Criminal Psychology by Hans Gross (best book recommendations .TXT) 📕

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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 <p 474>

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.

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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 : “<U:>ber ein vermeintliches Recht, aus Menschenliebe zu l<u:>gen.”

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

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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 <p 477>

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