rightly, in his opinion. In just the same way now, by a refusal to examine into the question of the existence of the unusual phenomena to which we have drawn attention, because the bulk of the community, without serious inquiry, decline to believe in them, true statements may be, and doubtless sometimes are, disbelieved and injustice is done. We are now at the stage in which those who assert the existence of such phenomena are held by the bulk of the community to indulge in fanciful speculations; but before we determine to adopt this view we may remember that in the case of witchcraft such persons proved to be right; and may therefore pause to consider whether it will not be wiser to first study what the experts have said on the subject.

237. WM. C. ROBINSON. Forensic Oratory; a Manual for Advocates. (1893. p. 184.) Cross-examination; Exposure of Incorrectness in the Testimony of a Credible Witness; Incorrectness Arising from Stating Inferences as Facts. Witnesses, like all other men, are liable to draw erroneous inferences from what they see and hear, and, having drawn them, to substitute them for the facts from which they were derived. Much of the evidence introduced in court, especially concerning promises, admissions, threats, and other spoken words, is of this character, the witness describing, not the language or events which operated on his senses, but the conclusions which he formed from them in his own mind. If undisputed, these conclusions are accepted by the jury as the facts themselves, and their judgment in the premises thus merely reflects that of the witness. Here, therefore, is a source of error which the cross-examiner should never overlook. His method of combating it is by refusing to receive the inferences of the witness, and insisting on the full disclosure of the facts on which the inference is based. . . .

Incorrectness Arising from Mistakes of Fact. Misrepresentations which arise out of mistakes as to the facts themselves are frequently discovered in the evidence. Men often think they see what they do not see, and still more often misinterpret what they hear. The physical senses, however accurate and reliable in themselves, depend for the correctness of their impressions so entirely on surrounding circumstances, that without considering these the truth of those impressions cannot be determined. Whenever, therefore, the direct examination has revealed important facts resting upon the sensations of the witness, the condition under which those sensations were experienced demand the careful scrutiny of the crossexaminer. Thus, where the witness gained his information through the sense of sight, the degree of light, the distance and position of the object, the characteristics which distinguish it from other classes of objects and from other objects of the same class, its resemblance to surrounding objects, the familiarity of the witness with it, the extent and duration of his attention to it, and many other matters bearing a similar relation to the act of vision, are necessary subjects of inquiry. The operation of the other senses demands the same kind of investigation. . .

Want of Attention. The degree of intellectual attention with which an object was regarded is another element to be considered in determining the accuracy and completeness with which it was observed. The impressions made upon the eye and ear are not necessarily communicated to the mind. By whatever psychological hypothesis the fact may be explained, it is still true that unless the thought is fixed upon the object of sensation, the sensation

terminates with the organic sense, exciting no ideas and leaving no trace in the memory. There is a constant ratio between the mental concentration of the observer on the object, and the fullness and precision of the ideas which he obtains concerning it. . . . It is on this fact that the rule of evidence is based which gives to one affirmative witness greater weight than to many merely negative; a recognition that though in all those who were present the same physical sensations may have been experienced, yet only those would intellectually apprehend the action or event whose thought was antecedently directed to it. . . . By the same fact the wonderful variety with which the details of a transaction are described by a variety of witnesses is explained, each relating incidents which especially attracted his attention and omitting all the others.

Want of Attention: Its Causes. The degree of attention with which any given object is regarded depends in part upon the power of mental concentration naturally possessed by the observer, and in part upon the circumstances under which the observation itself is made. Some persons, either through a constitutional defect or from improper training, have no faculty of fixing and controlling their own thoughts. Except in the rarest instances, they never give their full attention to anything. In reading, the eye scans the printed page, but the mind constantly wanders from it. In conversation, the ear catches the words, the understanding comprehends their meaning, and the tongue replies, but all the while the current of their thoughts is flowing toward entirely different subjects. Other persons habitually bend all their energies to the work in hand. Their eyes see all that their knowledge of the attributes of things enables them to perceive. Their ears catch every sound of natural objects, every syllable and undulation of the human voice. Their senses are alive to every impression of the present moment, and what their sense perceives is communicated instantly and freely to their minds, uninterrupted by distractions, unconfused by reveries. Between these two extremes are all varieties of men, each of perceptions whose accuracy is in proportion to the attention with which he surveys the objects from which his physical sensations are derived. The circumstances of the observer and the object, and the relations subsisting between it and him, also affect the attention with which he regards it, and its consequent impression on his mind. The degree of mental energy of every kind depends largely on the physical condition of the man himself. Weakness, discomfort, pain of whatever character or location, destroy his power of concentration, and centralize his thoughts upon his own distress. Mental disturbance, haste, anxiety, preoccupation, or any other sensible emotion, produces the same absorption in himself and corresponding inattention to external objects. The interest or indifference of the observer toward the object, its familiarity or strangeness to him, the motive in obedience to which he directed his attention toward it, its relations to him as the sole object of attention or but one object among many equally interesting and important to him, the duration and the force of its operation on his senses, the sensations which preceded it and succeeded it, and the effort produced by these upon the one in question, — in short, every circumstance which acted at the time upon his mind or body, and by which his attention toward this one object may have been diminished or intensified, is worthy of investigation and consideration, as indicative of the degree to which the object took possession of his thoughts.

238. ARTHUR C. TRAIN. The Prisoner at the Bar. (2d ed. 1908. p. 224.) The probative value of all honestly given testimony depends, naturally, first, upon the witness's original capacity to observe; second, upon the extent to which his memory may have played him false; and third, upon how far he really means exactly what he says.

The first consideration is how far the witness was originally capable of receiving correct impressions through his senses. Naturally this depends almost entirely upon his physical equipment and the keenness and accuracy of his general observation, both of which are usually evidenced to a considerable degree by his appearance and conduct upon the stand. . . .

Witnesses are often honestly mistaken, however, as to their own ability to observe facts, and will unhesitatingly testify that they could hear sounds and discern objects at extraordinary distances. Lawyers frequently attempt to induce aged or infirm witnesses to testify that they could hear plainly what was said by the defendant, in an ordinary tone, at a distance, say, of forty feet. The lawyer speaks in loud and distinct tones during the preliminary examination, and then gradually drops his voice to that usually employed in speaking, in the hope that the witness will ask him to repeat the question. This ruse usually fails, by reason of the fact that the lawyer, in his anxiety to show that the witness could not possibly hear the distance claimed, lowers his voice to such an extent that the test is obviously unfair.

For similar reasons counsel often call upon such witnesses to state the time by the clock which usually hangs upon the rear wall of the court room. A distinguished but conceited advocate, not long ago, after securing an unqualified statement from an octogenarian, who was bravely enduring cross-examination, that he "saw the whole thing as if it had occurred ten feet away," suddenly challenged him to tell the time by the clock referred to. The lawyer did not look around himself, as he had done so about half an hour before, when he had noticed that it was half after eleven. The old man looked at the clock and replied, after a pause, "Half-past eleven," upon which the lawyer, knowing that it must be nearly twelve, turned to the jury and burst into a derisive laugh, exclaiming sarcastically, "That is all," and threw himself back in his seat with an air of having finally annihilated the entire value of the witness's testimony. The distinguished practitioner, however, found himself laughing alone. Presently one of the jury chuckled, and in a trice the whole court room was in a roar at the lawyer's expense. The clock had stopped at half-past eleven. . .

In daily life we are quite as likely as not to be deceived by what we have seen, and this fact is so familiar to jurors that they are apt to distrust witnesses who profess to have seen much of complicated or rapidly conducted transactions. They want the main facts stated convincingly. The rest can take care of themselves. The extraordinary extent to which the complex development of modern life has dwarfed our powers of observation is noticeable nowhere more markedly than in the court-room. Things run so smoothly, transportation facilities are so perfect, specialization is carried to so high a degree, and our whole existence goes on so much indoors, that it ceases to be a matter of note or even of interest that the breakfast is properly cooked and served, that we are whisked downtown (a little matter say of five miles) in ten or twelve minutes, that we are shot up to our offices through

twenty floors in an electric elevator, that there is a blizzard or a deluge, or that part of Broadway has been blown up or a fifteen-story building fallen down. We pass days without paying the remotest attention to the weather, and forget that we have relations. Instead of walking home to supper, pausing to talk to our friends by the way, we drop into the subway, bury ourselves in newspapers, and are vomited forth almost without our knowing it at our front doorsteps. The multiplicity of detail deprives us of either the desire or the capacity to observe, and we cultivate a habit of not observing lest our eyes and brains be overwhelmed with fatigue. Observation has ceased to be necessary and has taken its place among the lost arts.

Compare the old days when a Greek could go to hear the "Edipus," and on returning home could recount practically the whole of it from beginning to end for the benefit of the wife (who was not allowed to go herself), or even · the comparatively recent period when the funeral oration over Alexander Hamilton could be reported in the "Evening Post" from memory.

SUBTITLE B: MEMORY

239. HANS GROSs. Criminal Psychology. (1911. transl. Kallen, § 51, p. 258.) (a) General Theory of Memory. In direct connection with the association of ideas is our recollection and memory, which are only next to perception in legal importance in the knowledge of the witness. Whether the witness wants to tell the truth is, of course, a question which depends upon other matters; but whether he can tell the truth depends upon perception and memory. Now the latter is a highly complicated and variously organized function which is difficult to understand, even in the daily life, and much more so when everything depends upon whether the witness has noticed anything, how, how long, what part of the impression has sunk more deeply into his mind, and in what direction his defects of memory are to be sought. It would be inexcusable in the lawyer not to think about this and to make equivalent use of all the phenomena that are presented to him. To overlook the rich literature and enormous work that has been devoted to this subject is to raise involuntarily the question, for whom was it all done? Nobody needs a thoroughgoing knowledge of the essence of memory more than the lawyer.

According to Herbart and his school, memory consists in the possibility of recognizing the molecular arrangements which had been left by past impressions in the ganglion cells, and in reading them in identical fashion. According to Wundt and his pupils, the problem is one of the disposition of the central organs. And it is the opinion of James Mill that the content of recollection is not only the idea of the remembered object, but also the idea that the object had been experienced before. Both ideas. together constitute the whole of that state of mind which we denote as memory. . . . When we take all these opinions concerning memory together we conclude that neither any unity nor any clear description of the matter has been attained. Ebbinghaus's sober statement may certainly be correct : "Our knowledge of memory rises almost exclusively from the observation of extreme, especially striking, cases. Whenever we ask about more special

solutions concerning the detail of what has been counted up, and their other relations of dependence, their structure, etc., there are no answers."

We find in our own experience evidence of the fact that memory and the capacity to recall something often depend upon health, feeling, location, and chance associations which cannot be commanded, and happen as accidentally as anything in life can. Nobody has as yet paid attention to the simple daily events which constitute the routine of the criminalists. We find little instruction concerning them, and our difficulties as well as our mistakes are thereby increased. Even the modern repeatedly cited experimental investigations have no direct bearing upon our work.

We will content ourselves with viewing the individual conceptions of memory and recollection as occurring in particular cases and with considering them, now one, now the other, according to the requirements of the case. We shall consider the general relation of "reproduction" to memory. "Reproduction" we shall consider in a general sense and shall subsume under it also the so-called involuntary reproductions which rise in the forms and qualities of past events without being evoked, i.e. which rise with the help of unconscious activity through the more or less independent association of ideas. Exactly this unconscious reproduction, this apparently involuntary activity, is perhaps the most fruitful. . . .

The theories may be divided into three essential groups:

1. What is received, fades away, becomes a 'trace," and is more or less overlaid by new perceptions. When these latter are ever set aside, the old trace comes into the foreground.

2. The ideas sink, darken, and disintegrate. If they receive support and intensification, they regain complete clearness.

3. The ideas crumble up, lose their parts. When anything occurs that reunites them and restores what is lost, they become whole again.

Ebbinghaus maintains, correctly enough, that not one of these explanations is universally satisfactory; but it must be granted that now one, now another is useful in controlling this or that particular case. The processes of the destruction of an idea may be as various as those of the destruction and restoration of a building. If a building is destroyed by fire, I certainly cannot explain the image given by merely assuming that it was the victim of the hunger of time. A building which has suffered because of the sinking of the earth I shall have to image by quite other means than those I would use if it had been destroyed by water.

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For the same reason when, in court, somebody asserts a sudden Occurrence," or when we want to help him and something occurs to him, we shall have to proceed in different fashion and determine our action empirically by the conditions of the moment. We shall have to go back, with the help of the witness, to the beginning of the appearance of the idea in question and study its development as far as the material permits us. In a similar manner we must make use of every possibility of explanation when we are studying the disappearance of ideas. At one point or another we shall find certain connections. One chief mistake in such reconstructive work lies in overlooking the fact that no individual is merely passive when he receives sensations; he is bound to make use of a certain degree of activity. Locke and Bonnet have already mentioned this fact, and anybody may verify it by comparing his experiments of trying to avoid seeing or hearing, and trying