criminal psychology-第112章
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prosecution for embezzlement； which is more likely than not to be begun against him。＇1＇ Any affection； any stimulus； any fatigue may tend to make people passive； and hence； less able to defend themselves。
A well known Berlin psychiatrist tells the following story： ‘‘When I was still an apprentice in an asylum； I always carried the keys of the cells with me。 One day I went to the opera； and had a seat in the parquette。 Between the acts I went into the corridor。 On returning I made a mistake； and saw before me a door which had the same kind of lock as the cell…doors in the asylum； stuck my hand into my pocket； took out my keywhich fitted； and found myself suddenly in a loge。 Now would it not be possible in this way； purely by reflex action； to turn into a burglar？'' Of course we should hardly believe a known burglar if he were to tell us such a story。
（e） _The Lie_。 Section 108。 （I） I。 General Considerations。
In a certain sense a large part of the criminalist's work is nothing more than a battle against lies。 He has to discover the truth and must fight the opposite。 He meets this opposite at every step。 The accused； often one who has confessed completely； many of the witnesses； try to get advantage of him； and frequently he has to struggle with himself when he perceives that he is working in a direction which he can not completely justify。 Utterly to vanquish the lie； particularly in our work； is of course； impossible； and to describe its nature exhaustively is to write a natural history of mankind。 We must limit ourselves to the consideration of a definite number of means； great and small； which will make our work easier；
＇1＇ Cf。 Lohsing in H。 Gross's Archiv VII； 331。
will warn us of the presence of deception； and will prevent its playing a part。 I have attempted to compile forms of it according to intent； and will here add a few words。＇1＇
That by the lie is meant the intentional deliverance of a conscious untruth for the purpose of deception is as familiar as the variety of opinion concerning the permissibility of so…called necessary lies； of the pious； of the pedagogic； and the conventional。 We have to assume here the standpoint of absolute rigorism； and to say with Kant；＇2＇ ‘‘The lie in its mere form is man's crime against his own nature； and is a vice which must make a man disreputable in his own eyes。'' We can not actually think of a single case in which we find any ground for lying。 For we lawyers need have no pedagogical duties； nor are we compelled to teach people manners； and a situation in which we may save ourselves by lying is unthinkable。 Of course； we will not speak all we know； indeed； a proper silence is a sign of a good criminalist； but we need never lie。 The beginner must especially learn that the ‘‘good intention'' to serve the case and the so…called excusing ‘‘eagerness to do one's duty；'' by which little lies are sometimes justified； have absolutely no worth。 An incidental word as if the accomplice had confessed； an expression intending to convey that you know more than you do； a perversion of some earlier statement of the witness； and similar ‘‘permissible tricks；'' can not be cheaper than the cheapest things。 Their use results only in one's own shame； and if they fail； the defense has the advantage。 The lost ground can never be regained。＇3＇
Nor is it permissible to lie by gestures and actions any more than by words。 These； indeed； are dangerous； because a movement of the hand； a reaching for the bell； a sudden rising； may be very effective under circumstances。 They easily indicate that the judge knows more about the matter than he really does； or suggest that his information is greater； etc。 They make the witness or defendant think that the judge is already certain about the nature of the case； that he has resolved upon important measures； and other such things。 Now movements of this kind are not recorded； and in case the denial of blame is not serious； a young criminalist allows himself easily to be misled by his desire for efficiency。 Even accident may help。 When I was examining justice I had to hear the testimony of a rather weak…minded lad； who was suspected of having stolen and hidden a large sum of money。 The lad firmly and cleverly denied
＇1＇ Cf。 my Manual； ‘‘When the witness is unwilling to tell the truth。''
＇2＇ Kant ： ‘‘ber ein vermeintliches Recht； aus Menschenliebe zu lgen。''
＇3＇ A sentence is here omitted。 ＇Translator。＇
his guilt。 During the examination a comrade entered who had something official to tell me； and inasmuch as I was in the midst of dictation he wanted to wait until the end of the sentence。 Happening to see two swords that had just been brought from a student duel； he took one in his hand and examined the hilt； the point and the blade。 The defendant hardly saw this action before he got frightened； raised his hands； ran to the sword…examiner； crying ‘‘I confess； I confess！ I took the money and hid it in the hollow hickory tree。''
This event was rather funny。 Another； however； led； I will not say to self…reproach； but to considerable disquiet on my part。 A man was suspected of having killed his two small children。 As the bodies were not found I undertook a careful search of his home； of the oven； of the cellar； the drains； etc。 In the latter we found a great deal of animal entrails； apparently rabbits。 As at the time of this discovery I had no notion of where they belonged； I took them； and in the meantime had them preserved in alcohol。 The great glass receptacle which contained them stood on my writing table when I had the accused brought in to answer certain questions about one or two suspicious matters we had discovered。 He looked anxiously at the glass； and said suddenly； ‘‘Since you have got it all； I must confess。'' Almost reflexly I asked； ‘‘Where are the corpses？'' and he immediately answered that he had hidden them in the environs of the city； where they were found。 Clearly； the glass containing the intestines had led him to the notion that the bodies were found and in part preserved here； and when I asked him where they were he did not observe how illogical the question would be if the bodies had really been found。 The whole thing was a matter of accident； but I still have the feeling that the confession was not properly obtained； that I should have thought of the effect of the glass and should have provided against it before the accused was brought before me。
In the daily life such an open procedure is； of course； impossible； and if the circumstances were to be taken for what they seem we should frequently make mistakes。 Everybody knows； e。 g。； how very few happy marriages there are。 But how do we know it？ Only because the fortune of close observation always indicates that the relation is in no way so happy as one would like it to be。 And externally？ Has anybody ever seen in even half…educated circles a street quarrel between husband and wife？ How well…mannered they are in society； and how little they show their disinclination for each other。 And all this is a lie in word and deed； and when we have to deal with it in a criminal case we judge according to the purely external things that we and others have observed。 Social reasons； deference for public opinion which must often be deceived； the feeling of duty toward children； not infrequently compel deception of the world。 The number of fortunate marriages is mainly overestimated。＇1＇
We see the same thing with regard to property； the attitude of parents and children； the relation between superiors and inferiors； even in the condition of health；conduct in all these cases does not reveal the true state of affairs。 One after another； people are fooled； until finally the world believes what it is told and the court hears the belief sworn to as absolute truth。 It is； perhaps； not too much to say that we are far more deceived by appearances than by words。 Public opinion should least of all impose on us。 And yet it is through public opinion that we learn the external relations of the people who come before us。 It is called vox populi and is really rot。 The phrases； ‘‘they say；'' ‘‘everybody knows；'' ‘‘nobody doubts；'' ‘‘as most neighbors agree；'' and however else these seeds of dishonesty and slander may be designatedall these phrases must disappear from our papers and procedure。 They indicate only appearancesonly what people _*wanted_ to have seen。 They do not reveal the real and the hidden。 Law too frequently makes normative use of the maxim that the bad world says it and the good one believes it。 It even constructs its judgments thereby。
Not infrequently the uttered lies must be supported by actions。 It is well…known that we seem merry； angry； or friendly only when we excite these feelings by certain gestures； imitations and physical attitudes。 Anger is not easily simulated with an unclenched fist； immovable feet； and uncontracted brow。 These gestures are required for the appearance of real anger。 And how very real it becomes； and how very real all other emotions become because of the appropriate gestures and actions； is familiar。 We learn； hence； that the earnest assertor of his innocence finally begins to believe in it a little； or altogether。 And lying witnesses still more frequently begin to hold their assertions to be true。 As these people do not show the common marks of the lie their treatment is extraordinarily difficult。
It is； perhaps； right to accuse our age of especial inclination for that far…reaching lie which makes its perpetrator believe in his own
＇1＇ A。 Moll： Die kontrre Sexualempfindung。 Berlin 1893。
creation。 Kiefer＇1＇ cites examples of such ‘‘self…deceiving liars。'' What drives one to despair is the fact that these people are such clever liars that they make a game of the business。 It is a piece of luck that these lies； like every lie； betray themselves by the characteristic intensity with which they seek to assume the appearance of truth。 This important mark of the lie can not be too clearly indicated。 The number and vigor of lies must show that we more frequently fail to think of their possibility than if they did not exist at all。 A long time ago I read an apparently simple story which has helped me frequently in my criminalistic work。 Karl was dining with his parents and two cousins； and after dinner said at school； ‘‘There were fourteen of us at table to…day。'' ‘‘How is it possible？'' ‘‘Karl has lied again。'' How frequently does an event seem inexplicable； mysterious； puzzling。 But if you think that here perhaps； ‘‘Karl has lied again；'' you may be led to more accurate observation and hence； to the discovery of some hiatus by means of which the whole affair may be cleared up。
But frequently contradictions are still more simply explained by the fact that they are not contradictions； and by the fact that we see them as such through inadequate comprehension of what has been said； and ignorance of the conditions。 We often pay too much attention to lies and contradictions。 There is the prejudice that the accused is really the criminal； and that moves us to give unjustified reasons for little accidental facts； which lead afterwards to apparent contradictions。 This habit is very old。
If we inquire when the lie has leas
