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Four dollars from the breast,
Five dollars from the middle of the back,
Five dollars from the abdomen.
Further examinations have revealed nothing new. Successful experiments to determine differences between men and women, educated and uneducated, in the acuteness of the sense of pressure, have not been made. The facts they involve may be of use in cases of a.s.sault, choking, etc.
Topic 2. PERCEPTION AND CONCEPTION.
Section 44.
What lawyers have to consider in the transition from purely sensory impressions to intellectual conceptions of these impressions, is the possibility of later reproducing any observed object or event. Many so-called scientific distinctions have, under the impulse of scientific psychology, lost their status. Modern psychology does not see sharply-drawn boundaries between perception and memory, and suggests that the proper solution of the problem of perception is the solution of the problem of knowledge.[1]
[1] The first paragraph, pp. 78-79, is omitted in the translation.
With regard to the relation of consciousness to perception we will make the distinctions made by Fischer.[2] There are two spheres or regions of consciousness: the region of sensation, and of external perception. The former involves the inner structure of the organism, the latter pa.s.ses from the organism into the objective world. Consciousness has a sphere of action in which it deals with the external world by means of the motor nerves and muscles, and a sphere of perception which is the business of the senses.
[2] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891.
External perception involves three princ.i.p.al functions: apprehension, differentiation, and combination. Perception in the narrower sense of the term is the simple sensory conscious apprehension of some present object stimulating our eyes. We discover by means of it what the object is, its relation to ourselves and other things, its distance from us, its name, etc.
What succeeds this apprehension is the most important thing for us lawyers, i. e. *recognition. Recognition indicates only that an object has sufficiently impressed a mind to keep it known and identifiable. It is indifferent what the nature of the recognized object is. According to Hume the object may be an enduring thing ("non-
interrupted and non-dependent on mind"), or it may be identical with perception itself. In the latter case the perception is considered as a logical judgment like the judgment: "It is raining," or the feeling that "it is raining," and there recognition is only the recognition of a perception. Now judgments of this sort are what we get from witnesses, and what we have to examine and evaluate. This must be done from two points of view. First, from the point of view of the observer and collector of instances who is seeking to discover the principle which governs them. If this is not done the deductions that we make are at least unreliable, and in most cases, false. As Mach says, "If once observation has determined all the facts of any natural science, a new period begins for that science, the period of deduction." But how often do we lawyers distinguish these two periods in our own work.[1]
[1] A sentence is here omitted.
The second point of importance is the presence of mistakes in the observations. The essential mistakes are cla.s.sified by Schiel under two headings. Mistakes in observation are positive or negative, wrong observation or oversight. The latter occurs largely through preconceived opinions. The opponents of Copernicus concluded that the earth did not move because otherwise a stone dropped from the top of a tower would reach the ground a little to the west. If the adherents of Copernicus had made the experiment they would have discovered that the stone does fall as the theory requires. Similar oversights occur in the lawyer's work hundreds of times. We are impressed with exceptions that are made by others or by ourselves, and give up some already tried approach without actually testing the truth of the exception which challenges it. I have frequently, while at work, thought of the story of some one of the Georges, who did not like scholars and set the following problem to a number of philosophers and physicists: "When I put a ten pound stone into a hundred pound barrel of water the whole weighs a hundred and ten pounds, but when I put a live fish of ten pounds into the barrel the whole still weighs only a hundred pounds?" Each one of the scholars had his own convincing explanation, until finally the king asked one of the foot-men, who said that he would like to see the experiment tried before he made up his mind. I remember a case in which a peasant was accused of having committed arson for the sake of the insurance. He a.s.serted that he had gone into a room with a candle and that a long spider's web which was hanging down
had caught fire from it accidentally and had inflamed the straw which hung from the roof. So the catastrophe had occurred. Only in the second examination did it occur to anybody to ask whether spider's web can burn at all, and the first experiment showed that that was impossible.
Most experiences of this kind indicate that in recognizing events we must proceed slowly, without leaping, and that we may construct our notions only on the basis of knowledge we already possess. Saint Thomas says, "Omnes cognitio fit secundum similitudinem cogniti in cognoscente." If this bit of wisdom were kept in mind in the examination of witnesses it would be an easier and simpler task than usual. Only when the unknown is connected with the known is it possible to understand the former. If it is not done the witness will hardly be able to answer. He nowhere finds support, or he seeks one of his own, and naturally finds the wrong one. So the information that an ordinary traveler brings home is mainly identical with what he carries away, for he has ears and eyes only for what he expects to see. For how long a time did the negro believe that disease pales the coral that he wears? Yet if he had only watched it he would have seen how foolish the notion was. How long, since Adam Smith, did people believe that extravagance helps industry, and how much longer have people called Copernicus a fool because they actually saw the sun rise and set. So J. S. Mill puts his opinions on this matter. Benneke[1] adds, "If anybody describes to me an animal, a region, a work of art, or narrates an event, etc., I get no notion through the words I hear of the appearance of the subject. I merely have a problem set me by means of the words and signs, in the conception of the subject, and hence it depends for truth mainly upon the completeness of earlier conceptions of similar things or events, and upon the material I have imaginatively at hand. These are my perceptual capital and my power of representation."
[1] E. Benneke: Pragmatische Psychologie.
It naturally is not necessary to ask whether a narrator has ever seen the things he speaks of, nor to convince oneself in examination that the person in question knows accurately what he is talking about. At the same time, the examiner ought to be clear on the matter and know what att.i.tude to take if he is going to deal intelligibly with the other. I might say that all of us, educated and uneducated, have apprehended and remember definite and distinct images of all things we have seen, heard, or learned from descriptions.
When we get new information we simply attach the new image to the old, or extinguish a part of the old and put the new in its place, or we retain only a more or less vigorous breath of the old with the new. Such images go far back; even animals possess them. One day my small son came with his exciting information that his guinea pig, well known as a stupid beast, could count. He tried to prove this by removing the six young from their mother and hiding them so that she could not see what happened to them. Then he took one of the six, hid it, and brought the remaining five back to the old lady. She smelled them one after the other and then showed a good deal of excitement, as if she missed something. Then she was again removed and the sixth pig brought back; when she was restored to her brood, she sniffed all six and showed a great deal of satisfaction. "She could count at least six." Naturally the beast had only a fixed collective image of her brood, and as one was missing the image was disturbed and incorrect. At the same time, the image was such as is created by the combination of events or circ.u.mstances. It is not far from the images of low-browed humanity and differs only in degree from those of civilized people.
The fact that a good deal of what is said is incorrect and yet not consciously untrue, depends upon the existence of these images and their a.s.sociation with the new material. The speaker and the auditor have different sets of images; the first relates the new material differently from a second, and so of course they can not agree.[1] It is the difficult task of the examiner so to adapt what is said as to make it appropriate to the right images without making it possible for incorrect interpretations to enter. When we have a well-known money-lender as witness concerning some unspeakable deal, a street-walker concerning some brawling in a peasant saloon, a clubman concerning a duel, a game-warden concerning poaching, the set of images of each one of these persons will be a bad foundation for new perceptions. On the other hand, it will not be difficult to abstract from them correctly. But cases of this sort are not of constant occurrence and the great trouble consists in once for all discovering what memory-images were present before the witness perceived the event in question. The former have a great influence upon the perception of the latter.
[1] Cf. H. Gross's Archiv, XV, 125.
In this connection it should not be forgotten that the retention of these images is somewhat pedantic and depends upon unimportant things. In the city hall of Graz there is a secretary with thirty-six
sections for the thirty-six different papers. The name of the appropriate journal was written clearly over each section and in spite of the clearness of the script the depositing and removing of the papers required certain effort, inasmuch as the script had to be read and could not be apprehended. Later the name of the paper was cut out of each and pasted on the secretary instead of the script, and then, in spite of the various curly and twisted letters, the habitual images of the t.i.tles were easily apprehended and their removal and return became mechanical. The customary and identical things are so habitual that they are apprehended with greater ease than more distinct objects.
Inasmuch as we can conceive only on the basis of the constancy and similarity of forms, we make these forms the essence of experience. On the other hand, what is constant and similar for one individual is not so for another, and essences of experience vary with the experiencer.
"When we behold a die of which we can see three sides at a time, seven corners, and nine edges, we immediately induce the image or schema of a die, and we make our further sense-perception accord with this schema. In this way we get a series of schemes which we may subst.i.tute for one another" (Aubert). For the same reason we a.s.sociate in description things unknown to the auditor, which we presuppose in him, and hence we can make him rightly understand only if we have named some appropriate object in comparison. Conversely, we have to remember that everybody takes his comparison from his own experience, so that we must have had a like experience if we are to know what is compared. It is disastrous to neglect the private nature of this experience. Whoever has much to do with peasants, who like to make use of powerful comparisons, must first comprehend their essential life, if he is to understand how to reduce their comparisons to correct meanings. And if he has done so he will find such comparisons and images the most distinct and the most intelligible.
Sense-perception has a great deal to do in apprehension and no one can determine the boundary where the sense activity ends and the intellectual begins. I do not recall who has made note of the interesting fact that not one of twenty students in an Egyptian museum knew why the hands of the figures of Egyptian was pictures gave the impression of being incorrect-n.o.body had observed the fact that all the figures had two right hands.
I once paid a great deal of attention to card-sharping tricks and
as I acquired them, either of myself or from practiced gamblers, I demonstrated them to the young criminalists. For a long time I refused to believe what an old Greek told me: "The more foolish and obvious a trick is, the more certain it is; people never see anything." The man was right. When I told my pupils expressly, "Now I am cheating," I was able to make with safety a false coup, a false deal, etc. n.o.body saw it. If only one has half a notion of directing the eyes to some other thing, a card may be laid on the lap, thrust into the sleeve, taken from the pocket, and G.o.d knows what else. Now who can say in such a case whether the sensory glance or the intellectual apprehension was unskilful or unpractised? According to some authorities the chief source of error is the senses, but whether something must not be attributed to that mysterious, inexplicable moment in which sensory perception becomes intellectual perception, n.o.body can say.
My favorite demonstration of how surprisingly little people perceive is quite simple. I set a tray with a bottle of water and several gla.s.ses on the table, call express attention to what is about to occur, and pour a little water from the bottle into the gla.s.s. Then the stuff is taken away and the astonishing question asked what have I done? All the spectators reply immediately: you have poured water into a gla.s.s. Then I ask further with what hand did I do it? How many gla.s.ses were there? Where was the gla.s.s into which I poured the water? How much did I pour? How much water was there in the gla.s.s? Did I really pour or just pretend to? How full was the bottle? Was it certainly water and not, perhaps, wine? Was it not red wine? What did I do with my hand after pouring the water? How did I look when I did it? Did you not really see that I shut my eyes? Did you not really see that I stuck my tongue out? Was I pouring the water while I did it? Or before, or after? Did I wear a ring on my hand? Was my cuff visible? What was the position of my fingers while I held the gla.s.s? These questions may be multiplied. And it is as astonishing as amusing to see how little correctness there is in the answers, and how people quarrel about the answers, and what extraordinary things they say. Yet what do we require of witnesses who have to describe much more complicated matters to which their attention had not been previously called, and who have to make their answers, not immediately, but much later; and who, moreover, may, in the presence of the fact, have been overcome by fear, astonishment, terror, etc.! I find that probing even comparatively trained wit-
nesses is rather too funny, and the conclusions drawn from what is so learned are rather too conscienceless.[1] Such introductions as: "But you will know,"-"Just recall this one,"-"You wouldn't be so stupid as not to have observed whether,"-"But my dear woman, you have eyes,"-and whatever else may be offered in this kindly fashion, may bring out an answer, but what real worth can such an answer have?
[1] Cf. Borst u. Clapar One bright day I came home from court and saw a man step out of a cornfield, remain a few instants in my field of vision, and then disappear. I felt at once that the man had done something suspicious, and immediately asked myself how he looked. I found I knew nothing of his clothes, his dress, his beard, his size, in a word, nothing at all about him. But how I would have punished a witness who should have known just as little. We shall have, in the course of this examination, frequently to mention the fact that we do not see an event in spite of its being in the field of perception. I want at this point merely to call attention to a single well-known case, recorded by Hofmann.[2] At a trial a circ.u.mstantial and accurate attempt was made to discover whether it was a significant alteration to bite a man's ear off. The court, the physician, the witnesses, etc., dealt with the question of altering, until finally the wounded man himself showed what was meant, because his other ear had been bitten off many years before,-but then n.o.body had noticed that mutilated ear. [2] Gericht. Medizin. Vienna 1898. p. 447. In order to know what another person has seen and apprehended we must first of all know how he thinks, and that is impossible. We frequently say of another that he must have thought this or that, or have hit upon such and such ideas, but what the events in another brain may be we can never observe. As Bois-Reymond says somewhere: "If Laplace's ghost could build a homunculus according to the Leibnitzian theory, atom by atom and molecule by molecule, he might succeed in making it think, but not in knowing how it thinks." But if we know, at least approximately, the kind of mental process of a person who is as close as possible to us in s.e.x, age, culture, position, experience, etc., we lose this knowledge with every step that leads to differences. We know well what great influence is exercised by the multiplicity of talents, superpositions, knowledge, and apprehensions. When we consider the qualities of things, we discover that we never apprehend them abstractly, but always concretely. We do not see color but the colored object; we do not see warmth, but something warm; not hardness, but something hard. The concept warm, as such, can not be thought of by anybody, and at the mention of the word each will think of some particular warm object; one, of his oven at home; another, of a warm day in Italy; another of a piece of hot iron which burnt him once. Then the individual does not pay constant court to the same object. To-day he has in mind this concrete thing, to-morrow, he uses different names and makes different a.s.sociations. But every concrete object I think of has considerable effect on the new apprehension; and my auditor does not know, perhaps even I myself do not, what concrete object I have already in mind. And although Berkeley has already shown that color can not be thought of without s.p.a.ce or s.p.a.ce without color, the task of determining the concrete object to which the witness attaches the qualities he speaks of, will still be overlooked hundreds of times. It is further of importance that everybody has learned to know the object he speaks about through repet.i.tion, that different relations have shown him the matter in different ways. If an object has impressed itself upon us, once pleasurably and once unpleasantly, we can not derive the history and character of the present impression from the object alone, nor can we find it merely in the synthetic memory sensations which are due to the traces of the former coalescing impressions. We are frequently unable, because of this coalescing of earlier impressions, to keep them apart and to study their effect on present impressions. Frequently we do not even at all know why this or that impression is so vivid. But if we are ignorant with regard to what occurs in ourselves, how much can we know about others? Exner calls attention to the fact that it is in this direction especially, that the "dark perceptions" play a great r Suppose that in some important criminal case several people, of different degrees of education and intelligence, have made observations. We suppose that they all want to tell the truth, and we also suppose that they have observed and apprehended their objects correctly. Their testimonies, nevertheless, will be very different. With the degree of intelligence rises the degree of effect of the "dark subconscious perceptions." They give more definite presentation and explanation of the testimony; they turn bare a.s.sertions into well-ordered perceptions and real representations. But we generally make the mistake of ascribing the variety of evidence to varying views, or to dishonesty. To establish the unanimity of such various data, or to find out whether they have such unanimity, is not easy. The most comfortable procedure is to compare the lesser testimonies with those of the most intelligent of the witnesses. As a rule, anybody who has a subconscious perception of the object will be glad to bring it out if he is helped by some form of expression, but the danger of suggestion is here so great that this a.s.sistance must be given only in the rarest of cases. The best thing is to help the witness to his full evidence gradually, at the same time taking care not to suggest oneself and thus to cause agreement of several testimonies which were really different but only appeared to look contradictory on account of the effect of subconscious perceptions. The very best thing is to take the testimony as it comes, without alteration, and later on, when there is a great deal of material and the matter has grown clearer, to test the stuff carefully and to see whether the less intelligent persons gave different testimonies through lack of capacity in expression, or because they really had perceived different things and had different things to say. This is important when the witnesses examined are experts in the matter in which they are examined. I am convinced that the belief that such people must be the best witnesses, is false, at least as a generalization. Benneke (loco cit.), has also made similar observations. "The chemist who perceives a chemical process, the connoisseur a picture, the musician a symphony, perceive them with more vigorous attention than the layman, but the actual attention may be greater with the latter." For our own affair, it is enough to know that the judgment of the expert will naturally be better than that of the layman; his apprehension, however, is as a rule one-sided, not so far-reaching and less uncolored. It is natural that every expert, especially when he takes his work seriously, should find most interest in that side of an event with which his profession deals. Oversight of legally important matters is, therefore, almost inevitable. I remember how an eager young doctor was once witness of an a.s.sault with intent to kill. He had seen how in an inn the criminal had for some time threatened his victim with a heavy porcelain match-tray. "The os parietale may here be broken," the doctor thought, and while he was thinking of the surgical consequences of such a blow, the thing was done and the doctor had not seen how the blow was delivered, whether a knife had been drawn by the victim, etc. Similarly, during an examination concerning breaking open the drawer of a table, the worst witness was the cabinet-maker. The latter was so much interested in the foreign manner in which the portions of the drawer had been cemented and in the curious wood, that he had nothing to say about the legally important question of how the break was made, what the impression of the damaging tool was, etc. Most of us have had such experiences with expert witnesses, and most of us have also observed that they often give false evidence because they treat the event in terms of their own interest and are convinced that things must happen according to the principles of their trades. However the event shapes itself, they model it and alter it so much that it finally implies their own apprehension. "Subconscious perceptions," somewhat altered, play another r As Exner says, "If, when walking, I suddenly stop in front of a house to look at it, I am definitely in possession, also, of the feeling of its distance from where I left the road-the unconscious perception of the road beyond is here at work." It might, indeed, be compared with pure subconsciousness in which series of processes occur without our knowing it. But local orientation does not end with the feeling for place. It is at work even in the cases of small memories of location, e. g., in learning things by heart, in knowing on what page and on what line anything is printed, in finding un.o.bserved things, etc. These questions of perception-orientation are important, for there are people all of whose perceptions are closely related to their sense of location. Much may be learned from such people by use of this specialty of theirs, while oversight thereof may render them hopeless as witnesses. How far this goes with some people-as a rule people with a sense of location are the more intelligent-I saw some time ago when the Germanist Bernhardt Seuffert told me that when he did not know how anything is spelled he imagined its appearance, and when that did not help he wrote both the forms between which he was vacillating and then knew which one was the correct one. When I asked him whether the chirographic image appeared printed or written and in what type, he replied significantly enough, "As my writing-teacher wrote it." He definitely localized the image on his writing book of many years ago and read it off in his mind. Such specialties must be remembered in examining witnesses. In conclusion, there is a word to say concerning Cattell's[1] investigations of the time required for apprehension. The better a man knows the language the more rapidly can he repeat and read its words. It is for this reason that we believe that foreigners speak more rapidly than we. Cattell finds this so indubitable, that he wants to use speed as a test in the examinations in foreign languages. [1] J. M. Cattell: The time used in order to identify a single letter is a quarter of a second, the time to p.r.o.nounce it one-tenth of a second. Colors and pictures require noticeably more, not because they are not recognized, but because it is necessary to think what the right name is. We are much more accustomed to reading words. These observations might be carried a step further. The more definitely an event to be described is conceived, the clearer the deduction and the more certain the memory of it, the more rapidly may it be reproduced. It follows that, setting aside individual idiosyncrasies, the rapidity of speech of a witness will be of importance when we want to know how much he has thought on a question and is certain what he is going to say. It is conceivable that a person who is trying to remember the event accurately will speak slowly and stutteringly, or at least with hesitation at the moment. The same will occur if he tries to conceive of various possibilities, to eliminate some, and to avoid contradiction and improbability. If, however, the witness is convinced and believes truly what he is telling, so that he may go over it in his mind easily and without interruption, he will tell his story as quickly as he can. This may indeed be observed in public speakers, even judges, prosecutors, and defense; if anyone of them is not clear with regard to the case he represents, or not convinced of its correctness, he will speak slowly; if the situation is reversed he will speak rapidly. Court and other public stenographers confirm this observation. Topic 3. IMAGINATION. Section 45. The things witnesses tell us have formerly existed in their imaginations, and the *how of this existence determines in a large degree the quale of what they offer us. Hence, the nature of imagination must be of interest to us, and the more so, as we need not concern ourselves with the relation between being and imagination. It may be that things may exist in forms quite different from those in which we know them, perhaps even in unknowable forms. The idealist, according to some authorities, has set this possibility aside and given a scientific reply to those who raised it. So far as we lawyers are concerned, the "scientific reply" does not matter. We are interested in the reliability of the imagination and in its identification with what we a.s.sume to exist and to occur. Some writers hold that sensory objects are in sense-perception both external and internal, external with regard to each other, and internal with regard to consciousness. Attention is called to the fact that the distinction between image and object const.i.tutes no part of the act of perception. But those who remark this fact a.s.sume that the act does contain an image. According to St. Augustine the image serves as the knowledge of the object; according to Erdmann the object is the image objectified. Of great importance is the subst.i.tutional adequacy of images. E. g., I imagine my absent dog, Bismarck's dog, whom I know only pictorially, and finally, the dog of Alcibiades, whose appearance is known only by the fact that he was pretty and that his master had cut off his tail. In this case, the representative value of these images will be definite, for everybody knows that I can imagine my own dog very correctly, that the image of Bismarck's beast will also be comparatively good inasmuch as this animal has been fre- quently pictured and described, while the image of Alcibiades' dog will want much in the way of reliability-although I have imagined this historic animal quite vividly since boyhood. When, therefore, I speak of any one of these three animals everybody will be able properly to value the correctness of my images because he knows their conditions. When we speak with a witness, however, we rarely know the conditions under which he has obtained his images, and we learn them only from him. Now it happens that the description offered by the witness adds another image, i. e., our own image of the matter, and this, and that of the witness, have to be placed in specific relation to each other. Out of the individual images of all concerned an image should be provided which implies the image of the represented event. Images can be compared only with images, or images are only pictures of images.[1] [1] Cf. Windelband: "Pr The difficulty of this trans.m.u.tation lies fundamentally in the nature of representation. Representation can never be identical with its object. Helmholtz has made this most clear: "Our visions and representations are effects; objects seen and represented have worked on our nervous system and on our consciousness. The nature of each effect depends necessarily upon the nature of its cause, and the nature of the individual upon whom the cause was at work. To demand an image which should absolutely reproduce its object and therefore be absolutely true, would be to demand an effect which should be absolutely independent of the nature of that object on which the effect is caused. And this is an obvious contradiction." What the difference between image and object consists of, whether it is merely formal or material, how much it matters, has not yet been scientifically proved and may never be so. We have to a.s.sume only that the validity of this distinction is universally known, and that everybody possesses an innate corrective with which he a.s.signs proper place to image and object, i. e., he knows approximately the distinction between them. The difficulty lies in the fact that not all people possess an identical standard, and that upon the creation of the latter practically all human qualities exert an influence. This variety in standards, again, is double-edged. On the one side it depends on the essence of image and of object, on the other it depends on the alteration which the image undergoes even during perception as well as during all the ensuing time. Everybody knows this distinction. Whoever has seen anything under certain circ.u.mstances, or during a certain period of his life, may frequently produce an image of it varying in individual characteristics, but in its general character constant. If he sees it later under different conditions, at a different age, when memory and imaginative disposition have exercised their alterative influence, image and object fail to correspond in various directions. The matter is still worse with regard to images of things and events that have never been seen. I can imagine the siege of Troy, a dragon, the polar night and Alexander the Great, but how different will the image be from the object! This is especially obvious when we have perceived something which did not appear to us altogether correct. We improve the thing, i. e., we study how it might have been better, and we remember it as improved; then the more frequently this object as imagined recurs, the more fixed its form becomes, but not its actual form, only its altered form. We see this with especial clearness in the case of drawings that in some way displease us. Suppose I do not like the red dress of a woman in some picture and I prefer brown. If later I recall the picture the image will become progressively browner and browner, and finally I see the picture as brown, and when I meet the real object I wonder about the red dress.[1] [1] H. Gross: Korregierte Vorstellungen. In H. Gross's Archiv X, 109.