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

Human estimates are reliable only when tested and reviewed at each instant; complicated deductions are so only when deduction after deduction has been tested, each in itself, Lawyers must, therefore, inevitably follow the rule of requiring explication of each step in an inference—such a requirement will at least narrow the limits of error.

The task would be much easier if we were fortunate enough to be able to help ourselves with experiments. As Bernard[1] says, “There is an absolute determinism in the existential conditions of natural phenomena, as much in living as in non-living bodies. If the condition of any phenomenon is recognized and fulfilled the phenomenon must occur whenever the experimenter desires it.”

But such determination can be made by lawyers in rare cases only, and to-day the criminalist who can test experimentally the generally asserted circumstance attested by witnesses, accused, or experts, [1] C. Bernard: Introduction <a!> l’Etude de la Med<e’>cine Experimentale. Paris 1871.

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is a rarissima avis. In most cases we have to depend on our experience, which frequently leaves us in difficulties if we fail thoroughly to test it. Even the general law of causation, that every effect has its cause, is formulated, as Hume points out, only as a matter of habit. Hume’s important discovery that we do not observe causality in the external world, demonstrates only the difficulty of the interpretation of causality. The weakness of his doctrine lies in his assertion that the knowledge of causality may be obtained through habit because we perceive the connection of similars, and the understanding, through habit, deduces the appearance of the one from that of the other. These assertions of the great thinker are certainly correct, but he did not know how to ground them. Hume teaches the following doctrine: The proposition that causes and effects are recognized, not by the understanding but because of experience, will be readily granted if we think of such things as we may recollect we were once altogether unacquainted with. Suppose we give a man who has no knowledge of physics two smooth marble plates. He will never discover that when laid one upon the other they are hard to separate.

Here it is easily observed that such properties can be discovered only through experience. Nobody, again, has the desire to deceive himself into believing that the force of burning powder or the attraction of a magnet could have been discovered a priori.

But this truth does not seem to have the same validity with regard to such processes as we observed almost since breath began. With regard to them, it is supposed that the understanding, by its own activity, without the help of experience can discover causal connections.

It is supposed that anybody who is suddenly sent into the world will be able at once to deduce that a billiard ball will pass its motion on to another by a push.

But that this is impossible to derive a priori is shown through the fact that elasticity is not an externally recognizable quality, so that we may indeed say that perhaps no effect can be recognized unless it is experienced at least once. It can not be deduced a priori that contact with water makes one wet, or that an object responds to gravity when held in the hand, or that it is painful to keep a finger in the fire. These facts have first to be experienced either by ourselves or some other person. Every cause, Hume argues therefore, is different from its effect and hence can not be found in the latter, and every discovery or representation of it a priori must remain voluntary. All that the understanding can do is to simplify <p 127>

the fundamental causes of natural phenomena and to deduce the individual effects from a few general sources, and that, indeed, only with the aid of analogy, experience, and observation.

But then, what is meant by trusting the inference of another person, and what in the other person’s narrative is free from inference?

Such trust means, to be convinced that the other has made the correct analogy, has made the right use of experience, and has observed events without prejudice. That is a great deal to presuppose, and whoever takes the trouble of examining however simple and short a statement of a witness with regard to analogy, experience, and observation, must finally perceive with fear how blindly the witness has been trusted. Whoever believes in knowledge a priori will have an easy job: “The man has perceived it with his mind and reproduced it therewith; no objection may be raised to the soundness of his understanding; ergo, everything may be relied upon just as he has testified to it.” But he who believes in the more uncomfortable, but at least more conscientious, skeptical doctrine, has, at the minimum, some fair reason for believing himself able to trust the intelligence of a witness. Yet he neither is spared the task of testing the correctness of the witness’s analogy, experience and observation.

Apriorism and skepticism define the great difference in the attitude toward the witness. Both skeptic and apriorist have to test the desire of the witness to lie, but only the skeptic needs to test the witness’s ability to tell the truth and his possession of sufficient understanding to reproduce correctly; to examine closely his innumerable inferences from analogy, experience and observation.

That only the skeptic can be right everybody knows who has at all noticed how various people differ in regard to analogies, how very different the experiences of a single man are, both in their observation and interpretation. To distinguish these differences clearly is the main task of our investigation.

There are two conditions to consider. One is the strict difference between what is causally related and its accidental concomitants,—

a difference with regard to which experience is so often misleading, for two phenomena may occur together at the same time without being causally connected. When a man is ninety years old and has observed, every week in his life, that in his part of the country there is invariably a rainfall every Tuesday, this observation is richly and often tested, yet nobody will get the notion of causally connecting Tuesday and rain—but only because such connection would <p 128>

be regarded as generally foolish. If the thing, however, may be attributed to coincidence with a little more difficulty, then it becomes easier to suppose a causal connection; e. g., as when it rains on All-souls day, or at the new moon. If the accidental nature of the connection is still less obvious, the observation becomes a much-trusted and energetically defended meteorological law. This happens in all possible fields, and not only our witnesses but we ourselves often find it very difficult to distinguish between causation and accident. The only useful rule to follow is to presuppose accident wherever it is not indubitably and from the first excluded, and carefully to examine the problem for whatever causal connection it may possibly reveal. “Whatever is united in any perception must be united according to a general rule, but a great deal more may be present without having any causal relation.”

The second important condition was mentioned by Schopenhauer:[1]

“As soon as we have assigned causal force to any great influence and thereby recognized that it is efficacious, then its intensification in the face of any resistance according to the intensity of the resistance will produce finally the appropriate effect. Whoever cannot be bribed by ten dollars, but vacillates, will be bribed by twenty-five or fifty.”

This simple example may be generalized into a golden rule for lawyers and requires them to test the effect of any force on the accused at an earlier time in the latter’s life or in other cases,—

i. e., the early life of the latter can never be studied with sufficient care. This study is of especial importance when the question is one of determining the culpability of the accused with regard to a certain crime. We have then to ask whether he had the motive in question, or whether the crime could have been of interest to him. In this investigation the problem of the necessary intensity of the influence in question need not, for the time, be considered; only its presence needs to be determined. That it may have disappeared without any demonstrable special reason is not supposable, for inclinations, qualities, and passions are rarely lost; they need not become obvious so long as opportunity and stimulus are absent, and they may be in some degree suppressed, but they manifest themselves as soon as—Schopenhauer’s twenty-five or fifty dollars appear. The problem is most difficult when it requires the conversion of certain related properties, e. g., when the problem is one of suspecting a person of murderous inclination, and all that [1] Schopenhauer: Die beiden Grundprobleme der Ethik.

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can be shown in his past life is the maltreatment of animals. Or again, when cruelty has to be shown and all that is established is great sensuality. Or when there is no doubt about cruelty and the problem is one of supposing intense avarice. These questions of conversion are not especially difficult, but when it must be explained to what such qualities as very exquisite egoism, declared envy, abnormal desire for honor, exaggerated conceit, and great idleness may lead to, the problem requires great caution and intensive study.

Section 25. (c) Skepticism.

Hume’s skepticism is directly connected with the subject of the preceding chapter, but wants still a few words for itself. Though it is not the lawyer’s problem to take an attitude with regard to philosophical skepticism, his work becomes essentially easier through the study of Hume’s doctrines.

According to these, all we know and infer, in so far as it is unmathematical, results from experience, and our conviction of it and our reasoning about it, means by which we pass the bounds of sense-perception, depend on sensation, memory and inference from causation. Our knowledge of the relation of cause and effect results also from experience, and the doctrine, applied to the work of the criminalist, may be formulated as follows: “Whatever we take as true is not an intellectual deduction, but an empirical proposition.”

In other words, our presuppositions and inferential knowledge depend only upon those innumerable repetitions of events from which we postulate that the event recurred in the place in question. This sets us the problem of determining whether the similar cases with which we compare the present one really are similar and if they are known in sufficiently large numbers to exclude everything else.

Consider a simple example. Suppose somebody who had traveled all through Europe, but had never seen or heard of a negro, thought about the pigmentation of human beings: neither all his thinking nor the assistance of all possible scientific means can lead him to the conclusion that there are also black people—that fact he can only discover, not think out. If he depends only on experience, he must conclude from the millions of examples he has observed that all human beings are white. His mistake consists in the fact that the immense number of people he has seen belong to the inhabitants of a single zone, and that he has *failed to observe the inhabitants of other regions.

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In our own cases we need no examples, for I know of no inference which was not made in the following fashion: “The situation was so in a hundred cases, it must be so in this case.” We rarely ask