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

by Arthur Cheney Train

Yet who of us could state with certainty the guests at a particular dinner six months ago? Or the transactions of a morning only a week ago, with any accuracy as to time? What the witness frequently does is to discuss the matter with his friends who were present on the occasion in question, and, as it were, form a sort of "pool" of their common recollections, impressions, and beliefs. One suggestion corrects or modifies another until a comparatively lucid and logical story is evoked. When this has been accomplished the witness mentally exclaims: "Of course! That was just the way it was! Now I remember it all!" The time is so distant that whatever the final crystallization of the matter may be, it is far from likely that it will thereafter be shown to be inaccurate by any piece of evidence which will present itself to the witness and his friends. The account thus developed by mutual questions and "refreshing" of each other's recollection becomes, so far as the parties to it are concerned, the fact. The witness is now positive that he did and said exactly so and so, and nothing will swerve him from it, for inherently there is nothing in the story or its make-up that affords any reason for questioning its accuracy. This story repeated from time to time becomes one of the most vivid things in the witness's mental experience. He repeats it over and over, is cross-examined by his own attorney upon it, incorporates it in an affidavit to which he swears, and when he takes the stand recounts these ancient happenings with an aggressiveness and enthusiasm that bring dismay to the other side.

But what a farce to call this recollection! What is this circumstantial romance when it comes to be analyzed? Jones, a friend of Smith the prospective witness, is anxious to establish an alibi, and asks Smith if he doesn't remember meeting him in the club on February 12, two years before. Smith has no recollection of it at all, but Jones says: "Oh, yes, you were going to the theatre with Robinson." Of course, if Jones is so sure, Smith naturally begins to think it is probably the fact, and he does remember vaguely that he and Robinson spent an evening together. So he consults his diary and finds it recorded there that he did attend the theatre on the day in question with Robinson. He does not remember the play, but Robinson recalls that it was "The Chinese Honeymoon," and believes that they dined together first at the club. Smith now thinks he remembers this himself. Then Robinson suggests that they probably went to the theatre in a cab. They look in a file of old papers and find that it was raining. That settles it—of course, they went in a cab. The next question is the hour. They have no recollection of being late, so they must have arrived on time. Well, the paper says the play commenced at eight, and it takes a cab about twenty minutes to get from the club to Daly's Theatre, so it is reasonably clear that they must have started a little before eight. Smith unconsciously is persuaded to believe that if Jones was right about their going to the theatre, he must also have been in the club at the time he says he was there. Both he and Robinson recall that Jones was always hanging round the club two years ago, and as neither can remember an evening when he wasn't there, they decide he must have been there that night. Robinson has a dim recollection that they had a drink together. That is a pretty safe guess and has all the air of verisimilitude. In an hour or two Smith is ready to swear positively from recollection that he dined with Robinson at the club on February 12 two years ago, met Jones, had a drink with him, that this occurred at seven fifty-five, that it was raining, that they took a cab, etc., etc. In its elements this testimony is entirely hearsay upon the only vital point, i.e., Jones's presence in the club at that time, and the immaterial remainder is made up of equal parts of diary, newspaper, play-bill, weather report, usual custom, reliance on Robinson's alleged recollection, and belief in Jones's innocence. He has practically no actual memory of the facts at all, and the only thing he really does remember is that a long time ago he did attend some theatre with Robinson.

The common doctrine of what is known as "refreshing the memory" in actual practice is notoriously absurd. Witnesses who have made memoranda as to certain facts, or even, in certain cases, of conversations, and who have no independent recollection thereof, are permitted to read them for the purpose of "refreshing" their memories. Having done so, they are then asked if they now have, independently of the paper, any recollection of them. In ninety-nine cases out of a hundred it would be absolutely impossible for them really to remember anything of the sort. They read the entry, know it is probably accurate, and are morally convinced that the fact is as thereon stated. They answer yes, that their recollection has been refreshed and that they now do remember, and are allowed to testify to the fact as of their own knowledge. In most instances they do not clearly understand the distinction they are called upon to draw between actual independent recollection and a strong belief on their own part that the fact must be as recorded. It is the exceptional witness indeed who makes any such distinction.

There are also many cases where a defendant has been put in jeopardy because some one, remembering that he intended to do an act, becomes convinced that he has done so, to the extent of being willing to swear thereto. No better illustration of this kind of error could be given than the disappearance of the famous necklace of a prominent resident of Newport during the summer of 1904. There lives hardly a family which has not frequently had such an experience. Some night the husband can't find his pearl shirt-studs. He knows he had them on the evening before. The hue and cry is raised. Maledictions are called down upon Anna or Delia or Nora. But the studs are not in the shirt. Their owner swears he left them there. Then Delia tremblingly suggests that "master dined in his ordinary clothes last evening," and he realizes that it was so late when he got home that at the last minute he decided not to change. Amid great excitement the studs are located in the bureau drawer where they belonged.

The final question to be determined by the juror in regard to the testimony of any witness is how far the latter has succeeded in conveying his actual recollections through the medium of speech and gesture. This necessarily depends upon a variety of considerations. Among these are his familiarity with the English language; inadvertent accentuation of wrong words or of the less important features of his testimony; his physical condition, which in nine cases out of ten is one of extreme nervousness and timidity, if not of actual fear; and a hundred other trifling, but, in the aggregate, material matters.

The most effective testimony is that which is given with what the jury regard as the evidences of candor. It is a familiar fact that the surer a person is of anything, particularly among the laboring classes, the more loudly will he assert its truth. This is so well known to the jury as ordinarily constituted that unless testimony is given with positiveness it might as well not be given at all. Much as it is to be deprecated, an assertive lie is of much more weight with a jury than an anemic statement of the truth. The juror imagines himself telling the story, and feels that if he were doing so and his testimony were true, he would be so convincing that the jury could have no doubt about it at all. Ofttimes a witness leads the jury to suspect that he is a liar simply because he has too strong a sense of the proprieties of his position vehemently to resent a suggestion of untruthfulness. The gentleman who mildly replies "That is not so" to a challenge of his veracity, makes far less impression on the jury than the coal-heaver who leans forward and shakes his fist in the shyster's face, exclaiming: "If ye said that outside, ye little spalpeen, I'd knock yer head off." "Ah," say the jury, "there's a man for you." Just as your puritan is at a disadvantage in an alehouse, and your dandy in a mob, so are the hyper-conscientious and the oversensitive and refined before a jury. The most effective witness is he whom the general run of jurors can understand, who speaks their own language, feels about the same emotions, and is not so morbidly conscientious about details that in qualifying testimony he finds himself entangled and rendered helpless in his own refinements. A distinguished lawyer testifying in a recent case was so careful to qualify every statement and refine every bit of his evidence that the jury took the word of a perjured loafer and a street-walker in preference. This kind of thing happens again and again, and the wily witness who thinks himself clever in appearing overdisinterested is "hoist by his own petard." The jury at once distrust him. They feel either that he is making it all up, or is in fact not sure of his evidence, else, they argue, he would be more positive in giving it.

Most witnesses in the general run of criminal cases have no comprehension of the meaning of words of more than three syllables. It is hopeless to make use of even such modest members of our national vocabulary as "preceding," "subsequent," "various," etc. A negro when asked if certain shots were simultaneous replied:

"Yas, boss. Dat's it! 'Zactly simultaneous! One right after de odder."

The ordinary witness usually says "minutes" when he means "seconds." He will testify without hesitation that the defendant drew his revolver and immediately shot the complainant, illustrating on the stand the rapidity of the movement. When asked how long it took, he will answer: "Oh, about two or three minutes."