The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

Much the more difficult problem, however, is to determine how far the witness is the victim of his memory and is unconsciously confusing fact with imagination, or knowledge with belief. It is a matter of common experience that almost all cases are stronger in court than they give the impression of being when the witnesses are first examined in the private office. Time and again, cases which in the beginning have seemed hopeless to prosecute have resulted in verdicts of conviction, and defences originally so fragile as to appear but gossamer have returned many a defendant to his despairing family.

The reason is not far to seek. Witnesses to the events leading up to a crime are acquainted with a thousand details which are as vivid, and probably more vivid, to them than the occurrence in regard to which their testimony is actually desired. It may well be that the immaterial facts are the only ones which have interested them at all, while their knowledge of the criminal act is relatively slight. For example, they know, of course, that they were in the saloon; are positive that the complainant and defendant were playing cards, even remembering some of the hands dealt; are sure that the complainant arose and walked away; have a very vivid recollection that in a few moments the defendant got up and followed him across the room; are pretty clear, although their attention was still upon the game, that the two men had an argument; and have a strong impression that the defendant hit the complainant. In point of fact, their evidence is really of far less value, if of any at all, in regard to the actual striking than in regard to the events leading up to it, for at the time of the blow their attention was being given less to the participants in the quarrel than to something else. Their ideas are in truth very hazy as to the latter part of the transaction. However, they become witnesses, pronouncing themselves ready to swear that they saw the blow struck, which is perhaps the fact. Their evidence is practically of no value on the question of justification or self-defence. But finding, on being examined, that their testimony is wanted principally on that aspect of the case, they naturally tell their entire story as if they were as clear in their own minds upon one part of it as another. Being able to give details as to the earlier aspect of the quarrel, they feel obliged to be equally definite as to all of it. If they have an idea that the striking was without excuse, they gradually imagine details to fit their point of view. This is done quite unconsciously. Before long they are as glib with their description of the assault as they are about the game of cards. They get hazy on what occurred before, and overwhelmingly positive as to what occurred towards and at the last, and on the witness-stand swear convincingly that they saw the defendant strike the complainant, exactly how he did it, the words he said, and that the complainant made no offer of any sort to strike the defendant. From allowing their minds to dwell on their own conception of what must have occurred, they are soon convinced that it did occur in that way, and their account flows forth with a circumstantiality that carries with it an irresistible impression of veracity.

The witness remembers in a large proportion of cases what he wants to remember, or believes occurred. The liar with his prepared lie is far less dangerous than the honest, but mistaken witness, or the witness who draws inadvertently upon his imagination. Most juries instinctively know a liar when they see and hear one, but few of them can determine in the case of an honestly intentioned witness how much of his evidence should be discarded as unreliable, and how much accepted as true.

The greatest difficulty in the trial of jury cases so far as the evidence is concerned lies in the fallibility of the human mind, and not in the inventive genius of the devil. An old man who combines a venerable appearance with a failing memory is the witness most to be feared by either side.

In a recent case a patriarch of some eighty-five years positively, convincingly, and ultra-dramatically identified the defendant as a man who had knocked him down and robbed him of a ring. The identification was so perfect that on the evidence of this aged witness alone the jury convicted the defendant after but a few moments' deliberation. He was sentenced to ten years in State's prison, although he denied vehemently that he had ever seen the complainant. As he was being led from the bar, the real criminal arose among the audience and gave himself up, stating that he could not sit by and see an innocent man receive so great a punishment. The inference was, that had the sentence been lighter his conscience would not have pricked him sufficiently to sanction his act of self-sacrifice. In cross-examination lies the only corrective of this sort of specious testimony, but it would be manifestly inadequate to prevent injustice in such an instance as that just described. Juries must and do take the evidence of most well-intentioned witnesses with a grain of salt.

Both men and women habitually testify to facts as actually occurring on a specific occasion because they occurred on most occasions:

Q. "Did your husband lock the door?"

A. "Of course he did."