased by the affair. Not only quantity, but truth
and reliability of testimony, are immensely greater in the latter case.

Besides, the antecedent self-love goes so far that it may become
very important in the examination of the accused. Not that a trap
is to be set for him; merely that since it is our business to get at the
truth, we ought to proceed in such proper wise with a denying
accused as might bring to light facts that otherwise careful manipulation
would not have brought out. How often have anonymous or
pseudonymous criminals betrayed themselves under examination
just because they spoke of circumstances involving their capital _*I_,
and spoke so clearly that now the clue was found, it was no longer
difficult to follow it up. In the examination of well-known criminals,
dozens of such instances occur--the fact is not new, but it needs
to be made use of.

A similar motive belongs to subordinate forms of egoism--
the obstinacy of a man who may be so vexed by contradiction as
to drive one into despair, and who under proper treatment becomes
valuable. This I learned mainly from my old butler, a magnificent
honest soldier, a figure out of a comedy, but endowed with inexorable
obstinacy against which my skill for a long time availed nothing.
As often as I proposed something with regard to some intended
piece of work or alteration, I got the identical reply--``It won't
do, sir.'' Finally I got hold of a list and worked my plan--``Simon,
this will now be done as Simon recently said it should be done,--
namely.'' At this he looked at me, tried to think when he had
said this thing, and went and did it. And in spite of frequent application
this list has not failed once for some years. What is best
about it is that it will serve, mutatis mutandis, with criminals. As
soon as ever real balkiness is noted, it becomes necessary to avoid
the least appearance of contradictoriness, since that increases difficulties.
It is not necessary to lie or to make use of trickery. Only,
avoid direct contradiction, drop the subject in question, and return
to it indirectly when you perceive that the obstinate individual
recognizes his error. Then you may succeed in building him a
golden bridge, or at least a barely visible sidedoor where he can make
his retreat unnoticed. In that case even the most difficult of obstinates
will no longer repeat the old story. He will repeat only if he
is pressed, and this although he is repeatedly brought back to the
point. If, however, the matter is once decided, beware of returning
to it without any other reason, save to confirm the settled matter
quite completely,--that would be only to wake the sleeper to
give him a sleeping powder.

Speaking generally, the significant rule is this: _Egoism, laziness
and conceit are the only human motives on which one may unconditionally
depend_. Love, loyalty, honesty, religion and patriotism,
though firm as a rock, may lapse and fall. A man might have been
counted on for one of these qualities ten times with safety, and on
the eleventh, he might collapse like a house of cards. Count on
egoism and laziness a hundred or a thousand times and they are as
firm as ever. More simply, count on egoism--for laziness and conceit
are only modifications of egoism. The latter alone then should
be the one human motive to keep in mind when dealing with men.
There are cases enough when all the wheels are set in motion after
a clue to the truth, i. e., when there is danger that the person under
suspicion is innocent; appeals to honor, conscience, humanity and

religion fail;--but run the complete gamut of self-love and the
whole truth rings clear. Egoism is the best criterion of the presence
of veracity. Suppose a coherent explanation has been painfully
constructed. It is obvious that the correctness of the construction
is studied with reference to the given motive. Now, if the links in
the chain reach easily back to the motive, there is at least the
possibility that the chain is free of error. What then of the motive?
If it is noble--friendship, love, humaneness, loyalty, mercy--the
constructed chain may be correct, and happily is so oftener than is
thought; but it _*need not_ be correct. If, however, the structure
rests on egoism, in any of its innumerable forms? and if it is logically
sound, then the whole case is explained utterly and reliably. The
construction is indubitably correct.


Section 8. (f) Secrets.


The determination of the truth at law would succeed much less
frequently than it does if it were not for the fact that men find it
very difficult to keep secrets. This essentially notable and not
clearly understood circumstance is popularly familiar. Proverbs
of all people deal with it and point mainly to the fact that keeping
secrets is especially difficult for women. The Italians say a woman
who may not speak is in danger of bursting; the Germans, that the
burden of secrecy affects her health and ages her prematurely; the
English say similar things still more coarsely. Classical proverbs
have dealt with the issue; numberless fairy tales, narratives, novels
and poems have portrayed the difficulty of silence, and one very fine
modern novel (Die Last des Schweigens, by Ferdinand Krnberger)
has chosen this fact for its principal motive. The universal
difficulty of keeping silence is expressed by Lotze[1] in the dictum
that we learn expression very young and silence very late. The
fact is of use to the criminalist not only in regard to criminals, but
also with regard to witnesses, who, for one reason or another, want
to keep something back. The latter is the source of a good deal of
danger, inasmuch as the witness is compelled to speak and circles
around the secret in question without touching it, until he points
it out and half reveals it. If he stops there, the matter requires
consideration, for ``a half truth is worse than a whole lie.'' The
latter reveals its subject and intent and permits of defence, while the
half truth may, by association and circumscriptive limitations, cause
vexatious errors both as regards the identity of the semi-accused

[1] Lotze: Der Instinkt. Kleine Schriften. Leipzig 1885.

and as regards the circumstances with which he is thus involved.
For this reason the criminalist must consider the question of secrets
carefully.

As for his own silence, this must be considered in both directions
That he is not to blab official secrets is so obvious that it need not
be spoken of. Such blabbing is so negligent and dishonorable that we
must consider it intrinsically impossible. But it not infrequently
happens that some indications are dropped or persuaded out of a
criminal Judge, generally out of one of the younger and more eager
men. They mention only the event itself, and not a name, nor a
place, nor a particular time, nor some even more intimate matter--
there seems no harm done. And yet the most important points
have often been blabbed of in just such a way. And what is worst
of all, just because the speaker has not known the name nor anything
else concrete, the issue may be diverted and enmesh some guiltless
person. It is worth considering that the effort above mentioned is
made only in the most interesting cases, that crimes especially move
people to disgusting interest, due to the fact that there is a more
varied approach to synthesis of a case when the same story is repeated
several times or by various witnesses. For by such means
extrapolations and combinations of the material are made possible.
By way of warning, let me remind you of an ancient and much quoted
anecdote, first brought to light by Boccaccio: A young and much
loved abb was teased by a bevy of ladies to narrate what had happened
in the first confession he had experienced. After long hesitation
the young fellow decided that it was no sin to relate the confessed
sin if he suppressed the name of the confessor, and so he told
the ladies that his first confession was of infidelity. A few minutes
later a couple of tardy guests appeared,--a marquis and his charming
wife. Both reproached the young priest for his infrequent visits
at their home. The marquise exclaimed so that everybody heard,
``It is not nice of you to neglect me, your first confesse.'' This
squib is very significant for our profession, for it is well known
how, in the same way, ``bare facts,'' as ``completely safe,'' are
carried further. The listener does not have to combine them, the
facts combine themselves by means of others otherwise acquired,
and finally the most important official matters, on the concealment
of which much may perhaps have depended, become universally
known. Official secrets have a general significance, and must therefore
be guarded at all points and not merely in detail.