However conscientiously and intensely the expert may apply himself to his problem, it will be impossible to work at it with real interest if he finds no co-operation, no interest, and no understanding among those for whom he, at least formally, is at work. We may be certain that the paucity of respect we get from the scientific representatives of other disciplines (let us be honest,—such is the case) comes particularly from those relations we have with them as experts, relations in which they find us so unintelligent and so indifferent with regard to matters of importance. If the experts speak of us with small respect and the attitude spreads and becomes general, we get only our full due. Nobody can require of a criminal judge profound knowledge of all other disciplines besides his own—the experts supply that—but the judge certainly must have some insight into them in so far as they affect his own work, if he is not to meet the expert unintelligent and unintelligible, and if he is to co-operate with and succeed in appraising the expert’s work. In a like fashion the judge may be required to take interest in the experts’ result. If the judge receives their report and sticks to the statutes, if he never shows that he was anxious about their verdict, and merely views it as a number, it is no wonder that in the end the expert also regards his work as a mere number, and loses interest. No man is interested in a thing unless it is made interesting, and the expert is no exception. Naturally no one would say that the judge should pretend interest,—that would be worst of all;—he must be possessed of it, or he will not do for a judge. But interest may be intensified and vitalized. If the judge perceives that the finding of the experts is very important for his case he must at least meet them with interest in it. If that is present he will read their reports attentively, will note that he does not understand some things and ask the experts for elucidation. One question gives rise to another, one answer after another causes understanding, and understanding implies an ever-increasing interest. It never happens that there should be difficulties because of a request to judicial experts to explain things to the judge. I have never met any in my own practice and have never heard any complaints. On the contrary, pleasure and efficiency are generally noticeable in such connections, and the state, above all, is the gainer. The simple explanation lies here in the fact that the expert is interested in his profession, interested in just that concrete way in which the incomparably greater number of jurists are not. And this again is based upon a sad fact, for us. The chemist, the physician, etc., studies his subject because he wants to become a chemist, physician, etc., but the lawyer studies law not because he wants to become a lawyer, but because he wants to become an official, and as he has no especial interest he chooses his state position in that branch in which he thinks he has the best prospects. It is a bitter truth and a general rule—that those who want to study law and the science of law are the exceptions, and that hence we have to acquire a real interest in our subject from laymen, from our experts. But the interest can be acquired, and with the growth of interest, there is growth of knowledge, and therewith increase of pleasure in the work itself and hence success.
The most difficult problem in interest, is arousing the interest of witnesses—because this is purely a matter of training. Receiving the attention is what should be aimed at in rousing interest, inasmuch as full attention leads to correct testimony—i.e., to the thing most important to our tasks. “No interest, no attention,” says Volkmar.[64] “The absolutely new does not stimulate; what narrows appreciation, narrows attention also.” The significant thing for us is that “the absolutely new does not stimulate”—a matter often overlooked. If I tell an uneducated man, with all signs of astonishment, that the missing books of Tacitus’ “Annals” have been discovered in Verona, or that a completely preserved Dinotherium has been cut out of the ice, or that the final explanation of the Martian canals has been made at Manora observatory,—all this very interesting news will leave him quite cold; it is absolutely new to him, he does not know what it means or how to get hold of it, it offers him no matter of interest.[65] I should have a similar experience if, in the course of a big case, I told a man, educated, but uninterested in the case, with joy, that I had finally discovered the important note on which the explanation of the events depended. I could not possibly expect interest, attention, and comprehension of a matter if my interlocutor knows nothing about the issue or the reason of the note’s importance. And in spite of the fact that everything is natural and can be explained we have the same story every day. We put the witness a definite question that is of immense importance to us, who are fully acquainted with the problem, but is for the witness detached, incoherent, and therefore barren of interest. Then who can require of an uninterested witness, attention, and effective and well-considered replies?[66] I myself heard a witness answer a judge who asked him about the weather on a certain day, “Look here, to drag me so many miles to this place in order to discuss the weather with me,—that’s—.” The old man was quite right because the detached question had no particular purpose. But when it was circumstantially explained to him that the weather was of uttermost significance in this case, how it was related thereto, and how important his answer would be, he went at the question eagerly, and did everything thinkable in trying to recall the weather in question by bringing to bear various associated events, and did finally make a decidedly valuable addition to the evidence. And this is the only way to capture the attention of a witness. If he is merely ordered to pay attention, the result is the same as if he were ordered to speak louder,—he does it, in lucky cases, for a moment, and then goes on as before. Attention may be generated but not commanded, and may be generated successfully with everybody, and at all times, if only the proper method is hit upon. The first and absolute requirement is to have and to show the same interest oneself. For it is impossible to infect a man with interest when you have no interest to infect with. There is nothing more deadly or boresome than to see how witnesses are examined sleepily and with tedium, and how the witnesses, similarly infected, similarly answer. On the other hand, it is delightful to observe the surprising effect of questions asked and heard with interest. Then the sleepiest witnesses, even dull ones, wake up: the growth of their interest, and hence of their attention, may be followed step by step; they actually increase in knowledge and their statements gain in reliability. And this simply because they have seen the earnestness of the judge, the importance of the issue, the case, the weighty consequences of making a mistake, the gain in truth through watchfulness and effort, the avoidance of error through attention. In this way the most useful testimony can be obtained from witnesses who, in the beginning, showed only despairing prospects.
Now, if one is already himself endowed with keen interest and resolved to awaken the same in the witnesses, it is necessary carefully to consider the method of so doing and how much the witness is to be told of what has already been established, or merely been said and received as possibly valuable. On the one hand it is true that the witness can be roused to attention and to more certain and vigorous responses according to the quantity of detail told him.[67] On the other, caution and other considerations warn against telling an unknown witness, whose trustworthiness is not ascertained, delicate and important matters. It is especially difficult if the witness is to be told of presuppositions and combinations, or if he is to be shown how the case would alter with his own answer. The last especially has the effect of suggestion and must occur in particular and in general at those times alone when his statement, or some part of it, is apparently of small importance but actually of much. Often this importance can be made clear to the witness only by showing him that the difference in the effect of his testimony is pointed out to him because when he sees it he will find it worth while to exert himself and to consider carefully his answer. Any one of us may remember that a witness who was ready with a prompt, and to him an indifferent reply, started thinking and gave an essentially different answer, even contradictory to his first, when the meaning and the effect of what he might say was made clear to him.
How and when the witness is to be told things there is no rule for. The wise adjustment between saying enough to awaken interest and not too much to cause danger is a very important question of tact. Only one certain device may be recommended—it is better to be careful with a witness during his preliminary examination and to keep back what is known or suspected; thus the attention and interest of the witness may perhaps be stimulated. If, however, it is believed that fuller information may increase and intensify the important factors under examination, the witness is to be recalled later, when it is safe, and his testimony is, under the new conditions of interest, to be corrected and rendered more useful. In this case, too, the key to success lies in increase of effort—but that is true in all departments of law, and the interest of a witness is so important that it is worth the effort.
Topic III. PHENOMENOLOGY: STUDY OF THE OUTWARD EXPRESSION OF MENTAL STATES.
Section 10.
Phenomenology is in general the science of appearances. In our usage it is the systematic co-ordination of those outer symptoms occasioned by inner processes, and conversely, the inference from the symptoms to them. Broadly construed, this may be taken as the study of the habits and whole bearing of any individual. But essentially only those external manifestations can be considered that refer back to definite psychical conditions, so that our phenomenology may be defined as the semiotic of normal psychology. This science is legally of immense importance, but has not yet assumed the task of showing how unquestionable inferences may be drawn from an uncounted collection of outward appearances to inner processes. In addition, observations are not numerous enough, far from accurate enough, and psychological research not advanced enough. What dangerous mistakes premature use of such things may lead to is evident in the teaching of the Italian positivistic school, which defines itself also as psychopathic semiotic. But if our phenomenology can only attempt to approximate the establishment of a science of symptoms, it may at least study critically the customary popular inferences from such symptoms and reduce exaggerated theories concerning the value of individual symptoms to a point of explanation and proof. It might seem that our present task is destructive, but it will be an achievement if we can show the way to later development of this science, and to have examined and set aside the useless material already to hand.
Section 11. (a) General External Conditions.
“Every state of consciousness has its physical correlate,” says Helmholtz,[68] and this proposition contains the all in all of our problem. Every mental event must have its corresponding physical event[69] in some form, and is therefore capable of being sensed, or known to be indicated by some trace. Identical inner states do not, of course, invariably have identical bodily concomitants, neither in all individuals alike, nor in the same individual at different times. Modern methods of generalization so invariably involve danger and incorrectness that one can not be too cautious in this matter. If generalization were permissible, psychical events would have to be at least as clear as physical processes, but that is not admissible for many reasons. First of all, physical concomitants are rarely direct and unmeditated expressions of a psychical instant (e.g., clenching a fist in threatening). Generally they stand in no causal relation, so that explanations drawn from physiological, anatomical, or even atavistic conditions are only approximate and hypothetical. In addition, accidental habits and inheritances exercise an influence which, although it does not alter the expression, has a moulding effect that in the course of time does finally so recast a very natural expression as to make it altogether unintelligible. The phenomena, moreover, are in most cases personal, so that each individual means a new study. Again the phenomena rarely remain constant; e.g.: we call a thing habit,—we say, “He has the habit of clutching his chin when he is embarrassed,”—but that such habits change is well known. Furthermore, purely physiological conditions operate in many directions, (such as blushing, trembling, laughter,[70] weeping, stuttering, etc.), and finally, very few men want to show their minds openly to their friends, so that they see no reason for co-ordinating their symbolic bodily expressions. Nevertheless, they do so, and not since yesterday, but for thousands of years. Hence definite expressions have been transmitted for generations and have at the same time been constantly modified, until to-day they are altogether unrecognizable. Characteristically, the desire to fool others has also its predetermined limitations, so that it often happens that simple and significant gestures contradict words when the latter are false. E. g., you hear somebody say, “She went down,” but see him point at the same time, not clearly, but visibly, up. Here the speech was false and the gesture true. The speaker had to turn all his attention on what he wanted to say so that the unwatched co-consciousness moved his hand in some degree.
A remarkable case of this kind was that of a suspect of child murder. The girl told that she had given birth to the child all alone, had washed it, and then laid it on the bed beside herself. She had also observed how a corner of the coverlet had fallen on the child’s face, and thought it might interfere with the child’s breathing. But at this point she swooned, was unable to help the child, and it was choked. While sobbing and weeping as she was telling this story, she spread the fingers of her left hand and pressed it on her thigh, as perhaps she might have done, if she had first put something soft, the corner of a coverlet possibly, over the child’s nose and mouth, and then pressed on it. This action was so clearly significant that it inevitably led to the question whether she hadn’t choked the child in that way. She assented, sobbing.