Alexander Hamilton, John Jay, and James Madison - "Project Gutenberg surfs with a modem donated by Supra."

Earl Derr Biggers - "The Agony Column"

Sara Teasdale - "Rivers to the Sea"

Dinah Maria Mulock (Mrs. Craik) - "John Halifax, Gentleman"

Robin Hood

remembers what he has heard, may avoid error. The mistakes of
the secretaries may in any event be reduced to a minimum if all
protocols are read immediately, and not by the secretary but by the
examining judge himself. If the writer reads them he makes the
same mistakes, and only a very intelligent witness will perceive
them and call attention to them. Unless it so happens the mistake
remains.

I cite a few of the errors that I have observed. From a protocol
with the suspect: ``On the twelfth of the month I left Marie Tomizil''
(instead of, ``my domicile''). Instead of ``irrelevant,''--``her
elephant.'' Very often words are written in, which the dictator only
says by the way; e. g., ``come in,'' ``go on,'' ``hurry up,'' ``look
out,'' etc. If such words get into the text at all it is difficult to puzzle
out how they got in. How easily and frequently people misunderstand
is shown by the oath they take. Hardly a day passes on which
at least one witness does not say some absolute nonsense while
repeating it.

The discovery of such errors and the substitution of what is
correct brings us back to the old rule that the mere study of our own
cases can not teach us anything, since the field of view is too narrow,
the material too uniform, and the stimulation too light. Other
disciplines must be studied and examples from the daily life must
be sought. Goethe, in particular, can teach us here. In his little
monograph, ``Hr-, Schreib- and Druckfehler,'' he first tells
that he had discovered the most curious mistakes in hearing when he
reread dictated letters, mistakes which would have caused great
difficulty if not immediately looked after. The only means for the
solution of these errors is, he says, ``to read the matter aloud, get
thoroughly into its meaning and repeat the unintelligible word so
long that the right one occurs in the flow of speech. Nobody hears
all that he knows, nobody is conscious of all that he senses, is able
to imagine, or to think. Persons who have never been to school
tend to turn into German all Latin and Greek expressions. The
same thing happens just as much with words from foreign languages
whose pronunciation is unknown to the writer . . . and in dictation
it occurs that a hearer sets his inner inclination, passion, and need
in the place of the word he has heard, and substitutes for it the name
of some loved person, or some much desired good morsel.'' A better
device for the detection of errors than that suggested by Goethe
cannot be found, but the protocol or whatever else it may be must
be _*read_; otherwise nothing helps. Many mistakes are due, as

Mnsterberg points out, to the fact that the word is seen for just
an instant, and it is easy to misread a word so seen if some similar
word had been heard or seen just before. The most senseless corruptions
of text occur often, and it seems extraordinary how they
may be overlooked. Andresen points out that the reason for all
popular explanations is the consciousness of language which struggles
against allowing any name to be an empty sound, and still more,
strives to give each term a separate meaning and an indubitable
intelligibility. The human mind acts here instinctively and navely
without any reflection, and is determined by feeling or accident.
Then it makes all kinds of transformations of foreign words.

This fits with the analogous observation that a group of Catholic
patron saints depend for their character on their names. Santa
Clara makes clear vision, St. Lucy sounds like lucida, and is the
saint of the blind; St. Mamertus is analogous to mamma, the
feminine breast, and is the patron saint of nurses and nursing women.
Instructive substitutions are Jack Spear, for Shakespeare, Apolda
for Apollo; Great victory at le Mans, for Great victory at Lehmanns;
``plaster depot,'' for ``place de Repos.''

Andresen warns us against going too far in analysis. Exaggerations
are easy, particularly when we want to get at the source of a
misunderstanding because of the illegibility of the style. Our task
consists, first of all, in getting at the correctness of what has been
said or written, otherwise we have nothing whatever to go by. Only
when that is quite impossible may we assume misunderstandings
and seek them out. The procedure then must be necessarily linguistic
and psychological and requires the consultation of experts in both
fields. Certain instructive misunderstandings of the most obvious
sort occur when the half-educated drop their dialect, or thoroughly
educated people alter the dialectical expressions and try to translate
them into high German.

It is frequently important to understand the curious transposition
in meaning which foreign words get, e. g., commode, fidel, and
famos. A commode gentleman means in German, a pliable person;
and a fidel lad is not a loyal soul, but a merry, pleasure-
seeking one; famos--originally ``famous,''--means expensive or
pleasant.

It may be not unimportant to understand how names are altered.
Thus, I know a man who curiously enough was called Kammerdiener,
whose father was an immigrant Italian called Comadina, and I
know two old men, brothers, who lived in different parts of the

country, one of whom was called Joseph Waldhauser, the other Leopold
Balthasar. In the course of the generation the name had so completely
changed that it is impossible to say which is correct. Again,
a family bearing the name Theobald is of French origin and used
really to be called Du Val. In Steiermark, which had been over-run
with Turks two hundred years ago, there are many family names of
Turkish origin. Thus Hasenhrl may come from Hassan ri;
Salata from Saladin; Mullenbock, from Mullei Beg; Sullman from
Soliman.


Section 107. (2) _Other Misunderstandings_.

The quantitative method of modern psychophysics may lead to
an exact experimental determination of such false conceptions and
misunderstandings as those indicated above, but it is still too young
to have any practical value. It is vitiated by the fact that it requires
artificial conditions and that the results have reference to artificial
conditions. Wundt has tried to simplify apparatus, and to bring
experiment into connection with real life. But there is still a far
cry from the psychological laboratory to the business of life. With
regard to misunderstandings the case is certainly so. Most occur
when we do not hear distinctly what another person is saying and
supplement it with our own notions. Here the misunderstanding
is in no sense linguistic, for words do not receive a false meaning.
The misunderstanding lies in the failure to comprehend the sense
of what we have heard, and the substitution of incorrect interpretations.
Sometimes we may quite understand an orator without having
heard every word by simply adding these interpretations, but the
correctness of the additions is always questionable, and not only
nature and training, but momentary conditions and personal attitude,
make a considerable difference. The worst thing about the matter
is the fact that nobody is likely to be aware that he has made any
interpretations. Yet we do so not only in listening, but in looking.
I see on a roof in the distance four white balls about the nature of
which I am uncertain. While looking, I observe that one of the balls
stretches out head and tail, flaps its wings, etc., and I immediately
think, ``Oh, those are four pigeons.'' Now it may be true that they
are four pigeons, but what justification had I for such an interpretation
and generalization from the action of one pigeon? In this instance,
no doubt, it would have been difficult for me to make a mistake,
but there are many cases which are not so obvious and where the
interpretation is nevertheless made, and then the misunderstanding

is ready to hand. Once my wife and I saw from our seats in the car
a chimney-sweep who stood in a railroad station. As he bent over,
looking for a lost coin, my very myopic wife cried out, ``Look at
the beautiful Newfoundland dog.'' Now this is a conceivable illusion
for a short-sighted individual, but on what basis could my good
lady interpret what she saw into the judgment that it was a Newfoundland
dog, and a beautiful one at that? Taine illustrates a
similar process with the story of a child who asked why his mother
had put on a white dress. He was told that his mother was going
to a party and had to put on her holiday clothes for that purpose.
After that, whenever the child saw anybody in holiday attire, green
or red or any other color, it cried out,--``Oh, you have a white
dress on!'' We adults do exactly the same thing. As Meinong says
so well, we confuse identity with agreement. This proposition would
save us from a great many mistakes and misunderstandings if kept
in mind.

How frequently and hastily we build things out is shown by a
simple but psychologically important game. Ask anybody at hand
how the four and the six look on his watch, and let him draw it.
Everybody calmly draws, IV and VI, but if you look at your watch
you will find that the four looks so, IIII, and that there is no six.
This raises the involuntary question, ``Now what do we see when
we look at the watch if we do not see the figures?'' and the further
question, ``Do we make such beautiful mistakes with all things?''

I assert that only that has been reliably seen which has been
drawn. My father asked my drawing teacher to teach me not to
draw but to observe. And my teacher, instead of giving me copies,
followed the instruction by giving me first one domino, then two,
then three, one upon the other, then a match box, a book, a candlestick,
etc. And even today, I know accurately only those objects
in the household which I had drawn. Yet frequently we demand
of our witnesses minutely accurate descriptions of things they had
seen only once, and hastily at that.

And even if the thing has been seen frequently, local and temporal
problems may make great difficulties. With regard to the first
class of problems, Exner[1] cites the example of his journey from
Gmunden to Vienna in which, because of a sharp curve in the road,
he saw everything at Lambach reversed, although the whole stretch
of road was familiar to him. The railroad trains, the public buildings,
the rivers, all the notable places seemed to lie on the wrong side. This


[1] S. Exner: Entwurf, etc.

is particularly characteristic if a city is entered, especially at night,
through a railroad terminal, and the locomotive is attached to the
rear of the train. In the daily life the alteration of objects by locations
is familiar. How different a landscape seems at night or in
winter, although it has been observed hundreds of times during the
day or in summer. It is good to look around frequently on the road,
particularly at cross-roads, if the way back is to be kept in mind.
Even the starting point may have a disturbing effect on the sense of
place. For example, if you have traveled numerous times on the
train from A to B, and for once you start your journey from C,
which is beyond A, the familiar stretch from A to B looks quite
different and may even become unrecognizable. The estimation of
time may exercise considerable influence on such and similar local
effects. Under most circumstances we tend, as is known, to reduce
subjectively great time-spans, and hence, when more time than
customary is required by an event, this becomes subjectively
smaller, not only for the whole event but also for each of its parts.
In this way what formerly seemed to extend through an apparently
long period seems now to be compressed into a shorter one. Then
everything appears too soon and adds to the foreign aspect of the
matter.

The case is similar for time-differences. Uphues[1] cites an example:
``If a person has not heard a bell or anything else for some time
and then hears it again, the question whether the object existed
in the interval does not arise. It is recognized again and that is
enough.'' Certainly it is enough for us, but whether the thing
is true, whether really the same phenomena or only similar
ones have been noted, is another question rarely asked. If
the man or the bell is the same that we now perceive anew, the
inference is involuntarily drawn that they must have persisted,
but we eliminate altogether the lapse of time and suppose unconsciously
that the entity in question must have been on the spot
through the whole period. One needs only to observe how quickly
witnesses tend to identify objects presented for identification: e. g.
knives, letters, purses, etc. To receive for identification and to
say yes, is often the work of an instant. The witness argues, quite
unconsciously, in this fashion: ``I have given the judge only one
clew (perhaps different from the one in question), now here again
is a clew, hence, it must be the one I gave him.'' That the matter
may have changed, that there has been some confusion, that perhaps


[1] Die Wahrnehmung und Empfinding. Leipzig 1888.

other witnesses have given similar things, is not at all considered.
Here again we have to beware of confusing of identities with agreements.

Finally, we must consider fatigue and other conditions of excitation.
Everybody knows how things read late at night seem absolute
nonsense, and become simple and obvious the next morning. In
the same way, we may take a thing to be thus and so while tired
in the evening, and in the morning see our notion to be a coarse
misunderstanding. Hoppe tells of a hospital interne who became
so excited and tired through frequent calls that he heard the tick-
tack of his watch as ``Oh-doc-tor.'' A witness who has been
subjected to a prolonged and fatiguing examination falls into a
similar condition and knows at the end much less than at the beginning.
Finally, he altogether misunderstands the questions put
to him. The situation becomes still worse when the defendant
has been so subjected to examination, and becomes involved, because
of fatigue, etc., in the famous ``contradictions.'' If ``convincing
contradictions'' occur at the end of a long examination of a witness
or a defendant, it is well to find out how long the examination took.
If it took much time the contradictions mean little.

The same phenomena of fatigue may even lead to suspicion of
negligence. Doctors, trained nurses, nursery maids, young mothers,
etc., who became guilty of ``negligence'' of invalids and children
have, in many instances, merely ``misunderstood'' because of great
fatigue. It is for this reason that the numerous sad cases occur in
which machine-tenders, switch-tenders, etc., are punished for negligence.
If a man of this class, year after year, serves twenty-three
hours, then rests seven hours, then serves twenty-three hours again,
etc., he is inevitably overtaken by fatigue and nervous relaxation
in which signals, warnings, calls, etc., are simply misunderstood.
Statistics tend to show that the largest number of accidents occur
at the end of a period of service, i. e., at the time of greatest fatigue.
But even if this were not the case some reference must be made to
chronic fatigue. If a man gets only seven hours' rest after intense
labor, part of the fatigue-elements must have remained. They
accumulate in time, finally they summate, and exercise their influence
even at the beginning of the service. Socialists complain justly
about this matter. The most responsible positions are occupied
by chronically fatigued individuals, and when nature extorts her
rights we punish the helpless men.

The case is the same with people who have much to do with

money--tax, post, bank, and treasury officials, who are obliged
to attend rigorously to monotonous work--the reception and distribution
of money, easily grow tired. Men of experience in this
profession have assured me that they often, when fatigued, take
money, count it, sign a receipt and then--return the money to the
person who brought it. Fortunately they recognize their mistake
in the astonishment of the receiver. If, however, they do not recognize
it, or the receiver is sly enough calmly to walk off with the
money, if the sum is great and restitution not easily possible, and
if, moreover, the official happens to be in the bad graces of his
superiors, he does not have much chance in the prosecution for
embezzlement, which is more likely than not to be begun against
him.[1] Any affection, any stimulus, any fatigue may tend to make
people passive, and hence, less able to defend themselves.

A well known Berlin psychiatrist tells the following story: ``When
I was still an apprentice in an asylum, I always carried the keys
of the cells with me. One day I went to the opera, and had a seat
in the parquette. Between the acts I went into the corridor. On
returning I made a mistake, and saw before me a door which had
the same kind of lock as the cell-doors in the asylum, stuck my
hand into my pocket, took out my key--which fitted, and found
myself suddenly in a loge. Now would it not be possible in this way,
purely by reflex action, to turn into a burglar?'' Of course we
should hardly believe a known burglar if he were to tell us such a
story.


(e) _The Lie_.
Section 108. (I) I. General Considerations.

In a certain sense a large part of the criminalist's work is nothing
more than a battle against lies. He has to discover the truth and
must fight the opposite. He meets this opposite at every step.
The accused, often one who has confessed completely, many of the
witnesses, try to get advantage of him, and frequently he has to
struggle with himself when he perceives that he is working in a
direction which he can not completely justify. Utterly to vanquish
the lie, particularly in our work, is of course, impossible, and to
describe its nature exhaustively is to write a natural history of mankind.
We must limit ourselves to the consideration of a definite
number of means, great and small, which will make our work easier,


[1] Cf. Lohsing in H. Gross's Archiv VII, 331.

will warn us of the presence of deception, and will prevent its playing
a part. I have attempted to compile forms of it according to intent,
and will here add a few words.[1]

That by the lie is meant the intentional deliverance of a conscious
untruth for the purpose of deception is as familiar as the variety
of opinion concerning the permissibility of so-called necessary lies,
of the pious, of the pedagogic, and the conventional. We have
to assume here the standpoint of absolute rigorism, and to say with
Kant,[2] ``The lie in its mere form is man's crime against his own
nature, and is a vice which must make a man disreputable in his
own eyes.'' We can not actually think of a single case in which we
find any ground for lying. For we lawyers need have no pedagogical
duties, nor are we compelled to teach people manners, and a situation
in which we may save ourselves by lying is unthinkable. Of course,
we will not speak all we know; indeed, a proper silence is a sign of a
good criminalist, but we need never lie. The beginner must especially
learn that the ``good intention'' to serve the case and the so-called
excusing ``eagerness to do one's duty,'' by which little lies are sometimes
justified, have absolutely no worth. An incidental word as if
the accomplice had confessed; an expression intending to convey
that you know more than you do; a perversion of some earlier statement
of the witness, and similar ``permissible tricks,'' can not be
cheaper than the cheapest things. Their use results only in one's
own shame, and if they fail, the defense has the advantage. The
lost ground can never be regained.[3]

Nor is it permissible to lie by gestures and actions any more than
by words. These, indeed, are dangerous, because a movement of
the hand, a reaching for the bell, a sudden rising, may be very
effective under circumstances. They easily indicate that the judge
knows more about the matter than he really does, or suggest that
his information is greater, etc. They make the witness or defendant
think that the judge is already certain about the nature of the case;
that he has resolved upon important measures, and other such
things. Now movements of this kind are not recorded, and in case
the denial of blame is not serious, a young criminalist allows himself
easily to be misled by his desire for efficiency. Even accident may
help. When I was examining justice I had to hear the testimony of
a rather weak-minded lad, who was suspected of having stolen and
hidden a large sum of money. The lad firmly and cleverly denied


[1] Cf. my Manual, ``When the witness is unwilling to tell the truth.''

[2] Kant : ``ber ein vermeintliches Recht, aus Menschenliebe zu lgen.''

[3] A sentence is here omitted. [Translator.]

his guilt. During the examination a comrade entered who had
something official to tell me, and inasmuch as I was in the midst
of dictation he wanted to wait until the end of the sentence. Happening
to see two swords that had just been brought from a student
duel, he took one in his hand and examined the hilt, the point and
the blade. The defendant hardly saw this action before he got
frightened, raised his hands, ran to the sword-examiner, crying ``I
confess, I confess! I took the money and hid it in the hollow hickory
tree.''

This event was rather funny. Another, however, led, I will not
say to self-reproach, but to considerable disquiet on my part. A
man was suspected of having killed his two small children. As the
bodies were not found I undertook a careful search of his home,
of the oven, of the cellar, the drains, etc. In the latter we found a
great deal of animal entrails, apparently rabbits. As at the time
of this discovery I had no notion of where they belonged, I took
them, and in the meantime had them preserved in alcohol. The
great glass receptacle which contained them stood on my writing
table when I had the accused brought in to answer certain questions
about one or two suspicious matters we had discovered. He looked
anxiously at the glass, and said suddenly, ``Since you have got it
all, I must confess.'' Almost reflexly I asked, ``Where are the
corpses?'' and he immediately answered that he had hidden them
in the environs of the city, where they were found. Clearly, the
glass containing the intestines had led him to the notion that the
bodies were found and in part preserved here, and when I asked him
where they were he did not observe how illogical the question would
be if the bodies had really been found. The whole thing was a
matter of accident, but I still have the feeling that the confession
was not properly obtained; that I should have thought of the effect
of the glass and should have provided against it before the accused
was brought before me.

In the daily life such an open procedure is, of course, impossible,
and if the circumstances were to be taken for what they seem we
should frequently make mistakes. Everybody knows, e. g., how
very few happy marriages there are. But how do we know it? Only
because the fortune of close observation always indicates that the
relation is in no way so happy as one would like it to be. And externally?
Has anybody ever seen in even half-educated circles a
street quarrel between husband and wife? How well-mannered
they are in society, and how little they show their disinclination for

each other. And all this is a lie in word and deed, and when we have
to deal with it in a criminal case we judge according to the purely
external things that we and others have observed. Social reasons,
deference for public opinion which must often be deceived, the
feeling of duty toward children, not infrequently compel deception
of the world. The number of fortunate marriages is mainly overestimated.[1]

We see the same thing with regard to property, the attitude of
parents and children, the relation between superiors and inferiors,
even in the condition of health,--conduct in all these cases does
not reveal the true state of affairs. One after another, people are
fooled, until finally the world believes what it is told and the court
hears the belief sworn to as absolute truth. It is, perhaps, not too
much to say that we are far more deceived by appearances than by
words. Public opinion should least of all impose on us. And yet it
is through public opinion that we learn the external relations of the
people who come before us. It is called vox populi and is really rot.
The phrases, ``they say,'' ``everybody knows,'' ``nobody doubts,''
``as most neighbors agree,'' and however else these seeds of dishonesty
and slander may be designated--all these phrases must
disappear from our papers and procedure. They indicate only
appearances--only what people _*wanted_ to have seen. They do not
reveal the real and the hidden. Law too frequently makes normative
use of the maxim that the bad world says it and the good one believes
it. It even constructs its judgments thereby.