Criminal Psychology - Hans Gross (list of e readers .TXT) 📗

an alibi. Not infrequently confession of small crimes is made to establish an alibi for a greater one. And finally there are the confessions Catholics[1]

are required to make in confessional, and the death bed confessions.

The first are distinguished by the fact that they are made freely and that the confessee does not try to mitigate his crime, but is aiming to make amends, even when he finds it hard; and desires even a definite penance. Death bed confessions may indeed have religious grounds, or the desire to prevent the punishment or the further punishment of an innocent person.

 

Although this list of explicable confession-types is long, it is in no way exhaustive. It is only a small portion of all the confessions that we receive; of these the greater part remain more or less unexplained.

Mittermaier[2] has already dealt with these acutely and cites examples as well as the relatively well-studied older literature of the subject. A number of cases may perhaps be explained through pressure of conscience, especially where there are involved hysterical or nervous persons who are plagued with vengeful images in which the ghost of their victim would appear, or in whose ear the unendurable clang of the stolen money never ceases, etc. If the confessor only intends to free himself from these disturbing images and the consequent punishment by means of confession, we are not dealing with what is properly called conscience, but more or less with disease, with an abnormally excited imagination.[3] But where such hallucinations are lacking, and religious influences are absent, and the confession is made freely in response to mere pressure, we have a case of conscience,[4]—another of those terms which need explanation.

I know of no analogy in the inner nature of man, in which anybody with open eyes does himself exclusive harm without any contingent use being apparent, as is the case in this class of confession. There is always considerable difficulty in explaining these cases. One way of explaining them is to say that their source is mere stupidity [1] Cf. the extraordinary confession of the wife of the “cannibal” Bratuscha.

The latter had confessed to having stifled his twelve year old daughter, burned and part by part consumed her. He said his wife was his accomplice. The woman denied it at first but after going to confession told the judge the same story as her husband. It turned out that the priest had refused her absolution until she “confessed the truth.” But both she and her husband had confessed falsely.

The child was alive. Her father’s confession was pathologically caused, her mother’s by her desire for absolution.

 

[2] C. J. A. Mittermaier: Die Lehre vom Beweise im deutsehen Strafprozess.

Darmstadt 1834.

 

[3] Poe calls such confessions pure perversities.

 

[4] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894.

 

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and impulsiveness, or simply to deny their occurrence. But the theory of stupidity does not appeal to the practitioner, for even if we agree that a man foolishly makes a confession and later, when he perceives his mistake, bitterly regrets telling it, we still find many confessions that are not regretted and the makers of which can in no wise be accused of defective intelligence. To deny that there are such is comfortable but wrong, because we each know collections of cases in which no effort could bring to light a motive for the confession. The confession was made because the confessor wanted to make it, and that’s the whole story.

 

The making of a confession, according to laymen, ends the matter, but really, the judge’s work begins with it. As a matter of caution all statutes approve confessions as evidence only when they agree completely with the other evidence. Confession is a means of proof, and not proof. Some objective, evidentially concurrent support and confirmation of the confession is required. But the same legal requirement necessitates that the value of the concurrent evidence shall depend on its having been arrived at and established independently.

The existence of a confession contains powerful suggestive influences for judge, witness, expert, for all concerned in the case. If a confession is made, all that is perceived in the case may be seen in the light of it, and experience teaches well enough how that alters the situation. There is so strong an inclination to pigeonhole and adapt everything perceived in some given explanation, that the explanation is strained after, and facts are squeezed and trimmed until they fit easily. It is a remarkable phenomenon, confirmable by all observers, that all our perceptions are at first soft and plastic and easily take form according to the shape of their predecessors. They become stiff and inflexible only when we have had them for some time, and have permitted them to reach an equilibrium. If, then, observations are made in accord with certain notions, the plastic material is easily molded, excrescences and unevenness are squeezed away, lacun<ae> are filled up, and if it is at all possible, the adaptation is completed easily. Then, if a new and quite different notion arises in us, the alteration of the observed material occurs as easily again, and only long afterwards, when the observation has hardened, do fresh alterations fail. This is a matter of daily experience, in our professional as well as in our ordinary affairs. We hear of a certain crime and consider the earliest data.

For one reason or another we begin to suspect A as the criminal The result of an examination of the premises is applied in each detail <p 34>

to this proposition. It fits. So does the autopsy, so do the depositions of the witnesses. Everything fits. There have indeed been difficulties, but they have been set aside, they are attributed to inaccurate observation and the like,—the point is,—that the evidence is against A. Now, suppose that soon after B confesses the crime; this event is so significant that it sets aside at once all the earlier reasons for suspecting A, and the theory of the crime involves B. Naturally the whole material must now be applied to B, and in spite of the fact that it at first fitted A, it does now fit B. Here again difficulties arise, but they are to be set aside just as before.

 

Now if this is possible with evidence, written and thereby unalterable, how much more easily can it be done with testimony about to be taken, which may readily be colored by the already presented confession. The educational conditions involve now the judge and his assistants on the one hand, and the witnesses on the other.

 

Concerning himself, the judge must continually remember that his business is not to fit all testimony to the already furnished confession, allowing the evidence to serve as mere decoration to the latter, but that it is his business to establish his proof by means of the confession, and by means of the other evidence, *independently.

The legislators of contemporary civilization have started with the proper presupposition—that also false confessions are made,—

and who of us has not heard such? Confessions, for whatever reason,—because the confessor wants to die, because he is diseased,[1]

because he wants to free the real criminal,—can be discovered as false only by showing their contradiction with the other evidence.

If, however, the judge only fits the evidence, he abandons this means of getting the truth. Nor must false confessions be supposed to occur only in case of homicide. They occur most numerously in cases of importance, where more than one person is involved.

It happens, perhaps, that only one or two are captured, and they assume all the guilt, e. g., in cases of larceny, brawls, rioting, etc.

I repeat: the suggestive power of a confession is great and it is hence really not easy to exclude its influence and to consider the balance of the evidence on its merits,—but this must be done if one is not to deceive oneself.

 

Dealing with the witness is still more ticklish, inasmuch as to the difficulties with them, is added the difficulties with oneself. The simplest thing would be to deny the existence of a confession, and [1] Cf. above, the case of the “cannibal” Bratuscha.

 

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thus to get the witness to speak without prejudice. But aside from the fact of its impossibility as a lie, each examination of a witness would have to be a comedy and that would in many cases be impossible as the witness might already know that the accused had confessed. The only thing to be done, especially when it is permissible for other reasons, is to tell the witness that a confession exists and to call to his attention that it is *not yet evidence, and finally and above all to keep one’s head and to prevent the witness from presenting his evidence from the point of view of the already-established.

In this regard it can not be sufficiently demonstrated that the coloring of a true bill comes much less from the witness than from the judge. The most excited witness can be brought by the judge to a sober and useful point of view, and conversely, the most calm witness may utter the most misleading testimony if the judge abandons in any way the safe bottom of the indubitably established fact.

 

Very intelligent witnesses (they are not confined to the educated classes) may be dealt with constructively and be told after their depositions that the case is to be considered as if there were no confession whatever. There is an astonishing number of people—

especially among the peasants—who are amenable to such considerations and willingly follow if they are led on with confidence.

In such a case it is necessary to analyze the testimony into its elements.

This analysis is most difficult and important since it must be determined what, taken in itself, is an element, materially, not formally, and what merely appears to be a unit. Suppose that during a great brawl a man was stabbed and that A confesses to the stabbing. Now a witness testified that A had first uttered a threat, then had jumped into the brawl, felt in his bag, and left the crowd, and that in the interval between A’s entering and leaving, the stabbing occurred. In this simple case the various incidents must be evaluated, and each must be considered by itself. So we consider—Suppose A had not confessed, what would the threat have counted for? Might it not have been meant for the assailants of the injured man? May his feeling in the bag not be interpreted in another fashion? Must he have felt for a knife only? Was there time enough to open it and to stab? Might the man not have been already wounded by that time? We might then conclude that all the evidence about A contained nothing against him—but if we relate it to the confession, then this evidence is almost equal to direct evidence of A’s crime.

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But if individual sense-perceptions are mingled with conclusions, and if other equivalent perceptions have to be considered, which occurred perhaps to other people, then the analysis is hardly so simple, yet it must be made.

 

In dealing with less intelligent people, with whom this construction cannot be performed, one must be satisfied with general rules. By demanding complete accuracy and insisting, in any event, on the ratio sciendi, one may generally succeed in turning a perception, uncertain with regard to any individual, into a trustworthy one with regard to the confessor. It happens comparatively seldom that untrue confessions are discovered, but once this does occur, and the trouble is taken to subject the given evidence to a critical comparison, the manner of adaptation of the evidence to the confession may easily be discovered. The witnesses were altogether unwilling to tell any falsehood and the