criminal psychology-第82节
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e Austrian dialect _salve_ is pronounced like salary and the colloquial for ‘‘salary'' is ‘‘schmier'' （to wipe）。 Dr。 Ernst Lohsing tells me that he was once informed that a Mr。 Schnepfe had called on him； while； as a matter of fact the gentleman's name was Wachtel。 Such misunderstandings； produced by false mnemonic； may easily occur during the examination of witnesses。 They are of profound significance。 If once you suspect that false memory has been in play； you may arrive at the correct idea by using the proper synonyms and by considering similarly…pronounced words。 If attention is paid to the determining conditions of the special case； success is almost inevitable。
The second way in which false mnemotechnique is important is that in which the technique was correct； but in which the key to the system has been lost； i。 e。； the witness has forgotten how he proceeded。 Suppose； for example； that I need to recall the relation of the ages of three people to each other。 Now； if I observe that M is the oldest； N the middle one； and O the youngest； I may suppose； in order to help my memory； that their births followed in the same order as their initials； M； N； O。 Now suppose that at another time； in another case I observe the same relation but find the order of the initials reversed O N； M。 If now； in the face of the facts； I stop simply with this technique； I may later on substitute the two cases for each other。 Hence； when a witness says anything which appears to have been difficult to remember； it is necessary to ask him how he was able to remember it。 If he assigns some aid to memory as the reason； he must be required to explain it； and he must not be believed unless it is found reliable。 If the witness in the instance above； for example； says； ‘‘I never make use of converse relations；'' then his testimony will seem comparatively trustworthy。 And it is not difficult to judge the degree of reliability of any aid to memory whatever。
Great liars are frequently characterized by their easy use of the most complicated mnemotechnique。 They know how much they need it。
Topic 7。 THE WILL。
Section 57。
Of course； we do not intend to discuss here either the ‘‘will'' of the philosopher； or the ‘‘malice'' or ‘‘ill…will'' of criminal law； nor yet the ‘‘freedom of the will'' of the moralist。 We aim only to consider a few facts that may be of significance to the criminal lawyer。 Hence； we intend by ‘‘will'' only what is currently and popularly meant。 I take will to be the _*inner_ effect of the more powerful impulses； while action is the _*external_ effect of those impulses。 When Hartmann says that will is the transposition of the ideal into the real； he sounds foolish； but in one sense the definition is excellent。 You need only understand by ideal that which does not yet exist； and by real that which is a fact and actual。 For when I voluntarily compel myself to think about some subject； something has actually happened； but this event is not ‘‘real'' in the ordinary sense of that word。 We are to bear in mind； however； that Locke warned us against the contrast between intelligence and will； as real； spiritual essences； one of which gives orders and the other of which obeys。 From this conception many fruitless controversies and confusions have arisen。 In this regard； we criminalists must always remember how often the common work of will and intelligence opposes us in witnesses and still more so in defendants； causing us great difficulties。 When the latter deny their crime with iron fortitude and conceal their guilt by rage； or when for months they act out most difficult parts with wonderful energy； we must grant that they exhibit aspects of the will which have not yet been studied。 Indeed； we can make surprising observations of how effectively prisoners control the muscles of their faces； which are least controllable by the will。 The influence the will may have on a witness's power even to flush and grow pale is also more extensive than may be established scientifically。 This can be learned from quite remote events。 My son happens to have told me that at one time he found himself growing pale with cold； and as under the circumstance he was afraid of being accused of lacking courage to pursue his task； he tried with all his power to suppress his pallor； and succeeded perfectly。 Since then； at court； I have seen a rising blush or beginning pallor suppressed completely； yet this is theoretically impossible。
But the will is also significant in judging the man as a whole。 According to Drobisch；＇1＇ the abiding qualities and ruling ‘‘set'' of a man's volition constitute his character。 Not only inclination； and habits； and guiding principles determine the character； but also meanings； prejudices； convictions； etc。 of all kinds。 Since； then； we can not avoid studying the character of the individual； we must trace his volitions and desires。 This in itself is not difficult； the idea of his character develops spontaneously when so traced。 But the will contains also the characteristic signs of difference which are important for our purposes。 We are enabled to work intelligently and clearly only by our capacity for distinguishing indifferent； from criminal and logically interpretable deeds。 Nothing makes our work so difficult as the inconceivably superfluous mass of details。 Not every deed or activity is an action； only those are such which are determined by will and knowledge。 So Abegg＇2＇ teaches us； what is determined by means of the will may be discovered by analysis。
Of course； we must find the proper approach to this subject and not get lost in the libertarian…deterministic quarrel； which is the turning…point in contemporary criminal law。 Forty years ago Renan said that the error of the eighteenth century lay generally in assigning to the free and self…conscious will what could be explained by means of the natural effects of human powers and capacities。 That century understood too little the theory of instinctive activity。 Nobody will claim that in the transposition of willing into the expression of human capacity； the question of determinism is solved。 The solution of this question is not our task。 We do get an opening however through which we can approach the criminal；not by having to examine the elusive character of his will； but by apprehending the intelligible expression of his capacity。 The weight of our work is set on the application of the concept of causality； and the problem of free…will stands or falls with that。
＇1＇ M。 W。 Drobisch： Die moralische Statistik。 Leipzig 1867。
＇2＇ Neues Archiv des Kriminal…Rechts。 Vol。 14。
Bois…Reymond in his ‘‘Limits of the Knowledge of Nature'' has brought some clearness into this problem： ‘‘Freedom may be denied； pain and desire may not； the appetite which is the stimulus to action necessarily precedes sense…perception。 The problem； therefore； is that of sense…perception； and not as I had said a minute ago； that of the freedom of the will。 It is to the former that analytic mechanics may be applied。'' And the study of sense…perception is just what we lawyers may be required to undertake。
Of course； it is insufficient merely to study the individual manifestations of human capacities； for these may be accidental results or phenomena； determined by unknown factors。 Our task consists in attaining abstractions in accord with careful and conscientious perceptions； and in finding each determining occasion in its particular activities。
According to Drobisch； ‘‘maxims and the subjective principles of evolution are； as Kant calls them； laws of general content required to determine our own volitions and actions。 Then again； they are rules of our own volition and action which we ourselves construct； and which hence are subjectively valid。 When these maxims determine our future volitions and actions they are postulates。'' We may； therefore； say that we know a man when we know his will； and that we know his will when we know his maxims。 By means of his maxims we are able to judge his actions。
But we must not reconstruct his maxims theoretically。 We must study everything that surrounds； alters； and determines him； for it is at this point that a man's environments and relationships most influence him。 As Grohmann said； half a century ago； ‘‘If you could find an elixir； which could cause the vital organs to work otherwise； if you could alter the somatic functions of the body； you would be the master of the will。'' Therefore it is never superfluous to study the individual's environmental conditions； surroundings； all his outer influences。 That the effort required in such a study is great； is of course obvious； but the criminal lawyer must make it if he is to perform his task properly。＇1＇
＇1＇ H。 Mnsterberg： Die Willeshandlung and various chapters on will in the psychologies of James； Titchener； etc。
Topic 8。 EMOTION。
Section 58。
Little as emotion； as generally understood； may have to do with the criminalist； it is； in its intention； most important for him。 The motive of a series of phenomena and events； both in prisoners and witnesses； is emotion。 In what follows； therefore； we shall attempt to show that feeling； in so far as we need to consider it； need n
