Recollections of a Policeman

by William Russell

Circumstances on which the witness had been silent when examined before the magistrate shortly after the event, make their appearance in his evidence on the day of trial; so that his memory purports to augment inaccuracy in proportion to their time which has elapsed since the transaction of which he speaks!

I have observed this effect produced in a marvelous degree in cases of new trial, which in civil suits are often awarded, and which frequently take place years after the event to which they relate. The comparison of the evidence of the same witness as it stands upon the short-hand writer’s notes of the two trials, would lead an unpracticed reader to the conclusion that nothing but perjury could account for the diversities; and this impression would be confirmed, if he should find, as in all probability he would, that the points on which the latter memory was better supplied than the earlier, were just those on which the greatest doubt had prevailed on the former occasion, and which were made in favor of the party on whose side the witness had been called. But the critic would be mistaken. The witness was not dishonest, but had failed to keep watch over the operations of his own mind. He had perhaps often adverted to the subject, and often discoursed upon it, until at length he confounded the facts which had occurred, with the inference which he had drawn from such facts, in establishment of the existence of others, which had in reality no place except in his own cogitation, but which after a time took rank in his memory with its original impressions.

The best safeguard a witness could employ to preserve the unalloyed memory of transactions, is to commit his narrative to writing, as soon after the event as he shall have learned that his evidence respecting them is likely to be required; and yet I can hardly recommend such a course, because so little is the world, and even that portion of the world which passes its life in Courts of Justice, acquainted with what may be called the Philosophy of Evidence, that a conscientious endeavor of this kind to preserve his testimony in its purity, might draw upon him the imputation of having fabricated his narrative; and this is the more probable, because false witnesses have not unfrequently taken similar means for abiding by their fictions.

It is worthy of note how much these disturbing causes, both moral and intellectual, fasten upon these portions of evidence which are most liable to distortion. Words, as contra-distinguished from facts, exemplify the truth of this position. Every witness ought to feel great distrust of himself in giving evidence of a conversation. Language, if it runs to any length, is very liable to be misunderstood, at least in passages.

But supposing it to be well understood at the moment, the exact wording of it can rarely be recalled, unless the witness’s memory were tantamount in minuteness and accuracy to the record of a short-hand writer. He is consequently permitted to give an abstract, or, as it is usually called, the substance of what occurred. But here a new difficulty arises; to abstract correctly is an intellectual effort of no mean order, and is rarely accomplished with a decent approach to perfection. Let the juryman bear this in mind. He will be often tempted to rely on alleged confessions of prisoners sworn to by witnesses who certainly desire to speak the truth. These confessions often go so straight to the point, that they offer to the juryman a species of relief from that state of doubt, which, to minds unpracticed in weighing probabilities, is irksome, almost beyond description. Speaking from the experience of thirty years, I should pronounce the evidence of words to be so dangerous in its nature as to demand the utmost vigilance, in all cases, before it is allowed to influence the verdict to any important extent.

While I am on the subject of evidence, infirm in its nature, I must not pass over that of identity of person. The number of persons who resemble each other is not inconsiderable in itself; but the number is very large of persons, who, though very distinguishable when standing side by side, are yet sufficiently alike to deceive those who are without the means of immediate comparison.

Early in life an occurrence impressed me with the danger of relying on the most confidential belief of identity. I was at Vauxhall Gardens where I thought I saw, at a short distance, an old country gentleman whom I highly respected, and whose favor I should have been sorry to lose. I bowed to him, but obtained no recognition. In those days the company amused themselves by walking round in a circle, some in one direction, some in the opposite, by which every one saw and was seen—I say, in those days, because I have not been at Vauxhall for a quarter of a century. In performing these rounds I often met the gentleman, and tried to attract his attention, until I became convinced that either his eye-sight was so weakened that he did not know me, or that he chose to disown my acquaintance. Some time afterward, going into the county in which he resided, I received, as usual, an invitation to dinner; this led to an explanation, when my friend assured me he had not been in London for twenty years. I afterwards met the person whom I had mistaken for my old friend, and wondered how I could have fallen into the error. I can only explain it by supposing that, if the mind feels satisfied of identity, which it often does at the first glance, it ceases to investigate that question, and occupies itself with other matter; as in my case, where my thoughts ran upon the motives my friend might have, for not recognizing me, instead of employing themselves on the question of whether or no the individual before my eyes was indeed the person I took him for.

If I had had to give evidence on this matter my mistake would have been the more dangerous, as I had full means of knowledge. The place was well lighted, the interviews were repeated, and my mind was undisturbed. How often have I known evidence of identity acted upon by juries, where the witness was in a much less favorable position (for correct observation) than mine.

Sometimes, a mistaken verdict is avoided by independent evidence. Rarely, however, is this rock escaped, by cross-examination, even when conducted with adequate skill and experience. The belief of the witness is belief in a matter of opinion resulting from a combination of facts so slight and unimportant, separately considered, that they furnish no handle to the cross-examiner. A striking case of this kind occurs to my recollection, with which I will conclude.

A prisoner was indicted for shooting at the prosecutor, with intent to kill him. The prosecutor swore that the prisoner had demanded his money, and that upon refusal, or delay, to comply with his requisition, he fired a pistol, by the flash of which his countenance became perfectly visible; the shot did not take effect, and the prisoner made off. Here the recognition was momentary, and the prosecutor could hardly have been in an undisturbed state of mind, yet the confidence of his belief made a strong impression on all who heard the evidence, and probably would have sealed the fate of the prisoner without the aid of an additional fact of very slight importance, which was, however, put in evidence by way of corroboration, that the prisoner, who was a stranger to the neighborhood, had been seen passing near the spot in which the attack was made about noon of the same day. The judge belonged to a class, now, thank God! obsolete, who always acted on the reverse of the constitutional maxim, and considered every man guilty, until he was proved to be innocent.