circumlocution, by gradual approach and limitation, to place before the minds of others a conception which is clearly present to our own consciousness! How often, when we have the expression nearly complete, we miss a single word that we need, and must search for it, in our memories or our dictionaries, perhaps not finding it in either! How different is the capacity of ready and distinct expression in men whose power of thought is not unlike!... How often we understand what one says better than he himself says it, and correct his expression, to his own gratification and acceptance. And if all the resources of expression are not equally at the command of all men of equal mental force and training, so neither are they, at their best, adequate to the wealth of conception of him who wields them; that would be but a poorly stored and infertile mind which did not sometimes feel the limited capacity of language, and long for fuller means of expression.

Moreover, there is no internal and necessary connection between a word and the idea designated by it, no tie save a mental association binds the two together. Conventional usage, the mutual understanding of speakers and hearers, allots to each vocable its significance, and the same authority which makes is able to change, and to change as it will, in whatever way, and to whatever extent. . . .

Hence the impossibility that one should ever apprehend with absolute truth what another, even with the nicest use of language, endeavors to communicate to him. This incapacity of speech to reveal all that the mind contains meets us at every point. The soul of each man is a mystery which no other man can fathom: the most perfect system of signs, the most richly developed language, leads only to a partial comprehension, a mutual intelligence, whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker.

247. WM. C. ROBINSON. Forensic Oratory, a Manual for Advocates. (1893. p. 126.) . . . The oral testimony of a prepossessing witness, if skillfully arranged and agreeably and forcibly delivered, is itself a true oration. It conciliates the hearer toward the witness, and also toward the cause for which his evidence is given. It produces faith in the correctness of his assertions, and awakens sympathy with him in his apparent interest in those who call him. It engenders a conviction that the party for whom he appears is in the right, and a disposition to express this conviction by a favorable verdict. It often has more influence than the utterances of the advocate himself, since no suspicion that he acts a part attaches to a witness, and his disinterestedness, if not established, is generally presumed. . . . The reliability of a witness as a source of knowledge is also measured by his power of expressing accurately and intelligibly the ideas which he has received and still retains. The real evidence- that which convinces - is the idea conveyed by the words of the witness to the mind of the jury, and whether this idea corresponds with the facts as they actually occurred depends no less on the propriety of the language in which they are expressed than on the fullness and precision with which they were observed and remembered. Faults of expression in the witness thus become faults of opinion in the jury, and scarcely less prejudicial to the interests of the cause than the utterances of ignorance or falsehood.

Among uncultivated persons habitual errors of expression are not uncommon. They use words in an improper or provincial sense. They employ exaggerating epithets and adjectives. They describe objects, not by delineating their characteristic features, but in fragmentary outlines, or by portraying their most universal indistinctive attributes. They reproduce events, not in their proper order and relations, but with whatever sequence and connection the inspiration of the moment may direct. They do not lead, but mislead, the deductions of their hearers, with the best intentions and sufficient knowledge unwittingly producing false impressions on the minds of those whose mistake originates in the assumption that the words are spoken in the same sense in which they are understood.

248. HANS GROSS. Criminal Psychology. (transl. Kallen. 1911. § 59, p. 287.) The Forms of Giving Testimony. Wherever we turn we face the absolute importance of language for our work. Whatever we hear or read concerning a crime is expressed in words, and everything perceived with the eye, or any other sense, must be clothed in words before it can be put to use. Yet, who needs this knowledge? The lawyer. Other disciplines can find in it only a scientific interest, but it is practically and absolutely valuable only for us lawyers, who must, by means of language, take evidence, remember it, and variously interpret it. A failure in a proper understanding of language may give rise to false conceptions and the most serious of mistakes. Hence, nobody is so bound as the criminal lawyer to study the general character of language, and to familiarize himself with its force, nature, and development. Without this knowledge the lawyer may be able to make use of language, but, failing to understand it, will slip up before the slightest difficulty. . . .

(a) Variety in Forms of Expression. Men being different in nature and bringing-up on the one hand, and language, being on the other, a living organism which varies with its soil, i.e. with the human individual who makes use of it, it is inevitable that each man should have especial and private forms of expression. These forms, if the man comes before us as witness or prisoner, we must study, each by itself. Fortunately, this study must be combined with another that it implies, i.e. the character and nature of the individual. The one without the other is unthinkable. Whoever aims to study a man's character must first of all attend to his ways of expression, inasmuch as these are most significant of a man's qualities, and most illuminating... The especial use of certain forms is individual as well as social. Every person has his private usage. One makes use of "certainly," another of yes, indeed;" one prefers "dark," another "darkish."... Even when it is simple to bring out what is intended by an expression, it is still quite as simple to overlook the fact that people use peculiar expressions for ordinary things. Numerous examples may develop with comparative speed in each individual speaker, and, if the development is not traced, may lead, in the law court, to very serious misunderstandings. People who nowadays name abstract things, conceive, according to their intelligence, now this and now that phenomenon by means of it. Then they wonder at the other fellow's not understanding them. .

(b) Conditions Affecting the Mode of Expression. As a rule it must be maintained that time, even a little time, makes an essential difference in the conception of any object. Mittermaier, and indeed Bentham, have shown

what an influence the interval between observation and announcement exercises on the form of exposition. The witness who is immediately examined may, perhaps, say the same thing that he would say several weeks after but his presentation is different, he uses different words, he understands by the different words different concepts, and so his testimony becomes altered. A similar effect may be brought about by the surrounding circumstances under which the evidence is given. Every one of us knows what surprising differences occur between the statements of the witness made in the silent office of the examining justice and his secretary, and what he says in the open trial before the jury. There is frequently an inclination to attack angrily the witnesses who make such divergent statements. Yet more accurate observation would show that the testimony is essentially the same as the former, but that the manner of giving it is different, and hence the apparently different story. The difference between the members of the audience has a powerful influence. It is generally true that reproductive construction is intensified by the sight of a larger number of attentive hearers, . . . but only when the speaker is certain of his subject and of the favor of his auditors. . . . The interest belongs only to the subject, and the speaker himself receives, perhaps, the undivided antipathy, hatred, disgust, or scorn, of all the listeners. Nevertheless, attention is intense and strained, and inasmuch as the speaker knows that this does not pertain to him or his merits, it confuses and depresses him. It is for this reason that so many criminal trials turn out quite contrary to expectation. Those who have seen the trial only, and were not at the prior examination, understand the result still less when they are told that "nothing has altered" since the prior examination and yet much has altered; the witnesses, excited or frightened by the crowd of listeners, have spoken and expressed themselves otherwise than before, until, in this manner, the whole case has become different.

In a similar fashion, some fact may be shown in another light by the manner of narration used by a particular witness. Take, as example, some energetically influential quality like humor. It is self-evident that joke, witticism, comedy, are excluded from the court room, but if somebody has actually introduced real, genuine humor by way of the dry form of his testimony, without having crossed in a single word the permissible limit, he may, not rarely, narrate a very serious story so as to reduce its dangerous aspect to a minimum. Frequently the testimony of some funny witness makes the rounds of all the newspapers for the pleasure of their readers. Everybody knows how a really humorous person may so narrate experiences, doubtful situations of his student days, unpleasant traveling experiences, difficult positions in quarrels, etc., that every listener must laugh. At the same time, the events told of were troublesome, difficult, even quite dangerous. The narrator does not in the least lie, but he manages to give his story the twist that even the victim of the situation is glad to laugh at.

249. ARTHUR C. TRAIN. The Prisoner at the Bar. (2d ed. 1908. p. 236.) The final question to be determined by the juror in regard to the testimony of any witness is how far the latter has succeeded in conveying his actual recollections through the medium of speech and gesture. This necessarily depends upon a variety of considerations. Among these are his familiarity

with the English language; inadvertent accentuation of wrong words or of the less important features of his testimony; his physical condition, which in nine cases out of ten is one of extreme nervousness and timidity, if not of actual fear; and a hundred other trifling, but, in the aggregate, material

matters.

The most effective testimony is that which is given with what the jury regard as the evidences of candor. It is a familiar fact that the surer a person is of anything, particularly among the laboring classes, the more loudly will he assert its truth. This is so well known to the jury as ordinarily constituted that unless testimony is given with positiveness it might as well not be given at all. Much as it is to be deprecated, an assertive lie is of much more weight with a jury than an anemic statement of the truth. The juror imagines himself telling the story, and feels that if he were doing so and his testimony were true, he would be so convincing that the jury could have no doubt about it at all. Ofttimes a witness leads the jury to suspect that he is a liar simply because he has too strong a sense of the proprieties of his position vehemently to resent a suggestion of untruthfulness. The gentleman who mildly replies "That is not so" to a challenge of his veracity, makes far less impression on the jury than the coal heaver who leans forward and shakes his fist in the shyster's face, exclaiming: "If ye said that outside, ye little spalpeen, I'd knock yer head off." "Ah," say the jury, "there's a man for you." Just as your puritan is at a disadvantage in an alehouse, and your dandy in a mob, so are the hyperconscientious and the oversensitive and refined before a jury. The most effective witness is he whom the general run of jurors can understand, who speaks their own language, feels about the same emotions, and is not so morbidly conscientious about details that in qualifying testimony he finds himself entangled and rendered helpless in his own refinements. A distinguished lawyer testifying in a recent case was so careful to qualify every statement and refine every bit of his evidence that the jury took the word of a perjured loafer and a street-walker in preference. This kind of thing happens again and again, and the wily witness who thinks himself clever in appearing overdisinterested is "hoist by his own petard." The jury at once distrust him. They feel either that he is making it all up, or is in fact not sure of his evidence, else, they argue, he would be more positive in giving it.

Most witnesses in the general run of criminal cases have no comprehension of the meaning of words of more than three syllables. It is hopeless to make use of even such modest members of our national vocabulary as "preceding," "subsequent," "various," etc. A negro when asked if certain shots were "simultaneous" replied: "Yas, boss. Dat's it! 'Zactly simultaneous! One right after de odder."

The ordinary witness usually says "minutes" when he means "seconds." He will testify without hesitation that the defendant drew his revolver and immediately shot the complainant, illustrating on the stand the rapidity of the movement. When asked how long it took, he will answer: “Oh, about two or three minutes."

A proper medium in which to converse between the lawyer and witness is sometimes difficult to find, and invariably much tact is required in handling witnesses of limited education. The writer remembers one witness who was completely disconcerted by the use of the word "cravat," and at the precise

moment the attorney was so confused as not to be able to remember any synonym. The Tenderloin and the Bowery have a vocabulary of their own differing somewhat from that of beggars and professional criminals. The language of the ordinary policeman is a polyglot of all three. Popular writers on the "powers that prey," and dabblers in criminology in general, are apt to become the victims of self-alleged "ex-convicts" and "criminals" who are anxious to sell unreliable information for honest liquor. A large part of the lingo in realistic treatises on prison life and "life among the burglars," originates in the doped imagination of whatever fanciful "reformed" thief happens to be the personal gold mine of that particular author. Thieves, like any distinct class, make use of slang, some of which is peculiar to them alone. But for the most part the "tough" elements in the community make themselves easily understood either in the office or on the witness stand.

Where the witness speaks a foreign language, the task of discovering exactly what he knows, or even what he actually says, is herculean. In the first place interpreters, as a rule, give the substance as they understand it of the witness's testimony rather than his exact words. It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply. One could cross-examine a deaf mute by means of the finger alphabet about as effectively as an Italian through a court interpreter, who probably speaks (defectively) seventeen languages.

250. G. L. DUPRAT. Le Mensonge: étude de psychosociologie. (1909. 2d ed. pp. 15, 120.) Kinds of Lies. Some liars add to a true statement by adorning facts, by giving to people, acts, or things non-existent qualities; or by exaggerating the extent, value, etc., of a fact or a relation; or by inventing new facts. They are like the artists, who sometimes simplify or "purify" nature, idealizing it while preserving its essentials, but also sometimes enrich the data of experience by combining them in a new order to make new forms. Thus there are lies (1) of attribution, (2) of addition, (3) of exaggeration, (4) of recombination, (5) of pure fiction. Lies applying to personal qualities or acts include slander, false prosecution, false witnessing. Lies applying to external facts include false representations, fraud in general, and (when a prior oath to deal honestly has been taken) disloyalty. They thus pass beyond mere expressions of the speaker's own thought and include statements of external fact, and it is not possible to draw a boundary between false testimony and fraud. There is an intermediate type, simulation, in which a mendacious assertion combines with false conduct adapted to give it credence. . . .

But the lie of dissimulation must also be included, the lie by suppressing facts, even without express negation in words or conduct. The false witness, by his words or by his silence, may deny the existence of a fact; the false historian may deny the existence of persons or events which would embarrass his proof of the view to which he is committed; . . . the smuggler is typically a dissimulator, who conceals a part of the truth. Dissimulation, in short, is a negative or inhibitive suggestion, in contrast to simulation or lie in the ordinary sense, which is a positive suggestion.