criminal psychology-第59章
按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
rprisingly often only a single individual voice has spoken correctly。 This fact is a warning to the judge in such cases carefully to listen to the individual opinion and to consider that it is very likely to deserve study just because it is so significantly in the minority。
The same thing is to be kept in mind when a thing is asserted by a large number of witnesses。 Apart from the fact that they depend upon one another； that they suggest to one another； it is also easily possible； especially if any source of error is present； that the latter shall have influenced all the witnesses。
Whether a judgment has been made by a single judge or is the verdict of any number of jurymen is quite indifferent since the correctness of a judgment does not lie in numbers。 Exner says； ‘‘The degree of probability of a judgment's correctness depends upon the richness of the field of the associations brought to bear in establishing it。 The value of knowledge is judicially constituted in this fact； for it is in essence the expansion of the scope of association。 And the value is proportional to the richness of the associations between the present fact and the knowledge required。'' This is one of the most important of the doctrines we have to keep in mind； and it controverts altogether those who suppose that we ought to be satisfied with the knowledge of some dozens of statutes； a few commentaries； and so and so many precedents。
If we add that ‘‘every judgment is an identification and that in every judgment we assert that the content represented is identical in spite of two different associative relationships；''＇1＇ it must become clear what dangers we undergo if the associative relationships of a judge are too poor and narrow。 As Mittermaier said seventy years ago： ‘‘There are enough cases in which the weight of the evidence is so great that all judges are convinced of the truth in the same way。 But in itself what determines the judgment is the essential character of him who makes it。'' What he means by essential character has already been indicated。
＇1＇ H。 Mnsterberg： Beitrge zur experimentellen Psychologie； III。 Freiburg。
We have yet to consider the question of the value of inferences made by a witness from his own combinations of facts； or his descriptions。 The necessity； in such cases； of redoubled and numerous examinations is often overlooked。 Suppose； for example； that the witness does not know a certain important date； but by combining what he does know； infers it to have been the second of June； on which day the event under discussion took place。 He makes the inference because at the time he had a call from A； who was in the habit of coming on Wednesdays； but there could be no Wednesday after June seventh because the witness had gone on a long journey on that day； and it could not have been May 26 because this day preceded a holiday and the shop was open late； a thing not done on the day A called。 Nor； moreover； could the date have been May 20； because it was very warm on the day in question； and the temperature began to rise only after May 20。 In view of these facts the event under discussion must have occurred upon June 2nd and only on that day。
As a rule； such combinations are very influential because they appear cautious； wise and convincing。 They impose upon people without inclination toward such processes。 More so than they have a right to； inasmuch as they present little difficulty to anybody who is accustomed to them and to whom they occur almost spontaneously。 As usually a thing that makes a great impression upon us is not especially examined； but is accepted as astounding and indubitable； so here。 But how very necessary it is carefully to examine such things and to consider whether the single premises are sound； the example in question or any other example will show。 The individual dates； the facts and assumptions may easily be mistaken； and the smallest oversight may render the result false； or at least not convincing。
The examination of manuscripts is still more difficult。 What is written has a certain convincing power； not only on others but on the writer； and much as we may be willing to doubt and to improve what has been written immediately or at most a short time ago； a manuscript of some age has always a kind of authority and we give it correctness cheaply when that is in question。 In any event there regularly arises in such a case the problem whether the written description is quite correct； and as regularly the answer is a convinced affirmative。 It is impossible to give any general rule for testing such affirmation。 Ordinarily some clearness may be attained by paying attention to the purpose of the manuscript； especially in order to ascertain its sources and the personality of the writer。 There is much in the external form of the manuscript。 Not that especial care and order in the notes are particularly significant； I once published the accounts of an old peasant who could neither read nor write； and his accounts with a neighbor were done in untrained but very clear fashion； and were accepted as indubitable in a civil case。 The purposiveness； order； and continuity of a manuscript indicate that it was not written after the event； and are therefore； together with the reason for having written it and obviously with the personality of the writer； determinative of its value。
Section 32。 （j） Mistaken Inferences。
It is true； as Huxley says； that human beings would have made fewer mistakes if they had kept in mind their tendency to false judgments which depend upon extraordinary combinations of real experiences。 When people say： I felt； I heard； I saw this or that； in 99 cases out of 100 they mean only that they have been aware of some kind of sensation the nature of which they determine in a _*judgment_。 Most erroneous inferences ensue in this fashion。 They are rarely formal and rarely arise by virtue of a failure to use logical principles； their ground is the inner paucity of a premise； which itself is erroneous because of an erroneous perception or conception。＇1＇ As Mill rightly points out； a large portion of mankind make mistakes because of tacit assumptions that the order of nature and the order of knowledge are identical and that things must exist as they are thought； so that when two things can not be thought together they are supposed not to exist together； and the inconceivable is supposed to be identical with the non…existent。 But what they do not succeed in conceiving must not be confused with the absolutely inconceivable。 The difficulty or impossibility of conceiving may be subjective and conditional； and may prevent us from understanding the relation of a series of events only because some otherwise proxi… mate condition is unknown or overlooked。 Very often in criminal cases when I can make no progress in some otherwise simple matter； I recall the well known story of an old peasant woman who saw the tail of a horse through an open stable door and the head of another through another door several yards away； and because the colors of both head and tail were similar； was moved to cry out： ‘‘Dear Lord； what a long horse！'' The old lady started with the presupposition that the rump and the head of the two horses belonged to one； and could make no use of the obvious solution of the problem of the inconceivably long horse by breaking it in two。
＇1＇ Cf。 O。 Gross： Soziale Hemmungsvorstellungen。 II Gross's Archiv： VII； 123。
Such mistakes may be classified under five heads。＇1＇
＇1＇ A paragraph is here omitted。 Translator。
（1） Aprioristic mistakes。 （Natural prejudices）。
（2） Mistakes in observation。
（3） Mistakes in generalization。 （When the facts are right and the inferences wrong）。
（4） Mistakes of confusion。 （Ambiguity of terms or mistakes by association）。
（5） Logical fallacies。
All five fallacies play important rles in the lawyer's work。
We have very frequently to fight natural prejudices。 We take certain classes of people to be better and others to be worse than the average； and without clearly expressing it we expect that the first class will not easily do evil nor the other good。 We have prejudices about some one or another view of l
