Andy Adams - "The Outlet"

Gideon Wurdz - "The Foolish Dictionary"

Herman Melville - "Moby Dick [Chapter 72]"

Oscar Wilde - "An Ideal Husband"

Robin Hood

silence looks toward witnesses and accused. If, in the first instance,
the cause of too much communicativeness was an over-proneness
to talk; its cause in this case is a certain conceit that teases one into
talking. Whether the justice wants to show the accused how much
he already knows or how correctly he has drawn his conclusions;
whether he wishes to impress the witness by his confidences, he may
do equally as much harm in one case as in the other. Any success
is made especially impossible if the judge has been in too much of
a hurry and tried to show himself fully informed at the very
beginning, but has brought out instead some error. The accused
naturally leaves him with his false suppositions, they suggest things
to the witness--and what follows may be easily considered. Correct
procedure in such circumstances is difficult. Never to reveal
what is already known, is to deprive oneself of one of the most
important means of examination; use of it therefore ought not to
be belated. But it is much worse to be premature or garrulous.
In my own experience, I have never been sorry for keeping silence,
especially if I had already said something. The only rule in the
matter is comparatively self-evident. Never move toward any
incorrectness and never present the appearance of knowing more
than you actually do. Setting aside the dishonesty of such a procedure,
the danger of a painful exposure in such matters is great.

There is still another great danger which one may beware of,
optima fide,--the danger of knowing something untrue. This
danger also is greatest for the greatest talent and the greatest courage
among us, because they are the readiest hands at synthesis, inference,
and definition of possibilities, and see as indubitable and shut to
contradiction things that at best are mere possibilities. It is
indifferent to the outcome whether a lie has been told purposely or
whether it has been the mere honest explosion of an over-sanguine
temperament. It is therefore unnecessary to point out the occasion
for caution. One need only suggest that something may be
learned from people who talk too much. The over-communicativeness
of a neighbor is quickly noticeable, and if the _*why_ and _*how much_
of it are carefully studied out, it is not difficult to draw a significant
analogy for one's own case. In the matter of secrets of other people,
obviously the thing to be established first is what is actually a
secret; what is to be suppressed, if one is to avoid damage to self
or another. When an actual secret is recognized it is necessary to
consider whether the damage is greater through keeping or through
revealing the secret. If it is still possible, it is well to let the secret

be--there is always damage, and generally, not insignificant damage,
when it is tortured out of a witness. If, however, one is
honestly convinced that the secret must be revealed--as when a
guiltless person is endangered--every effort and all skill is to be applied
in the revelation. Inasmuch as the least echo of bad faith is
here impossible, the job is never easy.

The chief rule is not to be overeager in getting at the desired
secret. The more important it is, the less ought to be made of it.
It is best not directly to lead for it. It will appear of itself, especially
if it is important. Many a fact which the possessor had set no great
store by, has been turned into a carefully guarded secret by means of
the eagerness with which it was sought. In cases of need, when
every other means has failed, it may not be too much to tell the
witness, cautiously of course, rather more of the crime than might
otherwise have seemed good. Then those episodes must be carefully
hit on, which cluster about the desired secret and from which
its importance arises. If the witness understands that he presents
something really important by giving up his secret, surprising consequences
ensue.

The relatively most important secret is that of one's own guilt,
and the associated most suggestive establishment of it, the confession,
is a very extraordinary psychological problem.[1] In many
cases the reasons for confession are very obvious. The criminal
sees that the evidence is so complete that he is soon to be convicted
and seeks a mitigation of the sentence by confession, or he hopes
through a more honest narration of the crime to throw a great
degree of the guilt on another. In addition there is a thread of
vanity in confession--as among young peasants who confess to
a greater share in a burglary than they actually had (easily discoverable
by the magniloquent manner of describing their actual
crime). Then there are confessions made for the sake of care and
winter lodgings: the confession arising from ``firm conviction''
(as among political criminals and others). There are even confessions
arising from nobility, from the wish to save an intimate, and
confessions intended to deceive, and such as occur especially in
conspiracy and are made to gain time (either for the flight of the
real criminal or for the destruction of compromising objects). Generally,
in the latter case, guilt is admitted only until the plan for which
it was made has succeeded; then the judge is surprised with well-

[1] Cf. Lohsing: ``Confession'' in Gross's Archiv, IV, 23, and Hausner: _ibid_.
XIII, 267.

founded, regular and successful establishment of an alibi. Not
infrequently confession of small crimes is made to establish an
alibi for a greater one. And finally there are the confessions Catholics[1]
are required to make in confessional, and the death bed confessions.
The first are distinguished by the fact that they are made
freely and that the confessee does not try to mitigate his crime, but
is aiming to make amends, even when he finds it hard; and desires
even a definite penance. Death bed confessions may indeed have
religious grounds, or the desire to prevent the punishment or the
further punishment of an innocent person.

Although this list of explicable confession-types is long, it is in
no way exhaustive. It is only a small portion of all the confessions
that we receive; of these the greater part remain more or less unexplained.
Mittermaier[2] has already dealt with these acutely and
cites examples as well as the relatively well-studied older literature
of the subject. A number of cases may perhaps be explained through
pressure of conscience, especially where there are involved hysterical
or nervous persons who are plagued with vengeful images in which
the ghost of their victim would appear, or in whose ear the unendurable
clang of the stolen money never ceases, etc. If the confessor
only intends to free himself from these disturbing images and the
consequent punishment by means of confession, we are not dealing
with what is properly called conscience, but more or less with disease,
with an abnormally excited imagination.[3] But where such hallucinations
are lacking, and religious influences are absent, and the confession
is made freely in response to mere pressure, we have a case
of conscience,[4]--another of those terms which need explanation.
I know of no analogy in the inner nature of man, in which anybody
with open eyes does himself exclusive harm without any contingent
use being apparent, as is the case in this class of confession. There
is always considerable difficulty in explaining these cases. One
way of explaining them is to say that their source is mere stupidity

[1] Cf. the extraordinary confession of the wife of the ``cannibal'' Bratuscha.
The latter had confessed to having stifled his twelve year old daughter, burned
and part by part consumed her. He said his wife was his accomplice. The
woman denied it at first but after going to confession told the judge the same story
as her husband. It turned out that the priest had refused her absolution until
she ``confessed the truth.'' But both she and her husband had confessed falsely.
The child was alive. Her father's confession was pathologically caused, her
mother's by her desire for absolution.

[2] C. J. A. Mittermaier: Die Lehre vom Beweise im deutsehen Strafprozess.
Darmstadt 1834.

[3] Poe calls such confessions pure perversities.

[4] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894.

and impulsiveness, or simply to deny their occurrence. But the
theory of stupidity does not appeal to the practitioner, for even if
we agree that a man foolishly makes a confession and later, when he
perceives his mistake, bitterly regrets telling it, we still find many
confessions that are not regretted and the makers of which can in no
wise be accused of defective intelligence. To deny that there are
such is comfortable but wrong, because we each know collections
of cases in which no effort could bring to light a motive for the
confession. The confession was made because the confessor wanted
to make it, and that's the whole story.

The making of a confession, according to laymen, ends the matter,
but really, the judge's work begins with it. As a matter of caution
all statutes approve confessions as evidence only when they agree
completely with the other evidence. Confession is a means of
proof, and not proof. Some objective, evidentially concurrent support
and confirmation of the confession is required. But the same
legal requirement necessitates that the value of the concurrent evidence
shall depend on its having been arrived at and established independently.
The existence of a confession contains powerful suggestive
influences for judge, witness, expert, for all concerned in the
case. If a confession is made, all that is perceived in the case may be
seen in the light of it, and experience teaches well enough how that
alters the situation. There is so strong an inclination to pigeonhole
and adapt everything perceived in some given explanation,
that the explanation is strained after, and facts are squeezed and
trimmed until they fit easily. It is a remarkable phenomenon, confirmable
by all observers, that all our perceptions are at first soft
and plastic and easily take form according to the shape of their
predecessors. They become stiff and inflexible only when we have
had them for some time, and have permitted them to reach an
equilibrium. If, then, observations are made in accord with certain
notions, the plastic material is easily molded, excrescences and
unevenness are squeezed away, lacun are filled up, and if it is at
all possible, the adaptation is completed easily. Then, if a new and
quite different notion arises in us, the alteration of the observed
material occurs as easily again, and only long afterwards, when the
observation has hardened, do fresh alterations fail. This is a matter
of daily experience, in our professional as well as in our ordinary
affairs. We hear of a certain crime and consider the earliest data.
For one reason or another we begin to suspect A as the criminal
The result of an examination of the premises is applied in each detail

to this proposition. It fits. So does the autopsy, so do the depositions
of the witnesses. Everything fits. There have indeed been difficulties,
but they have been set aside, they are attributed to inaccurate
observation and the like,--the point is,--that the evidence
is against A. Now, suppose that soon after B confesses the
crime; this event is so significant that it sets aside at once all the
earlier reasons for suspecting A, and the theory of the crime involves
B. Naturally the whole material must now be applied to B, and
in spite of the fact that it at first fitted A, it does now fit B. Here
again difficulties arise, but they are to be set aside just as before.

Now if this is possible with evidence, written and thereby
unalterable, how much more easily can it be done with testimony
about to be taken, which may readily be colored by the already
presented confession. The educational conditions involve now
the judge and his assistants on the one hand, and the witnesses on
the other.

Concerning himself, the judge must continually remember that
his business is not to fit all testimony to the already furnished
confession, allowing the evidence to serve as mere decoration to the
latter, but that it is his business to establish his proof by means of
the confession, and by means of the other evidence, _*independently_.
The legislators of contemporary civilization have started with the
proper presupposition--that also false confessions are made,--
and who of us has not heard such? Confessions, for whatever
reason,--because the confessor wants to die, because he is diseased,[1]
because he wants to free the real criminal,--can be discovered as
false only by showing their contradiction with the other evidence.
If, however, the judge only fits the evidence, he abandons this
means of getting the truth. Nor must false confessions be supposed
to occur only in case of homicide. They occur most numerously
in cases of importance, where more than one person is involved.
It happens, perhaps, that only one or two are captured, and they
assume all the guilt, e. g., in cases of larceny, brawls, rioting, etc.
I repeat: the suggestive power of a confession is great and it is
hence really not easy to exclude its influence and to consider the
balance of the evidence on its merits,--but this must be done if
one is not to deceive oneself.

Dealing with the witness is still more ticklish, inasmuch as to the
difficulties with them, is added the difficulties with oneself. The
simplest thing would be to deny the existence of a confession, and

[1] Cf. above, the case of the ``cannibal'' Bratuscha.

thus to get the witness to speak without prejudice. But aside
from the fact of its impossibility as a lie, each examination of a
witness would have to be a comedy and that would in many cases
be impossible as the witness might already know that the accused
had confessed. The only thing to be done, especially when it is
permissible for other reasons, is to tell the witness that a confession
exists and to call to his attention that it is _*not_ yet evidence, and finally
and above all to keep one's head and to prevent the witness from
presenting his evidence from the point of view of the already-established.
In this regard it can not be sufficiently demonstrated that
the coloring of a true bill comes much less from the witness than
from the judge. The most excited witness can be brought by the
judge to a sober and useful point of view, and conversely, the most
calm witness may utter the most misleading testimony if the judge
abandons in any way the safe bottom of the indubitably established
fact.

Very intelligent witnesses (they are not confined to the educated
classes) may be dealt with constructively and be told after their
depositions that the case is to be considered as if there were no
confession whatever. There is an astonishing number of people--
especially among the peasants--who are amenable to such considerations
and willingly follow if they are led on with confidence.
In such a case it is necessary to analyze the testimony into its elements.
This analysis is most difficult and important since it must
be determined what, taken in itself, is an element, materially, not
formally, and what merely appears to be a unit. Suppose that
during a great brawl a man was stabbed and that A confesses to
the stabbing. Now a witness testified that A had first uttered
a threat, then had jumped into the brawl, felt in his bag, and left
the crowd, and that in the interval between A's entering and leaving,
the stabbing occurred. In this simple case the various incidents
must be evaluated, and each must be considered by itself. So we
consider--Suppose A had not confessed, what would the threat
have counted for? Might it not have been meant for the assailants
of the injured man? May his feeling in the bag not be interpreted
in another fashion? Must he have felt for a knife only? Was there
time enough to open it and to stab? Might the man not have been
already wounded by that time? We might then conclude that all
the evidence about A contained nothing against him--but if we
relate it to the confession, then this evidence is almost equal to
direct evidence of A's crime.

But if individual sense-perceptions are mingled with conclusions,
and if other equivalent perceptions have to be considered, which
occurred perhaps to other people, then the analysis is hardly so
simple, yet it must be made.

In dealing with less intelligent people, with whom this construction
cannot be performed, one must be satisfied with general rules. By
demanding complete accuracy and insisting, in any event, on the
ratio sciendi, one may generally succeed in turning a perception,
uncertain with regard to any individual, into a trustworthy one
with regard to the confessor. It happens comparatively seldom that
untrue confessions are discovered, but once this does occur, and the
trouble is taken to subject the given evidence to a critical comparison,
the manner of adaptation of the evidence to the confession may
easily be discovered. The witnesses were altogether unwilling to
tell any falsehood and the judge was equally eager to establish the
truth, nevertheless the issue must have received considerable perversion
in order to fix the guilt on the confessor. Such examinations
are so instructive that the opportunity to make them should never
be missed. All the testimony presents a typical picture. The evidence
is consistent with the theory that the real confessor was
guilty, but it is also consistent with the theory that the real criminal
was guilty, but some details must be altered, often very many.
If there is an opportunity to hear the same witnesses again, the
procedure becomes still more instructive. The witnesses (supposing
they want honestly to tell the truth) naturally confirm the evidence
as it points to the second, more real criminal, and if an explanation
is asked for the statements that pointed to the ``confessor,'' the
answers make it indubitably evident, that their incorrectness came
as without intention; the circumstance that a confession had been
made acted as a suggestion.[1]

Conditions similar to confessional circumstances arise when other
types of persuasive evidence are gathered, which have the same
impressive influence as confessions. In such cases the judge's task
is easier than the witness's, since he need not tell them of evidence
already at hand. How very much people allow themselves to be
influenced by antecedent grounds of suspicion is a matter of daily
observation. One example will suffice. An intelligent man was
attacked at night and wounded. On the basis of his description

[1] We must not overlook those cases in which false confessions are the results
of disease, vivid dreams, and toxications, especially toxication by coal-gas.
People so poisoned, but saved from death, claim frequently to have been guilty
of murder (Hofman. Gerichtliche Medizin, p. 676).

an individual was arrested. On the next day the suspect was brought
before the man for identification. He identified the man with
certainty, but inasmuch as his description did not quite hit off the
suspect he was asked the reason for his certainty. ``Oh, you certainly
would not have brought him here if he were not the right
man,'' was the astonishing reply. Simply because the suspect was
arrested on the story of the wounded man and brought before him
in prison garb, the latter thought he saw such corroboration for his
data as to make the identification certain--a pure
which did not at all occur to him in connection with the vivid impression
of what he saw. I believe that to keep going with merely
what the criminalist knows about the matter, belongs to his most
difficult tasks.


Section 9. (g) Interest.


Anybody who means to work honestly must strive to awaken
and to sustain the interest of his collaborators. A judge's duty is
to present his associates material, well-arranged, systematic, and
exhaustive, but not redundant; and to be himself well and minutely
informed concerning the case. Whoever so proceeds may be certain
in even the most ordinary and simplest cases, of the interest of his
colleagues,--hence of their attention; and, in consequence, of
the best in their power. These are essentially self-evident propositions.
In certain situations, however, more is asked with regard
to the experts. The expert, whether a very modest workman or
very renowned scholar, must in the first instance become convinced
of the judge's complete interest in his work; of the judge's power
to value the effort and knowledge it requires; of the fact that he
does not question and listen merely because the law requires it,
and finally of the fact that the judge is endowed, so far as may be,
with a definite comprehension of the expert's task.

However conscientiously and intensely the expert may apply
himself to his problem, it will be impossible to work at it with real
interest if he finds no co-operation, no interest, and no understanding
among those for whom he, at least formally, is at work. We may
be certain that the paucity of respect we get from the scientific
representatives of other disciplines (let us be honest,--such is
the case) comes particularly from those relations we have with
them as experts, relations in which they find us so unintelligent and
so indifferent with regard to matters of importance. If the experts

speak of us with small respect and the attitude spreads and becomes
general, we get only our full due. Nobody can require of a criminal
judge profound knowledge of all other disciplines besides his own--
the experts supply that--but the judge certainly must have some
insight into them in so far as they affect his own work, if he is not
to meet the expert unintelligent and unintelligible, and if he is to
co-operate with and succeed in appraising the expert's work. In
a like fashion the judge may be required to take interest in the
experts' result. If the judge receives their report and sticks to the
statutes, if he never shows that he was anxious about their verdict,
and merely views it as a number, it is no wonder that in the end the
expert also regards his work as a mere number, and loses interest.
No man is interested in a thing unless it is made interesting, and
the expert is no exception. Naturally no one would say that the
judge should pretend interest,--that would be worst of all;--he
must be possessed of it, or he will not do for a judge. But interest
may be intensified and vitalized. If the judge perceives that the
finding of the experts is very important for his case he must at
least meet them with interest in it. If that is present he will read
their reports attentively, will note that he does not understand some
things and ask the experts for elucidation. One question gives rise
to another, one answer after another causes understanding, and
understanding implies an ever-increasing interest. It never happens
that there should be difficulties because of a request to judicial
experts to explain things to the judge. I have never met any in my
own practice and have never heard any complaints. On the contrary,
pleasure and efficiency are generally noticeable in such connections,
and the state, above all, is the gainer. The simple explanation
lies here in the fact that the expert is interested in his profession,
interested in just that concrete way in which the incomparably
greater number of jurists are _*not_. And this again is based upon a
sad fact, for us. The chemist, the physician, etc., studies his subject
because he wants to become a chemist, physician, etc., but the
lawyer studies law not because he wants to become a lawyer, but
because he wants to become an official, and as he has no especial
interest he chooses his state position in that branch in which he
thinks he has the best prospects. It is a bitter truth and a general
rule--that those who want to study law and the science of law are
the exceptions, and that hence we have to acquire a real interest in
our subject from laymen, from our experts. But the interest can
be acquired, and with the growth of interest, there is growth of

knowledge, and therewith increase of pleasure in the work itself
and hence success.

The most difficult problem in interest, is arousing the interest of
witnesses--because this is purely a matter of training. Receiving
the attention is what should be aimed at in rousing interest, inasmuch
as full attention leads to correct testimony--i. e., to the
thing most important to our tasks. ``No interest, no attention,''
says Volkmar.[1] ``The absolutely new does not stimulate; what
narrows appreciation, narrows attention also.'' The significant
thing for us is that ``the absolutely new does not stimulate''--
a matter often overlooked. If I tell an uneducated man, with all
signs of astonishment, that the missing books of Tacitus' ``Annals''
have been discovered in Verona, or that a completely preserved
Dinotherium has been cut out of the ice, or that the final explanation
of the Martian canals has been made at Manora observatory,--
all this very interesting news will leave him quite cold; it is absolutely
new to him, he does not know what it means or how to get
hold of it, it offers him no matter of interest.[2] I should have a
similar experience if, in the course of a trig case, I told a man, educated,
but uninterested in the case, with joy, that I had finally discovered
the important note on which the explanation of the events depended.
I could not possibly expect interest, attention, and comprehension
of a matter if my interlocutor knows nothing about the issue or the
reason of the note's importance. And in spite of the fact that everything
is natural and can be explained we have the same story every
day. We put the witness a definite question that is of immense
importance to us, who are fully acquainted with the problem, but
is for the witness detached, incoherent, and therefore barren of
interest. Then who can require of an uninterested witness, attention,
and effective and well-considered replies?[3] I myself heard a witness
answer a judge who asked him about the weather on a certain day,
``Look here, to drag me so many miles to this place in order to discuss
the weather with me,--that's--.'' The old man was quite right
because the detached question had no particular purpose. But when
it was circumstantially explained to him that the weather was of
uttermost significance in this case, how it was related thereto, and
how important his answer would be, he went at the question eagerly,